<PAGE>
As Filed With the Securities and Exchange Commission on February 23, 1999
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 THRIFT AND STOCK PURCHASE PLAN
(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 BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED(1) REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE(2)
SHARE(2) PRICE(2)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 200,000 $13.08125 $2,616,250 $727.32
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 reported on the New
York Stock Exchange on February 17, 1999.
<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. The
foregoing documents and the documents incorporated by reference in the
registration statement pursuant to Item 3 of Part II, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
<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, as amended, declared effective by the
Commission on December 10, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998;
(3) The Annual Report on Form 11-K filed by the Quaker State Corporation
Thrift and Stock Purchase Plan (File No. 1-2677); and
(4) 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; and
(5) The Company's Current Reports on Form 8-K filed with the Commission
on December 18, 1998, December 29, 1998, and January 13, 1999, as
amended on January 20, 1999.
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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the 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 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 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
II-2
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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 By-laws and of Section 145 of the Delaware General Corporation Law is not
intended to be exhaustive and is respectively qualified in its entirety by such
Restated Certificate of Incorporation, 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 - By-laws of Pennzoil-Quaker State Company (filed herewith)
4.3 - Pennzoil-Quaker State Company Thrift and Stock Purchase Plan
(filed herewith)
4.4 - First Amendment to the Pennzoil-Quaker State Company Thrift and
Stock Purchase Plan (filed herewith)
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)
23.3 - 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.
II-3
<PAGE>
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;
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.
II-4
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(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 February 23, 1999.
PENNZOIL-QUAKER STATE COMPANY,
a Delaware corporation
/s/ James L. Pate
By:______________________________________
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 February 23, 1999.
NAME TITLE
---- -----
/s/ James L. Pate
__________________________________________ Principal Financial Officer
(James L. Pate, Chairman of the Board
and Chief Executive Officer)
/s/ David P. Alderson II
__________________________________________
Principal Executive Officer
(David P. Alderson II, Group Vice President
and Chief Financial Officer)
Howard H. Baker, Jr.*
Herbert M. Baum*
W. L. Lyons Brown, Jr.*
Ernest H. Cockrell*
Alfonso Fanjul* A Majority of the Directors of
C. Frederick Fetterolf* Pennzoil-Quaker State Company
Forrest R. Haselton*
Berdon Lawrence*
L. David Myatt*
James J. Postl*
Gerald B. Smith*
Lorne R. Waxlax*
/s/ David P. Alderson II
*By:________________________________________
(David P. Alderson II, Attorney-in-Fact
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 February 23, 1999.
PENNZOIL-QUAKER STATE COMPANY
THRIFT AND STOCK PURCHASE PLAN
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 February 23, 1999.
MEMBERS OF THE ADMINISTRATIVE COMMITTEE
OF THE THRIFT AND STOCK PURCHASE PLAN
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 4.2
BY-LAWS
PENNZOIL-QUAKER STATE COMPANY
ARTICLE 1
STOCKHOLDERS' MEETINGS
Section 1. ANNUAL MEETING. The annual meeting of the stockholders
shall be held at 11:00 a.m., Houston time on the first Thursday in May in each
year at the principal office of the Corporation or at such other date, time or
place as may be designated by resolution of the Board of Directors.
Section 2. SPECIAL MEETINGS. Subject to the provisions of the
Certificate of Incorporation (the "Certificate"), special meetings of the
stockholders may be called only by the Chairman of the Board of Directors, the
President, or by the Board of Directors pursuant to a resolution adopted by a
majority of the then-authorized number of directors.
Section 3. NOTICE. Notice of all meetings of the stockholders shall
be given by mailing to each stockholder, at least ten days, or such greater
number of days as shall be required by law, before said meeting, at his last
known address, a written or printed notice fixing the time and place of such
meeting.
Section 4. QUORUM. The presence in person or by proxy of the holders
of a majority of the voting power of the then-outstanding shares of Voting Stock
(as defined in the Certificate) on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but, in the absence of a quorum, the holders of a smaller number of
shares of Voting Stock may adjourn a meeting from time to time, without further
notice (unless otherwise required herein or by law), until a quorum is secured.
Unless otherwise provided in the Certificate, at each annual or special meeting
of stockholders, each stockholder shall be entitled to one vote, either in
person or by proxy, for each share of Common Stock registered in the
stockholder's name on the books of the Corporation on the record date for any
such meeting as determined herein.
Section 5. ADJOURNMENT. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and, unless otherwise required by law and subject to the provisions
hereof, notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting the Corporation may transact any business that might
have been transacted at the original meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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Section 6. PROCEDURES. Meetings of stockholders shall be presided
over by the Chairman of the Board or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary of the
Corporation shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting by the person presiding over the meeting. The Board of Directors of
the Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 7. PROXIES; REQUIRED VOTE. Each stockholder entitled to vote
at a meeting of stockholders may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the corporation. At all meetings of stockholders for the
election of directors, a plurality of the voting power of the Voting Stock
present at the meeting shall be sufficient to elect. In the case of a matter
submitted for action by the stockholders at the direction of the Board of
Directors as to which a stockholder approval requirement is applicable under a
rule or policy of a national stock exchange or any provision of the Internal
Revenue Code, in each case for which no higher voting requirement is specified
by law, the Certificate or these By-laws, the vote required for approval shall
be the requisite vote specified in such rule or policy or Internal Revenue Code
provision, as the case may be (or the highest such requirement if more than one
is applicable). For approval of the appointment of independent public
accountants (if submitted for a vote at the direction of the Board of
Directors), the vote required for approval shall be a majority of the votes
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cast on the matter. All other elections and questions shall, unless otherwise
provided by law, the Certificate or these By-laws, be decided by the vote of the
holders of shares of stock having a majority of the voting power of the then-
outstanding shares of Voting Stock.
Section 8. NOMINATIONS. Except for directors elected by the holders
of any series of Preferred Stock as provided for or fixed pursuant to the
provisions of Article V of the Certificate, or for directors otherwise elected
pursuant to the provisions of Section C of Section VI of the Certificate, only
individuals nominated for election to the Board of Directors pursuant to and in
accordance with the provision of this Section 8 may be elected to and may serve
upon the Board of Directors of the Corporation. Subject to the rights of
holders of any series of Preferred Stock of the Corporation to elect directors
under specified circumstances, nominations for the election of directors may be
made only (i) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (ii) by any stockholder of record entitled to
vote in the election of directors generally who complies with the procedures set
forth in this Section 8. Subject to the foregoing, only a stockholder of record
entitled to vote in the election of directors generally may nominate persons for
election as a director at a meeting of stockholders and only if written notice
of such stockholder's intent to make a nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation and has been received by the Secretary at the
principal executive offices of the Corporation, (i) with respect to an election
to be held at an annual meeting of stockholders not less than 90 days nor more
than 120 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice by the stockholder, in order to be timely, must be so
received not later than the close of business on the tenth business day
following the day on which such notice of such meeting is first mailed by the
Corporation to stockholders or public disclosure of the date of the annual
meeting was made, whichever first occurs; and (ii) with respect to an election
to be held at a special meeting of stockholders for the election of directors,
the close of business on the tenth business day following the date on which
notice of such meeting is first mailed by the Corporation to stockholders or
public disclosure of the date and purpose of such special meeting was made,
whichever first occurs. In no event shall the public disclosure of an
adjournment or postponement of a meeting commence a new time period for the
giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record, if any, by such person
and (iv) any other information relating to such person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the number of shares of each class or series of capital stock
of the Corporation that are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the
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nomination(s) are to be made by such stockholder, (iv) a representation that
such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any other information relating
to such stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies
for election of the directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. To be effective, such notice must
be accompanied by a written consent of each proposed nominee to be named as a
nominee and to serve as a director if elected.
The chairman of the meeting shall, if the facts warrant, determine
that a nomination was not properly brought before the meeting in accordance with
the provisions hereof and, if he should so determine, he shall declare to the
meeting that such nomination was not properly brought before the meeting and
shall not be considered.
Notwithstanding anything in the first paragraph of this Section 8 to
the contrary, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
disclosure by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 8 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth business day
following the day on which such public disclosure is first made by the
Corporation.
Nothing in this Section 8 shall be interpreted or construed to require
the inclusion of information about any such nominee in any proxy statement
distributed by, at the direction of, or on behalf of the Board or the
Corporation.
For purposes of this Section 8 and Section 9 of these By-laws, "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, PR Newswire, Bloomberg or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
Section 9. PROPER BUSINESS. At a meeting of the stockholders, only
such business shall be conducted as shall be a proper subject for the meeting
and shall have been properly brought before the meeting. To be properly brought
before a meeting, business must (a) be specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise be properly brought
before the meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof), or (c) otherwise (i) be properly requested to be
brought before the meeting by a stockholder of record entitled to vote in the
election of directors generally, in compliance with the provisions of this
Section 9; and (ii) constitute a proper subject to be brought before such
meeting. For business to be properly brought before a meeting of stockholders,
any stockholder who intends to bring any matter (other than the election of
directors) before a meeting of stockholders and is entitled to vote on such
matter must deliver written notice of such stockholder's intent to bring such
matter before the meeting of stockholders, either by personal delivery or by
United States mail, postage prepaid, to
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the Secretary of the Corporation. Such notice must be received by the Secretary,
with respect to an annual meeting of stockholders, not less than 90 days nor
more than 120 days prior to the anniversary date of the immediately preceding
annual meeting of shareholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder, in order to be timely, must be
so received not later than the close of business on the tenth business day
following the day on which such notice of such meeting is first mailed by the
Corporation to stockholders or public disclosure (as defined in Section 8) of
the date of the annual meeting was made, whichever first occurs. In no event
shall the public disclosure of an adjournment of a meeting commence a new time
period for the giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting of stockholders (a) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting (which, in case the proposal is for any alteration, amendment,
rescission or repeal of these By-laws, shall include the text of the resolution
which will be proposed to implement the same), (b) the name and record address
of the stockholder proposing such business, (c) the number of shares of each
class or series of capital stock of the Corporation that are owned beneficially
or of record by such stockholder, (d) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business and
(e) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting. No
business shall be conducted at a meeting of stockholders except in accordance
with the procedures set forth in this Section 9.
The chairman of a meeting shall, if the facts warrant, determine that
(i) the business proposed to be brought before a meeting is not a proper subject
therefor and/or (ii) such business was not properly brought before the meeting
in accordance with the provisions hereof and, if he should so determine, he
shall declare to the meeting that (i) the business proposed to be brought before
a meeting is not a proper subject therefor and/or (ii) such business was not
properly brought before the meeting and shall not be transacted.
Nothing in this Section 9 shall be interpreted or construed to require
the inclusion of information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of the Board or the
Corporation.
Section 10. STOCKHOLDER LIST. The Secretary shall cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept
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at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
Section 11. PROPER BUSINESS - SPECIAL MEETING. At any special
meeting of stockholders, only such business shall be conducted as shall have
been stated in the notice of such meeting.
Section 12. INSPECTORS OF ELECTION. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. In the event that no inspector so appointed or designated is
able to act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality and
according to the best of his or her ability.
The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the Corporation represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Corporation, the inspectors may consider such information
as is permitted by applicable law. No person who is a candidate for an office at
an election may serve as an inspector at such election.
ARTICLE 2
DIRECTORS
Section 1. MANAGEMENT. The affairs and business of the Corporation
shall be managed by or under the direction of the Board of Directors.
Section 2. NUMBER. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board within the parameters
set by the Certificate.
Section 3. QUALIFICATION. Except as provided in these By-laws or as
otherwise required by law, there shall be no qualifications for directors of the
Corporation.
Section 4. MEETINGS. The Board of Directors shall meet at the
principal office of the Corporation or elsewhere in its discretion at such times
to be determined by a majority of its members, or at the call of the Chairman of
the Board or the President.
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Section 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or by the
President, and shall be called upon the written request of a majority of the
then-authorized number of directors.
Section 6. QUORUM. Unless otherwise provided by law, a majority of
the directors elected and qualified shall be necessary to constitute a quorum
for the transaction of business at any meeting of the Board of Directors.
Section 7. NOTICE. Written notice of any special meeting of the
Board of Directors, and of any change in the time or place of any regular
meeting of the Board of Directors, shall be given to each director addressed or
directed to him at his residence or usual place of business, by telegram,
cablegram, facsimile transmission or other means of electronic transmission, or
shall be given to him personally or by telephone, not later than the day before
the day on which the meeting is to be held. Such notice shall state the time
and place of such meeting, but need not state the purpose or purposes for which
the meeting is called, unless otherwise required by statute.
Section 8. VACANCIES. Subject to the provisions of the Certificate,
newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum. Any director elected pursuant hereto shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or in which the vacancy occurred, and until such
director's successor shall have been elected and qualified.
Section 9. REMOVAL. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
officer elected by it and may appoint or elect his successor.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. EXECUTIVE COMMITTEE.
(A) COMPOSITION. The Executive Committee shall be composed of at
least two members who shall be selected by the Board of Directors from its own
members and who shall hold office at the pleasure of the Board.
(B) POWERS. The Executive Committee shall have and may exercise, to
the fullest extent permitted by law, all the powers of the Board of Directors
when it is not in session in the management of the business and affairs of the
Corporation to transact all business for and on behalf of the Corporation that
may be brought before it.
(C) MEETINGS. The Executive Committee shall meet at the principal
office of the Corporation or elsewhere in its discretion at such times to be
determined by a majority of its members. A majority of its members shall be
necessary to constitute a quorum for the transaction
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of business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) MINUTES. Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
Section 2. OTHER COMMITTEES.
The Board of Directors may, by resolutions adopted by a majority of
the entire Board, designate one or more of its members to constitute any other
committee or committees with such powers, duties, responsibilities and term of
existence as the Board of Directors shall determine.
Section 3. ABSENCE OR DISQUALIFICATION OF ANY MEMBER OF A COMMITTEE.
In the absence or disqualification of any member of any Committee created under
Article 3 of the By-laws of this Corporation, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
ARTICLE 4
OFFICERS
Section 1. The officers of the Corporation shall consist of a
Chairman of the Board, President, Secretary, Treasurer and such Executive,
Group, Senior or other Vice Presidents, and other officers as may be elected or
appointed by the Board of Directors. Any number of offices may be held by the
same person. All officers shall hold office until their successors are elected
or appointed, except that the Board of Directors may remove any officer at any
time at its discretion.
Section 2. The officers of the Corporation shall have such powers and
duties as generally pertain to their offices, except as modified herein or by
the Board of Directors, as well as such powers and duties as from time to time
may be conferred by the Board of Directors. The Chairman of the Board shall be
the chief executive officer of the Corporation and shall have general
supervision over the business, affairs, and property of the Corporation and over
its several officers, and shall preside at meetings of the Board and at meetings
of the stockholders. The President shall be the chief operating officer of the
Corporation and shall have such duties as may be assigned to him by the Board of
Directors.
ARTICLE 5
STOCK AND STOCK CERTIFICATES
Section 1. TRANSFER. Shares of stock shall be transferable on the
books of the Corporation, and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. CERTIFICATES. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
of the Board, the President
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or a Vice President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, of the Corporation. The corporate seal
affixed thereto, and any of or all the signatures on the certificate, may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
Section 3. RECORD DATE. The Board of Directors is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of and to vote at any meeting of stockholders and any adjournment, or
entitled to receive payment of any dividend, or to any allotment of, or to
exercise any rights in respect of any change, conversion or exchange of capital
stock, which record date shall not, unless otherwise required by law, be more
than 60 nor less than 10 days preceding the date of any meeting of stockholders
nor more than 60 days preceding the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect.
ARTICLE 6
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall prescribe.
ARTICLE 7
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE 8
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Directors of the Corporation, other than salaried officers of the
Corporation, shall be paid such reasonable fees for their services and for
attending meetings of the Board of Directors or committees thereof as the Board
of Directors may from time to time determine. Directors may be employed by the
Corporation for such special services as the Board of Directors may from time to
time determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of Directors.
9
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ARTICLE 9
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify, and advance Expenses to,
each Indemnitee to the fullest extent permitted by applicable law in effect on
March 23, 1998, and to such greater extent as applicable law may thereafter
permit. The rights of an Indemnitee provided under the preceding sentence shall
include, but not be limited to, the right to be indemnified to the fullest
extent permitted by Section 145(b) of the Delaware General Corporation Law
("D.G.C.L.") in Proceedings by or in the right of the Corporation and to the
fullest extent permitted by Section 145(a) of the D.G.C.L. in all other
Proceedings.
SECTION 2. If an Indemnitee is, by reason of his Corporate Status, a
witness in or a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. If an Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Corporation shall indemnify
such Indemnitee against all Expenses actually and reasonably incurred by him or
on his behalf relating to each Matter. The termination of any Matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such Matter.
SECTION 3. An Indemnitee shall be advanced Expenses within 10 days
after requesting them to the fullest extent permitted by Section 145(e) of the
D.G.C.L.
SECTION 4. To obtain indemnification an Indemnitee shall submit to
the Corporation a written request with such relevant information as is
reasonably available to Indemnitee. The Secretary of the Corporation shall
promptly advise the Board of Directors of such request.
SECTION 5. If there has been no Change of Control at the time the
request for indemnification is sent, an Indemnitee's entitlement to
indemnification shall be determined in accordance with Section 145(d) of the
D.G.C.L. If entitlement to indemnification is to be determined by Independent
Counsel, the Corporation shall furnish notice to the Indemnitee within 10 days
after receipt of the request for indemnification, specifying the identity and
address of Independent Counsel. The Indemnitee may, within 14 days after
receipt of such written notice of selection, deliver to the Corporation a
written objection to such selection. Such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the requirements
of the definition of Independent Counsel and the objection shall set forth with
particularity the factual basis of such assertion. If there is an objection to
the selection of Independent Counsel, either the Corporation or the Indemnitee
may petition the Court of Chancery of the State of Delaware or any other court
of competent jurisdiction for a determination that the objection is without a
reasonable basis and/or for the appointment of Independent Counsel selected by
the Court.
SECTION 6. If there has been a Change of Control at the time the
request for indemnification is sent, an Indemnitee's entitlement to
indemnification shall be determined in a written opinion by Independent Counsel
selected by the Indemnitee. The Indemnitee shall give the Corporation written
notice advising of the identity and address of the Independent Counsel so
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selected. The Corporation may, within seven days after receipt of such written
notice of selection, deliver to the Indemnitee a written objection to such
selection. The Indemnitee may, within 5 days after the receipt of such objection
from the Corporation, submit the name of another Independent Counsel and the
Corporation may, within seven days after receipt of such written notice of
selection, deliver to the Indemnitee a written objection to such selection. Any
objection is subject to the limitations in Section 5. The Indemnitee may
petition the Court of Chancery of the State of Delaware or any other Court of
competent jurisdiction for a determination that the Corporation's objection to
the first and/or second selection of Independent Counsel is without a reasonable
basis and/or for the appointment as Independent Counsel of a person selected by
the Court.
SECTION 7. If a Change of Control shall have occurred before the
request for indemnification is sent by the Indemnitee, the Indemnitee shall be
presumed (except as otherwise expressly provided in this Article) to be entitled
to indemnification upon submission of a request for indemnification in
accordance with Section 4 of this Article, and thereafter the Corporation shall
have the burden of proof to overcome the presumption in reaching a determination
contrary to the presumption. The presumption shall be used by Independent
Counsel as a basis for a determination of entitlement to indemnification unless
the Corporation provides information sufficient to overcome such presumption by
clear and convincing evidence or the investigation, review and analysis of
Independent Counsel convinces him by clear and convincing evidence that the
presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5 or 6 of this Article to determine entitlement to
indemnification shall not have made and furnished to the Indemnitee in writing a
determination within 60 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be entitled to such
indemnification unless the Indemnitee knowingly misrepresented a material fact
in connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any Proceeding or of any Matter therein,
by judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of an Indemnitee to
indemnification or create a presumption that the Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, or with respect to any criminal
Proceeding, that the Indemnitee had reasonable cause to believe that his conduct
was unlawful.
SECTION 8. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred acting pursuant to this Article and in
any proceeding to which it is a party or witness in respect of its investigation
and written report and shall pay all reasonable fees and expenses incident to
the procedures in which such Independent Counsel was selected or appointed. No
Independent Counsel may serve if a timely objection has been made to his
selection until a Court has determined that such objection is without a
reasonable basis.
SECTION 9. In the event that (i) a determination is made pursuant to
Section 5 or 6 that an Indemnitee is not entitled to indemnification under this
Article, (ii) advancement of Expenses is not timely made pursuant to Section 3
of this Article, (iii) Independent Counsel has not
11
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made and delivered a written opinion determining the request for indemnification
(a) within 90 days after being appointed by the Court, or (b) within 90 days
after objections to his selection have been overruled by the Court, or (c)
within 90 days after the time for the Corporation or the Indemnitee to object to
his selection, or (iv) payment of indemnification is not made within five days
after a determination of entitlement to indemnification has been made or deemed
to have been made pursuant to Section 5, 6 or 7 of this Article, the Indemnitee
shall be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of his entitlement to
such indemnification or advancement of Expenses. In the event that a
determination shall have been made that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section shall be conducted in all respects as a de novo trial on the merits
and the Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any judicial
proceeding commenced pursuant to this Section, the Corporation shall have the
burden of proving that the Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be. If a determination shall have been
made or deemed to have been made that the Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 9, or otherwise, unless
the Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification, or such indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article. In the event that an Indemnitee, pursuant to this Section 9,
seeks a judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Article, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any and
all Expenses actually and reasonably incurred by him in such judicial
adjudication, but only if he prevails therein. If it shall be determined in
such judicial adjudication that the Indemnitee is entitled to receive part but
not all of the indemnification or advancement of Expenses sought, the Expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
SECTION 10. The rights of indemnification and to receive advancement
of Expenses as provided by this Article shall not be deemed exclusive of any
other rights to which an Indemnitee may at any time be entitled under applicable
law, the Certificate, these By-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or repeal of
this Article or any provision thereof shall be effective as to any Indemnitee
for acts, events and circumstances that occurred, in whole or in part, before
such amendment, alteration or repeal. The provisions of this Article shall
continue as to an Indemnitee whose Corporate Status has ceased and shall inure
to the benefit of his heirs, executors and administrators.
SECTION 11. If any provision or provisions of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
12
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SECTION 12. For purposes of this Article:
A "Change of Control", shall be deemed to have occurred if, after the
Public Status Date, (1) there shall have occurred an event required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act, whether or not the Corporation is then subject to such
reporting requirement; (2) any "person" (as such term is used in Section 13(d)
and 14(d) of the Exchange Act) shall have become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 40% or more of the combined voting
power of the Corporation's then outstanding voting securities without prior
approval of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person attaining such percentage interest; (3)
the Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or (4)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of Directors.
"Corporate Status" describes the status of a person who (a) is or was
a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, in each case which is
controlled by the Corporation, or (b) is or was serving, at the written request
of the Corporation or pursuant to an agreement in writing with the Corporation
which request or agreement provides for indemnification under these By-laws, as
a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise not controlled by the Corporation, provided
that if such written request or agreement referred to in this clause (b)
provides for a lesser degree of indemnification by the Corporation than that
provided pursuant to this Article 9, the provisions contained in or made
pursuant to such written request or agreement shall govern. References above to
"other enterprises" shall include employee benefit plans and references to
"serving at the request of the Corporation" shall include any service as a
director, officer or employee which imposes duties on, or involves services by,
such director, officer or employee with respect to an employee benefit plan or
its participants or beneficiaries.
"Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which indemnification is
sought by indemnitee.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
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"Indemnitee" includes any person who is, or is threatened to be made,
a witness in or a party to any Proceeding as described in Section 1 or 2 of this
Article by reason of his Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor in
the five years previous to his selection or appointment has been, retained to
represent: (i) the Corporation or the relevant Indemnitee in any matter
material to either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder.
"Matter" is a claim, a material issue, or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee (a) pursuant to Section 9 of this Article to enforce
his rights under this Article or (b) otherwise than pursuant to clause (a) of
this sentence and not authorized by the Board of Directors.
"Public Status Date" shall mean the first date on which the
Corporation has outstanding a class of equity securities registered under
Section 12 of the Exchange Act.
SECTION 13. Any communication required or permitted to the
Corporation shall be addressed to the Secretary of the Corporation and any such
communication to Indemnitee shall be addressed to his home address unless he
specifies otherwise and shall be personally delivered or delivered by overnight
mail delivery.
ARTICLE 10
AMENDMENTS TO BY-LAWS
Subject to the provisions of the Certificate, and in addition to any
affirmative vote required by law, any alteration, amendment, repeal or
rescission (any "Change") of these By-laws occurring after the Public Status
Date (as defined in Section 12 of Article 9) must be approved either (i) by the
Board of Directors by the affirmative vote of at least a majority of the then-
authorized number of directors or (ii) by the stockholders by the affirmative
vote of the holders of at least 66 2/3% of the combined voting power of the
then-outstanding shares of Voting Stock, voting together as a single class.
Subject to the foregoing, the Board of Directors of the Corporation is
expressly authorized to make, alter, amend, repeal or rescind the By-laws of the
Corporation.
February 10, 1999
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EXHIBIT 4.3
QUAKER STATE CORPORATION
THRIFT AND STOCK PURCHASE PLAN
Amended and Restated as of
January 1, 1997
<PAGE>
QUAKER STATE CORPORATION
THRIFT AND STOCK PURCHASE PLAN
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I NAME, PURPOSE, AND EFFECTIVE DATE.................................................. 1
1.01 Name.......................................................................... 1
1.02 Purpose....................................................................... 1
1.03 Effective Date................................................................ 1
1.04 Original Effective Date....................................................... 1
1.05 Original Effective Date....................................................... 1
1.06 Quaker State Employee Stock Ownership Plan.................................... 1
ARTICLE II DEFINITIONS........................................................................ 2
2.01 Account Balance............................................................... 2
2.02 Account....................................................................... 2
2.03 Alternate Payee............................................................... 2
2.04 Annuity Starting Date......................................................... 2
2.05 Base Profit................................................................... 2
2.06 Beneficiary................................................................... 2
2.07 Board......................................................................... 2
2.08 Code.......................................................................... 3
2.09 Committee..................................................................... 3
2.10 Company....................................................................... 3
2.11 Company Matching Contribution................................................. 3
2.12 Company Matching Contributions Account........................................ 3
2.13 Company Matching Contribution Units........................................... 3
2.14 Company Profit-Sharing Contribution........................................... 3
2.15 Company Profit-Sharing Contributions Account.................................. 3
2.16 Company Profit-Sharing Contribution Units..................................... 3
2.17 Continuous Service............................................................ 4
2.18 Control Group................................................................. 4
2.19 Disability.................................................................... 4
2.20 Effective Date................................................................ 4
2.21 Employee...................................................................... 4
2.22 Employment.................................................................... 5
2.23 Employment Commencement Date.................................................. 5
2.24 ERISA......................................................................... 5
2.25 ESOP Contribution Account..................................................... 6
2.26 ESOP Contribution Units....................................................... 6
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
2.27 Fair Market Value ................................................................ 6
2.28 Fund.............................................................................. 6
2.29 Fund A Group...................................................................... 6
2.30 Fund B............................................................................ 6
2.31 Highly Compensated Employee....................................................... 6
2.32 Hour of Service................................................................... 7
2.33 Involuntary Termination of Employment............................................. 7
2.34 Loan Account...................................................................... 8
2.35 Maternity/Paternity Absence....................................................... 8
2.36 Matured Company Matching Contribution Units....................................... 8
2.37 Non-Highly Compensated Employee................................................... 8
2.38 One Year Break in Service ........................................................ 8
2.39 Participant....................................................................... 8
2.40 Period of Severance............................................................... 8
2.41 Plan.............................................................................. 9
2.42 Plan Manager...................................................................... 9
2.43 Plan Year......................................................................... 9
2.44 Prior Blue Coral 401(k) Account................................................... 9
2.45 Prior Blue Coral 401(k) Units..................................................... 9
2.46 Prior Slick 50 Match Account...................................................... 9
2.47 Prior Slick 50 Match Units........................................................ 9
2.48 Profit Determination Date......................................................... 9
2.49 Quaker State...................................................................... 9
2.50 Quaker State Capital Stock........................................................ 9
2.51 Qualified Domestic Relations Order................................................ 9
2.52 Qualified Joint and Survivor Annuity.............................................. 9
2.53 Reemployment Commencement Date.................................................... 10
2.54 Retirement Date................................................................... 10
2.55 Rollover Contribution............................................................. 10
2.56 Rollover Contributions Account.................................................... 10
2.57 Rollover Contribution Units....................................................... 10
2.58 Salary............................................................................ 10
2.59 Severance From Service Date....................................................... 10
2.60 Tax Deferred Contribution......................................................... 11
2.61 Tax Deferred Contributions Account................................................ 11
2.62 Tax Deferred Contribution Units................................................... 11
2.63 Thrift Contribution............................................................... 11
2.64 Thrift Contributions Account...................................................... 11
2.65 Thrift Contribution Units......................................................... 11
2.66 Trust Agreement................................................................... 11
2.67 Trust Fund........................................................................ 11
2.68 Trustee........................................................................... 12
2.69 Tye Profit-Sharing Account........................................................ 12
2.70 Tye Profit-Sharing Units.......................................................... 12
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2.71 Unmatured Thrift Contributions.................................................. 12
2.72 Valuation Date.................................................................. 12
2.73 Voluntary Termination of Employment............................................. 12
2.74 Year of Continuous Service...................................................... 12
ARTICLE III ELIGIBILITY.......................................................................... 12
3.01 Eligibility Requirements........................................................ 13
3.02 Enrollment...................................................................... 14
3.03 Reemployment.................................................................... 14
3.04 Termination of Participant Status............................................... 14
ARTICLE IV EMPLOYEE CONTRIBUTIONS............................................................... 14
4.01 Amount of Employee Contributions................................................ 14
4.02 Thrift Contributions............................................................ 14
4.03 Tax Deferred Contributions...................................................... 15
4.04 Limitations On Employee Contributions of Highly
Compensated Employees........................................................... 15
4.05 Change in Designated Percentage................................................. 15
4.06 Discontinuance of Contributions................................................. 16
4.07 Payment of Employee Contributions............................................... 16
4.08 Termination of Contributions.................................................... 16
4.09 Limits On Employee Contributions................................................ 16
4.10 Vesting of Employee Contributions............................................... 16
ARTICLE V EMPLOYER CONTRIBUTIONS............................................................... 17
5.01 Rate and Time of Company Matching Contributions................................. 17
5.02 Rate and Time of Company Profit-Sharing Contributions........................... 17
5.03 Maximum Annual Addition Under Code Section 415.................................. 19
5.04 Procedure in Event Contributions Exceed the Maximum
Annual Addition................................................................. 20
5.05 Vesting of Company Matching Contributions....................................... 21
5.06 Vesting of Company Profit-Sharing Contributions................................. 21
5.07 Reinstatement of Previously Forfeited Amounts................................... 21
ARTICLE VI INVESTMENT OF CONTRIBUTIONS.......................................................... 21
6.01 Investment of Employee Contributions and Amounts Held
in the Prior Blue Coral 401(k) Account and the Slick
50 Match Account................................................................ 21
6.02 Investment of Company Matching Contributions, Company Profit-
Sharing Contributions, Amounts Held in the Tye Profit Sharing
Account and the ESOP Contribution Account....................................... 22
6.03 Reinvestment.................................................................... 22
6.04 Uninvested Cash................................................................. 22
6.05 Valuation of Funds.............................................................. 22
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6.06 Participant's Risk.............................................................. 22
6.07 Transfer of the Balances of the Tax Deferred Contributions Account,
Thrift Contributions Account, Prior Blue Coral 401(k) Account, Prior
Slick 50 Match Account, Tye Profit Sharing Account and Rollover
Contributions Account between Funds............................................. 23
ARTICLE VII THE UNIT SYSTEM AND VALUATION OF UNITS............................................... 24
7.01 Value of Units.................................................................. 24
7.02 Determination of Value of Units................................................. 24
7.03 Allocation of Units............................................................. 24
ARTICLE VIII DISTRIBUTION OF BENEFITS............................................................. 24
8.01 Distribution Because of Termination of Employment for Reasons
Other Than Death................................................................ 24
8.02 Distribution Because of Death................................................... 25
8.03 Withdrawals on or after Age 59 1/2 - In General................................. 26
8.04 Special Withdrawal on or after Age 59 1/2 without Suspension of
Future Contributions............................................................ 26
8.05 Non-Hardship Withdrawals before Age 59 1/2...................................... 27
8.06 Hardship Withdrawals before Age 59 1/2.......................................... 28
8.07 Loans........................................................................... 30
8.08 Terms of Loan................................................................... 31
8.09 Limitations on Amount of Loan................................................... 31
8.10 Method of Repayment of Loans.................................................... 32
8.11 Accounting for Loans............................................................ 32
8.12 Consequences of Failure to Make Installment Payments on Loans................... 33
ARTICLE IX PAYMENT OF DISBURSEMENTS FROM THE FUNDS................................................ 35
9.01 Manner of Disbursements; Consent to Distributions............................... 35
9.02 Direct Transfer Distribution Option............................................. 36
ARTICLE X THRIFT PLAN COMMITTEE.................................................................. 36
10.01 Committee....................................................................... 36
10.02 Records and Powers.............................................................. 37
10.03 Duties.......................................................................... 38
10.04 Organization.................................................................... 38
10.05 Meetings........................................................................ 38
10.06 Compensation and Indemnification................................................ 39
10.07 Resignations and Removals....................................................... 39
10.08 Investment Manager.............................................................. 39
10.09 Audits.......................................................................... 39
10.10 Plan Manager.................................................................... 40
10.11 Reliance Upon Others............................................................ 40
10.12 Review of Application for Benefits.............................................. 40
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10.13 Conflict of Interest................................................................ 41
10.14 Suspension of Certain Plan Activities in Connection with a
Recordkeeper Change................................................................. 41
ARTICLE XI AMENDMENT AND TERMINATION............................................................... 42
11.01 Modification or Amendment........................................................... 42
11.02 Termination......................................................................... 42
ARTICLE XII GENERAL PROVISIONS.................................................................... 42
12.01 Investment Expenses................................................................. 42
12.02 Other Expenses...................................................................... 42
12.03 Voting Rights....................................................................... 42
12.04 Tender, Exchange, or Purchase Offers................................................ 43
12.05 Trustee Duties...................................................................... 43
12.06 Statement........................................................................... 44
12.07 Disbursement Statement.............................................................. 44
12.08 Beneficiary......................................................................... 45
12.09 Merger or Consolidation............................................................. 45
12.10 Commencement of Benefit Payments.................................................... 46
12.11 Uniform Administration.............................................................. 47
12.12 Source of Payment................................................................... 47
12.13 No Right to Employment.............................................................. 47
12.14 Inalienability of Benefits.......................................................... 47
12.15 Payment Due an Incompetent.......................................................... 48
12.16 Nonreversion........................................................................ 48
12.17 Law Applicable...................................................................... 49
12.18 Use of Masculine and Singular Pronouns.............................................. 49
12.19 Headings............................................................................ 49
12.20 Separability Clause................................................................. 49
12.21 Employees in Qualified Military Service............................................. 49
ARTICLE XIII TOP HEAVY PROVISIONS.................................................................. 49
13.01 Top Heavy Provisions................................................................ 49
13.02 Top Heavy Determination............................................................. 50
13.03 Key Employees....................................................................... 51
13.04 Compensation........................................................................ 52
ARTICLE XIV AMOUNTS TRANSFERRED FROM TERMINATED STURDIVANT
ESOP IN 1990.......................................................................... 53
14.01 Transferred Amount.................................................................. 53
14.02 Distribution of Transferred Amounts................................................. 53
14.03 Distribution in the Event of Plan Termination....................................... 54
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ARTICLE XV ADDITIONAL LIMITATIONS ON CONTRIBUTIONS............................................... 54
15.01 In General....................................................................... 54
15.02 Definitions and Rules............................................................ 54
15.03 Actual Deferral Percentage Test.................................................. 56
15.04 Actual Contribution Percentage Test.............................................. 57
15.05 Year-End Correction of Excess Tax Deferred Contribution Amounts,
Excess Deferral Percentages, and Excess Contribution Percentages................. 57
15.06 Test for Multiple Use of the Alternative Limitation.............................. 60
15.07 Correction to Eliminate the Multiple Use of the Alternative
Limitation....................................................................... 61
15.08 Separate Line of Business Testing................................................ 61
ARTICLE XVI MERGER WITH THE SOC/WEST PROFIT-SHARING PLAN.......................................... 61
16.01 Soc/West Transferred Amount...................................................... 62
16.02 Distribution of Soc/West Transferred Amounts..................................... 62
16.03 Special Rules Relating to Installment Distributions.............................. 63
16.04 Special Rules Relating to Annuity Elections...................................... 63
16.05 Qualified Preretirement Survivor Annuity......................................... 65
ARTICLE XVII MERGER WITH THE TYE DISTRIBUTING COMPANY, INC
PROFIT-SHARING PLAN.............................................................. 66
17.01 Tye Distributing Transferred Amount.............................................. 66
17.02 Distribution of Tye Distributing Transferred Amounts............................. 66
17.03 Special Rules Relating to Installment Distributions.............................. 68
17.04 Special Rules Relating to Annuity Elections...................................... 68
17.05 Qualified Preretirement Survivor Annuity......................................... 70
ARTICLE XVIII MERGER WITH THE BLUE CORAL, INC. RETIREMENT
SAVINGS PLAN..................................................................... 71
18.01 Blue Coral Transferred Amount.................................................... 71
18.02 Distribution of Blue Coral Transferred Amounts................................... 71
18.03 Special Rules Relating to Installment Distributions.............................. 72
18.04 Special Rules Relating to Elections.............................................. 73
18.05 Qualified Preretirement Survivor Annuity......................................... 75
ARTICLE XIX MERGER WITH THE SLICK 50, INC. 401(K) PLAN............................................ 76
19.01 Vesting of the Prior Slick 50 Match Account...................................... 76
ARTICLE XX MERGER WITH QUAKER STATE EMPLOYEE STOCK
OWNERSHIP PLAN........................................................................ 78
20.01 Vesting of ESOP Contribution Account............................................. 78
20.02 Withdrawals and Loans............................................................ 78
20.03 Qualified Participant's Diversification Election................................. 79
20.04 Distribution Limitations......................................................... 80
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20.05 Trust Fund Investments........................................................... 80
20.06 Sale of Quaker State Capital Stock............................................... 80
ARTICLE XXI ROLLOVER CONTRIBUTIONS................................................................ 81
21.01 In General....................................................................... 81
21.02 Crediting of Rollover Contributions.............................................. 81
21.03 Payment and Investment of Rollover Contributions................................. 81
21.04 Vesting of Rollover Contributions................................................ 82
21.05 Withdrawals, Loans, and Distributions of Rollover Contributions.................. 82
21.06 Beneficiary Designation.......................................................... 82
21.07 Definition of Rollover Contribution.............................................. 82
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ARTICLE I
NAME, PURPOSE, AND EFFECTIVE DATE
1.01 NAME. The name of this Plan is the Quaker State Corporation Thrift
----
and Stock Purchase Plan. It is hereinafter referred to as the "Plan."
1.02 PURPOSE. The purpose of the Plan is to provide a means for and
-------
encouragement to Employees to adopt a regular savings program.
1.03 EFFECTIVE DATE. This Plan constitutes an amendment to and restatement
--------------
and continuation of the Plan as previously amended and restated effective July
1, 1996. The Effective Date of this amendment and restatement is generally
January 1, 1997. The Plan has been amended and restated in order to: (a) update
the Plan for changes mandated and allowed by the Uniformed Services Employment
and Reemployment Rights Act of 1994, the Small Business Job Protection Act of
1996, the Taxpayer Relief Act of 1997 and subsequent legislative acts, (b)
revise the Plan to provide for Fidelity Institutional Retirement Services
Company's new position as recordkeeper for the Plan, (c) revise the Plan to
provide for Fidelity Management Trust Company's new position as Trustee for the
Plan, (d) provide for the merger into the Plan of the Blue Coral, Inc.
Retirement Savings Plan, Slick 50, Inc. 401(k) Plan, the Tye Distributing
Company, Inc. Profit Sharing Plan and the Quaker State Employee Stock Ownership
Plan, (e) revise the Plan to provide for daily account valuation, immediate
eligibility to participate for employees over age 21 and a change in investment
options available to participants, and (f) continue the qualification of the
Plan and the exempt status of the related trust under Sections 401(a) and 501(a)
of the Internal Revenue Code of 1986, as amended from time to time (the "Code").
Provisions relating to the Quaker State Employee Stock Ownership Plan will only
apply after December 31, 1997 unless otherwise stated.
1.04 ORIGINAL EFFECTIVE DATE. This amended and restated Plan is of no
-----------------------
effect with respect to employees who retired or terminated employment with
Quaker State Corporation or one of its subsidiaries prior to January 1, 1997,
nor is it of any effect with respect to loans and withdrawals made prior to
January 1, 1997, unless specifically provided otherwise herein. All rights and
benefits of such previously retired or terminated employees shall be determined
under the terms and conditions of the Plan as it existed at the time of their
retirement or termination, unless expressly provided otherwise herein. All
loans and withdrawals made prior to the Effective Date, and any forfeitures
and/or repayments related to such loans and withdrawals, are to be governed by
the terms and conditions of the Plan as it existed at the time of such loans and
withdrawals, unless expressly provided otherwise herein.
1.05 ORIGINAL EFFECTIVE DATE. This Plan was originally implemented on July
-----------------------
1, 1960. This date is the Original Effective Date of the Plan.
1.06 QUAKER STATE EMPLOYEE STOCK OWNERSHIP PLAN. The Quaker State Employee
------------------------------------------
Stock Ownership Plan was never leveraged. Therefore, this Plan has been drafted
to remove language regarding leveraged employee stock ownership plans. Also,
the Quaker State Employee Stock
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Ownership Plan had three sub-accounts: Account I, Account II and Account III.
Because contributions and allocations were only made to Account I under the
Quaker State Employee Stock Ownership Plan, reference to the two unused Accounts
has been removed, including any rules relating to protected benefits, rights and
features of the unused Accounts.
ARTICLE II
DEFINITIONS
The following words and phrases when used in the Plan shall have the
following meanings, unless a different meaning is plainly required by the
context:
2.01 ACCOUNT BALANCE means, with respect to any Participant at any time,
---------------
the then total value of his or her Accounts.
2.02 ACCOUNT (s) mean one or more of the Participant's Tax Deferred
-------
Contributions Account, Thrift Contributions Account, Company Matching
Contributions Account, Company Profit-Sharing Contributions Account, ESOP
Contribution Account, Tye Profit-Sharing Account, Prior Slick 50 Match Account,
Prior Blue Coral 401(k) Account, Rollover Contributions Account, and Loan
Account.
2.03 ALTERNATE PAYEE means a person defined in Code Section 414(p)(8) who
---------------
is entitled to benefits under the Plan pursuant to a Qualified Domestic
Relations Order.
2.04 ANNUITY STARTING DATE means the first day of the first period for
---------------------
which an amount is payable as an annuity, or in the case of a benefit not
payable in the form of an annuity, the first day upon which all events have
occurred which entitle the Participant to such benefit, as determined in
accordance with Code Section 417(f)(2).
2.05 BASE PROFIT means an amount computed for each Plan Year by adding
-----------
together the Company's net profit after consideration of the Company Profit-
Sharing Contribution referred to in Article V, but, prior to December 31, 1997
before consideration of contributions to Account I under the Quaker State
Employee Stock Ownership Plan, and payment of taxes on income, in each of the
three (3) fiscal years of the Company immediately preceding such Plan Year and
dividing by three (3). Notwithstanding the preceding sentence, in the event
there is a net loss in a fiscal year after 1986, such fiscal year shall be
excluded from the calculation of Base Profit and shall be replaced by the
immediately preceding fiscal year which is not otherwise included in the
calculation and for which there is not a net loss.
2.06 BENEFICIARY means the person or persons, natural or otherwise,
-----------
designated in accordance with Section 12.08 to receive any benefit payable under
the Plan in the event of a Participant's death.
2.07 BOARD means the Board of Directors of Quaker State.
-----
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2.08 CODE means the Internal Revenue Code of 1986, as amended.
----
2.09 COMMITTEE means the administrative committee appointed by the
---------
Organization and Compensation Committee of the Board or such other committee
consisting of persons appointed pursuant to the provisions of Article X to
administer the Plan.
2.10 COMPANY means Quaker State and any affiliates or subsidiaries which:
-------
(a) previously joined the Plan and Trust Agreement with the consent of the Board
and continue to participate in the Plan as of the Effective Date, or (b) join
the Plan and Trust Agreement after the Effective Date with the consent of the
Board; provided, however, that no affiliate or subsidiary shall participate in
the Plan (i) after it ceases to be an affiliate or subsidiary of Quaker State;
or (ii) after it ceases to have employees, unless the Board takes action to
continue its participation. Notwithstanding the foregoing, for purposes of all
provisions of the Plan relating to Company Profit-Sharing Contributions, the
term "Company" shall not include Blue Coral-Slick 50, Ltd., Blue Coral Systems,
Inc., or Q Lube, Inc. or its subsidiaries, joint venture companies or
partnerships.
2.11 COMPANY MATCHING CONTRIBUTION means, for any Plan Year, the amount
-----------------------------
the Company contributes to the Plan for allocation to the Participants' Company
Matching Contributions Accounts pursuant to Section 5.01.
2.12 COMPANY MATCHING CONTRIBUTIONS ACCOUNT means the account established
--------------------------------------
for a Participant to reflect that portion of the Trust Fund which, with respect
to such Participant, is attributable to Company Matching Contributions made on
behalf of such Participant, as adjusted and valued in the manner described in
Article VI.
2.13 COMPANY MATCHING CONTRIBUTION UNITS mean the units, described in
-----------------------------------
Section 7.01, which are derived from Company Matching Contributions.
2.14 COMPANY PROFIT-SHARING CONTRIBUTION means, for periods prior to
-----------------------------------
December 31, 1997, the amount which the Company contributes on behalf of
Participants, as determined in accordance with Section 5.02. Any Company
Profit-Sharing Contribution made on behalf of Participants who are Employees of
Quaker State's Canadian subsidiaries, including Quaker State, Inc. and Valley
Camp, Inc., shall be treated as Company Matching Contributions for all purposes
of the Plan.
2.15 COMPANY PROFIT-SHARING CONTRIBUTIONS ACCOUNT means the account
--------------------------------------------
established for a Participant to reflect that portion of the Trust Fund which,
with respect to such Participant, is attributable to Company Profit-Sharing
Contributions made on behalf of such Participant, as adjusted and valued in the
manner described in Article VI.
2.16 COMPANY PROFIT-SHARING CONTRIBUTION UNITS mean the units, described
-----------------------------------------
in Section 7.01, which are derived from Company Profit-Sharing Contributions.
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2.17 CONTINUOUS SERVICE means an employee's period of service with the
------------------
Company or another member of the Control Group commencing on an employee's
Employment Commencement Date (or Reemployment Commencement Date, if applicable)
and ending on the employee's Severance From Service Date. A period of Continuous
Service shall be measured in months, with thirty (30) days deemed to be one (1)
month; provided, however, that no more than twelve (12) months of Continuous
Service will be recognized in any one-year period. Separate periods of
Continuous Service shall be aggregated; provided, however, that in the case of
an Employee who has not completed one (1) Year of Continuous Service prior to a
Severance from Service Date, such prior Continuous Service shall be disregarded
if the Employee incurs a Period of Severance of at least five (5) years.
Continuous Service shall also include:
(a) any Period of Severance, if (i) the employee severs from service
by reason of a quit, discharge, or retirement, and (ii) the employee then
performs an Hour of Service within twelve (12) months after the Severance
From Service Date; provided, however, that if the employee severs from
service by reason of a quit, discharge, or retirement during a period of
absence of less than one (1) year (which period of absence was not due to a
quit, discharge, or retirement), the Period of Severance shall be included
only if the employee performs an Hour of Service within twelve (12) months
of the date on which the employee was first absent; and
(b) such period of service in the armed forces of the United States
as shall be required to be recognized hereunder in accordance with
applicable law with respect to military service.
2.18 CONTROL GROUP means each trade or business (whether or not
-------------
incorporated) which together with the Company is treated as a controlled group
of corporations as defined in Code Section 414(b), as under common control as
defined in Code Section 414(c), as an affiliated service group as defined in
Code Section 414(m), or which must be aggregated pursuant to Code Section 414(o)
and the regulations thereunder; provided, however, that for purposes of Section
5.03, the adjustment provided for in Code Section 415(h) shall be taken into
account for purposes of determining which entities are included in the Control
Group.
2.19 DISABILITY means a physical or mental disability which is deemed by
----------
the Company to be sufficient to prevent a Participant permanently from
performing satisfactory work for which he or she is suited by ability, training,
experience, or physical condition.
2.20 EFFECTIVE DATE means January 1, 1997, the date of this amendment and
--------------
restatement of the Plan.
2.21 EMPLOYEE means an employee who is classified as employed by the
--------
Company and whose wages and other conditions of Employment are not covered by a
collective bargaining agreement unless and until such agreement provides for the
application of the Plan to employees covered by such agreement; provided,
however, that in the case of Q Lube, Inc. and its subsidiaries,
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joint venture companies or partnerships, such employee must also be classified
as a salaried corporate employee.
The term "Employee" shall also include any leased employees (as defined in
Code Section 414(n)(2) and the regulations thereunder), but only for such
purposes as are set forth in Code Section 414(n). Leased employees shall not be
eligible to participate in the Plan unless such participation is specifically
authorized by the Board.
The term "Employee" shall not include any individual recorded as an
independent contractor or consultant on the books of the Company regardless of
whether such individual is found to be a common law employee by the Internal
Revenue Service for purposes of the Federal Insurance Contribution Act, the
Federal Unemployment Taxation Act or for federal income tax purposes. However,
nothing in the above sentence precludes an individual who is found by the
Internal Revenue Service to be a common law employee for purposes of the Federal
Insurance Contribution Act, the Federal Unemployment Taxation Act, or for
federal income tax purposes to be included as an employee of the Company for
purposes of Code Section 410(b) or the discrimination testing provided in Code
Section 401(k) and Code Section 401(m).
2.22 EMPLOYMENT means the period or periods during which an individual is
----------
employed by the Company or any member of the Control Group, whether on a
salaried or nonsalaried basis.
2.23 EMPLOYMENT COMMENCEMENT DATE means the date on which an Employee
----------------------------
first performs an Hour of Service (whether or not as an Employee) or, with
respect to any Employee who was a leased employee (as defined in Code Section
414(n)(2) and the regulations thereunder), the date on which the leased employee
first performed services for the Company or any other member of the Control
Group. An employee of Quaker State, or of any affiliate or subsidiary of
Quaker State which has joined or in the future joins the Plan, who was an
employee of Specialty Oil Co., Inc. or Westland Oil Company immediately prior to
the acquisition of Specialty Oil Co., Inc. and Westland Oil Company by Quaker
State shall have his or her date of hire by Specialty Oil Co., Inc. or Westland
Oil Company (determined based on the books and records of Specialty Oil Co.,
Inc. and Westland Oil Company) substituted for what would otherwise be the
Employment Commencement Date under the Plan solely for purposes of the service
requirement for eligibility to participate in the Plan; provided, however, that
no more than five (5) years of such prior service shall be taken into account
under the Plan. An employee or former employee of Tye Distributing Company,
Inc., Slick 50, Inc. I, or Blue Coral, Inc. at the time of such company's
acquisition by Quaker State who became a Participant in the Plan as of January
1, 1997 or thereafter shall have his or her date of hire with Tye Distributing
Company, Inc., Slick 50, Inc. I, or Blue Coral, Inc. substituted for what would
otherwise be the Employment Commencement Date under the Plan solely for purposes
of the service requirement for eligibility to participate in the Plan and for
purposes of any vesting requirements imposed for contributions made under the
Slick 50, Inc. 401(k) Plan.
2.24 ERISA means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and any regulations issued pursuant thereto.
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2.25 ESOP CONTRIBUTION ACCOUNT means the Account holding amounts
-------------------------
transferred from the prior Account I under the Quaker State Employee Stock
Ownership Plan, which was merged into the Plan effective as of December 31,
1997. A Participant's ESOP Contribution Account previously consisted of three
(3) separate sub-accounts: Account I, Account II (consisting of Account IIA and
Account IIB) and Account III. No contribution or allocation of any form was ever
made to Account II or Account III under the Quaker State Employee Stock
Ownership Plan; therefore, those sub-accounts will not exist after December 31,
1997.
2.26 ESOP CONTRIBUTION UNITS mean the units that are derived from amounts
-----------------------
held in the ESOP Contribution Account.
2.27 FAIR MARKET VALUE on a specified date on or after March 1, 1996
-----------------
means, with respect to Quaker State Capital Stock, the quoted closing selling
price per share of Quaker State Capital Stock as shown by the New York Stock
Exchange Composite Transaction Listing in The Wall Street Journal or other
-----------------------
appropriate record as determined by the Trustee in its sole discretion, or, if
no report is made for such date, such price per share of Quaker State Capital
Stock on the next preceding date for which there is a report. The Fair Market
Value with respect to any other security shall likewise be determined from the
appropriate listing in The Wall Street Journal or other appropriate record as
-----------------------
determined by the Trustee in its sole discretion on the applicable date or the
next preceding date for which there is a report.
2.28 FUND means either a fund from the Fund A Group or Fund B in which the
----
investment of contributions may be made as prescribed in Article VI.
2.29 FUND A GROUP means the group of up to nine funds chosen by the
------------
Committee in which the investment of contributions may be made as prescribed in
Article VI.
2.30 FUND B means the "Quaker State Stock Fund" to be comprised of Quaker
------
State Capital Stock in which Participants may invest Tax Deferred Contributions,
Thrift Contributions, Rollover Contributions, and contributions held in the
Prior Blue Coral 401(k) Account and the Prior Slick 50 Match Account and in
which all Company Matching Contributions, Company Profit-Sharing Contributions,
contributions held in the ESOP Contribution Account, and contributions held in
the Tye Profit-Sharing Account shall be invested, together with all dividends or
other allocations of property received with respect to such Quaker State Capital
Stock.
2.31 HIGHLY COMPENSATED EMPLOYEE generally means any employee who performs
---------------------------
service for a member of the Control Group during the current Plan Year and who,
during the preceding Plan Year received compensation (as defined in Code Section
414(q)(4)) from the Control Group in excess of $80,000 (as adjusted pursuant to
Section 414(q)(1) of the Code) and if the Company so elects was also in the Top
Paid Group of employees for such preceding Plan Year. The term "Highly
Compensated Employee" also includes employees who are five percent (5%) owners
of the Company or of a member of the Control Group at any time during the
preceding Plan Year or the current Plan Year.
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The term "Top-Paid Group" for purposes of this definition shall mean the
group consisting of the top twenty percent (20%) of the employees ranked on the
basis of compensation paid during such year. For purposes of determining the
Top-Paid Group, the following employees shall be excluded:
(a) employees who have not completed six (6) months of Continuous
Service;
(b) employees who normally work during not more than six (6) months
during any year or who normally work for less than seventeen and one-half
(17 1/2) hours per week;
(c) employees who have not attained age twenty-one (21); and
(d) except to the extent otherwise provided in regulations, employees
included in a unit covered by a collective bargaining agreement.
"Highly Compensated Employee" also includes any employee who separated from
service (or was deemed to have separated) prior to the current Plan Year,
performs no service for any member of the Control Group during the current Plan
Year, and was an active Highly Compensated Employee during either the year in
which his or her separation from service occurred or in any Plan Year ending on
or after such employee's fifty-fifth (55th) birthday.
The determination of who is a Highly Compensated Employee, including the
determination of the number and identity of employees in the Top-Paid Group, and
the total compensation that is considered, will be made in accordance with Code
Section 414(q) and the regulations thereunder. Notwithstanding the foregoing,
to the extent permitted by, and in accordance with Code Section 414(q) and the
regulations thereunder, the determination of who is a Highly Compensated
Employee shall be made under any permissible alternative method adopted by the
Plan Manager.
2.32 HOUR OF SERVICE means: (a) each hour for which an employee is
---------------
directly or indirectly compensated by the Company or any other member of the
Control Group for the performance of services; and (b) each hour for which back
pay, irrespective of mitigation of damages, is either awarded or agreed to by a
member of the Control Group. The same hours shall not be credited under both
(a) and (b) above.
Each Hour of Service shall be credited in accordance with Section
2530.200b-2 of the Department of Labor's regulations. For purposes of this
definition, Hours of Service under (a) and (b) above shall include hours for
periods during which an employee was employed by the Company or any other member
of the Control Group, whether or not as an Employee. This Plan uses the elapsed
time method of calculating Years of Continuous Service, and uses this Hour of
Service definition only as required by the Department of Labor for purposes of
the elapsed time method.
2.33 Involuntary Termination of Employment means a termination of
-------------------------------------
Employment for a reason other than death, Disability, retirement, or Voluntary
Termination of Employment; however,
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a Participant whose Employment has been terminated: (a) because he or she has,
at any time, willfully engaged in any activity which is harmful to the interests
of the Company or any other member of the Control Group, or (b) because of his
or her incompetent performance of duties related to employment by the Company
shall not be considered, for the purpose of this Plan, as having terminated by
reason of Involuntary Termination of Employment.
2.34 LOAN ACCOUNT means the account(s) maintained for a Participant to
------------
account for loans to the Participant from the Plan, as valued in accordance with
Article VI.
2.35 MATERNITY/PATERNITY ABSENCE shall mean an absence from work for any
---------------------------
period by reason of: (a) an employee's pregnancy, (b) the birth of a child of
the employee, (c) the placement of a child with the employee in connection with
the adoption of such child by such employee, or (d) the caring for a natural or
adopted child for a period beginning immediately following such birth or
placement.
2.36 MATURED COMPANY MATCHING CONTRIBUTION UNITS mean Company Matching
-------------------------------------------
Contribution Units that have been held under the Plan for at least two (2) full
Plan Years.
2.37 NON-HIGHLY COMPENSATED EMPLOYEE means any employee who is not a
-------------------------------
Highly Compensated Employee.
2.38 ONE YEAR BREAK IN SERVICE means a twelve (12)-month Period of
-------------------------
Severance; provided, however, that the twelve (12)-month Period of Severance
beginning on the first anniversary of the first day of a Maternity/Paternity
Absence shall not constitute a One Year Break in Service (nor shall it
constitute a period of Continuous Service).
Notwithstanding anything to the contrary herein, absences, under the Family
and Medical Leave Act of 1993 or other applicable law, not preempted by ERISA,
that provide a Participant with the right to retain previously-earned Continuous
Service, shall not cause a One Year Break in Service to the extent necessary
for such previously-earned Continuous Service to be retained.
2.39 PARTICIPANT means an Employee who meets the eligibility requirements
-----------
set forth in Section 3.01 and who is participating in the Plan. A Participant
shall also include any Employee who has made a Rollover Contribution to the Plan
pursuant to Article XXI prior to meeting the eligibility requirements set forth
in Section 3.01; provided, however, that such Employee shall not be eligible to
make Thrift Contributions or to have Tax Deferred Contributions made on his or
her behalf unless and until he or she satisfies the eligibility requirements of
Section 3.01 and enrolls in the Plan in accordance with the provisions of
Section 3.02.
2.40 PERIOD OF SEVERANCE means the period commencing on an employee's
-------------------
Severance From Service Date and ending on the first date upon which the employee
again performs an Hour of Service.
-8-
<PAGE>
2.41 PLAN means the Quaker State Corporation Thrift and Stock Purchase
----
Plan set forth herein and as it may be amended from time to time.
2.42 PLAN MANAGER means the person or persons appointed pursuant to
------------
Section 10.10 to be the manager of the Plan.
2.43 PLAN YEAR means a consecutive twelve (12)-month period beginning on
---------
January 1 and ending on December 31.
2.44 PRIOR BLUE CORAL 401(K) ACCOUNT means the Account holding amounts
-------------------------------
transferred from the Blue Coral, Inc. Retirement Savings Plan, which was merged
into the Plan effective as of January 1, 1997, and which are attributable to
contributions made pursuant to Code Section 401(k).
2.45 PRIOR BLUE CORAL 401(K) UNITS means the units which are derived from
-----------------------------
amounts held in the Prior Blue Coral 401(k) Account.
2.46 PRIOR SLICK 50 MATCH ACCOUNT means the Account holding amounts
----------------------------
transferred from the Slick 50, Inc. 401(k) Savings Plan, which was merged into
the Plan effective as of January 1, 1997, and which are attributable to
contributions made pursuant to Code Section 401(m).
2.47 PRIOR SLICK 50 MATCH UNITS means the units which are derived from
--------------------------
amounts held in the Prior Slick 50 Match Account.
2.48 PROFIT DETERMINATION DATE means March 1 of each year for periods
-------------------------
prior to January 1, 1998.
2.49 QUAKER STATE means Quaker State Corporation.
------------
2.50 QUAKER STATE CAPITAL STOCK means the class of capital stock of Quaker
--------------------------
State existing on the Effective Date, as the same may be adjusted from time to
time.
2.51 QUALIFIED DOMESTIC RELATIONS ORDER means any judgment, decree or
----------------------------------
order (including approval of a property settlement agreement) which (a) relates
to the provision of child support, alimony payments, or marital property rights
to a spouse, former spouse, child or other dependent of a Participant, (b) is
made pursuant to a State domestic relations law, (c) creates or recognizes the
existence of an Alternate Payee's right to, or assigns to an Alternate Payee the
right to, receive all or a portion of the benefits payable with respect to a
Participant under the Plan and (d) complies with the requirements of Code
Section 414(p), as determined by the Committee pursuant to procedures adopted by
it from time to time.
2.52 QUALIFIED JOINT AND SURVIVOR ANNUITY means an immediate annuity for
------------------------------------
the life of the Participant, with a survivor annuity for the life of the
Participant's surviving spouse. The monthly
-9-
<PAGE>
amount of the survivor annuity will be equal to 50% of the monthly amount which
was paid to the Participant.
2.53 REEMPLOYMENT COMMENCEMENT DATE means the first date on which an
------------------------------
Employee completes an Hour of Service (whether or not as an Employee) following
his or her most recent Period of Severance which is not required to be included
in Continuous Service.
2.54 RETIREMENT DATE means the earlier of: (a) the first day of the month
---------------
in which the Participant reaches his or her sixty-fifth (65th) birthday, or (b)
the first day of any month in which the Participant has terminated his or her
employment, provided that he or she has attained at least age fifty-five (55) in
or prior to such month.
2.55 ROLLOVER CONTRIBUTION means a contribution made to the Plan on or
---------------------
after the Effective Date and allocated to an Employee's Rollover Contributions
Account pursuant to Article XXI.
2.56 ROLLOVER CONTRIBUTIONS ACCOUNT means the account established for a
------------------------------
Participant to reflect that portion of the Trust Fund which, with respect to
such Participant, is attributable to Rollover Contributions made by such
Participant on or after the Effective Date, as adjusted and valued in the manner
described in Article VI and to reflect that portion of the Trust Fund which,
with respect to such Participant, is attributable to rollover contributions
transferred to the Plan upon the merger of the Plan with another plan intended
to be qualified pursuant to Code Section 401(a).
2.57 ROLLOVER CONTRIBUTION UNITS mean the units, described in Section
---------------------------
7.01, which are derived from Rollover Contributions made to the Plan on or after
the Effective Date or other amounts held in the Rollover Contributions Account.
2.58 SALARY means an amount equal to the Employee's regular base salary or
------
wages as determined by the Company, plus commissioned earnings based on sales
results and cash incentive compensation earned based on preset corporate goals
according to predetermined formulas payable under the Company incentive
compensation programs, determined before any Tax Deferred Contributions, Thrift
Contributions, or flex plan elections and aggregated for an entire pay period.
Salary which in the aggregate for a Plan Year exceeds $150,000 (or such other
amount as in effect for a Plan Year under Code Section 401(a)(17)) shall be
disregarded.
2.59 SEVERANCE FROM SERVICE DATE means the earlier of: (a) the date upon
---------------------------
which an employee ceases his or her employment relationship with the Company and
all other members of the Control Group by reason of resignation, discharge,
retirement, or death; or (b) the first anniversary of the first date the
employee is absent from the active employ of the Company and all other members
of the Control Group for any reason other than resignation, discharge,
retirement, or death. However, in any case where an employee receives severance
payments from the Company, the Severance From Service Date shall be the last day
the employee performs services for the Company
-10-
<PAGE>
and shall not be any date during which or after which the individual receives
severance payments from the Company.
2.60 TAX DEFERRED CONTRIBUTION means for any Plan Year the total for each
-------------------------
pay period of the Plan Year of that portion of a Participant's Salary which he
or she elects to defer and directs the Company to contribute to the Plan on his
or her behalf, and which the Company so contributes, as provided in Article IV.
2.61 TAX DEFERRED CONTRIBUTIONS ACCOUNT means the account established for
----------------------------------
a Participant to reflect that portion of the Trust Fund which, with respect to
such Participant, is attributable to (a) Tax Deferred Contributions made on
behalf of such Participant; (b) amounts transferred to the Plan from the
terminated Sturdivant Life Insurance Company Employee Stock Ownership Plan; (c)
amounts transferred from the Soc/West Profit-Sharing Plan, which was merged into
the Plan effective as of January 1, 1995; and (d) Rollover Contributions made to
the Plan prior to the Effective Date, as adjusted and valued in the manner
described in Article VI.
2.62 TAX DEFERRED CONTRIBUTION UNITS mean the units, as described in
-------------------------------
Section 7.01, which are derived from Tax Deferred Contributions or other amounts
held in the Tax Deferred Contributions Account.
2.63 THRIFT CONTRIBUTION means for any Plan Year the amount of after-tax
-------------------
money an Employee elects to contribute to the Plan and to have allocated to his
or her Thrift Contributions Account, as provided in Article IV.
2.64 THRIFT CONTRIBUTIONS ACCOUNT means the account established for a
----------------------------
Participant to reflect that portion of the Trust Fund which, with respect to
such Participant, is attributable to the Participant's Thrift Contributions and
all employee contributions to the Plan for periods prior to January 1, 1984, as
adjusted and valued in the manner described in Article VI.
2.65 THRIFT CONTRIBUTION UNITS mean the units, as described in Section
-------------------------
7.01, which are derived from Thrift Contributions.
2.66 TRUST AGREEMENT means the Agreement of Trust between Quaker State and
---------------
any Trustee at any time acting thereunder.
2.67 TRUST FUND means all amounts contributed to the Plan and transferred
----------
to the Trustee from time to time, together with all investments made therewith,
the profits thereof, and all earnings and accumulations thereon, and the part
thereof from time to time remaining, comprising the Funds described in Article
VI and held in trust for use in accordance with the provisions of the Plan to
provide benefits for Participants, Alternate Payees and Beneficiaries.
-11-
<PAGE>
2.68 TRUSTEE means one or more individuals, banks, firms, or corporations
-------
having fiduciary powers, who are appointed by Quaker State to act as a trustee
or custodian of the Trust Fund and who become a party to a Trust Agreement.
2.69 TYE PROFIT-SHARING ACCOUNT means the Account holding amounts
--------------------------
transferred from the Tye Distributing Company, Inc. Profit-Sharing Plan, which
was merged into the Plan effective as of June 1, 1997, and which are
attributable to Profit-Sharing contributions.
2.70 TYE PROFIT-SHARING UNITS means the units which are derived from
------------------------
amounts held in the Tye Profit-Sharing Account.
2.71 UNMATURED THRIFT CONTRIBUTIONS mean Thrift Contributions which have
------------------------------
been held under the Plan for less than two (2) full Plan Years as of January 30,
1997. From and after January 31, 1997, no Thrift Contributions, no matter how
long they have been held under the Plan, will be deemed to be Unmatured Thrift
Contributions.
2.72 VALUATION DATE through January 31, 1997, means the last business day
--------------
of each calendar month. There shall be no Valuation Date during the period of
February 1, 1997 through April 27, 1997. From and after April 28, 1997,
Valuation Date means each day the New York Stock Exchange is open.
2.73 VOLUNTARY TERMINATION OF EMPLOYMENT means with respect to any
-----------------------------------
employee (a) his or her voluntary resignation, including failure to return to
active work at the end of an authorized leave of absence or the authorized
extension or extensions thereof or failure to return to work when duly called
following a temporary layoff, or (b) the happening of any other event or
circumstance which under the policy of the member of the Control Group which
employs the employee, as in effect from time to time, results in the voluntary
termination of the employer-employee relationship; provided, however, that a
Voluntary Termination of Employment shall not be deemed to occur upon a transfer
of employment between members of the Control Group. An employee whose
Employment has been terminated because he or she has, at any time, willfully
engaged in any activity which is harmful to the interest of the Company or any
other member of the Control Group, shall be deemed, for the purpose of this
Plan, to have terminated employment by reason of Voluntary Termination of
Employment. Likewise, an employee whose Employment is terminated for incompetent
performance of the duties related to employment by the Company shall be deemed,
for the purpose of this Plan, to have terminated employment by reason of
Voluntary Termination of Employment.
2.74 YEAR OF CONTINUOUS SERVICE means a twelve (12)-month period of
--------------------------
Continuous Service.
ARTICLE III
ELIGIBILITY
-----------
-12-
<PAGE>
3.01 ELIGIBILITY REQUIREMENTS. Each Employee shall be eligible to become a
------------------------
Participant on the first day of the calendar month coincident with or otherwise
next following the latest of: (a) the date on which he or she attains age
twenty-one (21), (b) the date on which he or she completes one (1) Year of
Continuous Service, and (c) the date on which he or she becomes an Employee.
However, effective February 1, 1997, the above eligibility timing requirements
shall apply to all contributions other than Tax Deferred Contributions and
Thrift Contributions. With respect to Tax Deferred Contributions and Thrift
Contributions, as of February 1, 1997, any Employee who has reached age 21 will
be eligible to be a Participant in the Plan. Any Employee who is not eligible to
become a Participant as of January 31, 1997 shall become a Participant with
respect to Tax Deferred Contributions and Thrift Contributions as of the first
day of the month coincident with or following his or her attainment of age 21.
In the discretion of the Committee or Board, any Employee who becomes an
Employee after a merger of the Company with another entity may have an
Employment Commencement Date based on his or her first day of employment with
the merging entity. However, in all cases any decision by the Committee shall
comply with the terms of Code Section 414(a).
Leased employees (as defined in Code Section 414(n) and the regulations
thereunder) shall not be eligible to participate in the Plan unless such
participation is specifically authorized by the Board. However, if a leased
employee thereafter becomes an Employee other than by reason of being a leased
employee, his or her period of service as a leased employee with the Control
Group immediately prior to becoming an Employee will be recognized as Continuous
Service for eligibility purposes in accordance with the provisions of Code
Section 414(n) and the regulations thereunder.
Notwithstanding the foregoing, each Employee who was: (a) a participant in
the Soc/West Profit-Sharing Plan on December 31, 1994 became a Participant
hereunder as of January 1, 1995, (b) a participant in the Tye Distributing
Company, Inc. Profit-Sharing Plan became a Participant hereunder as of January
1, 1995 if the Participant became an Employee of the Company as of January 1,
1995; otherwise with respect to other employees whose accounts were transferred
to this Plan from the Tye Distributing Company, Inc. Profit-Sharing Plan, the
participant became a Participant hereunder as of June 1, 1997, (c) a participant
in the Slick 50, Inc. 401(k) Plan became a Participant hereunder as of August 1,
1997, and (d) a participant in the Blue Coral, Inc. Retirement Plan became a
Participant hereunder as of June 1, 1997. Each other employee of Specialty Oil
Company, Inc., Westland Oil Company, Inc., Tye Distributing Company, Inc., Slick
50, Inc. I, or Blue Coral, Inc. shall become a Participant in accordance with
this Section 3.01 as provided above. Any participant under the Soc/West Profit-
Sharing Plan who became a Participant as the result of this paragraph, but who
terminated employment with Specialty Oil Company, Inc. or Westland Oil Company,
Inc. prior to January 1, 1995, shall have his or her benefit determined under
the terms of the Soc/West Profit-Sharing Plan as in effect on the date of such
termination, except as otherwise specifically provided to the contrary herein.
Any participant in the Slick 50, Inc. 401(k) Plan or Blue Coral, Inc. Retirement
Savings Plan who became a Participant hereunder as the result of this paragraph,
but who terminated employment with Slick 50, Inc. I or Blue Coral, Inc. prior to
January 1, 1995, and who did not continue as an Employee of the Company after
December 31, 1994 shall have his or her benefit determined under the plan he or
she participated in before January 1, 1995, as in effect on the
-13-
<PAGE>
date of such termination, except as otherwise specifically provided to the
contrary herein. Any participant in the Tye Distributing Company, Inc. Profit-
Sharing Plan who became a Participant hereunder as a result of this paragraph,
but who terminated employment with Tye Distributing Company, Inc. prior to
January 1, 1995 and who did not continue as an Employee of the Company after
December 31, 1994, shall have his or her benefit determined under the plan he or
she participated in before January 1, 1995, as in effect on the date of such
termination, except as otherwise specifically provided to the contrary.
3.02 ENROLLMENT. Employees shall enroll in the Plan on a voluntary basis.
----------
An eligible Employee, including one who becomes eligible again under Section
3.03, may enroll in the Plan in accordance with such rules as the Committee or
its delegate may from time to time adopt. Enrollment must occur by the twentieth
(20th) day of the month prior to the first day of the month in which
participation is to commence, or by such other date established by the Committee
or its delegate. Each Participant who enrolls in the Plan shall authorize
contributions as provided in Section 4.02 and Section 4.03 and shall provide
investment directions as provided in Section 6.01. An eligible Employee shall
become a Participant upon the acceptance of his or her application by the
Committee or its delegate.
3.03 REEMPLOYMENT. If an Employee is reemployed, he or she may enroll in
------------
the Plan in accordance with Section 3.02 at any time after reemployment if he or
she had fulfilled the eligibility requirements of Section 3.01 with respect to
the applicable type of contributions during his or her prior Employment.
Otherwise, he or she may enroll once he or she has satisfied such requirements
after reemployment.
3.04 TERMINATION OF PARTICIPANT STATUS. A Participant shall remain a
---------------------------------
Participant, whether or not he or she continues to make contributions or have
contributions made on his or her behalf, until he or she has received all
distributions to which he or she is entitled from the Trust Fund. A Participant
who ceases to be an Employee but continues in the employ of the Company or a
member of the Control Group shall continue as a Participant in the Plan until he
or she has received all distributions to which he or she is entitled from the
Trust Fund, except that he or she will not be permitted to make contributions or
have contributions made on his or her behalf as provided in Article IV until he
or she again becomes an Employee.
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
----------------------
4.01 AMOUNT OF EMPLOYEE CONTRIBUTIONS. Each Participant shall designate a
--------------------------------
contribution amount in accordance with Section 4.02 and/or Section 4.03.
4.02 THRIFT CONTRIBUTIONS. Subject to the limitations of Section 4.09 and
--------------------
Article XV, each Employee who becomes a Participant under the Thrift
Contribution portion of the Plan may agree to make contributions at the rate of
any whole percentage from one percent (1%) to six percent (6%) of his or her
Salary. Such contributions shall, to the extent permitted by law, be made by
payroll
-14-
<PAGE>
deduction and shall commence as of the first pay period that is ten (10) days
after the Plan Manager's receipt of an acceptably completed application and
beneficiary designation form.
4.03 TAX DEFERRED CONTRIBUTIONS. Subject to the limitations of Section 4.09
--------------------------
and Article XV, each Employee (except for Employees of Quaker State's Canadian
subsidiaries, including Quaker State, Inc. and Valley Camp, Inc.) who becomes a
Participant under the Tax Deferred Contribution portion of the Plan may elect to
have the Company make contributions each pay period, at the rate of any whole
percentage from one percent (1%) to twelve percent (12%) of his or her Salary,
or effective February 1, 1997 at the rate of any whole percentage from one
percent (1%) to fifteen percent (15%) of his or her Salary. However, the sum of
his or her Thrift Contributions and Tax Deferred Contributions shall not exceed
twelve percent (12%) of his or her Salary, or, effective February 1, 1997 shall
not exceed fifteen percent (15%) of his or her Salary. Tax Deferred
Contributions shall, to the extent permitted by law, be made by payroll
reduction and shall commence as of the first pay period which is ten (10) days
after the Plan Manager's receipt of a completed application.
4.04 LIMITATIONS ON EMPLOYEE CONTRIBUTIONS OF HIGHLY COMPENSATED EMPLOYEES.
---------------------------------------------------------------------
Notwithstanding Section 4.03, the Tax Deferred Contributions of Participants who
are Highly Compensated Employees will be limited to a maximum of six percent
(6%) of their Salary or such lesser percentage as is determined by the Plan
Manager to be necessary to insure that the limits of Code Sections 401(k) and
402(g) are met for each Plan Year. Similarly, the Thrift Contributions of
Participants who are Highly Compensated Employees will be limited to such
percentage as is determined by the Plan Manager to be necessary to insure that
the limits of Code Section 401(m) (including the test for Multiple Use of the
Alternative Limitation, as defined in Section 15.06(a)) are met for each Plan
Year.
If it is determined by the Plan Manager during any Plan Year that
participating Highly Compensated Employees whose Tax Deferred Contributions or
Thrift Contributions were limited as provided above could have had Tax Deferred
Contributions and/or Thrift Contributions made to the Plan at a greater
percentage without causing the Plan to fail to meet the limitations in Code
Sections 401(k), 401(m), or 402(g), respectively, such Highly Compensated
Employees may be permitted to make additional Tax Deferred Contributions to
their Accounts, and/or may be permitted to make additional Thrift Contributions
to their Accounts, during December of such Plan Year in accordance with
procedures established by the Plan Manager, provided that such contributions
will not violate any other Plan provision or Code limitation. Company Matching
Contributions and Company Profit-Sharing Contributions will be made on account
of such additional Tax Deferred and Thrift Contributions as though the
additional Tax Deferred and Thrift Contributions had been made and credited to
earlier pay periods during the Plan Year for which contributions were limited
(on a pay period-by-pay period basis until fully credited), as necessary to
cause the aggregate Thrift Contributions and Tax Deferred Contributions to equal
six percent (6%) of the Highly Compensated Employee's Salary for such pay
periods.
4.05 CHANGE IN DESIGNATED PERCENTAGE. A Participant may change the rate of
-------------------------------
his or her Thrift Contributions and/or Tax Deferred Contributions by contacting
the Committee or its delegate.
-15-
<PAGE>
Such a change in the rate of contributions shall become effective on any
Valuation Date; provided, however, that notice of such change must be received
by the Committee or its delegate. No change in the rate of contribution shall
become effective which causes the sum of the Participant's Thrift Contribution
rate and his or her Tax Deferred Contribution rate to exceed twelve percent
(12%) of his or her Salary at any time prior to February 1, 1997, and fifteen
percent (15%) of his or her Salary on and after February 1, 1997, except as
provided in Section 4.04.
4.06 DISCONTINUANCE OF CONTRIBUTIONS. A Participant may discontinue Thrift
-------------------------------
Contributions and Tax Deferred Contributions by giving advance notice to the
Committee or its delegate in accordance with procedures established by the
Committee or its delegate. Such discontinuance shall become effective as of any
Valuation Date coinciding with or following the Committee or its delegate's
receipt of such request as chosen by the Participant. A Participant whose
contributions are discontinued as provided above may resume contributions only
upon notice to the Committee or its delegate in accordance with procedures
established by the Committee or its delegate, and only so long as the
Participant is an Employee who is still eligible to participate in the Plan and
to make or to have contributions made on his or her behalf. Such resumption
shall be at the same rate of contribution as in effect for the Participant at
the time of discontinuance or, if the Participant so elects, at another rate
which satisfies the provisions of this Article IV. An election to resume
contributions under this Section 4.06 will be effective on any Valuation Date
coinciding with or following the Committee or its delegate's receipt of such
request as chosen by the Participant. A Participant shall not be permitted to
make up any contributions which were missed during the period of discontinuance
except as permitted or required by the Uniformed Services Employment and
Reemployment Rights Act of 1994, in accordance with such policies and procedures
as may be adopted by the Committee.
4.07 PAYMENT OF EMPLOYEE CONTRIBUTIONS. The Company shall cause the
---------------------------------
contributions with respect to any pay period to be paid to the Trustee no later
than the 15th business day of the month following the month in which the
contribution is received by the Company in the case of Thrift Contributions, and
no later than the 15th business day of the month following the month in which
the contribution would otherwise have been payable to the Participant in the
case of Tax Deferred Contributions.
4.08 TERMINATION OF CONTRIBUTIONS. Contributions of a Participant will
----------------------------
terminate effective with the pay period that coincides with such Participant's
Voluntary Termination of Employment, Involuntary Termination of Employment, or
other cessation of Employee status.
4.09 LIMITS ON EMPLOYEE CONTRIBUTIONS. For any Plan Year, the amount of Tax
--------------------------------
Deferred Contributions and Thrift Contributions which may be credited to a
Participant's Accounts shall be limited by the provisions of Section 5.03 and
Article XV.
4.10 VESTING OF EMPLOYEE CONTRIBUTIONS. The interest of a Participant in
---------------------------------
the value of his or her Thrift Contributions Account, his or her Tax Deferred
Contributions Account, and/or his or her Rollover Contributions Account shall be
fully vested at all times.
-16-
<PAGE>
ARTICLE V
EMPLOYER CONTRIBUTIONS
----------------------
5.01 RATE AND TIME OF COMPANY MATCHING CONTRIBUTIONS. Subject to the
-----------------------------------------------
limitations of Section 5.03 and Article XV, for each pay period during which a
Tax Deferred Contribution and/or a Thrift Contribution is made on behalf of or
by a Participant, the Company, out of its current or accumulated earnings or
profits, shall make a Company Matching Contribution on his or her behalf equal
to fifty percent (50%) of the Participant's Tax Deferred and Thrift
Contributions during such pay period. For these purposes, Company Matching
Contributions shall be computed and made based only on Tax Deferred
Contributions and Thrift Contributions which do not in total exceed six percent
(6%) of the total of such Participant's Salary for each pay period of the Plan
Year during which such contributions were made on his or her behalf.
The Company shall pay such Company Matching Contributions to the Trustee as
soon as administratively feasible after the Tax Deferred Contribution or Thrift
Contribution associated with such Company Matching Contributions is deposited
with the Trustee. The Company Matching Contributions required to be made
pursuant to this Section 5.01 may be made in cash, in shares of Quaker State
Capital Stock whose total Fair Market Value on the day prior to the date the
contributions are made is equal to the amount of cash which would be otherwise
contributed, or in a combination of cash and shares.
Notwithstanding the foregoing, at the discretion of the Committee, for Plan
Years ending on or before December 31, 1997, all or part of the Company Matching
Contributions required under this Section 5.01 with respect to Participants who
are also participants in the Quaker State Employee Stock Ownership Plan may be
made to Account IIA under the Quaker State Employee Stock Ownership Plan instead
of to the Plan. That portion, if any, of the Company Matching Contributions
which are to be made to the Quaker State Employee Stock Ownership Plan shall be
paid by the Company to the trustee of the Quaker State Employee Stock Ownership
Plan instead of to the Trustee within the time period described above. In the
event the Company Matching Contributions are to be made to the Quaker State
Employee Stock Ownership Plan at a time when it is leveraged, the Company shall
instead contribute to Account IIA under the Quaker State Employee Stock
Ownership Plan an amount in cash sufficient to release from the suspense account
under the Quaker State Employee Stock Ownership Plan the number of shares of
Quaker State Capital Stock determined by dividing the Company Matching
Contribution which would be made otherwise to the Plan by the Fair Market Value
of a share of Quaker State Capital Stock on the day prior to the date the
contributions are made to the Quaker State Employee Stock Ownership Plan less
such shares as may have already been released from such suspense account for
allocation to such Account IIA at that time.
5.02 RATE AND TIME OF COMPANY PROFIT-SHARING CONTRIBUTIONS. For the period
-----------------------------------------------------
before December 31, 1997 only, all Participants (except for Participants who are
Employees of Q Lube, Inc. and its subsidiaries, joint ventures and partnerships
and Employees of Blue Coral, Inc. and Blue Coral Systems, Inc.) shall be
eligible to receive Company Profit-Sharing Contributions, provided that all of
the requirements of this Section 5.02 are met. Company Profit-Sharing
Contributions shall be
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<PAGE>
subject to the limitations of Section 5.03 and Article XV. Effective for Plan
Years beginning after December 31, 1997, no future Company Profit-Sharing
Contributions will be made to the Plan.
As of each Profit Determination Date, the Company's net profit before taxes
on income for the Plan Year immediately preceding the Profit Determination Date
(and before consideration of the Company Profit-Sharing Contributions or any
Employee Stock Ownership Plan contribution) will be measured against the Base
Profit calculated for such Plan Year. In the event that such net profit exceeds
the Base Profit by four percent (4%) or more, the Company will make a Company
Profit-Sharing Contribution to the Plan, for such Plan Year, out of the current
or accumulated earnings or profits, in accordance with the following schedule:
COMPANY PROFIT-SHARING
CONTRIBUTION AS A PERCENTAGE
PERCENT BY WHICH OF THRIFT CONTRIBUTIONS AND
NET PROFIT BEFORE TAXES ON TAX DEFERRED CONTRIBUTIONS
INCOME EXCEEDS BASE PROFIT NOT IN EXCESS OF 6% OF SALARY
-------------------------- -----------------------------
Up to 4% 0%
4% but less than 8% 10%
8% but less than 12% 20%
12% but less than 16% 30%
16% but less than 20% 40%
20% and over 50%
The Company Profit-Sharing Contribution will be made as soon after the
Profit Determination Date as is practicable and shall be credited to the
Participant's Profit-Sharing Contributions Account as of the last day of the
preceding Plan Year. The amount of the Company Profit-Sharing Contribution will
be based on that portion of the dollar amount of Thrift Contributions and Tax
Deferred Contributions made by or on behalf of each Participant during the
preceding Plan Year which remains in the Plan on the last day of the Plan Year;
provided, however, that the Company Profit-Sharing Contributions shall be
computed and made based only on that portion of a Participant's Thrift
Contributions and Tax Deferred Contributions not in excess of six percent (6%)
of the total of such Participant's Salary for each pay period of the Plan Year
during which such contributions were made by the Participant or on his or her
behalf.
The Company Profit-Sharing Contribution required to be made pursuant to
this Section 5.02 may be made in cash, in shares of Quaker State Capital Stock
whose total Fair Market Value on the day prior to the date the contribution is
made is equal to the amount of cash which would be contributed otherwise, or in
a combination of cash and shares. However, in the case of any Participant whose
Employment with the Company is terminated by reason of death, Disability,
Involuntary Termination of Employment, or termination of Employment on a date
within the Plan Year following attainment of his or her Retirement Date, the
dollar amount of any Thrift Contributions and Tax Deferred Contributions made on
behalf of such former Participant during the Plan Year and which remain in the
Plan up to his or her date of termination
-18-
<PAGE>
shall be deemed to remain in the Plan as of the end of the Plan Year (even if
such contributions have been disbursed upon his or her termination of Employment
prior to the last day of the Plan Year). Any such Company Profit-Sharing
Contribution made on such dollar amount will be paid to the former Participant,
or, if he or she is deceased, to his or her Beneficiary or Beneficiaries, as
soon after the Profit Determination Date as is practicable; provided, however,
that the Company Profit-Sharing Contribution will be credited instead to the
Participant's Profit-Sharing Contributions Account if the Participant's consent
is required for a distribution pursuant to Section 8.01 and such consent is not
obtained.
Notwithstanding the foregoing, at the discretion of the Committee, for Plan
Years ending on or before December 31, 1997, all or part of the Company Profit-
Sharing Contribution required under this Section 5.02 with respect to
Participants who are also participants in the Quaker State Employee Stock
Ownership Plan may be made to Account IIB under the Quaker State Employee Stock
Ownership Plan instead of to the Plan. That portion, if any, of the Company
Profit-Sharing Contribution which is to be made to the Quaker State Employee
Stock Ownership Plan shall be paid by the Company to the trustee of the Quaker
State Employee Stock Ownership Plan as soon after the Profit Determination Date
as is practicable. In the event the Company Profit-Sharing Contribution is to be
made to the Quaker State Employee Stock Ownership Plan at a time when it is
leveraged, the Company shall instead contribute to Account IIB under the Quaker
State Employee Stock Ownership Plan an amount in cash sufficient to release from
the suspense account under the Quaker State Employee Stock Ownership Plan the
number of shares of Quaker State Capital Stock determined by dividing the
Company Profit-Sharing Contribution which would be made otherwise to the Plan by
the Fair Market Value of a share of Quaker State Capital Stock on the day prior
to the date the contribution is made to the Quaker State Employee Stock
Ownership Plan, less such shares as may have already been released from such
suspense account for allocation to such Account IIB at that time.
5.03 MAXIMUM ANNUAL ADDITION UNDER CODE SECTION 415.
(a) The total value of the annual addition (as defined in Code
Section 415(c)) for any Participant under this and any other qualified
defined contribution plan of the Company or a member of the Control Group
for any limitation year shall not exceed the maximum annual addition
permitted under Code Section 415, taking into account all applicable
transition rules and rules protecting prior Account Balances.
(b) In the event that an adjustment to contributions with respect to
a Participant is required pursuant to Code Section 415, and if the
Participant is a participant in more than one qualified defined
contribution plan of the Company or any member of the Control Group, the
limitations shall be applied to the Plan prior to being applied to the
Quaker State Employee Stock Ownership Plan or any other defined
contribution plan.
(c) Effective for Plan Years prior to January 1, 2000, if a
Participant was or is also a participant in a defined benefit pension plan
which is or was maintained by the
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<PAGE>
Company or any member of the Control Group (whether or not terminated) and
to which Code Section 415 applies, the annual addition to the qualified
defined contribution plans referred to in this Section 5.03 and the
benefits provided under all such defined benefit pension plans with respect
to such Participant shall be adjusted so that the sum of the defined
benefit fraction (as defined in Code Section 415(e)) and the defined
contribution fraction (as defined in Code Section 415(e)) does not exceed
one (1) for any Plan Year. In making such adjustment, the maximum benefit
shall be allowable first under the Quaker State Employee Stock Ownership
Plan for limitation years ending on or prior to December 31, 1997, and then
hereunder before determining the extent to which the limitations will
affect the benefit available under the defined benefit pension plan(s).
(d) The limitation year, as defined in Treasury Regulation (s)
1.415-2(b), shall be the Plan Year. A Participant's compensation for
purposes of this Section shall be his or her compensation as defined in
Treasury Regulation (s)(s) 1.415-2(d), provided however, that effective
January 1, 1998, the following shall be included in the definition of
compensation for this purpose:
(1) elective deferrals (as defined in Code Section 402(g)(3) from
compensation to be paid by the Company to the Participant; and
(2) any amount which is contributed or deferred by the Company at the
election of the Participant which is not includible in the gross
income of the Participant by reason of Code Sections 125 or 457.
5.04 PROCEDURE IN EVENT CONTRIBUTIONS EXCEED THE MAXIMUM ANNUAL ADDITION.
-------------------------------------------------------------------
The Plan Manager shall notify a Participant and the Company at any time during a
Plan Year when the total amount to be allocated to a Participant's Accounts
would equal or exceed the limitations of Section 5.03. Upon such notice, the
Participant's contributions will automatically be suspended for the balance of
the Plan Year and no further Company contributions shall be made on his or her
behalf until the next Plan Year. So long as the Participant remains an eligible
Employee, contributions will resume in the next Plan Year with no new
application for participation required.
In the event that the total amount to be allocated to a Participant's
Accounts exceeds the limitations of Section 5.03 at the end of the Plan Year
because of the allocation of forfeitures, a reasonable error in estimating
compensation, a reasonable error in determining the amount of elective deferrals
(within the meaning of Code Section 402(g)(3)) that may be made with respect to
any individual under the limits of Code Section 415, or under such other
circumstances as are established by the Commissioner of Internal Revenue, the
Participant's Thrift Contributions and/or Tax Deferred Contributions for the
Plan Year shall be returned to him or her (along with any related investment
gains or losses), and/or his or her Company Matching Contributions and/or
Company Profit-Sharing Contributions shall be placed in a suspense account which
will be used to reduce contributions by the Company for that Participant for the
next Plan Year, to the extent required to eliminate the excess annual addition.
The corrective method used will be
-20-
<PAGE>
selected by the Committee in its discretion; provided, however, that Company
Matching Contributions and Company Profit-Sharing Contributions shall be subject
to compliance with Code Section 415, and any return of a matched Thrift
Contribution or Tax Deferred Contribution shall be accompanied by a forfeiture
of the corresponding Company Matching Contribution and Company Profit-Sharing
Contribution (which forfeitures shall be used to reduce subsequent contributions
to the Plan by the Company). Any amounts placed in a suspense account will be
used to reduce contributions by the Company on behalf of the Participant for the
next limitation year (and succeeding limitation years, if necessary), if the
Participant is participating in the Plan as of the end of such limitation year.
If the Participant is not participating in the Plan as of the end of such
limitation year, the amounts in the suspense account shall be allocated and
reallocated in the next limitation year to all remaining Plan Participants
before any contributions by the Company which would constitute annual additions
may be made to the Plan for that limitation year.
5.05 VESTING OF COMPANY MATCHING CONTRIBUTIONS. The interest of a
-----------------------------------------
Participant in his or her Company Matching Contributions Account shall be fully
vested at all times.
5.06 VESTING OF COMPANY PROFIT-SHARING CONTRIBUTIONS. The interest of a
-----------------------------------------------
Participant in his or her Company Profit-Sharing Contributions Account shall be
fully vested at all times.
5.07 REINSTATEMENT OF PREVIOUSLY FORFEITED AMOUNTS. Any previously
---------------------------------------------
forfeited Company Matching Contribution Units which are to be reinstated to a
Participant's Account in accordance with the requirements of a previous version
of the Plan shall be reinstated first through the use of forfeitures which have
not been reallocated under Sections 5.04 and 15.05 and then, if necessary, by
means of a contribution by the Company in addition to any contributions required
pursuant to Sections 5.01 and 5.02.
ARTICLE VI
INVESTMENT OF CONTRIBUTIONS
---------------------------
6.01 INVESTMENT OF EMPLOYEE CONTRIBUTIONS AND AMOUNTS HELD IN THE PRIOR
------------------------------------------------------------------
BLUE CORAL 401(K) ACCOUNT AND THE PRIOR SLICK 50 MATCH ACCOUNT. Each Participant
- --------------------------------------------------------------
as part of his or her application to become a Participant in the Plan shall
direct (in separate elections) that his or her Tax Deferred Contributions,
Thrift Contributions and, if applicable, amounts held in the Prior Blue Coral
401(k) Account and the Prior Slick 50 Match Account be invested in one or more
of the funds in Fund A Group or Fund B. In the event that more than one Fund is
selected with respect to Tax Deferred Contributions, Thrift Contributions and/or
amounts held in the Prior Blue Coral 401(k) Account and the Prior Slick 50 Match
Account, the Participant shall allocate his or her contributions so that the
investments in the Funds selected shall be in even multiples of ten percent
(10%) and, for allocations made on or after February 1, 1997, in even multiples
of one percent (1%).
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<PAGE>
An Employee or a Participant who makes a Rollover Contribution to the Plan
shall direct the investment of his or her Rollover Contribution in one or more
of the funds in Fund A Group or Fund B in even multiples of ten percent (10%),
and for Rollover Contributions made on or after February 1, 1997 in even
multiples of one percent (1%).
A Participant may change his or her Fund allocation on any Valuation Date
by giving notice to the Committee or its delegate, in accordance with procedures
(including cutoff dates) established by the Committee or its delegate no later
than the date such allocation is to take effect. Such change in allocation shall
apply only to the Participant's contributions to the Plan made with respect to
pay periods processed on or after the Valuation Date on which the change becomes
effective.
6.02 INVESTMENT OF COMPANY MATCHING CONTRIBUTIONS, COMPANY PROFIT-SHARING
--------------------------------------------------------------------
CONTRIBUTIONS, AMOUNTS HELD IN THE TYE PROFIT SHARING ACCOUNT AND THE ESOP
- --------------------------------------------------------------------------
CONTRIBUTION ACCOUNT. All Company Matching Contributions, Company Profit-
- --------------------
Sharing Contributions and amounts held in the Tye Profit Sharing Account shall
be invested in Fund B. For Plan Years ending on or prior to December 31, 1997,
all Company Matching Contributions and Company Profit-Sharing Contributions
contributed to the Quaker State Employee Stock Ownership Plan pursuant to
Sections 5.01 and 5.02 shall be invested as provided in such plan. After
December 31, 1997, the ESOP Contribution Account shall be invested in accordance
with Article XX.
6.03 REINVESTMENT. Income on the proceeds of sales or investment of each
------------
Fund shall be reinvested by the Trustee in the same Fund.
6.04 UNINVESTED CASH. The Trustee may, in its discretion, maintain in cash,
---------------
without obligation to credit interest thereon, such part of the assets of each
Fund as it considers necessary or desirable for the proper administration of
such Fund and may hold with itself or deposit any uninvested cash with one or
more banks. In addition, the Trustee may, in its discretion, invest in short-
term temporary interest-bearing investments such part of the assets of each Fund
as it considers necessary or desirable for the proper administration of such
Fund, and such temporary investments may be made with itself or one or more
banks.
6.05 VALUATION OF FUNDS. As of each Valuation Date, the Trustee shall
------------------
determine, in accordance with a method consistently followed and uniformly
applied, the Fair Market Value of each Fund. Promptly thereafter, the Trustee
shall advise the Committee of the values so determined no less frequently that
at the end of each calendar quarter. Except for a transaction between the Plan
and a "disqualified person," as such term is defined in Code Section 4975(e)(2)
of the Code, the valuation of Quaker State Capital Stock shall be made as of the
most recent Valuation Date under the Plan. For purposes of a transaction between
the Plan and a "disqualified person," the valuation shall be made as of the date
of the transaction.
6.06 PARTICIPANT'S RISK. Each Participant assumes all risk connected with
------------------
any decrease in the market value of any Plan assets held by the Trustee. Neither
the Plan, the
-22-
<PAGE>
Trustee, the Committee, the Plan Manager, any delegates of the Committee or the
Plan Manager, nor the Company guarantees the Trust Fund against loss,
depreciation, or the payment of any amount which may be or become due to or from
any person to or from the Trust Fund; nor shall the Plan, the Trustee, the
Committee, the Plan Manager, any delegates of the Committee or the Plan Manager,
nor the Company incur any liability therefor except to the extent required by
ERISA. This Plan is intended to constitute a participant-directed plan described
in ERISA Section 404(c) and the regulations thereunder, and the provisions of
the Plan shall be interpreted accordingly.
6.07 TRANSFER OF THE BALANCES OF THE TAX DEFERRED CONTRIBUTIONS ACCOUNT,
------------------------------------------------------------------
THRIFT CONTRIBUTIONS ACCOUNT, PRIOR BLUE CORAL 401(K) ACCOUNT, PRIOR SLICK 50
- -----------------------------------------------------------------------------
MATCH ACCOUNT, TYE PROFIT SHARING ACCOUNT, AND ROLLOVER CONTRIBUTIONS ACCOUNT
- -----------------------------------------------------------------------------
BETWEEN FUNDS. A Participant (including a former Employee who has an Account
- -------------
Balance) may, subject to (i) any limitations imposed by applicable law with
respect to transfers to or from Fund B and (ii) any limitations imposed by a
Fund manager, elect to transfer between Funds all or a portion of the total
balance of his or her Tax Deferred Contributions Account, his or her Thrift
Contributions Account, his or her Prior Blue Coral 401(k) Account, his or her
Prior Slick 50 Match Account, his or her Tye Profit Sharing Account, and/or his
or her Rollover Contributions Account. Transfers shall be in increments of ten
percent (10%) and, for transfers made on or after February 1, 1997, in
increments of one percent (1%). Subject to this Section 6.07 and to Section
10.14, transfers shall be made on any Valuation Date, provided that the
Participant gives notice to the Committee or its delegate, in accordance with
procedures (including cutoff dates) established by the Committee or its
delegate, prior to the date on which such transfer is to take effect. For
purposes of determining the amount to be transferred with respect to a
particular Account, such Account shall be valued as of the Valuation Date which
immediately precedes the effective date of the transfer, and the transfer shall
be made as soon as practicable after such Valuation Date. Notwithstanding the
foregoing, if limitations imposed by applicable law prevent a transfer elected
under this Section 6.07 from being carried out as elected, the transfers so
limited shall be reduced, on a pro rata basis as to each affected Participant if
the limitation applies to Participants as a group, until such limits are no
longer exceeded and the remaining election shall be void.
-23-
<PAGE>
ARTICLE VII
THE UNIT SYSTEM AND VALUATION OF UNITS
--------------------------------------
7.01 VALUE OF UNITS. The interest of each Participant in each of the funds
--------------
in Fund Group A or Fund B shall be represented by units therein which shall be
credited to his or her Accounts. These units shall be referred to as Tax
Deferred Contribution Units, Thrift Contribution Units, Company Matching
Contribution Units, Company Profit-Sharing Contribution Units, Prior Blue Coral
401(k) Units, Prior Slick 50 Match Units, Tye Profit-Sharing Units, ESOP
Contribution Units and Rollover Contribution Units, as applicable. The initial
value of each unit on the date the Fund is first established is one dollar
($1.00) and units are credited to Participants on such basis for contributions
paid into the Funds prior to the first Valuation Date following such date.
Thereafter, as the value of each such Fund increases or decreases, the value of
each unit therein shall change correspondingly.
7.02 DETERMINATION OF VALUE OF UNITS. Promptly after each Valuation Date,
-------------------------------
the value of a unit as of such Valuation Date in each of the funds in Fund A
Group and Fund B shall be determined by dividing (a) the sum of uninvested cash
(in the case of Fund B) and the Fair Market Value of the securities in such
fund, excluding contributions for such pay period, by (b) the total number of
outstanding units in such fund as of the close of business on such Valuation
Date.
7.03 ALLOCATION OF UNITS. The number of units in each of the funds in Fund
-------------------
A Group and Fund B which shall be credited to a Participant's Accounts for
contributions paid to the Trustee by and on his or her behalf for a pay period
shall be calculated by dividing such contributions by the value of a unit in
such fund on the Valuation Date coinciding with or immediately following the
date such credit is made.
ARTICLE VIII
DISTRIBUTION OF BENEFITS
------------------------
The provisions of this Article VIII are subject to the distribution
restrictions and options in Article XIV, Article XVI, Article XVII, Article
XVIII, and Article XX.
8.01 DISTRIBUTION BECAUSE OF TERMINATION OF EMPLOYMENT FOR REASONS OTHER
-------------------------------------------------------------------
THAN DEATH. Except as provided in Article XIV, Article XVI, Article XVII,
- ----------
Article XVIII, or Article XX, a Participant whose Employment with the Company
and all members of the Control Group terminates by reason of Disability,
Voluntary Termination of Employment, Involuntary Termination of Employment, or
by reason of having attained his or her Retirement Date and having retired from
Employment, shall receive in a single lump sum payment all Tax Deferred
Contribution Units, Thrift Contribution Units, Company Profit-Sharing
Contribution Units, Company Matching Contribution Units, Prior Blue Coral 401(k)
Units, vested Prior Slick 50 Match Units, Tye Profit-Sharing Units, ESOP
Contribution Units, and Rollover Contribution Units credited to his or her
Accounts; provided, however, that (a) except as otherwise provided
-24-
<PAGE>
in Code Section 401(k)(10) or applicable law, a Participant's Employment shall
not be considered to have terminated in the event of a sale of the assets or
stock of the Company or another member of the Control Group if the Participant
continues in employment with the purchaser, and (b) with respect to a
Participant's ESOP Contribution Account for a Participant whose Employment with
the Company and all members of the Control Group terminates by reason of
Disability, Involuntary Termination of Employment, or by reason of having
attained his or her Retirement Date and having actually retired, if such
Participant is receiving severance pay under a severance pay plan sponsored by a
member of the Control Group, no distribution shall be made until the first day
of the month following the final month for which severance benefits are payable
subject to the distribution limitation specified in Article XX. Payment shall be
determined as of, and made in the manner provided in, Article IX as soon as
practicable after the Valuation Date which coincides with or immediately follows
the date on which all forms necessary for the Participant to receive the
distribution have been completed and received by the Committee or its delegate.
Notwithstanding anything to the contrary herein, no payment shall be made
under this Section 8.01 prior to the Participant's attainment of age sixty-five
(65) if such payment is more than $3,500 (or if the Participant's vested Account
Balance exceeded $3,500 at the time of any previous distribution) and the
Participant does not consent to receive such payment. However, effective January
1, 1998, $5,000 shall be substituted for $3,500 in the immediately preceding
sentence. No consent will be valid unless the Participant is given written
notice in accordance with Section 9.01(b) of his or her right to defer receipt
of the payment until age sixty-five (65). If a Participant does not provide the
necessary consent, such Participant's Accounts shall continue to be held under
the Plan and invested in accordance with Article VI, and payment of the Accounts
will be made in the manner provided in Article IX following the earliest of the
date the Participant notifies the Committee or its delegate in writing that he
or she consents to the receipt of the payment, the date the Participant attains
age sixty-five (65), or the date of the Participant's death.
8.02 DISTRIBUTION BECAUSE OF DEATH. Except as provided in Article XIV,
-----------------------------
Article XVI, Article XVII, Article XVIII, or Article XX, upon the death of a
Participant, all Tax Deferred Contribution Units, Thrift Contribution Units,
Company Profit-Sharing Contribution Units, Company Matching Contribution Units,
Prior Blue Coral 401(k) Units, Prior Slick 50 Match Units, Tye Profit-Sharing
Units, ESOP Contribution Units and Rollover Contribution Units then credited to
his or her Accounts shall be paid in a single lump sum to the Beneficiary or
Beneficiaries designated pursuant to Section 12.08. Such payment shall be made
in the manner provided in Article IX. Payment to a Beneficiary other than the
Participant's spouse shall be made as soon as practicable after a Valuation Date
which is on or after the Participant's death, as selected by the Beneficiary on
or before such Valuation Date, provided that such Valuation Date is in a month
not more than six (6) months after the month of the Participant's death. Payment
to a Beneficiary who is the Participant's spouse (including a former spouse
Alternate Payee treated as a spouse under a Qualified Domestic Relations Order)
shall be made as soon as practicable after a Valuation Date which is on or after
the Participant's death, as selected by
-25-
<PAGE>
such Beneficiary on or before such Valuation Date, provided that such Valuation
Date is in a month not more than eighteen (18) months after the month of the
Participant's death.
8.03 WITHDRAWALS ON OR AFTER AGE 59 1/2 - IN GENERAL. A Participant who has
-----------------------------------------------
attained age fifty-nine and one-half (59 1/2) may make a partial or complete
withdrawal from his or her Accounts (other than the Participant's Loan Account)
at any time by notifying the Committee or its delegate of his or her intent in
accordance with procedures established by the Committee or its delegate. If
notice of the Participant's intent to make a withdrawal is received by the
Committee or its delegate by the twentieth (20th) day of a calendar month (or
such other cutoff date established by the Committee or its delegate), the
Valuation Date used for the withdrawal shall be the Valuation Date in the month
in which such notice is received, and payment of the withdrawal shall be made on
or about the first day of the second month following such Valuation Date. In all
other cases, the Valuation Date used shall be the Valuation Date in the month
following the month in which notice is received by the Committee or its
delegate, and payment shall be made on or about the first day of the second
month following such Valuation Date. Payment shall be made in the manner
provided in Article IX. Effective February 1, 1997, the Valuation Date used for
the withdrawal shall be the Valuation Date immediately preceding the date of the
withdrawal and payment of the withdrawal shall be made as soon as practicable
after the Valuation Date which coincides with or immediately follows the date on
which all forms necessary for the Participant to receive the distribution have
been completed and received by the Committee or its delegate. In such a case,
payment shall be made in the manner provided in Article IX.
Withdrawals under this Section 8.03 will be made in the following order:
(i) Thrift Contribution Units, (ii) Rollover Contribution Units, (iii) Company
Matching Contribution Units, (iv) vested Prior Slick 50 Match Units, (v) Company
Profit-Sharing Contribution Units, (vi) Tye Profit-Sharing Units, (vii) ESOP
Contribution Units, (viii) Prior Blue Coral 401(k) Units, and (ix) Tax Deferred
Contribution Units.
Except as otherwise provided in Section 8.04, Tax Deferred Contributions
and Thrift Contributions will be suspended for three (3) months for any
Participant making a withdrawal, pursuant to this Section 8.03, of any units
other than Thrift Contribution Units or Rollover Contribution Units. Suspensions
begin on the Valuation Date used for the withdrawal, and multiple suspensions
shall run concurrently. So long as the Participant is an Employee who is still
eligible for active participation in the Plan, the Participant may resume
participation as of the Valuation Date coinciding with the last day of the
suspension period by notifying the Committee or its delegate, in accordance with
procedures established by the Committee or its delegate. For this purpose, the
Participant may resume participation on the same basis as an Employee enrolling
in the Plan for the first time in accordance with Article IV.
8.04 SPECIAL WITHDRAWAL ON OR AFTER AGE 59 1/2 WITHOUT SUSPENSION OF FUTURE
----------------------------------------------------------------------
CONTRIBUTIONS. In order to satisfy the provisions of Code Section 411(d)(6) and
- -------------
the regulations thereunder, a Participant who has attained age fifty-nine and
one-half (591/2) may elect to withdraw the entire value of his or her Accounts
(other than his or her Loan Account), without
-26-
<PAGE>
any requirement to suspend Tax Deferred Contributions and Thrift Contributions,
by notifying the Committee or its delegate, in accordance with procedures
established by the Committee or its delegate, from November 21 through December
20 of any Plan Year beginning on or before January 1, 2002. The withdrawal will
be paid on or about the first day of the following February; however, effective
February 1, 1997, the withdrawal will be paid on any Valuation Date on or about
the first day of the February following the withdrawal election. The amount of
the withdrawal shall be determined as of the Valuation Date in December of the
Plan Year in which the withdrawal request is received by the Committee or its
delegate, and shall be made in the manner provided in Article IX; nevertheless,
effective February 1, 1997, the amount of the withdrawal shall be determined as
of the Valuation Date the withdrawal is paid, and shall be made in the manner
provided in Article IX.
8.05 NON-HARDSHIP WITHDRAWALS BEFORE AGE 59 1/2.
------------------------------------------
(a) Penalty-Free Withdrawals. A Participant who has not attained age
------------------------
fifty-nine and one-half (59 1/2) may make a partial or complete withdrawal
of the value of his or her Rollover Contribution Units, his or her Thrift
Contribution Units other than the portion representing Unmatured Thrift
Contributions (however, effective February 1, 1997 a Participant may also
withdraw his or her Thrift Contribution Units which were previously
Unmatured Thrift Contributions pursuant to this Section 8.05(a)), his or
her Matured Company Matching Contribution Units, vested Prior Slick 50
Match Units, and Tye Profit-Sharing Units at any time by notifying the
Committee or its delegate, in accordance with procedures established by the
Committee or its delegate. If notice of the Participant's intent to make a
withdrawal is received by the Committee or its delegate by the twentieth
(20th) day of a calendar month (or such other cutoff date established by
the Committee or its delegate), the Valuation Date used for the withdrawal
shall be the Valuation Date in the month in which such notice is received,
and payment of the withdrawal shall be made on or about the first day of
the second month following such Valuation Date. In all other cases, the
Valuation Date used shall be the Valuation Date in the month following the
month in which notice is received by the Committee or its delegate, and
payment shall be made on or about the first day of the second month
following such Valuation Date. Payment shall be made in the manner provided
in Article IX. Effective February 1, 1997, the Valuation Date used for the
withdrawal shall be the Valuation Date on which the funds are liquidated by
the Trustee and payment of the withdrawal shall be made as soon as
practicable after the Valuation Date which coincides with or immediately
follows the date on which all forms necessary for the Participant to
receive the distribution have been completed and received by the Committee
or its delegate. In such a case, payment shall be made in the manner
provided in Article IX.
Withdrawals under this Section 8.05(a) will be made in the following order:
(i) Thrift Contribution Units (other than the portion representing Unmatured
Thrift Contributions prior to February 1, 1997), (ii) Matured Company Matching
Contribution Units, (iii) vested Prior Slick 50 Match Units, (iv) Rollover
Contribution Units, and (v) Tye Profit-Sharing Units.
-27-
<PAGE>
(b) Withdrawal of Unmatured Thrift Contributions with Six-Month
-----------------------------------------------------------
Suspension. A Participant who has withdrawn all amounts available under
----------
Section 8.05(a) may make a partial or complete withdrawal of his or her
Unmatured Thrift Contributions (or their current value, if less) prior to
February 1, 1997, at any time by notifying the Committee or its delegate,
in accordance with procedures established by the Committee or its delegate.
The timing and valuation of the withdrawal shall be made in the same manner
as set forth in Section 8.05(a), and the form of payment shall be governed
by Article IX.
Tax Deferred Contributions and Thrift Contributions will be suspended for
six (6) months for any Participant making a withdrawal under this Section
8.05(b); however, in no case will such suspensions last beyond January 31, 1997.
Suspensions begin on the first day of the second month which follows the
Valuation Date used for the withdrawals. So long as the Participant is an
Employee who is still eligible for active participation in the Plan, the
Participant may resume participation as of the first day of any month following
the suspension period by notifying the Committee or its delegate, in accordance
with procedures established by the Committee or its delegate, of such intent by
the twentieth (20th) day of the month (or such other cutoff date established by
the Committee or its delegate) prior to the first day of the month on which he
or she elects to resume participation. For this purpose, the Participant may
resume participation on the same basis as an Employee enrolling in the Plan for
the first time in accordance with Article IV.
8.06 HARDSHIP WITHDRAWALS BEFORE AGE 59 1/2. A Participant who has not
--------------------------------------
attained age fifty-nine and one-half (59 1/2), by filing a request with the
Committee in accordance with procedures established by the Committee or its
delegate, and with the approval of the Committee, may withdraw all or a portion
of his or her Tax Deferred Contributions (or their current value, if less) if
the withdrawal is made for a purpose deemed to constitute an immediate and heavy
financial need by the Committee and if funds for this purpose are deemed
necessary to satisfy the financial need.
A distribution will be deemed to be made on account of an immediate and
heavy financial need if the distribution is on account of:
(a) Expenses for medical care, described in Code Section 213(d),
previously incurred by the Participant, his or her spouse, or any of his or
her dependents (as defined in Code Section 152), or necessary for such
person(s) to obtain medical care described in Code Section 213(d);
(b) Costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his or
her spouse, his or her children, or his or her dependents (as defined in
Code Section 152);
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<PAGE>
(d) The need to prevent the eviction of the Participant from his or
her principal residence or to prevent the foreclosure of the mortgage on
the Participant's principal residence; or
(e) Any other financial need deemed to be immediate and heavy by the
Commissioner of Internal Revenue, through the publication of revenue
rulings, notices, or other generally applicable documents.
A distribution will be deemed to be necessary to satisfy the financial need
if all of the following requirements are satisfied:
(a) The distribution is not in excess of the amount of the immediate
and heavy financial need of the Participant; however, the amount of an
immediate and heavy financial need may include any amounts necessary to pay
any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution;
(b) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the Company;
(c) The Participant's Tax Deferred Contributions and other elective
contributions under all other plans maintained by the Company, for the
taxable year following the withdrawal, are limited to the applicable limit
under Code Section 402(g) for such taxable year minus the Participant's
elective contributions for the taxable year in which the withdrawal
occurred;
(d) The Participant is prohibited from making elective contributions
and employee contributions with respect to the Plan and all other plans
maintained by the Company for twelve (12) months after receipt of the
withdrawal. For purposes of the sentence directly above, the phrase "all
other plans maintained by the Company" includes all qualified and
nonqualified deferred compensation plans maintained by the Company.
An application for a hardship withdrawal must explain the reason for the
withdrawal, must include information sufficient to determine that the
Participant has no other resources available for satisfying his or her financial
need, and must be filed with the Plan Manager or his or her delegate. Before a
hardship withdrawal of Tax Deferred Contribution Units will be approved, the
Participant must first take a hardship withdrawal from the following units, in
the following order: Matured Company Matching Contribution Units, Company
Profit-Sharing Contribution Units, Prior Slick 50 Match Units, ESOP Contribution
Units (or for periods prior to January 1, 1998, amounts held in Accounts I and
II in the Quaker State Employee Stock Ownership Plan), and Prior Blue Coral
401(k) Units. In addition, the Plan Manager must determine that the Participant
qualifies for a hardship withdrawal under the terms of this Section 8.06.
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The timing and valuation of the hardship withdrawal shall be made in the
same manner as set forth in Section 8.05(a); provided, however, that valuation
and payment of a hardship withdrawal may be delayed to dates beyond those set
forth in Section 8.05(a) in the event that the Participant fails to submit the
application and supporting documentation in a timely manner. Payment of the
hardship withdrawal shall be made in the manner set forth in Article IX.
In no event may the amount withdrawn be in excess of the amount necessary
to meet the financial hardship after consideration of the loans required to be
taken and the amounts required to be withdrawn from the Accounts as provided
above.
Notwithstanding the foregoing provisions of this Section 8.06, no hardship
withdrawal will be permitted under this Section 8.06 if such withdrawal is
prohibited under the Code and the regulations thereunder, or if the withdrawal
would jeopardize the qualified status of the Plan under the Code.
8.07 LOANS. Subject to the limitations set forth in Section 8.08, Section
-----
8.09, and the next to the last sentence of this paragraph, a Participant who is
in the employ of the Company or a member of the Control Group may borrow against
the value of the following units, in the following order: Tax Deferred
Contribution Units, Company Profit-Sharing Contribution Units, ESOP Contribution
Units, Matured Company Matching Contribution Units, Prior Blue Coral 401(k)
Units, Tye Profit-Sharing Units, vested Prior Slick 50 Match Units, Thrift
Contribution Units (other than the portion representing Unmatured Thrift
Contributions), and Rollover Contribution Units credited to his or her Accounts
under the Plan; provided, however, that any liquidation of Company Profit-
Sharing Contribution Units and/or Matured Company Matching Contribution Units
will be subject to the limitations of any applicable securities laws and
provided that no liquidation of a Participant's ESOP Contribution Account will
be allowed for purposes of receiving a loan. To do so, the Participant must make
application for a loan in accordance with procedures established by the
Committee or its delegate. If all required loan forms are completed and returned
by the deadline date established by the Committee or its delegate, the loan will
be made on a Valuation Date not later than the first day of the month which
follows such deadline date.
A Participant who is not in the employ of the Company or a member of the
Control Group and a Beneficiary of a deceased Participant will be permitted to
receive a loan from the Plan on the same basis as other Participants if required
under applicable law or if such Participant or Beneficiary is a party in
interest as defined in Section 3(14) of ERISA or a disqualified person as
defined in Section 4975(e) of the Code (hereinafter referred to as a "Party in
Interest") and such loan would not result in impermissible discrimination under
Sections 401(a)(4) or 410(b) of the Code or any other provision of ERISA or the
Code or in loss of qualification of the Plan under the Code. For purposes of the
Plan provisions regarding loans from the Plan, the term "Participant" shall be
deemed to include a party in interest to the extent necessary to be consistent
with this paragraph.
Each loan shall be made on the basis of such terms, security interest, and
conditions as the Committee deems appropriate. Loans shall not be made available
to any Participant who is
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a Highly Compensated Employee in an amount which is greater (as a percentage of
the available Account Balance) than the amount made available to any other
Participant.
No loan shall be granted hereunder to the extent that it would cause the
Participant to have more than three (3) outstanding loans under the Plan.
8.08 TERMS OF LOAN. The interest rate to be applied to any loan made or
-------------
renewed hereunder will be the prime rate plus one percent as published in The
---
Wall Street Journal on the day preceding the Valuation Date for the loan. Such
- -------------------
interest rate will continue to be charged on the unpaid principal balance of the
loan until the loan is repaid in full or otherwise canceled.
The maximum loan repayment period which may be permitted by the Committee
is five (5) years; provided, however, that a loan may have a term of up to ten
(10) years (or such other maximum number of years as is established by the
Committee or its delegate) if the loan is to be used to acquire a dwelling unit
which within a reasonable time is to be used as the principal residence of the
Participant (as determined by the Committee or its delegate in accordance with
Code Section 72(p) at the time that the loan is made). All loans made to a
Participant must be repaid upon his or her death or, if earlier, upon his or her
termination of Employment with the Company and all members of the Control Group
or upon the expiration of any severance pay period following a Severance from
Service Date, if later.
Each loan will be evidenced by a promissory note and related loan documents.
As security for the repayment of the loan, the promissory note will provide for
the creation of a security interest in and for the pledge and assignment of a
portion (but not in excess of fifty percent (50%), determined as of the
applicable Valuation Date under Section 8.09) of the Participant's right, title,
and interest in his or her Account Balance under the Plan in an amount equal to
the outstanding balance of the loan. The promissory note will also describe any
events which may or will cause the loan to become immediately due and payable in
full.
A loan processing fee may be imposed at the discretion of the Committee or
its delegate, and any such fee will be deducted from the loan amount which is
distributed to the borrower. An annual maintenance fee may also be imposed at
the discretion of the Committee or its delegate, and any such fee will be
deducted from the Participant's Account Balance.
8.09 LIMITATIONS ON AMOUNT OF LOAN. The minimum loan hereunder is $500 (or
-----------------------------
such other minimum amount as is established by the Committee or its delegate).
As of the applicable Valuation Date, which is the Valuation Date on which the
loan application is due in accordance with the terms of Section 8.07, the
principal amount of the loan to be made to the Participant, plus the total
outstanding balance of all previous loans to the Participant from the Plan and
any other qualified plan maintained by any member of the Control Group, cannot
exceed the lesser of the amounts determined under subsections (a) or (b) below:
(a) fifty thousand dollars ($50,000), reduced by the excess (if any)
of (i) the highest outstanding balance of all loans from the Plan or any
other qualified plan
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maintained by the Company or another member of the Control Group during the
one (1) year period ending on the date on which the loan is made, over (ii)
the outstanding balance of all loans from the Plan and any other qualified
plan maintained by the Company or another member of the Control Group on
the date on which the loan is made.
(b) fifty percent (50%) of the present value of the Participant's
Account Balance under this Plan and the Participant's vested interest under
any other qualified plan maintained by the Company or another member of the
Control Group.
In no event shall the amount to be borrowed by a Participant under this
Plan exceed fifty percent (50%) of the value of the Participant's Account
Balance under the Plan as of the applicable Valuation Date.
8.10 METHOD OF REPAYMENT OF LOANS. Repayment of loans will be made by
----------------------------
regular payroll deductions authorized by the Participant, in accordance with
procedures established by the Committee or its delegate. Each payroll deduction
over the term of the loan will be of a substantially equal amount. Loan
repayments for each pay period ending in a calendar month will be credited to
the installment(s) due during that month and will be transferred by the Company
to the Trustee as soon as practicable following the end of such calendar month.
In the event that, prior to the time a loan becomes due and payable
according to the applicable promissory note, a Participant does not receive any
regular salary or receives regular salary in an amount which is less than the
loan installment due for a pay period, the Participant will be required to make
payments on the loan by check or money order payable to the Plan and delivered
to the Plan Manager.
A Participant may prepay the entire outstanding balance of a loan, without
penalty, at any time prior to the time a loan becomes due and payable according
to the applicable promissory note, by personal check or money order payable to
the Trustee of the Plan and delivered to the Plan Manager.
8.11 ACCOUNTING FOR LOANS. As of the Valuation Date preceding the date on
--------------------
which the loan is to be made, the value of units in a dollar amount equal to the
principal amount of the loan will be transferred to the Participant's Loan
Account from the Participant's other Accounts in the following order: (i) Tax
Deferred Contribution Units, (ii) Company Profit-Sharing Contribution Units,
(iii) Matured Company Matching Contribution Units, (iv) Prior Blue Coral 401(k)
Units, (v) Tye Profit-Sharing Units, (vi) vested Prior Slick 50 Match Units,
(vii) Thrift Contribution Units (other than the portion representing Unmatured
Thrift Contributions), and then (viii) Rollover Contribution Units. If less than
the value of an Account is transferred to the Loan Account in connection with
the grant of a loan, the value of such Account which is transferred will be
taken proportionately from each of the Funds in which such contribution type is
invested, based upon the value of such contribution type's investment in each
Fund as of the applicable Valuation Date. Notwithstanding anything to the
contrary herein, the transfer
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of amounts from Fund B will be limited to the extent necessary to satisfy
applicable securities laws.
The loan to the Participant will be made from his or her Loan Account and
loan repayments (principal and interest) will be credited to the Participant's
Loan Account. A pro rata portion of each repayment will be treated as a
contribution to each Account from which the loan was made, based upon the ratio
that equals the value of the units transferred from that Account to the Loan
Account at the time the loan was made bears to the aggregate value of all units
from all Accounts which were transferred to the Loan Account at the time the
loan was made.
To the extent that repayments are treated as Tax Deferred Contributions or
Thrift Contributions they will be credited to the Participant's Loan Account,
transferred to the Participant's Tax Deferred Contributions Account or Thrift
Contributions Account, respectively, and invested in the Funds in accordance
with the Participant's latest investment direction applicable to his or her Tax
Deferred Contributions and Thrift Contributions as provided in Article VI. To
the extent that repayments are treated as Rollover Contributions, they will be
credited to the Participant's Loan Account, transferred to the Participant's
Rollover Contributions Account, and invested in accordance with the
Participant's latest investment direction applicable to his or her Rollover
Contributions; provided, however, that the Participant may make a special
investment election with respect to loan repayments which are treated as
Rollover Contributions. To the extent that repayments are treated as Company
Profit-Sharing Contributions or Company Matching Contributions, they will be
credited to the Participant's Loan Account, transferred to the Participant's
Company Profit-Sharing Account or Company Matching Contributions Account,
respectively, and invested in Fund B. To the extent that repayments are treated
as amounts attributable to Prior Blue Coral 401(k) Units, Prior Slick 50 Match
Units or Tye Profit-Sharing Units, they will be credited to the Participant's
Loan Account, transferred to the Participant's Prior Blue Coral 401(k) Account,
Prior Slick 50 Match Account or Tye-Profit Sharing Account, respectively, and
invested in accordance with the Participant's latest investment direction
applicable to the contribution associated with such Accounts. Loan repayments
will be credited to the Participant's Loan Account and transferred to the
Participant's Accounts as of the Valuation Date coinciding with or immediately
following the date on which the repayment is made and will be invested by the
Trustee in accordance with Article VI and as provided above as soon as
practicable thereafter.
8.12 CONSEQUENCES OF FAILURE TO MAKE INSTALLMENT PAYMENTS ON LOANS. Except
-------------------------------------------------------------
as otherwise provided in a loan policy adopted by the Committee with respect to
a leave of absence, in the event a Participant fails to make an installment
payment when due, the promissory note shall become due and payable in full if
the Participant fails to become current on all repayments by the last day of the
calendar quarter which follows the quarter in which such installment payment was
missed. If the promissory note becomes due and payable in full, the note will be
satisfied from the portion of the Participant's Account Balance under the Plan
which has been pledged as security under the promissory note.
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<PAGE>
If the Participant's Account Balance (other than the portion attributable
to his or her Loan Account) may be withdrawn from the Plan pursuant to Sections
8.03 and 8.04, or the later of the date the Participant has terminated
Employment or his or her severance pay period ends as of the date on which the
promissory note becomes due and payable in full, the units against which the
loan was made will be deemed to be withdrawn or distributed from the Plan to the
Participant (whether or not the Participant has elected a withdrawal or
consented to a distribution) to the extent of the unpaid balance of the
promissory note as of the first day of the month following the date on which the
promissory note became due and payable, and the promissory note will be deemed
to be repaid. To the extent applicable, the Participant shall be subject to the
contribution suspension provisions of Section 8.03.
If the promissory note becomes due and payable in full prior to the
Participant's termination of Employment and prior to his or her attainment of
age fifty-nine and one-half (59 1/2), the Thrift Contribution Units (other than
the portion representing Unmatured Thrift Contributions), Matured Company
Matching Contribution Units, Rollover Contribution Units and such other units
which may be withdrawn prior to age 59 1/2 pursuant to Section 8.05 against
which the loan was made and which have not been repaid will be deemed to be
withdrawn from the Plan by the Participant (whether or not the Participant has
elected a withdrawal) as of the first day of the month following the date on
which the promissory note becomes due and payable, and the promissory note will
be deemed to be repaid to the extent of such deemed withdrawal. To the extent of
the unpaid balance of the promissory note after such deemed withdrawal, Thrift
Contribution Units (other than the portion representing Unmatured Thrift
Contributions), Matured Company Matching Contribution Units, Rollover
Contribution Units and such other units credited to the Participant's Account
which may be withdrawn pursuant to Section 8.05 will be deemed to be withdrawn
in accordance with Section 8.05 by the Participant as of the first day of the
month following the date the promissory note became due and payable in full and
repaid to the Plan on such day. The withdrawal will be in the order set forth in
Section 8.05, and the provisions of Section 8.05 regarding contribution
suspensions shall also apply. Such repayments shall be recredited to the
Participant's Loan Account and transferred to the Participant's Accounts as
provided in Section 8.11. Thereafter, any outstanding loan balance shall be
satisfied to the extent possible through payroll deductions and/or the
withdrawal of any amounts which subsequently become available for withdrawal.
In all other circumstances, to the extent of the unpaid balance of the
promissory note which becomes due and payable, the Tax Deferred Contribution
Units, Company Profit-Sharing Units and other units which may not be withdrawn
prior to age 59 1/2 pursuant to Section 8.05 against which the loan was made
will be deemed to be withdrawn or distributed from the Plan to the Participant
as of the first day of the first month thereafter in which such Tax Deferred
Contribution Units, Company Profit-Sharing Units and other units which may not
be withdrawn prior to age 59 1/2 pursuant to Section 8.05 may be withdrawn, or
distributed following the Participant's termination of Employment (whether or
not the Participant has elected a withdrawal or consented to a distribution),
and the promissory note will be deemed to be repaid.
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<PAGE>
To the extent any unpaid principal or interest balance of the loan is
outstanding at the time of a Participant's death, the units against which the
loan was made will be deemed to be distributed to the Participant and the
promissory note repaid immediately at the time of the Participant's death.
The security pledged shall be released at the same time and in the same
proportion as the loan repayment.
ARTICLE IX
PAYMENT OF DISBURSEMENTS FROM THE FUNDS
---------------------------------------
9.01 MANNER OF DISBURSEMENTS; CONSENT TO DISTRIBUTIONS.
-------------------------------------------------
(a) All disbursements from Fund B shall be paid in the form of full shares
of Quaker State Capital Stock to the extent possible, with the balance, if any,
paid in cash; provided, however, that disbursements may at the payee's election
be paid in the form of cash, and further provided, that any disbursements made
from Fund B in cash instead of in Quaker State Capital Stock will be subject to
such limitations as are imposed upon the liquidation of Quaker State Capital
Stock or otherwise by applicable securities laws. All disbursements from funds
in Fund Group A shall be paid in cash. Notwithstanding the foregoing,
disbursements may be made in the form of a direct transfer to the extent
permitted under Section 9.02. All cash disbursements from the Plan, including
withdrawals, distributions and loans, shall be made by check in the name of the
Participant, the Participant's Beneficiary, or the beneficiary designated
pursuant to Article XIV, as the case may be.
Each disbursement shall be paid on the basis of the respective values,
determined as provided in Article VI, of the units in funds in Fund Group A or
Fund B on the Valuation Date specified herein as the applicable Valuation Date,
after which payment of such disbursement shall be made as soon as practicable.
For purposes of converting units in Fund B into shares of Quaker State Capital
Stock, the per share value of such Quaker State Capital Stock shall be deemed to
be the Fair Market Value thereof on the Valuation Date.
Prior to actual receipt by a Participant or a Beneficiary of his or her
distributable portion of any Fund, he or she shall have no right to enjoy or
possess the distributable portion, and the distributable portion, while in the
hands of the Trustee, shall be subject to the anti-alienation provisions of
Section 12.14.
(b) At least thirty (30) days, but no more than ninety (90) days, before
the date of distribution of a benefit pursuant to Section 8.01 or the date of an
in-service withdrawal pursuant to Sections 8.03 through 8.06, or the date of
distribution pursuant to a Diversification Election or installment distribution
under Article XX, a Participant must be given notice of: (1) his or her ability
to delay distribution until age sixty-five (65) (if applicable) and (2) his or
her ability to elect a direct transfer in accordance with Section 9.02. At least
thirty (30) days, but no more than ninety (90) days, before the date of
distribution to a spouse Beneficiary pursuant to Section
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8.02 (including a distribution to an Alternate Payee under a Qualified Domestic
Relations Order as described in Code Section 414(p) and ERISA Section 206(d)),
such Beneficiary shall be given notice of his or her ability to elect a direct
transfer under Section 9.02. A distribution may be made but shall not be
required to be made less than thirty (30) days after the Participant's or
Beneficiary's receipt of the notice required by this subsection; provided that:
(i) the notice clearly informs the Participant or Beneficiary of the right to
consider the decision regarding distribution or direct transfer for a period of
thirty (30) days after the notice is received, and (ii) after receiving the
notice, the Participant or Beneficiary waives the thirty (30) day period by
electing a distribution in writing to the Plan Manager on forms provided by or
acceptable to the Plan Manager.
9.02 DIRECT TRANSFER DISTRIBUTION OPTION. Notwithstanding any provision of
-----------------------------------
either Section 8.01 or 8.02, and subject to the provisions of the following
paragraph, if a Participant or other person entitled to a distribution receives
an eligible rollover distribution (within the meaning of Section 402(f)(2)(A) of
the Code and regulations thereunder) from the Plan, a special election of the
direct transfer option may be made to avoid the imposition of automatic
withholding of Federal income taxes from the distribution under Section 3405 of
the Code and the regulations thereunder. The direct transfer option shall
provide for all or a designated portion of such distribution to be paid by the
Trustee directly to an eligible retirement plan (within the meaning of Section
402(c)(8)(B) of the Code and the regulations thereunder), including a defined
benefit plan to the extent permitted by IRS regulations, in a trustee-to-trustee
transfer in lieu of receiving the distribution from the Plan. In order for the
direct transfer option to apply, the election must be made in accordance with
procedures established by the Committee or its delegate, the eligible retirement
plan must be clearly specified, and the specified plan must be willing to accept
the transfer.
No election of the direct transfer option shall be permitted if the amount
of the eligible rollover distribution is less than $200. If the Participant or
other person entitled to a distribution elects to have the direct transfer
option apply to less than the entire amount of such distribution, the direct
transfer portion must equal at least $500. In addition, direct transfers may be
made only to one eligible retirement plan. The limits set forth in this
paragraph may be modified by the Committee to the extent permitted by Code
Sections 401(a)(31), 402, and 3405 and the regulations issued thereunder or
other applicable law. The provisions of this Section 9.02 shall be interpreted
and applied consistently with Sections 521 through 523 of the Unemployment
Compensation Amendments of 1992, and shall be deemed to be automatically
amended, without the necessity of adopting a specific amendment, to the extent
that applicable law or regulations modify, amend, supersede, eliminate, clarify,
or otherwise change the requirements of such Sections 521 through 523.
ARTICLE X
THRIFT PLAN COMMITTEE
---------------------
10.01 COMMITTEE. The general administration of the Plan and the
---------
responsibility for carrying out the provisions of the Plan are vested in the
Committee. Whenever the Company is
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<PAGE>
required or permitted to take any action in the administration of the Plan,
such action shall be taken by the Committee unless the Committee's power is
expressly limited. The Committee shall consist of at least three (3) persons,
who are not Securities Act Reporting Persons, and who may or may not be
Participants in the Plan, appointed by the Organization and Compensation
Committee of the Board of Directors. The Committee shall be the Named Fiduciary
as to administration of the Plan and, unless otherwise delegated by the
Committee, shall be the Plan Administrator. As used herein, the terms "Named
Fiduciary" and "Plan Administrator" shall have the meanings set forth in ERISA
Sections 402(a)(2) and 3(16)(A), respectively. The Committee as a whole or any
of its members may serve in more than one fiduciary capacity with respect to the
Plan, and the Committee may, by written notice of appointment delivered to such
person or persons, corporate or individual, delegate and allocate any fiduciary
responsibility (other than that of Named Fiduciary as to Plan administration) to
any other person or persons, who may also serve in more than one fiduciary
capacity.
10.02 RECORDS AND POWERS. The Committee or its delegate shall maintain and
------------------
keep such records as are necessary for the efficient operation of the Plan or as
may be required by any applicable law, regulation, or ruling and shall provide
for the preparation and filing of such forms or reports as may be required to be
filed with any governmental agency or department and with the Participants
and/or other persons entitled to benefits under the Plan. The Committee shall
have the exclusive discretionary power and authority necessary to carry out the
provisions of the Plan and to satisfy the requirements of any applicable law or
laws. This shall include, by way of illustration and not limitation, the power
and authority necessary to:
(a) construe and interpret the Plan; decide all questions of
eligibility; determine all facts relating to claims for benefits; and
determine the amount, timing, and manner of payment of any benefits
hereunder;
(b) prescribe rules and regulations for the administration of the
Plan, including procedures to be followed by Participants and/or other
persons in filing applications or elections, and procedures for handling
transactions under the Plan which are subject to limitations imposed by
applicable laws, including, but not limited to, securities laws;
(c) prepare and distribute, in such manner as may be required by law
or as the Committee deems appropriate, information explaining the Plan;
(d) obtain from the Company and Participants such information as
shall be necessary for the proper administration of the Plan;
(e) establish the funding policy of the Plan, which shall set forth
the current liquidity needs and investment philosophy, and which shall be
communicated annually to the Trustee and any Investment Managers (as used
in this Article X, "Investment Manager" shall have the meaning set forth in
ERISA Section 3(38));
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<PAGE>
(f) establish up to nine (9) investment funds for use for
Participants to direct the investment of their Account(s) as allowed in
accordance with the terms of the Plan, which funds shall be communicated at
least annually to the Trustee in accordance with the Trust Agreement, and
review the investment performance of the funds and make any changes in the
selection of such funds as the Committee deems necessary or appropriate;
and
(g) appoint and retain individuals to assist in the administration of
the Plan, including such recordkeeping, legal, clerical, accounting, or
actuarial services as it may require or as may be required by any
applicable law or laws.
The Committee shall have no power to add to, subtract from, or modify the
terms of the Plan; to change or add any benefits provided by the Plan; or to
waive or fail to apply any requirements of eligibility for benefits under the
Plan. In addition, the Committee shall have no power to adopt, amend, or
terminate the Plan; to select or appoint the Trustee and/or insurance carriers;
or to determine or require Company contributions to the Plan, such powers being
exclusively reserved to the Board (or the Board's delegate, to the extent
provided under Section 11.01).
10.03 DUTIES. The Committee and its delegates shall discharge their duties
------
with respect to the Plan solely in the interest of the Participants and other
persons entitled to benefits under the Plan and shall do so with the care,
skill, prudence, and diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with such matters would use
in the conduct of an enterprise of like character and with like aims. The
Committee shall at all times act in accordance with the terms and conditions of
the Plan and any applicable law, rules, regulations, or judicial decisions which
govern the operation and administration of the Plan.
10.04 ORGANIZATION. The Committee shall designate a chairman from among its
------------
members and a secretary who may, but need not, be a member. The Committee may
appoint from its members such subcommittees with such powers as it shall
determine, and may authorize one or more of its members or any other designated
agent to execute and/or deliver any instrument or make any payment on its
behalf. The Committee may delegate or allocate any fiduciary responsibility to
one or more of its members or any other person or persons, corporate or
individual, any or all of whom may serve in more than one fiduciary capacity.
10.05 MEETINGS. The Committee shall hold meetings upon such notice, at such
--------
places and at such times as it may determine; provided, however, that a meeting
shall be held at least once each Plan Year. A meeting may be held in any manner
as may be determined by the Committee, but in any event, when all members are
not physically present, the actions of the Committee shall be reduced to writing
and sent to all members within ten (10) days of the date of the meeting. A
majority of the Committee shall constitute a quorum, and any action which the
Plan authorizes or requires the Committee to take shall require the written
approval or affirmative vote of a majority of its members, unless authority to
take such action has been duly delegated as provided herein. A dissenting member
who registers his or her dissent in writing
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<PAGE>
delivered to the other members and the Company within seven (7) days after he or
she has knowledge of any action or failure to act by the majority or a delegate
shall not be responsible for any such action or failure to act.
The Committee may from time to time adopt such rules and regulations for
the transaction of its business and shall keep such records as the Committee
shall determine to be necessary to fulfill its duties and obligations or as may
be required by any applicable law, regulation, or ruling.
10.06 COMPENSATION AND INDEMNIFICATION. Members of the Committee shall
--------------------------------
serve without compensation, except the Company may pay the members of the
Committee a reasonable fee for attendance at meetings and the members shall be
reimbursed by the Company for any expenses incurred by the Committee or any
member or members in the performance of their duties hereunder.
The Company shall to the extent not covered by insurance indemnify the
Committee, its members, its delegates, and its appointees (other than the
persons who are independent of the Company and are rendering services to the
Plan for a fee) from any and all liability which may arise by reason of their
action or failure to act concerning the Plan, excepting any willful misconduct
or gross negligence.
10.07 RESIGNATIONS AND REMOVALS. Any member of the Committee may resign by
-------------------------
giving thirty (30) days written notice to the Board and the secretary of the
Organization and Compensation Committee. Any member of the Committee may be
removed by the Organization and Compensation Committee, and such removal shall
be effective at such time as provided in the written notice from the
Organization and Compensation Committee. Any vacancies in the Committee shall be
filled by the Organization and Compensation Committee as such vacancies occur.
10.08 INVESTMENT MANAGER. The Committee may appoint one or more Investment
------------------
Managers, who shall have the responsibility for the investment of all or part of
the assets of the Plan. Upon written acceptance by the Investment Manager of the
fiduciary responsibility incident to such an appointment, the Investment Manager
shall be solely liable for all investment actions taken with respect to the
assets which are subject to its management. The Committee may appoint such
person or persons, who may or may not be designated as fiduciaries, to review
the performance of the Investment Manager and to report thereon to the
Committee. The Committee may delegate to such person or persons the authority to
designate the amount of Plan Funds subject to the control of the Investment
Manager.
10.09 AUDITS. The Committee shall, if required by law, appoint an
------
independent certified public accountant to audit the Plan, its assets, and any
financial statements or schedules used in the Plan's annual report. All reports
of such accountant shall be submitted to the Committee within such time and in
such form as may be required by applicable law.
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10.10 PLAN MANAGER. The Board, the Organization and Compensation Committee
------------
of the Board of Directors, or the Committee may, but shall not be required to,
designate a person or persons, who may or may not be members of the Committee,
to be the Plan Manager; in the absence of such a designation, the Committee
shall perform the duties of the Plan Manager. The Plan Manager shall be
responsible for the day-to-day administration of the Plan and for such other
duties and responsibilities delegated to him or her by the Board, the
Organization and Compensation Committee of the Board of Directors, or the
Committee. The Plan Manager may appoint others to assist him or her in carrying
out certain of his or her duties and responsibilities under the Plan.
10.11 RELIANCE UPON OTHERS. To the extent permitted by law, the Committee,
--------------------
the Plan Manager, any person to whom the Committee or the Plan Manager may
delegate any duty or power in connection with administering the Plan, the
Company, the other members of the Control Group, and the officers and directors
thereof shall be entitled to rely conclusively upon, and shall be fully
protected in any action taken or suffered by them in good faith and taken in
reliance upon, the advice of any counsel, accountant, or other specialists or
persons selected by the Committee or the Plan Manager or upon any tables,
valuations, certifications, opinions, or reports which shall be furnished by any
of the same or by the Trustee. Further, to the extent permitted by law, the
members of the Committee, the Plan Manager, the Company, the other members of
the Control Group, and the officers and directors thereof shall not be liable
for any neglect, omission, or wrongdoing of the Trustee or any other member of
the Committee or the Plan Manager.
10.12 REVIEW OF APPLICATION FOR BENEFITS.
----------------------------------
(a) When a Participant or other person files an application for benefit
payments pursuant to Article VIII, the Plan Manager or his or her delegate shall
review the application and make a determination of eligibility for any amount of
benefit due a Participant or such other person.
(b) If an application is wholly or partially denied, the Plan Manager or
his or her delegate shall give written notice of the denial to the Participant
or other person applying (hereinafter referred to in this Section as the
"claimant") and to the Committee within ninety (90) days after receipt of the
claim, unless special circumstances require an extension of not more than an
additional ninety (90) days (in which event the claimant will be notified of the
delay during the first ninety-day period). Such notice shall set forth:
(1) the specific reason or reasons for the denial, with references to
the specific Plan provisions on which the denial is based,
(2) an explanation of additional material or information, if any,
necessary to perfect any claim and a statement of why such material or
information is necessary, and
(3) an explanation of the review procedure.
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If the notice of denial is not furnished within the required time period
specified above, the claim shall be deemed to be denied and the claimant shall
be permitted to proceed to the review stage described in subsection (c), below.
(c) In the event an application for benefits is denied by the Plan
Manager or his or her delegate, either in whole or in part as to the payment of
benefits or amounts, the claimant shall have the right to request a full and
fair Committee review of the denial. Such request shall be made in writing and
delivered to the Committee or its delegate within sixty (60) days of receipt of
the written notice of claim denial (or sixty (60) days after the day on which
the claim is deemed denied under subsection (b), above). In connection with such
review, the claimant or his or her duly authorized representative shall have the
right to review any pertinent documents and to submit any issues or comments in
writing to the Committee.
(d) The Committee shall submit its decision in writing within sixty (60)
days after receipt of the request for review, or in special circumstances (such
as where the Committee in its sole discretion finds there is a need to hold a
hearing), within one hundred twenty (120) days after receipt of the request for
review (written notice of any such extension shall be furnished to the claimant
before the commencement of such extension). The written decision shall be
binding on all parties and will contain specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision is
based. If no decision is furnished within the time period specified above, the
claim shall be deemed to be denied on review.
(e) If a Participant or other person fails to file a claim or request
for review in the manner and within the time limitations set forth herein, such
claim or request for review shall be waived.
(f) If no Plan Manager has been appointed, then wherever Plan Manager is
used in this Section 10.12, "Committee" will be substituted and wherever
"Committee" has been used, the "Organization and Compensation Committee of the
Board" shall be used.
10.13 CONFLICT OF INTEREST. Neither the Plan Manager nor any member of the
--------------------
Committee shall participate in the consideration of any matter or question under
the Plan which specifically relates to him or her or any other person entitled
to benefit payments because of the Plan Manager's or Committee member's
participation under the Plan.
10.14 TEMPORARY SUSPENSION OF CERTAIN PLAN ACTIVITIES IN CONNECTION WITH A
--------------------------------------------------------------------
RECORDKEEPER CHANGE. Notwithstanding anything to the contrary herein, in the
- -------------------
event that the Plan's recordkeeper is changed, the Board, the Committee, or a
delegate may establish procedures for temporarily suspending certain Plan
activities in order to facilitate the recordkeeping change. The activities which
may be suspended include, by way of illustration and not limitation, loans,
withdrawals, distributions, changes in contribution percentages, changes in
investment allocations and changes in investment funds.
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ARTICLE XI
AMENDMENT AND TERMINATION
-------------------------
11.01 MODIFICATION OR AMENDMENT. Quaker State, by action of its Board, or
-------------------------
any person or entity who by action of the Board has been authorized by the Board
to amend the Plan, reserves the right at any time and from time to time, to
modify or amend, in whole or in part, any or all provisions of the Plan,
provided that no modification or amendment shall be made which shall affect
adversely any right or obligation of any Participant with respect to
contributions theretofore made or which shall make it possible for any funds
paid to the Trustee to revert to the Company. Notwithstanding the foregoing, any
modification or amendment of the Plan may be made, retroactively if necessary,
which the Board, or any person or entity who by action of the Board has been
authorized by the Board to amend the Plan, deems necessary or proper to bring
the Plan into conformity with any law or governmental regulation relating to
plans or trusts of this character, including the qualification of any trust
created under the Plan as an exempt trust under the Code.
11.02 TERMINATION. Quaker State, by action of its Board, may terminate the
-----------
Plan or, in conjunction with the subsidiaries which have joined the Plan,
completely discontinue contributions hereunder for any reason at any time. Upon
termination of the Plan, partial termination of the Plan, or complete
discontinuance of contributions, the rights of each affected Participant to
amounts credited to his or her Accounts shall be nonforfeitable.
ARTICLE XII
GENERAL PROVISIONS
------------------
12.01 INVESTMENT EXPENSES. Brokerage commissions and transfer taxes
-------------------
incurred in connection with the purchase or sale of securities shall be added to
the cost thereof or deducted from the proceeds thereof, as the case may be.
12.02 OTHER EXPENSES. All other costs and expenses, including the fee of
--------------
the Trustee and all expenses incurred in the administration of the Plan, shall
be borne by the Company, except as otherwise provided elsewhere herein.
12.03 VOTING RIGHTS. Quaker State or its delegates shall cause each
-------------
Participant and Beneficiary entitled to give voting directions to the Trustee to
be provided with a copy of a notice of each such stockholder meeting and the
proxy statement of Quaker State, together with an appropriate form for
indicating his or her voting directions. At each meeting of the stockholders of
Quaker State, the Trustee shall vote in accordance with directions received from
each Participant those full shares of Quaker State Capital Stock which are
represented by Thrift Contribution Units, Tax Deferred Contribution Units,
Company Matching Contribution Units, Company Profit-Sharing Contribution Units,
Rollover Contribution Units, Prior Blue Coral 401(k) Units, Prior Slick 50 Match
Units, Tye Profit-Sharing Units and ESOP Contribution Units credited to the
Participant's Accounts as of the record date for such meeting. The Trustee will
exercise voting rights with respect to all other shares of Quaker State Capital
Stock held by
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it and with respect to all shares of Quaker State Capital Stock as to which
voting instructions are not received from Participants proportionately with the
votes received from Participants.
12.04 TENDER, EXCHANGE, OR PURCHASE OFFERS. Each Participant (or his or
------------------------------------
her Beneficiary in the case of the Participant's death) shall have the right to
direct the Trustee as to the manner in which to respond to any tender, exchange,
or purchase offer, or any matter related thereto, with respect to Quaker State
Capital Stock allocated to the Participant's Account.
The Trustee will endeavor to: (a) distribute or cause to be distributed to
each such Participant or Beneficiary entitled to give voting directions to the
Trustee all written materials received by the Trustee as record owner of Quaker
State Capital Stock pertaining to any such offer and shall provide forms for
giving such directions, and (b) ensure that no duress is exercised over any
Participant with respect to any decision which the Participant makes in
connection with a tender, exchange, or purchase offer. A Participant or
Beneficiary may at any time revoke or change any such direction upon submission
to the Trustee of a timely new direction. The instructions received by the
Trustee from Participants shall, to the extent practicable, be held by the
Trustee in confidence and shall not be divulged or released to any person,
including officers or employees of the Company or any member of the Control
Group. In the event that the Trustee determines that undue pressure has been
placed upon a Participant in making a decision regarding a tender, exchange, or
purchase offer, the Trustee shall ignore such Participant's directions.
If directions are not timely received by the Trustee with respect to any
shares of Quaker State Capital Stock allocated to a Participant's Account, or if
the Trustee must ignore a Participant's directions because of undue pressure
placed upon the Participant, the Trustee shall accept or reject the offer with
respect to such shares as the Trustee, in its sole discretion, determines. The
Trustee shall accept or reject any such tender, exchange, or purchase offer with
respect to all other shares of Quaker State Capital Stock held by it and not
allocated to a Participant's Account as the Trustee, in its sole discretion,
determines.
12.05 TRUSTEE DUTIES.
--------------
(a) The Trustee shall discharge its duties with respect to Quaker State
Capital Stock over which it has voting authority or the authority to accept or
reject a tender, exchange, or purchase offer solely in the interests of the
Participants and Beneficiaries of the Plan. The Trustee is authorized to engage
independent advisors, consultants, counsel, and experts in furtherance of its
duties and responsibilities hereunder, and the Company agrees to share with the
Trustee any reports and advice obtained by it from its own advisors,
consultants, counsel, and experts. The Trustee shall also be authorized to
utilize Company facilities to disseminate to Participants and Beneficiaries any
information obtained by such Trustee which the Trustee determines, in its sole
discretion, to be relevant to the decisions of such Participants and
Beneficiaries, including but not limited to, the decision of the Trustee and the
primary reasons therefor.
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(b) In order to assure the independence of any decisions taken by the
Trustee under this Article XII, the authority of the Board to remove and replace
the Trustee shall be suspended during any proxy contest or tender, exchange, or
purchase offer with respect to Quaker State Capital Stock, except with respect
to filling any vacancy. The Company also undertakes that it will not exercise
duress over any Participant with respect to his or her decisions to be made
hereunder and that it will pay all expenses of the Trustee in fulfilling its
fiduciary obligations with respect to the Quaker State Capital Stock, including
the expenses of any legal proceedings involving the Trustee or the Trust Fund.
The Trustee shall be entitled to rely on Section 404(c) of ERISA in acting
in accordance with any instructions or directions received by the Trustee from
Participants and Beneficiaries and, by following the standards set forth in
Section 12.05(a), the Trustee shall have fulfilled its responsibilities under
Section 404(a)(1)(B) of ERISA. The Company acknowledges its fiduciary
responsibility in prescribing such standards in this Plan and Trust, considers
such standards to be in furtherance of the legislative objectives of ERISA and
undertakes that it will, at its sole expense, defend any legal action
challenging such standards or any actions taken by the Trustee pursuant thereto.
The Company agrees to indemnify and hold the Trustee harmless for acting in good
faith pursuant to such standards. The Company shall promptly advance to or for
the benefit of the Trustee all costs, charges, and expenses incurred by the
Trustee in the prosecution or defense of any legal action or proceeding,
including preparation for any such action or proceeding, regarding the Plan or
Trust Fund or the administration thereof, as to which the Trustee is or may be a
party. The Company acknowledges that the Trustee is undertaking substantial
fiduciary duties and responsibilities hereunder at the Company's request and
pursuant to the terms and standards set forth herein by the Company and
therefore agrees, to the extent permitted by applicable law, to indemnify the
Trustee from and against all liability, claims, causes of action, attorneys'
fees, settlements, and the like to which the Trustee may be exposed or subjected
on account of its Trusteeship until and unless it is finally adjudicated (in a
decision from which there is no appeal) that the Trustee's actions or omissions
hereunder constituted a breach of fiduciary responsibility in violation of
ERISA.
12.06 STATEMENT. The Committee shall, as soon as practicable each year,
---------
deliver to each Participant a statement setting forth his or her interest in the
Plan as of the preceding December 31. The Committee, or its designee, shall as
soon as practicable following each calendar quarter ending on March 31, June 30
and September 30 deliver to each Participant a statement setting forth his or
her interest and changes in his or her interest in the Plan since the last
statement date. Other statements of Account may be delivered from time to time
at the discretion of the Committee. Each statement shall be deemed correct
unless notice to the contrary is given to the Committee within ninety (90) days
after the statement shall have been delivered to the Participant or the person
receiving such statement, as the case may be.
12.07 DISBURSEMENT STATEMENT. At the time of any disbursement pursuant to
----------------------
Article IX, the Committee shall deliver to the person receiving such
disbursement a statement setting forth the computation of the amount of such
payment. Each such statement shall be deemed correct unless notice to the
contrary is given to the Committee within ninety (90) days
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<PAGE>
after the statement shall have been delivered to the Participant or the person
receiving such payment, as the case may be.
12.08 BENEFICIARY. A Participant must file with the Plan Manager a written
-----------
designation of a Beneficiary or Beneficiaries with respect to the assets in the
Account of the Participant. In the case of a Participant with a legal spouse
(including a former legal spouse, to the extent required under a Qualified
Domestic Relations Order), the Participant's surviving legal spouse shall be
deemed to be the designated Beneficiary unless a designation of another
Beneficiary is made in accordance with the rules set forth in this Section. A
Participant with a legal spouse may designate someone other than his or her
legal spouse as Beneficiary by written notice to the Plan Manager only if: (a)
the legal spouse consents in writing not to be the Beneficiary; (b) the legal
spouse's consent acknowledges the effect of such consent; (c) the legal spouse's
signature is notarized by a notary public; and (d) the election and the legal
spouse's consent specifically identify the non-spouse Beneficiary, which
Beneficiary designation may not be changed without the legal spouse's consent
(except if the change is to make the legal spouse the Beneficiary). Such consent
by a legal spouse will be effective only with respect to that spouse. Each new
legal spouse must sign a consent as provided above. No spouse's consent is
required where the Participant has established to the satisfaction of the Plan
Manager that there is no legal spouse, that the legal spouse cannot be located,
or that there exist such other circumstances as the Secretary of the Treasury
may prescribe by regulations.
The written designation of a Beneficiary filed with the Plan Manager may be
changed or revoked by the Participant filing with the Plan Manager a subsequent
designation of Beneficiary. The revocation of a Beneficiary designation, no
matter how effected, shall not require the consent of any designated
Beneficiary; however, the change of a Beneficiary designation by a Participant
with a legal spouse will require the consent of the Participant's legal spouse
in accordance with the above rules, unless the legal spouse becomes the
designated Beneficiary as a result of the change. No Beneficiary designation or
revocation of such designation shall be effective unless received by the
Committee or the Plan Manager prior to the Participant's death or incapacity.
If any Participant fails to designate a Beneficiary in the manner provided
above, if the Participant remarries without filing a new beneficiary designation
form, or if the primary and contingent Beneficiaries designated by a deceased
Participant die before the Participant or before distribution of the
Participant's benefits, the Committee will direct the Trustee to distribute such
Participant's benefits to his or her surviving legal spouse, or if none, to the
estate of such deceased Participant.
12.09 MERGER OR CONSOLIDATION. 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 maintained or to be established for the
benefit of all or some of the Participants of the Plan, the assets of the Trust
Fund applicable to such Participants shall be merged, consolidated, or
transferred to the other trust fund only if each Participant would (if either
the Plan or the other plan which is a part of such other trust fund then
terminated) receive a benefit immediately after
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<PAGE>
the merger, consolidation, or transfer which is equal to or greater than the
benefit he or she would have been entitled to receive immediately before the
merger, consolidation, or transfer (if the Plan had then terminated).
12.10 COMMENCEMENT OF BENEFIT PAYMENTS.
--------------------------------
(a) Unless a Participant otherwise elects, benefit payments must
commence no later than sixty (60) days after the close of the Plan Year in which
occurs the latest of:
(1) the date on which a Participant attains age sixty-five (65);
(2) the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan; or
(3) the date on which the Participant ceased to be employed by the
Company and all other members of the Control Group.
(b) Notwithstanding the provisions of subsection (a) above, and except
as provided in the following sentence, payments to a Participant must commence
no later than April 1 of the calendar year following the calendar year in which
such Participant attains age seventy and one-half (70 1/2) for Participants
attaining age seventy and one-half (70 1/2) before January 1, 1999; or April 1
of the calendar year following the later of: (1) the calendar year in which the
Participant attains age seventy and one-half (70 1/2), or (2) the calendar year
in which the Participant terminates Employment for Participants attaining age
seventy and one-half (70 1/2) after December 31, 1998. Nevertheless, except as
provided below, a Participant who attains age seventy and one-half (70 1/2)
shall have the right to receive a distribution of his or her Account Balance as
soon as practicable after the December 31st Valuation Date (or the next
following Valuation Date if December 31 does not fall on a Valuation Date) of
the Plan Year in which such Participant attains age seventy and one-half (70
1/2) and on the anniversary of such date thereafter.
Notwithstanding any other provisions of this subsection (b), a Participant
who is a "5-percent owner" (as defined in Code Section 416) and who attains age
seventy and one-half (70 1/2) shall receive a distribution of his or her Account
Balance as soon as practicable after the December 31st Valuation Date of each
Plan Year which (1) coincides with the calendar year in which the Participant
attains age seventy and one-half (70 1/2), and (2) begins prior to the
Participant's termination of Employment.
(c) If a Participant dies before the distribution of his or her interest
under the Plan has begun, his or her Account Balance shall be distributed as
soon as administratively practicable following the Participant's death and in
any event not later than one (1) year after the date of death (or such later
date as provided in Section 8.02), or if earlier, the date required pursuant to
Code Section 401(a)(9) and the regulations thereunder.
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(d) In all circumstances, distributions under the Plan shall comply with
the requirements of Code Section 401(a)(9) and the regulations thereunder,
including the "incidental benefit" rules of Code Section 401(a)(9)(G) and
Proposed Treasury Regulation (S) 1.401(a)(9)-2 (or any successor temporary or
final regulation).
(e) A Participant (other than a Participant who is a "5-percent owner"
(as defined in Code Section 416) with respect to the Plan Year ending in the
calendar year in which such Participant attains age seventy and one-half (70
1/2) in calendar years 1996, 1997, or 1998 may elect to defer his Annuity
Starting Date until no later than April 1 of the calendar year following the
later of (1) the calendar year in which such Participant attains age seventy and
one-half (70 1/2) or (2) the calendar year in which such Participant terminates
his or her employment with the Company or the Control Group, provided, that such
election is made by the later of April 1 following the end of the calendar year
in which such Participant attains age seventy and one-half (70 1/2) or December
31, 1997.
(f) If (1) a Participant attained age seventy and one-half (70 1/2), but
did not terminate employment with the Company prior to 1997, (2) such
Participant's Annuity Starting Date occurred prior to his or her termination of
employment pursuant to the provisions of subsection (b) prior to the Effective
Date, (3) such Participant is an Employee, and (4) such Participant is not a "5-
percent owner" (as defined in Code Section 416) with respect to the Plan Year
ending in the calendar year in which such Participant attained age seventy and
one-half (70 1/2), such Participant may affirmatively elect to cease the
distribution of his or her Accounts hereunder until the time described in
subsection (b) above.
12.11 UNIFORM ADMINISTRATION. Whenever in the administration of the Plan
----------------------
any action of the Committee is required with respect to eligibility,
classification of Employees, contributions, or benefits, such action shall be
uniform in nature.
12.12 SOURCE OF PAYMENT. Benefits under this Plan shall be payable only
-----------------
out of the Funds and the Company shall have no legal obligation, responsibility,
or liability to make any direct payment of benefits accrued under the Plan.
Neither the Company nor the Trustee guarantees the Funds against any increase,
loss or depreciation of assets, or guarantees the payment of any benefit
thereunder. No persons shall have any rights under the Plan with respect to the
Funds, or against the Trustee or Company, except as specifically provided for
herein.
12.13 NO RIGHT TO EMPLOYMENT. Neither the existence of this Plan nor
----------------------
anything herein contained shall be deemed to give any Employee the right to be
retained in the service of the Control Group or to interfere with the rights of
any member of the Control Group to discharge him or her at any time; employment
being expressly "at-will" unless otherwise required by law or in an agreement
signed by an authorized corporate officer of the Company and the Employee.
12.14 INALIENABILITY OF BENEFITS. Except in the case of a security
--------------------------
interest given under Section 8.08 in connection with a Plan loan or the death of
the Participant, the rights or interest of a Participant or Beneficiary may not
be assigned or hypothecated and to the extent permitted
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<PAGE>
by law, no payments from the Plan shall be subject to legal process or
attachment for the payment of any claims against any person entitled to receive
same. Notwithstanding the preceding sentence, the Plan will recognize any
Qualified Domestic Relations Order and certain judgments and settlements
pursuant to ERISA Section 206(d) and Code Sections 401(a)(13) and 414(p). The
Committee will establish procedures which are consistent with those set forth in
Code Section 414(p) and ERISA Section 206(d) for determining the qualified
status of a domestic relations order and will establish such other practices and
procedures as may be administratively necessary or appropriate to be followed
pending a determination as to the qualified status of such order or to comply
with such order.
Where, because of a Qualified Domestic Relations Order, more than one
individual is treated as the surviving spouse of a Participant, the total
benefits to be paid to such surviving spouses as a group shall not exceed the
amount that would be paid if there were only one surviving spouse.
Payment of all or a portion of a Participant's Account Balance to an
Alternate Payee under a Qualified Domestic Relations Order may begin at any time
specified under the Qualified Domestic Relations Order, even if such date is
earlier than the "earliest retirement age" (within the meaning of Code Section
414(p) and ERISA Section 206(d)(3)). Any such payment of all or a portion of a
Participant's Account Balance to an Alternate Payee shall be in lieu of and in
satisfaction of the affected Participant's entitlement to such payment amount.
12.15 PAYMENT DUE AN INCOMPETENT. If the Committee determines that any
--------------------------
person to whom a payment is due hereunder is unable to care for his or her
affairs because of physical or mental disability, it shall have the authority to
cause the payments becoming due to such person to be made to such person's
spouse, brother, or sister, or such other person deemed by the Committee to have
incurred expense for such person otherwise entitled to payment (unless a prior
claim shall have been made by a duly qualified guardian or other legal
representative) without responsibility of the Committee or Trustee to see to the
application of such payments. Payments made pursuant to such power shall operate
as a complete discharge of the obligations of the Plan, the Committee, the
Trustee, and the Funds with respect to such payments.
12.16 NONREVERSION. The Trust Fund shall be maintained exclusively for the
------------
benefit of the Participants or other persons who may become entitled to benefits
under the Plan and for the payment of any costs or expenses incidental to the
Plan which are not paid by the Company. The Company shall have no right, title,
or interest in the contributions made to the Trust Fund, and no part of the
Trust Fund shall revert to the Company, except that: (a) if a contribution is
made to the Trust Fund by the Company because of a mistake of fact, then such
contribution may be returned to the Company within one (1) year of the
contribution (or within such other period of time as shall be permitted by
applicable law, so long as the qualified status of the Plan is not adversely
affected thereby); and (b) all contributions are conditioned upon their
deductibility under Section 404 of the Code and, therefore, to the extent that
any deduction is disallowed, such contribution (to the extent disallowed or
treated as disallowed) may be returned to the Company within one (1) year of
such disallowance (or within such other period of time as shall
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<PAGE>
be permitted by applicable law, so long as the qualified status of the Plan is
not adversely affected thereby).
12.17 LAW APPLICABLE. The Plan shall be governed by and construed
--------------
according to the laws of the State of Texas (including its statute of
limitations provisions) and any Federal laws which may from time to time be
applicable.
12.18 USE OF MASCULINE AND SINGULAR PRONOUNS. Whenever used herein, the
--------------------------------------
masculine pronoun shall include the feminine, and the singular form of a word
shall include the plural, unless a different meaning is plainly required by the
context.
12.19 HEADINGS. Headings of Articles and Sections of the Plan are inserted
--------
for convenience of reference only. They constitute no part of the Plan and shall
not be considered in the construction of the Plan.
12.20 SEPARABILITY CLAUSE. If any provision of this Plan or its
-------------------
application in any instance is held invalid, the remainder of this Plan or the
application of such provision in other circumstances shall not be affected
thereby.
12.21 EMPLOYEES IN QUALIFIED MILITARY SERVICE. Notwithstanding any
---------------------------------------
provision of this Plan to the contrary, effective December 12, 1994,
contributions, benefits and service credits with respect to qualified military
service will be provided in accordance with Code Section 414(u).
ARTICLE XIII
TOP HEAVY PROVISIONS
--------------------
13.01 TOP HEAVY PROVISIONS. With respect to any Plan Year in which the
--------------------
Plan is Top Heavy as hereinafter defined, notwithstanding any other Plan
provisions the following provisions shall apply:
(a) MINIMUM COMPANY MATCHING CONTRIBUTIONS. For each Plan Year
--------------------------------------
in which the Plan is Top Heavy, there shall be allocated to the Company
Matching Contributions Account of each Employee who is eligible to
participate in the Plan, is employed on the last day of the Plan Year, is
not a Key Employee, and is not a Participant in any other defined
contribution plan or a defined benefit plan maintained by the Company or a
member of the Control Group which provides the minimum benefit for a top
heavy plan in accordance with Code Section 416 and regulations thereunder,
Company Matching Contributions equal to the lesser of:
(1) three percent (3%) of such Employee's annual compensation
(within the meaning of Code Section 416(c)(2)(A)), minus, at
the option of the Committee, any or all of the Company
Matching Contributions and
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Company Profit-Sharing Contributions credited to such
Employee's Account under this Plan and Company contributions
on behalf of the Employee to the Quaker State Employee Stock
Ownership Plan for Plan Years ending on or before December
31, 1997 or any other defined contribution plan maintained
by the Company or a member of the Control Group for the Plan
Year; or
(2) the same percentage of such Employee's annual compensation
(within the meaning of Code Section 416(c)(2)(A)) as the
percentage of the annual compensation (within the meaning of
Code Section 416(c)(2)(A)) at which Company contributions
(including Company Profit-Sharing Contributions, Company
Matching Contributions, and Tax Deferred Contributions) are
made under the Plan for the Plan Year for the Key Employee
for whom such percentage is the highest, minus any Company
Matching Contributions and Company Profit-Sharing
Contributions credited to such Employee's Account under this
Plan and Company contributions on behalf of the Employee to
the Quaker State Employee Stock Ownership Plan for Plan
Years ending on or before December 31, 1997 or any other
defined contribution plan maintained by the Company or a
member of the Control Group for the Plan Year.
To the extent that Company Profit-Sharing Contributions and Company
Matching Contributions are used to satisfy the minimum contribution requirement
of this subsection (a), such contributions shall not be taken into account in
performing the Actual Contribution Percentage and Actual Deferral Percentage
tests set forth in Article XV.
(b) MAXIMUM CONTRIBUTIONS. In any Plan Year in which the Plan is
---------------------
Top Heavy, in applying the provisions of Section 5.03, the provisions of
Code Section 416(h) which modify Code Section 415 shall apply.
13.02 TOP HEAVY DETERMINATION. If the present value of the aggregate
-----------------------
accrued benefits for Key Employees under the Plan, under all other qualified
plans maintained by any member of the Control Group with which this Plan must be
aggregated in order to meet the qualification requirements of Code Sections
401(a)(4) or 410, or in which a Key Employee is a participant, and, at the
election of the Committee, under any or all other Company or Control Group
qualified plans not already included above, if such plans will not cause the
group of plans to fail to meet the requirements of Code Sections 401(a)(4) or
410, is more than sixty percent (60%) of the present value of the accrued
benefits of all employees under such plans as of the last day of the preceding
Plan Year (the "determination date"), the Plan shall be considered to be Top
Heavy for the then current Plan Year.
For purposes of this Section 13.02, the present value of the accrued
benefits under all defined contribution plans shall be the account balances as
of the valuation date (defined below) and shall include any contribution to a
defined contribution plan subject to the minimum funding
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requirements under Code Section 412 that would be allocated as of a date not
later than the determination date, even though the contributions are not
required to be made as of that date, and any contribution actually made to a
defined contribution plan not subject to the minimum funding requirements under
Code Section 412, after the valuation date (defined below) but on or before the
determination date, except that with respect to the first plan year of such a
defined contribution plan, contributions made after the determination date but
allocated as of a date during such first plan year shall also be included. In
each case, in determining such account balances, all distributions in the Plan
Year containing the determination date and the four (4) prior Plan Years shall
be included.
The present value of the accrued benefit in any defined benefit plan which
must be aggregated hereunder shall be determined as of the most recent valuation
date used for minimum funding purposes that falls within or ends with the twelve
(12)-month period ending on the determination date ("valuation date") assuming
each covered employee terminated service as of such date, excluding proportional
subsidies and including non-proportional subsidies so as to assume commencement
of the benefit at the age at which it would be most valuable, using the same
actuarial assumptions certified by the actuary for all such plans and following
the applicable requirements of the Code and the regulations thereunder. In each
case, in determining such accrued benefits all distributions in the Plan Year
containing the determination date and the four (4) prior Plan Years shall be
included.
If any employee or former employee is not a Key Employee for any Plan Year
but was a Key Employee for any prior Plan Year, or if any employee or former
employee has not performed services for the Company or any other member of the
Control Group at any time during the five (5)-year period ending on the
determination date, any accrued benefit for such individual shall not be counted
for purposes of this Section 13.02.
Related rollovers into a plan of the Control Group, and unrelated rollovers
out of a plan of the Control Group, are taken into account for purposes of this
Section 13.02. A "related rollover" is any rollover or transfer which is either
(i) not initiated by the employee or (ii) made between two (2) plans of the
Control Group. An "unrelated rollover" is any rollover or transfer which is both
(i) initiated by the employee and (ii) made between two (2) plans, one of which
is not maintained by a member of the Control Group.
13.03 KEY EMPLOYEES. For purposes of this Article XIII, a Key Employee is
-------------
any employee or former employee (including the beneficiary of a deceased
employee or former employee) of the Control Group who at any time during the
Plan Year containing the determination date or in any of the four (4) preceding
Plan Years is:
(a) an officer of the Company or any member of the Control Group
having annual compensation (as defined in Section 13.04) therefrom of more
than fifty percent (50%) of the maximum dollar limitation applicable to
defined benefit plans under Code Section 415(b)(1)(A) for such Plan Year;
provided, however, that where the Company or Control Group has:
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(1) thirty (30) or fewer employees, no more then three (3) officers
shall be treated as Key Employees;
(2) more than thirty (30) but fewer than five hundred (500)
employees, no more than ten percent (10%) of the employees
shall be considered as Key Employees if they are officers; and
(3) five hundred (500) or more employees, no more than fifty (50)
officers shall be considered as Key Employees.
In each case, if there are more officers than the relevant number set forth
above, the officers who shall be considered to be Key Employees will be the
relevant number of officers who had the largest annual compensation (as defined
in Section 13.04) in the applicable period;
(b) one of the ten (10) employees owning the largest percentage
ownership interest in value of the Company or a member of the Control
Group; provided, however, that any such employee shall not be considered a
Key Employee unless his or her annual compensation (as defined in Section
13.04) from the Control Group for such year is greater than the maximum
dollar figure contained in Code Section 415(c)(1)(A) which is applicable
for such year and unless he or she owns during the Plan Year ending on the
determination date or any of the four (4) preceding Plan Years, more than a
one-half percent (1/2%) ownership interest in the Company or a member of
the Control Group. If two (2) or more Employees have the same percentage of
ownership, the Employee with the higher compensation (as defined in Section
13.04) will be considered to have the greater share of ownership;
(c) a five percent (5%) owner (as defined in Code Section 416(i))
of the Company or a member of the Control Group; or
(d) a one percent (1%) owner (as defined in Code Section 416(i)) of
the Company or a member of the Control Group having annual compensation (as
defined in Section 13.04) from the Company of more than one hundred and
fifty thousand dollars ($150,000).
For purposes of subsections (b), (c), and (d) above, ownership shall
include direct ownership and constructive ownership in accordance with Code
Section 318, as modified by Code Section 416(i)(1)(B)(iii).
13.04 COMPENSATION. For purposes of Section 13.03, the term "compensation"
------------
has the meaning given such term by Code Section 414(q)(4).
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ARTICLE XIV
AMOUNTS TRANSFERRED FROM TERMINATED STURDIVANT ESOP IN 1990
-----------------------------------------------------------
PREAMBLE. The following provisions relate solely to amounts transferred to
the Plan on July 2, 1990 (the "Transfer Date") from the Sturdivant Life
Insurance Company Employee Stock Ownership Plan which was terminated as of
September 30, 1989 (the "Sturdivant ESOP").
14.01 TRANSFERRED AMOUNT means a dollar amount equal to the balance
------------------
of a Participant's Sturdivant ESOP account transferred to the Plan on the
Transfer Date from the Sturdivant ESOP pursuant to such Participant's written
election filed with the administrator of the Sturdivant ESOP as a result of the
termination of the Sturdivant ESOP. Such amount does not include any later
earnings or appreciation resulting from the investment of such Transferred
Amount and is reduced by any amount distributed to such Participant from the
Plan after the Transfer Date from the Account holding such Transferred Amount.
14.02 DISTRIBUTION OF TRANSFERRED AMOUNTS. Notwithstanding the
-----------------------------------
provisions of Article VIII which shall apply to distributions to Participants
subject to this Article XIV, the following provisions shall also apply, but
solely to the distribution of Transferred Amounts:
(a) Any Participant to whom distribution of a Transferred Amount
is made by reason of the Participant's termination of Employment under
Section 8.01, or any Beneficiary entitled to receive a distribution under
Section 8.02 by reason of the death of a Participant, may elect to have the
distribution of the Transferred Amount made in the form of annual
installments payable in substantially equal amounts, continuing over a
period not exceeding the lesser of ten (10) years, the Participant's or
Beneficiary's life expectancy, as applicable, or the joint life expectancy
of the Participant and his or her spouse, determined according to the life
expectancy tables published by the Internal Revenue Service for purposes of
Code Section 401(a)(9), instead of in a lump sum payment.
(b) Whenever a Transferred Amount is distributable in
installments, the undistributed balance of such amount shall continue to be
invested according to Article VI and participate in the valuation provided
under Article VII until fully distributed.
(c) In the event a Participant dies prior to receipt of all
installment payments, Section 8.02 shall not apply and the amount remaining
shall be paid to the Participant's beneficiary in a single cash payment if
it is $3,500 or less. If the amount remaining is greater than $3,500, the
remaining installments may be continued or paid in a single cash payment,
as the beneficiary elects in a manner approved by and filed with the
Committee or its delegate. However, effective January 1, 1998, $5,000 shall
be substituted for $3,500 in this Section 14.02(c).
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(d) Solely for purposes of this Article XIV, the term
"beneficiary" shall mean the person, persons, or entity designated by the
Participant on his or her installment payment election form, or if none,
the Participant's spouse or if none, the Participant's estate. No spouse's
consent shall be required for the designation of a beneficiary or change of
a beneficiary designation under this subsection. If the Participant's
beneficiary (or Beneficiary, as the case may be) dies after payments have
commenced but before full payment has been completed, the balance due shall
be paid to the beneficiary's (or Beneficiary's) estate in a single lump
sum.
14.03 DISTRIBUTION IN THE EVENT OF PLAN TERMINATION. In the event that
---------------------------------------------
the Plan terminates prior to the payment of all installments under Section
14.02, the amount remaining shall be paid to the Participant, the Participant's
beneficiary determined under Section 14.02 if applicable, or the Participant's
Beneficiary, if applicable, in the manner determined by the Committee in
accordance with applicable law.
ARTICLE XV
ADDITIONAL LIMITATIONS ON CONTRIBUTIONS
---------------------------------------
15.01 IN GENERAL. This Plan must comply with the requirements of Code
----------
Sections 401(a), 401(k), 401(m), and 402(g), all of which are applicable to
qualified "cash or deferred" profit-sharing plans. Accordingly, any Excess
Deferral Percentage, Excess Contribution Percentage, and/or any Excess Tax
Deferred Contribution Amounts (as defined in this Article XV) must be
eliminated; and there can be no Multiple Use of the Alternative Limitation (as
defined in Section 15.06(a)).
If the tests set forth in Code Sections 401(k), 401(m), and/or 402(g) are
eliminated from the Code, the corresponding provisions of this Article XV shall
be of no effect. If the tests set forth in Code Sections 401(k), 401(m), and/or
402(g) are modified, the corresponding provisions of this Article XV shall be
deemed to be modified accordingly.
15.02 DEFINITIONS AND RULES. For purposes of this Article, the
---------------------
following special definitions and rules shall apply:
(a) ACTUAL CONTRIBUTION PERCENTAGE means, for a group of
------------------------------
Eligible Employees, the average (to the nearest one-hundredth of one
percent (.01%)) of the Actual Contribution Ratios (calculated separately to
the nearest one-hundredth of one percent (.01%)) for each Eligible Employee
in the relevant group. The ACTUAL CONTRIBUTION RATIO is determined by
-------------------------
dividing (i) by (ii), where (i) is the total of Thrift Contributions,
Company Matching Contributions, and Company Profit-Sharing Contributions
(to the extent not used in calculating the Actual Deferral Percentage) made
for the Plan Year on behalf of such Eligible Employee, and (ii) is such
Eligible Employee's Testing Compensation for such Plan Year. To the extent
permitted under Section 401(m) of the Code or regulations and rulings
issued thereunder, the Committee
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may elect to aggregate an Eligible Employee's Tax Deferred Contributions
for the Plan Year with the contributions referred to in (i) above;
provided, however, that only those Tax Deferred Contributions which are not
taken into account for purposes of the Actual Deferral Percentage Test
shall be taken into account.
(b) ACTUAL DEFERRAL PERCENTAGE means, for a group of Eligible
--------------------------
Employees, the average (to the nearest one-hundredth of one percent (.01%))
of the Actual Deferral Ratios (calculated separately to the nearest one-
hundredth of one percent (.01%)) for each Eligible Employee in the relevant
group. The ACTUAL DEFERRAL RATIO is determined by dividing (i) by (ii),
---------------------
where (i) is the total Tax Deferred Contributions made for the Plan Year on
behalf of such Eligible Employee (except for any Tax Deferred Contributions
taken into account when determining the Actual Contribution Percentage),
and (ii) is such Eligible Employee's Testing Compensation for such Plan
Year. To the extent permitted under Section 401(k) of the Code or
regulations and rulings issued thereunder, the Committee may elect to
aggregate Company Profit-Sharing Contributions on behalf of an Eligible
Employee for the Plan Year with the Tax Deferred Contributions referred to
in (i) above; provided, however, that only those Company Profit-Sharing
Contributions which are not taken into account for purposes of the Actual
Contribution Percentage Test shall be taken into account.
(c) (1) ELIGIBLE EMPLOYEE means any Employee who is eligible to
-----------------
make Thrift Contributions and/or who is eligible to elect to have Tax
Deferred Contributions made on his or her behalf for all or a portion of a
given Plan Year, and any Employee whose Thrift Contributions and/or Tax
Deferred Contributions have been suspended under the terms of this Plan.
(2) ELIGIBLE HIGHLY COMPENSATED EMPLOYEE means any Highly
------------------------------------
Compensated Employee who is an Eligible Employee.
(3) ELIGIBLE NON-HIGHLY COMPENSATED EMPLOYEE means any Non-
----------------------------------------
Highly Compensated Employee who is an Eligible Employee.
(d) TESTING COMPENSATION shall mean an Eligible Employee's aggregate
--------------------
Salary for the Plan Year, except:
(1) in any Plan Year in which the definition of Salary in Article II
does not satisfy Code Section 414(s) and the regulations
thereunder, "Testing Compensation" shall mean any definition of
compensation which satisfies Code Section 414(s) and the
regulations thereunder, provided such definition is used
consistently for the purposes of the tests set forth in this
Article XV for such Plan Year.
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(2) "Testing Compensation" for purposes of this Article shall only
include amounts paid to an Employee during that portion of the
Plan Year in which such Employee was an Eligible Employee. Any
amounts paid prior to or subsequent to such portion of the Plan
Year shall not be considered.
(e) EXCESS TAX DEFERRED CONTRIBUTION AMOUNT shall mean, with
---------------------------------------
respect to any individual Employee, Tax Deferred Contributions to this Plan
on behalf of such Employee, elective deferrals (as defined in Code Section
402(g)(3) and the regulations thereunder) of such Employee under all other
plans of the Control Group, and elective deferrals of such Employee under a
plan maintained by any other employer, which together total more than
$7,000 (as automatically adjusted pursuant to Code Section 402(g)(5)) for
any one (1) taxable year of the individual Employee.
(f) AGGREGATION RULES. For purposes of this Article XV, if the Plan
-----------------
and any other plan which includes a cash or deferred arrangement (within
the meaning of Code Section 401(k)) are aggregated for purposes of Section
410(b) (other than for purposes of the average benefit percentage test),
the cash or deferred arrangements in such plans (including the Plan) shall
be treated as one (1) plan for purposes of calculating the Actual Deferral
Percentage and the Actual Contribution Percentage. If any Highly
Compensated Employee who is a Participant in this Plan also participates in
any other cash or deferred arrangement (within the meaning of Code Section
401(k)) of the Control Group, for purposes of determining the Actual
Deferral Ratio and the Actual Contribution Ratio for such Employee, all
such cash or deferred arrangements (including under the Plan) shall be
treated as one (1) cash or deferred arrangement; provided, however, that no
cash or deferred arrangement under an employee stock ownership plan (as
defined in Code Sections 4975(e) and 409) shall be aggregated with the Plan
for purposes of this subsection.
15.03 ACTUAL DEFERRAL PERCENTAGE TEST. For any Plan Year, the Actual
-------------------------------
Deferral Percentage for the group of Eligible Highly Compensated Employees may
not exceed the Maximum Deferral Percentage. The MAXIMUM DEFERRAL PERCENTAGE is
---------------------------
the greater of: (1) one hundred twenty-five percent (125%) of the Actual
Deferral Percentage for the group of Eligible Non-Highly Compensated Employees,
or (2) two hundred percent (200%) of the Actual Deferral Percentage for the
group of Eligible Non-Highly Compensated Employees, but not more than such
Actual Deferral Percentage plus two (2) percentage points, subject to the
Multiple Limit Test set forth in Section 15.06. Accordingly, for purposes of the
Actual Deferral Percentage Test, the Actual Deferral Percentage for the group of
Eligible Highly Compensated Employees is based on Testing Compensation and
contributions on behalf of the Eligible Highly Compensated Employees for the
Plan Year for which the testing is performed. Additionally, the determination
regarding who is an Eligible Highly Compensated Employee is determined for the
Plan Year for which the testing is performed and utilizing the definition of
Highly Compensated Employee in effect for such Plan Year. Such testing shall
utilize the current year testing method as such term is defined in Internal
Revenue Service Notice 98-1. Likewise, the Actual Deferral Percentage for the
Group of Eligible Non-Highly Compensated Employees is based on Testing
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Compensation and contributions on behalf of the Eligible Non-Highly Compensated
Employees for the Plan Year for which the testing is performed. Additionally,
the determination as to who is an Eligible Non-Highly Compensated Employee is
determined for the Plan Year for which the testing is performed and utilizing
the definition of Highly Compensated Employee in effect for such Plan Year.
The EXCESS DEFERRAL PERCENTAGE is the excess of: (1) the Actual Deferral
--------------------------
Percentage for the group of Eligible Highly Compensated Employees, over (2) the
Maximum Deferral Percentage for the group of Eligible Highly Compensated
Employees.
15.04 ACTUAL CONTRIBUTION PERCENTAGE TEST. For any Plan Year, the
-----------------------------------
Actual Contribution Percentage for the group of Eligible Highly Compensated
Employees may not exceed the Maximum Contribution Percentage. The MAXIMUM
CONTRIBUTION PERCENTAGE is the greater of: (1) one hundred twenty-five percent
(125%) of the Actual Contribution Percentage for the group of Eligible Non-
Highly Compensated Employees, or (2) two hundred percent (200%) of the Actual
Contribution Percentage for the group of Eligible Non-Highly Compensated
Employees, but not more than such Actual Contribution Percentage plus two (2)
percentage points, subject to the Multiple Limit Test. Such testing shall
utilize the current year testing method as such term is defined in Internal
Revenue Service Notice 98-1. Accordingly, for purposes of the Actual
Contribution Percentage Test, the Actual Contribution Percentage for the Group
of Eligible Highly Compensated Employees is based on Testing Compensation and
contributions by and on behalf of the Eligible Highly Compensated Employees for
the Plan Year for which the testing is performed. Additionally, the
determination regarding who is an Eligible Highly Compensated Employee is
determined for the Plan Year for which the testing is performed utilizing the
definition of Highly Compensated Employee in effect for such Plan Year.
Similarly, the Actual Contribution Percentage for the Group of Eligible Non-
Highly Compensated Employees is based on Testing Compensation and contributions
by and on behalf of the Eligible Non-Highly Compensated Employees for the Plan
Year for which the testing is performed. Additionally, the determination as to
who is an Eligible Non-Highly Compensated Employee is determined for the Plan
Year for which the testing is performed and utilizing the definition of Highly
Compensated Employee in effect for such Plan Year.
The EXCESS CONTRIBUTION PERCENTAGE is the excess of: (1) the Actual
------------------------------
Contribution Percentage for the group of Eligible Highly Compensated Employees,
divided by (2) the Maximum Contribution Percentage for the group of Eligible
Highly Compensated Employees.
15.05 YEAR-END CORRECTION OF EXCESS TAX DEFERRED CONTRIBUTION AMOUNTS,
---------------------------------------------------------------
EXCESS DEFERRAL PERCENTAGES, AND EXCESS CONTRIBUTION PERCENTAGES. In the event
- ----------------------------------------------------------------
that Excess Tax Deferred Contribution Amounts, an Excess Contribution
Percentage, and/or an Excess Deferral Percentage exist with respect to any Plan
Year despite the limitations of Section 4.04, such excess(es) shall be
eliminated by the following method(s) and in the following order:
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(a) ELIMINATION OF EXCESS TAX DEFERRED CONTRIBUTION AMOUNTS. In the
-------------------------------------------------------
event that a Participant has an Excess Tax Deferred Contribution Amount,
elects to have such excess corrected under this Plan, and notifies the Plan
of the amount of such excess to be distributed from the Plan, the amount of
such Excess Tax Deferred Contribution Amount shall be returned to the
Participant; provided, however, that a Participant is deemed to notify the
Plan of any Excess Tax Deferred Contribution Amounts which arise by taking
into account only Tax Deferred Contributions and other elective deferrals
of the Participant pursuant to plans of the Control Group.
The return of an Excess Tax Deferred Contribution Amount shall be made by
distributing the excess amount determined pursuant to the preceding paragraph,
as well as the income or loss (if any) attributable to such excess (determined
in accordance with subsection (d) below), on or before April 15 of the Plan Year
following the Plan Year in which the Excess Tax Deferred Contribution Amount was
made. Returns of Tax Deferred Contributions shall be deemed to be made last from
matched Tax Deferred Contributions. Any distribution of matched Tax Deferred
Contributions must also include a forfeiture of any corresponding Company
Matching Contributions and Company Profit-Sharing Contributions, and the income
or loss attributable to such amounts as determined pursuant to subsection (d)
below. Any such forfeiture shall be used to reduce the Company's subsequent
contributions to the Plan.
(b) ELIMINATION OF EXCESS DEFERRAL PERCENTAGES. If an Excess Deferral
------------------------------------------
Percentage exists for a particular Plan Year, such excess shall be
calculated in a dollar amount by performing a fictitious leveling process
under which the Actual Deferral Ratio of the Highly Compensated Employee
with the highest Actual Deferral Ratio is deemed reduced to the extent
required to: (1) completely eliminate the Excess Deferral Percentage, or
(2) cause such Highly Compensated Employee's Actual Deferral Ratio to equal
the ratio of the Highly Compensated Employee with the next highest Actual
Deferral Ratio. This process will be repeated until the amount of
contributions used in calculating the Actual Deferral Percentage which if
returned would completely eliminate the Excess Deferral Percentage. Such
amount shall be referred to as "Excess Contributions."
After the Excess Contributions are calculated, the Tax Deferred
Contributions used in calculating the Actual Deferral Percentage (and any
Company Profit Sharing Contributions used in calculating the Actual Deferral
Percentage) (the "Actual Deferral Percentage Contributions") of the Highly
Compensated Employee with the highest dollar amount of Actual Deferral
Percentage Contributions is reduced by the amount required to cause that Highly
Compensated Employee's Actual Deferral Percentage Contributions to equal the
dollar amount of the Actual Deferral Percentage Contributions of the Highly
Compensated Employee with the next highest dollar amount of Actual Deferral
Percentage Contributions. This amount is then distributed to the Highly
Compensated Employee with the highest dollar amount of Actual Deferral
Percentage Contributions. However, if a lesser reduction, when added to the
total dollar amount already distributed under this paragraph, would equal the
Excess Contributions, the lesser reduction
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amount is distributed. If the total amount distributed is less than the Excess
Contributions, the procedure in this paragraph shall be repeated.
The reduction of Excess Contributions as described in the preceding
paragraph shall be made by distributing the affected Participant's Actual
Deferral Percentage Contributions within twelve (12) months following the end of
the Plan Year in which the Excess Deferral Percentage was created. Any
distribution of a matched Tax Deferred Contribution must be accompanied by a
forfeiture of any corresponding Company Matching Contributions and a
distribution (or a forfeiture if not used in calculating the Actual Deferral
Percentage) of any corresponding Company Profit-Sharing Contributions. Any
amounts distributed or forfeited under this subsection (b) must be accompanied
by the income or loss attributable to such amounts for the Plan Year in which
the excess occurred, as well as for the period from the end of that Plan Year to
the date on which the distribution is made, as determined pursuant to subsection
(d) below. Any forfeiture under this subsection (b) shall be used to reduce the
Company's subsequent contributions to the Plan.
(c) ELIMINATION OF EXCESS CONTRIBUTION PERCENTAGES. If an Excess
----------------------------------------------
Contribution Percentage exists for a particular Plan Year following any
distributions required by subsections (a) and (b) above, such excess shall
be calculated in a dollar amount by performing a fictitious leveling
process under which the Actual Contribution Ratio of the Highly Compensated
Employee with the highest Actual Contribution Ratio is deemed reduced to
the extent required to: (1) completely eliminate the Excess Contribution
Percentage, or (2) cause such Highly Compensated Employee's Actual
Contribution Ratio to equal the ratio of the Highly Compensated Employee
with the next highest Actual Contribution Ratio. This process will be
repeated until the amount of contributions used in calculating the Actual
Contribution Percentage which if returned would completely eliminate the
Excess Contribution Percentage. Such amount shall be referred to as "Excess
Aggregate Contributions."
After the Excess Aggregate Contributions are calculated, the Thrift
Contributions, Company Matching Contributions, and Company Profit Sharing
Contributions and Tax Deferred Contributions used in calculating the Actual
Contribution Percentage (the "Actual Contribution Percentage Contributions") of
the Highly Compensated Employee with the highest dollar amount of Actual
Contribution Percentage Contributions is reduced by the amount required to cause
that Highly Compensated Employee's Actual Contribution Percentage Contributions
to equal the dollar amount of the Actual Contribution Percentage Contributions
of the Highly Compensated Employee with the next highest dollar amount of Actual
Contribution Percentage Contributions. This amount is then distributed to the
Highly Compensated Employee with the highest dollar amount of Actual
Contribution Percentage Contributions. However, if a lesser reduction, when
added to the total dollar amount already distributed under this paragraph, would
equal the Excess Aggregate Contributions, the lesser reduction amount is
distributed. If the total amount distributed is less than the Excess Aggregate
Contributions, the procedure in this paragraph shall be repeated.
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The reduction of Excess Contribution Percentages as described in the
preceding paragraph shall be made by distributing the affected Participant's
Actual Contribution Percentage Contributions and by forfeiting the affected
Participant's Company Profit-Sharing Contributions which are related to returned
Thrift Contributions and Tax Deferred Contributions and which were not used in
calculating the Actual Contribution Percentage, within twelve (12) months after
the end of the Plan Year in which the Excess Contribution Percentage was
created. The Committee shall have the discretion to determine which
contributions shall be distributed; provided, however that any distribution of
matched Thrift Contributions must be accompanied by a distribution of any
corresponding Company Matching Contributions and a distribution (or a
forfeiture, if not used in calculating the Actual Contribution Percentage) of
any corresponding Company Profit-Sharing Contributions. Any amounts distributed
or forfeited under this subsection (c) must be accompanied by the income or loss
(if any) attributable to such amounts for the Plan Year in which the excess
occurred, as well as for the period from the end of that Plan Year to the date
on which the distribution is made, as determined pursuant to subsection (d)
below. Any forfeiture under this subsection (c) shall be used to reduce the
Company's subsequent contributions to the Plan.
(d) Any distribution or forfeiture under this Section must include
the income or loss (if any) attributable to such excess (the "Plan Year
Excess Earnings") for that Plan Year as well as any allocated income or
loss for the period from the end of that Plan Year to the date on which the
distribution is made (the "Gap Period Excess Earnings"). The amount of the
Plan Year Excess Earnings and the Gap Period Excess Earnings shall be
reflected in the value of the units which are distributed to the
Participant.
15.06 TEST FOR MULTIPLE USE OF THE ALTERNATIVE LIMITATION. In each Plan
---------------------------------------------------
Year, there can be no Multiple Use of the Alternative Limitation.
(a) For any Plan Year, if at least one Highly Compensated Employee
is an Eligible Employee, and if after the application of Section 15.05, (1)
the Actual Deferral Percentage for the group of Eligible Highly Compensated
Employees (for purposes of this Section 15.06 and only for purposes of this
Section 15.06 the Actual Deferral Percentage for the Group of Eligible
Highly Compensated Employees shall be the Actual Deferral Percentage for
the Group of Eligible Highly Compensated Employees which results after the
deemed leveling process described in the first paragraph of Section
15.05(b)) is greater than one hundred twenty-five percent (125%) of the
Actual Deferral Percentage for the group of Eligible Non-Highly Compensated
Employees, (2) the Actual Contribution Percentage for the group of Eligible
Highly Compensated Employees (for purposes of this Section 15.06 and only
for purposes of this Section 15.06 the Actual Contribution Percentage for
the Group of Eligible Highly Compensated Employees shall be the Actual
Contribution Percentage for the Group of Eligible Highly Compensated
Employees which results after the deemed leveling process described in the
first paragraph of Section 15.06(c)) is greater than one hundred twenty-
five percent (125%) of the Actual Contribution Percentage for the group of
Eligible Non-Highly Compensated Employees, and (3) the sum of the Actual
Contribution Percentage and the
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Actual Deferral Percentage for the group of Eligible Highly Compensated
Employees exceeds the Aggregate Limit defined in Section 15.06(b) below,
Section 15.07 shall apply in order to comply with the limitation on
multiple use of the two (2) times but not more than two percent (2%) limit
(the "Multiple Use of the Alternative Limitation") to determine the Maximum
Deferral Percentage and the Maximum Contribution Percentage.
(b) The Aggregate Limit is the greater of the amount determined
under (1) or (2) below:
(1) The sum of: (A) 1.25 times the greater of the Actual Deferral
Percentage or the Actual Contribution Percentage for the group
of Eligible Non-Highly Compensated Employees, and (B) two (2)
percentage points plus the lesser of such Actual Deferral
Percentage or such Actual Contribution Percentage. In no event,
however, shall this amount exceed twice the lesser of such
Actual Deferral Percentage or Actual Contribution Percentage;
or
(2) The sum of: (A) 1.25 times the lesser of the Actual Deferral
Percentage or the Actual Contribution Percentage for the group
of Eligible Non-Highly Compensated Employees, and (B) two (2)
percentage points plus the greater of such Actual Deferral
Percentage or such Actual Contribution Percentage. In no event,
however, shall this amount exceed twice the greater of such
Actual Deferral Percentage or Actual Contribution Percentage.
15.07 CORRECTION TO ELIMINATE THE MULTIPLE USE OF THE ALTERNATIVE
-----------------------------------------------------------
LIMITATION. If a Multiple Use of the Alternative Limitation exists for a
- ----------
particular Plan Year, the Actual Contribution Percentage for Eligible Highly
Compensated Employees will be reduced (in the same manner as described in
Section 15.05(c)) and/or the Actual Deferral Percentage for Eligible Highly
Compensated Employees will be reduced (in the same manner as described in
Section 15.05(b)), as determined by the Committee in its discretion, until the
Multiple Use of the Alternative Limitation is eliminated.
15.08 SEPARATE LINE OF BUSINESS TESTING. To the extent permitted by the
---------------------------------
Code and the regulations thereunder, the tests set forth in this Article XV may
be performed on a separate line of business basis.
ARTICLE XVI
MERGER WITH THE SOC/WEST PROFIT-SHARING PLAN
PREAMBLE. The following provisions relate solely to amounts transferred to
the Plan from the Soc/West Profit-Sharing Plan (the "Soc/West Plan"), which was
merged into the Plan effective as of January 1, 1995 (the "Soc/West Merger
Date"). To the extent not otherwise
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provided in the Plan, the benefits, rights, and features of the Soc/West Profit-
Sharing Plan shall be protected and provided hereunder to the extent required by
applicable law.
16.01 SOC/WEST TRANSFERRED AMOUNT means a dollar amount equal to the
---------------------------
balance of a Participant's Soc/West Plan account as of the close of business on
the day before the Soc/West Merger Date. Such amount does not include any later
earnings or appreciation resulting from the investment of such transferred
amount and is reduced by any amount distributed to such Participant from the
Plan on or after the Soc/West Merger Date from the Accounts holding such
Transferred Amount.
16.02 DISTRIBUTION OF SOC/WEST TRANSFERRED AMOUNTS. Notwithstanding the
--------------------------------------------
provisions of Article VIII which shall apply to distributions to Participants
subject to this Article XVI, the following provisions shall also apply, but
solely to the distribution of Soc/West Transferred Amounts:
(a) Subject to Sections 16.03 and 16.04, any Participant to whom
distribution of a Soc/West Transferred Amount is made by reason of the
Participant's termination of Employment under Section 8.01 may elect,
instead of receiving payment in the form of a lump sum, to have the
distribution of the Soc/West Transferred Amount made in one of the
following forms:
(1) installment payments for a period not exceeding the joint
life expectancy of the Participant and his or her designated
beneficiary.
(2) single life annuity.
(3) single life annuity with a term certain of from 5 to 20
years, as designated by the Participant.
(4) joint and survivor annuity with survivor annuity percentages
of 50% or 100%, as designated by the Participant.
Whenever a Soc/West Transferred Amount is distributable in the form of an
annuity, the Soc/West Transferred Amount shall be used to purchase an annuity
from a commercial insurer.
(b) Any Beneficiary who is entitled to receive a distribution
under Section 8.02 by reason of the death of a Participant may elect,
instead of receiving payment in the form of a lump sum, to have the
distribution of the Soc/West Transferred Amount made in installment
payments for a period which does not exceed the Beneficiary's life
expectancy.
Notwithstanding anything to the contrary herein, all distributions made
under this Article XVI shall satisfy the requirements of Code Section 401(a)(9)
and the regulations thereunder, including the minimum distribution incidental
benefit requirements of Prop. Treas. Reg.
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(S) 1.401(a)(9)-2. In addition, life expectancies shall be determined using the
life expectancy tables published thereunder. In determining the amount of any
required distribution, the life expectancies of the Participant and his or her
spouse shall be recalculated annually.
16.03 SPECIAL RULES RELATING TO INSTALLMENT DISTRIBUTIONS.
---------------------------------------------------
(a) Whenever a Soc/West Transferred Amount is distributable in
installments, the undistributed balance of such amount shall continue to be
invested according to Article VI and participate in the valuation provided under
Article VII until fully distributed.
(b) In the event a Participant elects installment payments under
subsection (a) and dies prior to receipt of all installment payments, the
remaining installments shall continue to the beneficiary for the period elected
by the Participant (except as otherwise provided in subsection (c) below). In
the event that the Plan terminates prior to the payment of all installments, the
amount remaining shall be paid to the Participant, beneficiary, or Beneficiary,
as applicable, in the manner determined by the Committee in accordance with
applicable law.
(c) Solely for purposes of this Section 16.03, the term "beneficiary"
shall mean the person, persons, or entity designated by the Participant on his
or her installment payment election form, or if none, the Participant's spouse
or if none, the Participant's estate. No spouse's consent shall be required for
the designation of a beneficiary or change of a beneficiary designation under
this subsection. If the Participant's beneficiary (or Beneficiary, as the case
may be) dies after payments have commenced but before full payment has been
completed, the balance due shall be paid to the beneficiary's (or Beneficiary's)
estate in a single lump sum.
16.04 SPECIAL RULES RELATING TO ANNUITY ELECTIONS. In the event a
-------------------------------------------
Participant desires to elect an annuity distribution option with respect to the
Soc/West Transferred Amount, such election shall be subject to the rules set
forth in this Section 16.04.
(a) ELECTION PERIOD. If a Participant wishes to elect an annuity form of
---------------
distribution, such election may only be made during the "Election Period", which
is the period which begins ninety (90) days before the Annuity Starting Date.
(b) SPOUSAL CONSENT. If a Participant has a spouse (including a former
---------------
spouse to the extent required under a Qualified Domestic Relations Order), an
election of an annuity form of distribution (other than a joint and survivor
annuity with the Participant's spouse as joint annuitant) shall not be effective
without the written consent of his or her spouse. The spouse's written consent
must: (1) specifically acknowledge an understanding of the effect of consent to
such annuity form, (2) be witnessed by a notary public, and (3) identify the
optional form of benefit and any non-spouse beneficiary. Any consent by a spouse
shall be effective only with respect to that spouse. A spouse may not revoke any
prior consent unless a new spousal consent is required as a result of another
election by the Participant during the Election Period.
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In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. If a Participant elects to receive payment in the form of
----------
an annuity, such Participant may subsequently elect to revoke the annuity
election at any time within the Election Period. No spousal consent shall be
required with respect to the revocation. In the event of such revocation, unless
the Participant makes another election within the Election Period (and obtains
written spousal consent if required under this Section 16.04), the Participant
will receive a single life annuity if the Participant does not have a spouse,
and a Qualified Joint and Survivor Annuity if the Participant has a spouse. A
revocation must be requested and executed on the form prescribed for such
purpose by the Committee or its delegate, and shall be deemed to be duly filed
when it is received by the Committee or its delegate.
(d) NOTICE. A Participant who wishes to elect an annuity form of
------
distribution shall be provided at least thirty (30) days before the Annuity
Starting Date with written notice of the terms and conditions of the Qualified
Joint and Survivor Annuity or single life annuity (whichever is applicable); the
Participant's right to elect an annuity in lieu of a lump sum payment; the
requirement of the spouse's consent to the election of an annuity; the
Participant's right to revoke an annuity election; and such other information as
may be required by applicable law. In addition, the Participant shall be
furnished with a general description of the eligibility conditions and other
material features of the optional forms of benefit and sufficient additional
information to explain the relative values of such optional forms.
Notwithstanding anything to the contrary herein, if a Participant has
received the notice required to be given by the preceding paragraph, the Annuity
Starting Date with respect to such Participant may be less than thirty (30) days
after receipt of such notice; provided that: (i) the notice clearly informs the
Participant of the right to consider the election of an optional form of
distribution for a period of thirty (30) days after the notice is provided; and
(ii) the Participant is permitted to revoke an affirmative distribution election
at least until the Annuity Starting Date, or if later, at any time prior to the
expiration of the seven (7)-day period that begins the day after the required
notice is given to the Participant; (iii) the Annuity Starting Date is after the
date that the required notice is given to the Participant; and (iv) distribution
in accordance with the affirmative election does not commence before the
expiration of the seven (7)-day period that begins the day after the notice is
given.
The written notice described in this Section 16.04(d) may be provided after
the Annuity Starting Date. In such a case, the distribution must begin at least
thirty (30) days after the notice is provided unless the conditions described in
this Section 16.04(d) regarding the waiver of the thirty (30)-day waiting period
are fulfilled.
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16.05 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY.
----------------------------------------
(a) APPLICABILITY. Notwithstanding the provisions of Sections 8.02 and
-------------
16.02, and subject to the waiver provisions of subsection (b) below, if a
Participant with a spouse (including a former spouse to the extent required
under a Qualified Domestic Relations Order as that term is defined in ERISA
Section 206(d) and Code Section 414(p)) elects an annuity form of distribution
pursuant to Section 16.04, but dies prior to his or her Annuity Starting Date,
the Soc/West Transferred Amount shall be used to purchase an annuity for the
life of the surviving spouse (the "Qualified Preretirement Survivor Annuity").
As an alternative to receiving the benefit in the form of a Qualified
Preretirement Survivor Annuity, the surviving spouse may make an election to
receive payment in the form of a lump sum or installment payments, on forms
provided for such purpose by the Committee or its delegate and filed with the
Committee or its delegate.
(b) WAIVER. If a Participant with a spouse elects an annuity form of
------
distribution, the Participant may waive the Qualified Preretirement Survivor
Annuity with the written consent of the spouse, provided that such waiver occurs
after the first day of the Plan Year in which the Participant attains age
thirty-five (35) and prior to the Participant's death. The spouse's written
consent must: (1) specifically acknowledge an understanding of the effect of
consent to such revocation, (2) be witnessed by a notary public, and (3)
identify the alternative death benefit selected and the identity of any non-
spouse beneficiary. Any consent by a spouse shall be effective only with respect
to that spouse. A spouse may not revoke any prior consent unless a new consent
is required as a result of another Participant waiver of the Qualified
Preretirement Survivor Annuity.
In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. If a Participant elects to waive the Qualified
----------
Preretirement Survivor Annuity, such Participant may subsequently elect to
revoke the waiver prior to the earlier of his or her Annuity Starting Date or
his or her date of death. No spousal consent shall be required with respect to
the revocation. In the event of such revocation, unless the Participant makes
another waiver (and obtains written spousal consent), the Participant's spouse
will receive a Qualified Preretirement Survivor Annuity if the Participant dies
before the Participant's Annuity Starting Date unless the spouse elects another
form of payment in accordance with Section 16.05(a). A revocation must be
executed on the form prescribed for such purpose by the Committee or its
delegate, and shall be deemed to be duly filed when it is received by the
Committee or its delegate.
(d) NOTICE. A Participant who has a spouse and who becomes subject to
------
this Section 16.05 as the result of the election of an annuity form of payment
under Section 16.04 shall as soon as practicable after such election be provided
with a written explanation of the Qualified Preretirement Survivor Annuity; the
Participant's right to elect an alternative death benefit form; the requirement
of the spouse's consent to the waiver of the Qualified
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Preretirement Survivor Annuity; the Participant's right to revoke a waiver; and
such other information as may be required by applicable law. In addition, the
Participant shall be furnished with a general description of the eligibility
conditions and other material features of the optional death benefit forms and
sufficient additional information to explain the relative values of such
optional forms.
ARTICLE XVII
MERGER WITH THE TYE DISTRIBUTING COMPANY, INC.
---------------------------------------------
PROFIT-SHARING PLAN
-------------------
PREAMBLE. The following provisions relate solely to amounts transferred to
--------
the Plan from the Tye Distributing Company, Inc. Profit-Sharing Plan (the "Tye
Distributing Plan"), which was merged into the Plan effective as of June 1, 1997
(the "Tye Distributing Merger Date"). To the extent not otherwise provided in
the Plan, the benefits, rights, and features of the Tye Distributing Plan shall
be protected and provided hereunder to the extent required by applicable law.
17.01 TYE DISTRIBUTING TRANSFERRED AMOUNT means a dollar amount equal to
-----------------------------------
the balance of a Participant's Tye Distributing Plan account as of the close of
business on the day before the Tye Distributing Merger Date. Such amount does
include later earnings and appreciation resulting from the investment of such
transferred amount but is reduced by any amount distributed to such Participant
from the Plan on or after the Tye Distributing Merger Date out of the Tye Profit
Sharing Account.
17.02 DISTRIBUTION OF TYE DISTRIBUTING TRANSFERRED AMOUNTS.
----------------------------------------------------
Notwithstanding the provisions of Article VIII which shall apply to
distributions to Participants subject to this Article XVII, the following
provisions shall also apply, but solely to the distribution of amounts held in
the Tye Profit-Sharing Account:
(a) Subject to Sections 17.03 and 17.04, any Participant to whom
distribution of a Tye Distributing Transferred Amount is made by reason of
the Participant's termination of Employment under Section 8.01 may elect,
instead of receiving payment in the form of a lump sum, to have the
distribution of the Tye Distributing Transferred Amount made in one of the
following forms (provided that the Participant's vested Account Balance
exceeds $3,500 ($5,000 effective January 1, 1998) or if the Participant's
vested Account Balance exceeded $3,500 ($5,000 effective January 1, 1998)
at the time of any previous distribution):
(1) an annuity over the life of the Participant;
(2) an annuity for the life of the Participant and a designated
beneficiary, with survivor annuity percentages of 50% or 100%,
as designated by the Participant;
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<PAGE>
(3) installments over a period certain not extending beyond the life
expectancy of the Participant, or
(4) installments over a period certain not extending beyond the joint
and last survivor expectancy of the Participant and a designated
beneficiary.
Whenever an amount from the Tye Profit Sharing Account is
distributable in the form of an annuity, the Tye Distributing Transferred
Amount shall be used to purchase an annuity from a commercial insurer.
(b) Any Beneficiary who is entitled to receive a distribution under
Section 8.02 by reason of the death of a Participant may elect, instead of
receiving payment in the form of a lump sum, to have the distribution
amount from the Tye Profit Sharing Account made in the manner described
below:
(1) If the Participant dies after distribution of his or her interest
has commenced, the remaining portion of such interest will
continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's
death.
(2) If the Participant dies before distribution of his or her
interest commences, the Participant's entire interest will be
distributed no later than 5 years after the Participant's death
except to the extent that an election is made to receive
distributions in accordance with (i) or (ii) below:
(i) if any portion of the Participant's interest is payable to a
Beneficiary, distributions may be made in substantially
equal installments over the life or life expectancy of the
Beneficiary commencing no later than one (1) year after the
Participant's death;
(ii) if the Beneficiary is the Participant's surviving spouse,
the date distributions are required to begin in accordance
with (i) above shall not be earlier than the date on which
the Participant would have attained age 70, and, if the
spouse dies before payments begin, subsequent distributions
shall be made as if the spouse had been the Participant.
(3) For purposes of Section 17.02(b)(2) above, payments will be
calculated by use of (i) the return multiples specified in
Treasury Regulation (S) 1.72-9, or (ii) the life expectancy
tables of an insurance company which issues a contract to make
such payments. Life expectancy of a surviving spouse
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<PAGE>
may be recalculated annually. In the case of any other designated
beneficiary, life expectancy will be calculated at the time
payment first commences and, except as provided in the next
sentence, payments for any twelve (12)-consecutive month period
will be based on such life expectancy minus the number of whole
years since distribution first commenced. Payments made under a
contract issued by a life insurance company shall be level
payments determined by life expectancy at the time payment
commences and by use of the insurance company's life expectancy
tables.
(4) For purposes of this Section 17.02(b), any amount paid to a child
of the Participant will be treated as if it has been paid to the
surviving spouse if the amount becomes payable to the surviving
spouse when the child reaches the age of majority.
Notwithstanding anything to the contrary herein, all distributions made
under this Article XVII shall satisfy the requirements of Code Section 401(a)(9)
and the regulations thereunder, including the minimum distribution incidental
benefit requirements of Prop. Treas. Reg. (S) 1.401(a)(9)-2. In addition, life
expectancies shall be determined using the life expectancy tables published
thereunder. In determining the amount of any required distribution, the life
expec tancies of the Participant and his or her spouse shall be recalculated
annually.
17.03 SPECIAL RULES RELATING TO INSTALLMENT DISTRIBUTIONS. Whenever a Tye
---------------------------------------------------
Distributing Transferred Amount is distributable in installments, the
undistributed balance of such amount shall continue to be invested according to
Article VI and participate in the valuation provided under Article VII until
fully distributed.
17.04 SPECIAL RULES RELATING TO ANNUITY ELECTIONS. In the event a
-------------------------------------------
Participant desires to elect an annuity distribution option with respect to the
Tye Distributing Transferred Amount, such election shall be subject to the rules
set forth in this Section 17.04.
(a) ELECTION PERIOD. If a Participant wishes to elect an annuity form of
---------------
distribution, such election may only be made during the "Election Period", which
is the period which begins ninety (90) days before the Annuity Starting Date.
(b) SPOUSAL CONSENT. If a Participant has a spouse (including a former
---------------
spouse to the extent required under a Qualified Domestic Relations Order), an
election of an annuity form of distribution (other than a joint and survivor
annuity with the Participant's spouse as joint annuitant) shall not be effective
without the written consent of his or her spouse. The spouse's written consent
must: (1) specifically acknowledge an understanding of the effect of consent to
such annuity form, (2) be witnessed by a notary public, and (3) identify the
optional form of benefit and any non-spouse beneficiary. Any consent by a spouse
shall be effective only with respect to that spouse. A spouse may not revoke any
prior consent unless a new spousal consent is required as a result of another
election by the Participant during the Election Period.
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<PAGE>
In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. If a Participant elects to receive payment in the form of
----------
an annuity, such Participant may subsequently elect to revoke the annuity
election at any time within the Election Period. No spousal consent shall be
required with respect to the revocation. In the event of such revocation, unless
the Participant makes another election within the Election Period (and obtains
written spousal consent if required under this Section 17.04), the Participant
will receive a single life annuity if the Participant does not have a spouse,
and a Qualified Joint and Survivor Annuity if the Participant has a spouse. A
revocation must be executed on the form prescribed for such purpose by the
Committee or its delegate, and shall be deemed to be duly filed when it is
received by the Committee or its delegate.
(d) NOTICE. A Participant who wishes to elect an annuity form of
------
distribution shall be provided at least thirty (30) days before the Annuity
Starting Date with written notice of the terms and conditions of the Qualified
Joint and Survivor Annuity or single life annuity (whichever is applicable); the
Participant's right to elect an annuity in lieu of a lump sum payment; the
requirement of the spouse's consent to the election of an annuity; the
Participant's right to revoke an annuity election; and such other information as
may be required by applicable law. In addition, the Participant shall be
furnished with a general description of the eligibility conditions and other
material features of the optional forms of benefit and sufficient additional
information to explain the relative values of such optional forms.
Notwithstanding anything to the contrary herein, if a Participant has
received the notice required to be given by the preceding paragraph, the Annuity
Starting Date with respect to such Participant may be less than thirty (30) days
after receipt of such notice; provided that: (i) the notice clearly informs the
Participant of the right to consider the election of an optional form of
distribution for a period of thirty (30) days after the notice is provided; and
(ii) the Participant is permitted to revoke an affirmative distribution election
at least until the Annuity Starting Date, or if later, at any time prior to the
expiration of the seven (7)-day period that begins the day after the required
notice is given to the Participant; (iii) distribution in accordance with the
affirmative election does not commence before the expiration of the seven (7)-
day period that begins the day after the notice is given.
The written notice described in this Section 17.04(d) may be provided after
the Annuity Starting Date. In such a case, the distribution must begin at least
thirty (30) days after the notice is provided unless the conditions described in
this Section 17.04(d) regarding the waiver of the thirty (30)-day waiting period
are fulfilled.
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17.05 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY.
----------------------------------------
(a) APPLICABILITY. Notwithstanding the provisions of Sections 8.02 and
-------------
17.02, and subject to the waiver provisions of subsection (b) below, if a
Participant with a spouse (including a former spouse to the extent required
under a Qualified Domestic Relations Order as that term is defined in ERISA
Section 206(d) and Code Section 414(p)) elects an annuity form of distribution
pursuant to Section 17.04, but dies prior to his or her Annuity Starting Date,
the Tye Distributing Transferred Amount shall be used to purchase an annuity for
the life of the surviving spouse (the "Qualified Preretirement Survivor
Annuity"). As an alternative to receiving the benefit in the form of a Qualified
Preretirement Survivor Annuity, the surviving spouse may make an election to
receive payment in the form of a lump sum or installment payments, on forms
provided for such purpose by the Committee or its delegate and filed with the
Committee or its delegate.
(b) WAIVER. If a Participant with a spouse elects an annuity form of
------
distribution, the Participant may waive the Qualified Preretirement Survivor
Annuity with the written consent of the spouse, provided that such waiver occurs
after the first day of the Plan Year in which the Participant attains age
thirty-five (35) and prior to the Participant's death. The spouse's written
consent must: (1) specifically acknowledge an understanding of the effect of
consent to such revocation, (2) be witnessed by a notary public, and (3)
identify the alternative death benefit selected and the identity of any non-
spouse beneficiary. Any consent by a spouse shall be effective only with respect
to that spouse. A spouse may not revoke any prior consent unless a new consent
is required as a result of another Participant waiver of the Qualified
Preretirement Survivor Annuity.
In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. If a Participant elects to waive the Qualified
----------
Preretirement Survivor Annuity, such Participant may subsequently elect to
revoke the waiver prior to the earlier of his or her Annuity Starting Date or
his or her date of death. No spousal consent shall be required with respect to
the revocation. In the event of such revocation, unless the Participant makes
another waiver (and obtains written spousal consent), the Participant's spouse
will receive a Qualified Preretirement Survivor Annuity if the Participant dies
before the Participant's Annuity Starting Date unless the spouse elects another
form of payment in accordance with Section 17.05(a). A revocation must be
executed on the form prescribed for such purpose by the Committee or its
delegate, and shall be deemed to be duly filed when it is received by the
Committee or its delegate .
(d) NOTICE. A Participant who has a spouse and who becomes subject to
------
this Section 17.05 as the result of the election of an annuity form of payment
under Section 17.04 shall as soon as practicable after such election be provided
with a written explanation of the Qualified
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Preretirement Survivor Annuity; the Participant's right to elect an alternative
death benefit form; the requirement of the spouse's consent to the waiver of the
Qualified Preretirement Survivor Annuity; the Participant's right to revoke a
waiver; and such other information as may be required by applicable law. In
addition, the Participant shall be furnished with a general description of the
eligibility conditions and other material features of the optional death benefit
forms and sufficient additional information to explain the relative values of
such optional forms.
ARTICLE XVIII
MERGER WITH THE BLUE CORAL, INC. RETIREMENT SAVINGS PLAN
--------------------------------------------------------
PREAMBLE. The following provisions relate solely to amounts transferred to
the Plan from the Blue Coral, Inc. Retirement Savings Plan (the "Blue Coral
Plan"), which was merged into the Plan effective as of June 1, 1997 (the "Blue
Coral Merger Date"). To the extent not otherwise provided in the Plan, the
benefits, rights, and features of the Blue Coral Plan shall be protected and
provided hereunder to the extent required by applicable law.
18.01 BLUE CORAL TRANSFERRED AMOUNT means a dollar amount equal to the
-----------------------------
balance of a Participant's Blue Coral Plan account as of the close of business
on the day before the Blue Coral Merger Date. Such amount does include later
earnings and appreciation resulting from the investment of such transferred
amount but is reduced by any amount distributed to such Participant from the
Plan on or after the Blue Coral Merger Date out of the Prior Blue Coral 401(k)
Account.
18.02 DISTRIBUTION OF BLUE CORAL TRANSFERRED AMOUNTS. Notwithstanding the
----------------------------------------------
provisions of Article VIII which shall apply to distributions to Participants
subject to this Article XVIII, the following provisions shall also apply, but
solely to the distribution of an amount from the Prior Blue Coral 401(k)
Account:
(a) Subject to Sections 18.03 and 18.04, any Participant to whom
distribution of a Blue Coral Transferred Amount is made by reason of the
Participant's termination of Employment under Section 8.01 may elect to
receive payment in the form of a lump sum or to have the distribution of
the Blue Coral Transferred Amount made in one of the following forms
(provided that the Participant's vested Account Balance exceeds $3,500
($5,000 effective January 1, 1998) or if the Participant's vested Account
Balance exceeded $3,500 ($5,000 effective January 1, 1998) at the time of
any previous distribution):
(1) monthly installment payments for a period of years as designated
by the Participant, not exceeding the life expectancy of the
Participant or of the Participant and his or her Beneficiary.
(2) a joint and survivor annuity. For purposes of this Article
XVIII, (i) "joint and survivor annuity" means an immediate
annuity for the life of the Participant with installment refund
payable to the Beneficiary of the
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Participant or, in the case of a married Participant, an
immediate annuity for the life of the Participant with a survivor
annuity for the life of the Participant's spouse that is 50% of
the amount of the annuity payable during the joint lives of the
Participant and the spouse, with installment refund payable, and
that is the amount of benefit that can be purchased with the
Participant's Blue Coral Transferred Amount and (ii)
"preretirement survivor annuity" means an annuity for the life of
the surviving spouse of the Participant with installment refund
payable, the actuarial equivalent of which is 100% of the Blue
Coral Transferred Amount as of the Participant's date of death,
including the proceeds of any life insurance contracts. Optional
forms of annuity distributions include (i) a single life annuity;
(ii) a joint and 66% survivor annuity with installment refund
payable; (iii) a joint and 100% survivor annuity with installment
refund payable; (iv) a single life annuity with five, ten or
fifteen years of guaranteed monthly payments; or (v) with respect
to benefits accrued prior to January 1, 1993, any distribution
permitted under the Blue Coral Plan as theretofore in effect.
Whenever a Blue Coral Transferred Amount is distributable in the form of an
annuity, the Blue Coral Transferred Amount shall be used to purchase an annuity
from a commercial insurer.
(b) Any Beneficiary who is entitled to receive a distribution under
Section 8.02 by reason of the death of a Participant may elect, instead of
receiving payment in the form of a lump sum, to have the distribution of
the Blue Coral Transferred Amount made in installment payments for a period
which does not exceed the Beneficiary's life expectancy .
Notwithstanding anything to the contrary herein, all distributions made
under this Article XVIII shall satisfy the requirements of Code Section
401(a)(9) and the regulations thereunder, including the minimum distribution
incidental benefit requirements of Prop. Treas. Reg. (S) 1.401(a)(9)-2. In
addition, life expectancies shall be determined using the life expectancy tables
published thereunder. In determining the amount of any required distribution,
the life expectancies of the Participant and his or her spouse shall be
recalculated annually.
All distributions made pursuant to this Section 18.02 must satisfy the
election, consent and notice requirements of Sections 18.04 and 18.05.
18.03 SPECIAL RULES RELATING TO INSTALLMENT DISTRIBUTIONS.
---------------------------------------------------
(a) Whenever a Blue Coral Transferred Amount is distributable in
installments, the undistributed balance of such amount shall continue to be
invested according to Article VI and participate in the valuation provided under
Article VII until fully distributed.
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(b) In the event a Participant elects installment payments under
subsection (a) and dies prior to receipt of all installment payments, the
remaining installments shall continue to the beneficiary for the period elected
by the Participant (except as otherwise provided in subsection (c) below). In
the event that the Plan terminates prior to the payment of all installments, the
amount remaining shall be paid to the Participant, beneficiary, or Beneficiary,
as applicable, in the manner determined by the Committee in accordance with
applicable law.
(c) Solely for purposes of this Section 18.03, the term "beneficiary"
shall mean the person, persons, or entity designated by the Participant on his
or her installment payment election form, or if none, the Participant's spouse
or if none, the Participant's estate. No spouse's consent shall be required for
the designation of a beneficiary or change of a beneficiary designation under
this subsection. If the Participant's beneficiary (or Beneficiary, as the case
may be) dies after payments have commenced but before full payment has been
completed, the balance due shall be paid to the beneficiary's (or Beneficiary's)
estate in a single lump sum.
18.04 SPECIAL RULES RELATING TO ELECTIONS. In the event a Participant
-----------------------------------
desires to elect a distribution option with respect to the Blue Coral
Transferred Amount or desires to elect to receive a loan which is secured by all
or a portion of the Blue Coral Transferred Amount, such election shall be
subject to the rules set forth in this Section 18.04.
(a) ELECTION PERIOD. If a Participant wishes to elect a form of
---------------
distribution or desires to elect to receive a loan which is secured by all or a
portion of the Blue Coral Transferred amount, such election may only be made
during the "Election Period," which is the period which begins ninety (90) days
before the Annuity Starting Date or in the case of a loan, the ninety (90) day
period ending on the date on which the loan is to be secured. If a Participant
desires to receive a distribution but does not specify the distribution form
prior to the Annuity Starting Date, the distribution shall be in a joint and
survivor annuity form with the Participant's spouse as joint annuitant if the
Participant is married (the monthly amount of the survivor annuity will be equal
to 50% of the monthly amount which was paid to the Participant) or in the form
of a life annuity if the Participant is not married.
(b) SPOUSAL CONSENT. If a Participant has a spouse (including a former
---------------
spouse to the extent required under a Qualified Domestic Relations Order), an
election of a form of distribution (other than a joint and survivor annuity with
the Participant's spouse as joint annuitant) or an election to receive a loan
which is secured by all or a portion of the Blue Coral Transferred Amount shall
not be effective without the written consent of his or her spouse. The spouse's
written consent must: (1) specifically acknowledge an understanding of the
effect of consent to such a distribution form or loan, (2) be witnessed by a
notary public, and (3) identify the optional form of benefit and any non-spouse
beneficiary in the case of a distribution. Any consent by a spouse shall be
effective only with respect to that spouse. However, spousal consent is not
required at the time of any setoff of the loan against the accrued benefit
resulting from a default, even if the Participant is married to a different
spouse at time of the setoff. A spouse may not revoke any prior consent unless a
new spousal consent is required as a result of another election by the
Participant during the Election Period. The written consent in the case
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of a loan must be obtained during the ninety (90) day period ending on the date
on which the loan is to be secured.
In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. A Participant may subsequently elect to revoke an
----------
election at any time within the Election Period. No spousal consent shall be
required with respect to the revocation. In the event of such revocation, unless
the Participant makes another election within the Election Period (and obtains
written spousal consent if required under this Section 18.04), the Participant
will receive a single life annuity if the Participant does not have a spouse,
and a Qualified Joint and Survivor Annuity if the Participant has a spouse. A
revocation must be executed on the form prescribed for such purpose by the
Committee or its delegate, and shall be deemed to be duly filed when it is
received by the Committee or its delegate.
(d) NOTICE. A Participant who wishes to elect a form of distribution shall
------
be provided at least thirty (30) days before the Annuity Starting Date with
written notice of the terms and conditions of the Qualified Joint and Survivor
Annuity or single life annuity (whichever is applicable); the Participant's
right to make an election to waive the joint and survivor annuity form of
benefit; the requirement of the spouse's consent to the election; the
Participant's right to revoke an election; and such other information as may be
required by applicable law. In addition, the Participant shall be furnished with
a general description of the eligibility conditions and other material features
of the optional forms of benefit and sufficient additional information to
explain the relative values of such optional forms.
Notwithstanding anything to the contrary herein, if a Participant has
received the notice required to be given by the preceding paragraph, the Annuity
Starting Date with respect to such Participant may be less than thirty (30) days
after receipt of such notice; provided that: (i) the notice clearly informs the
Participant of the right to consider the election of an optional form of
distribution for a period of thirty (30) days after the notice is provided; and
(ii) the Participant is permitted to revoke an affirmative distribution election
at least until the Annuity Starting Date, or if later, at any time prior to the
expiration of the seven (7)-day period that begins the day after the required
notice is given to the Participant; (iii) distribution in accordance with the
affirmative election does not commence before the expiration of the seven (7)-
day period that begins the day after the notice is given.
The written notice described in this Section 18.04(d) may be provided after
the Annuity Starting Date. In such a case, the distribution must begin at least
thirty (30) days after the notice is provided unless the conditions described in
this Section 18.04(d) regarding the waiver of the thirty (30)-day waiting period
are fulfilled.
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18.05 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY.
(a) APPLICABILITY. Notwithstanding the provisions of Sections 8.02 and
-------------
18.02, and subject to the waiver provisions of subsection (b) below, if a
Participant with a spouse (including a former spouse to the extent required
under a Qualified Domestic Relations Order as that term is defined in ERISA
Section 206(d) and Code Section 414(p)) dies prior to his or her Annuity
Starting Date, the Blue Coral Transferred Amount shall be used to purchase an
annuity for the life of the surviving spouse (the "Qualified Preretirement
Survivor Annuity"). As an alternative to receiving the benefit in the form of a
Qualified Preretirement Survivor Annuity, the surviving spouse may make an
election to receive payment in the form of a lump sum or installment payments,
on forms provided for such purpose by the Committee or its delegate and filed
with the Committee or its delegate.
(b) WAIVER. The Participant may waive the Qualified Preretirement
------
Survivor Annuity with the written consent of the spouse, provided that such
waiver occurs after the first day of the Plan Year in which the Participant
attains age thirty-five (35) and prior to the Participant's death. The spouse's
written consent must: (1) specifically acknowledge an understanding of the
effect of consent to such revocation, (2) be witnessed by a notary public, and
(3) identify the alternative death benefit selected and the identity of any non-
spouse beneficiary. Any consent by a spouse shall be effective only with respect
to that spouse. A spouse may not revoke any prior consent unless a new consent
is required as a result of another Participant waiver of the Qualified
Preretirement Survivor Annuity.
In the event it is established to the satisfaction of the Plan Manager that
a spouse's consent cannot be obtained because there is no spouse, the spouse
cannot be located, or there exist other circumstances as may be prescribed in
regulations of the Secretary of the Treasury, the above requirement for spousal
consent shall be deemed to be satisfied.
(c) REVOCATION. If a Participant elects to waive the Qualified
----------
Preretirement Survivor Annuity, such Participant may subsequently elect to
revoke the waiver prior to the earlier of his or her Annuity Starting Date or
his or her date of death. No spousal consent shall be required with respect to
the revocation. In the event of such revocation, unless the Participant makes
another waiver (and obtains written spousal consent), the Participant's spouse
will receive a Qualified Preretirement Survivor Annuity if the Participant dies
before the Participant's Annuity Starting Date unless the spouse elects another
form of payment in accordance with Section 18.05(a). A revocation must be
executed on the form prescribed for such purpose by the Committee or its
delegate, and shall be deemed to be duly filed when it is received by the
Committee or its delegate.
(d) NOTICE. A Participant who has a spouse and who is subject to this
------
Section 18.05 shall be provided a written notice described below within the
later of either the period beginning with the first day of the Plan Year in
which the Participant attains age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains age 35 or a reasonable
period after the individual becomes a Participant (however, if the Participant
separates
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from service prior to the attainment of age 35, such written explanation shall
be provided within a reasonable period after separation). The written notice
shall contain a written explanation of the Qualified Preretirement Survivor
Annuity; the Participant's right to make an election to waive the Qualified
Preretirement Survivor Annuity; the requirement of the spouse's consent to the
waiver of the Qualified Preretirement Survivor Annuity; the Participant's right
to revoke a waiver; and such other information as may be required by applicable
law. In addition, the Participant shall be furnished with a general description
of the eligibility conditions and other material features of the optional death
benefit forms and sufficient additional information to explain the relative
values of such optional forms.
ARTICLE XIX
MERGER WITH THE SLICK 50, INC. 401(K) PLAN
------------------------------------------
19.01 VESTING OF THE PRIOR SLICK 50 MATCH ACCOUNT.
-------------------------------------------
(a) The nonforfeitable percentage of a Participant's Prior Slick 50 Match
Account is determined as follows:
Years of Continuous Service: The nonforfeitable percentage is:
1 0
2 20
3 40
4 60
5 80
6 100
(b) Notwithstanding the vesting schedule specified above, an Employee's
right to his or her Account will be nonforfeitable upon attainment of his or her
Retirement Date, or his or her death or Disability.
(c) Continuous Years of Service before a One Year Break in Service:
(1) In the case of a Participant who has incurred a One Year Break
in Service, Years of Continuous Service before such break will not be taken
into account until the Participant has completed 1000 Hours of Service in
any 12 month period beginning on the Participant's Employment Commencement
Date.
(2) In the case of a Participant who has five (5) or more
consecutive One Year Breaks in Service, all service after such One Year
Break in Service will be disregarded for the purposes of vesting. Such
Participant's pre-break service will count in vesting the post-break Prior
Slick 50 Match Account balance only if either:
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(A) such Participant has any nonforfeitable interest in the
Prior Slick 50 Match Account balance at the time of separation from
service, or
(B) upon returning to service the number of consecutive One Year
Breaks in Service is less than the number of Years of Continuous
Service.
Separate Accounts will be maintained for the Participant's pre-break and
post-break Prior Slick 50 Match Account balance. Both Accounts will share in the
earnings and losses of the fund.
If any previous Participant shall be reemployed before a One Year Break in
Service occurs, he or she shall continue to participate in the Plan in the same
manner as if such termination had not occurred.
(d) If any previous Participant shall be reemployed after he or she has
incurred a One Year Break in Service, and such previous Participant had received
a distribution of his or her entire vested interest (including where the
Participant had no vested amount in his or her Account) prior to reemployment,
his or her forfeited Account shall be restored only if he or she repays the full
amount distributed to him or her before the earlier of five (5) years after the
first date on which the Participant is subsequently reemployed or the close of
the first period of five (5) consecutive One Year Breaks in Service commencing
after the distribution. If a distribution occurs for any reason other than a
separation from service, the time for repayment may not end earlier than five
(5) years after the date of the distribution. In the event the former
Participant repays the full amount distributed to him or her, the undistributed
portion of the Participant's Account must be restored in full, unadjusted by
gains or losses occurring after the Valuation Date preceding the distribution.
(e) If the Plan's vesting schedule is changed or amended, or the Plan is
amended in any way that directly or indirectly affects the computation of the
Participant's nonforfeitable percentage, each participant with at least three
(3) Years of Continuous Service may elect, within a reasonable period after the
adoption of the amendment or change, to have the nonforfeitable percentage
computed under the Plan without regard to such amendment or change.
The period during which the election may be made shall commence with the
date the amendment is adopted or deemed to be made and shall end on the latest
of:
(1) sixty (60) days after the amendment is adopted;
(2) sixty (60) days after the amendment becomes effective; or
(3) sixty (60) days after the Participant is issued written notice of
amendment by the Company or Committee.
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Furthermore, if the vesting schedule of the Plan is amended, in the case of
an Employee who is a Participant as of the later of the date such amendment is
adopted or the date it becomes effective, the nonforfeitable percentage
(determined as of such date) of such Employee's right to his or her Prior Slick
50 Match Account accrued benefit will not be less than his or her percentage
computed under the Plan without regard to such amendment.
(f) If a distribution is made at a time when a Participant has a
nonforfeitable right to less than 100 percent of the Prior Slick 50 Match
Account balance and the Participant may increase the nonforfeitable percentage
in the Account:
(1) A separate account will be established for the Participant's
interest in the Plan as of the time of the distribution, and
(2) At any relevant time the Participant's nonforfeitable portion of
the separate account will be equal to an amount ("X") determined by the
formula:
X = P (AB + (R x D)) - (R x D)
For purposes of applying the formula: P is the nonforfeitable percentage at
the relevant time, AB is the account balance at the relevant time, D is the
amount of the distribution, and R is the ratio of the account balance at the
relevant time to the account balance after distribution.
(g) Forfeitures, if any, will be allocated to all other Prior Slick 50
Match Accounts.
ARTICLE XX
MERGER WITH QUAKER STATE EMPLOYEE STOCK OWNERSHIP PLAN
------------------------------------------------------
PREAMBLE. The following provisions relate solely to amounts transferred to
the Plan from the Quaker State Employee Stock Ownership Plan, which was merged
into the Plan effective December 31, 1997. To the extent not otherwise provided
by the Plan, the benefits, rights and features of the Quaker State Employee
Stock Ownership Plan shall be protected and provided hereunder to the extent
required by applicable law.
20.01 VESTING OF ESOP CONTRIBUTION ACCOUNT. A Participant shall at all
------------------------------------
times be fully vested in his or her ESOP Contribution Account.
20.02 WITHDRAWALS AND LOANS.
---------------------
(a) A Participant may make withdrawals from his or her ESOP Contribution
Account based on the rules contained in Articles VIII and IX of the Plan.
(b) No loans are permitted from the ESOP Contribution Account.
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20.03 QUALIFIED PARTICIPANT'S DIVERSIFICATION ELECTION. Notwithstanding any
------------------------------------------------
other provision of the Plan, in the event that a Participant has participated in
this Plan (including participation in the prior Quaker State Employee Stock
Ownership Plan) for at least ten (10) years and has attained age fifty-five
(55), he or she shall be referred to as a "Qualified Participant" and, except as
otherwise provided in subsection (d) below, each Qualified Participant shall be
eligible to direct the diversification of a portion of his or her ESOP
Contribution Account (as determined under subsection (b) below) by means of a
timely-filed "Diversification Election" which meets the requirements set forth
in subsection (c) below.
(a) DIVERSIFICATION ELECTION PERIODS; NOTIFICATION. The "Diversification
----------------------------------------------
Election Periods" with respect to any particular Qualified Participant shall
mean six (6) ninety (90)-day election periods following the close of six (6)
consecutive Plan Years defined as follows: the ninety (90)-day period following
the close of the Plan Year in which the Participant first became a Qualified
Participant and the next five (5) subsequent ninety (90)-day periods following
the close of each of the next five (5) Plan Years ("Option Years 1 through 6",
respectively).
(b) PORTION OF A QUALIFIED PARTICIPANT'S ACCOUNT TO WHICH THE
---------------------------------------------------------
DIVERSIFICATION RIGHT SHALL APPLY. In each of the Diversification Election
- ---------------------------------
Periods following Option Years 1 through 5, a Qualified Participant shall be
eligible to diversify that portion of his or her ESOP Contribution Account which
is equal to: (1) twenty-five percent (25%) of his or her ESOP Contribution Units
which were ever allocated to such Qualified Participant's ESOP Contribution
Account on or before the Valuation Date immediately preceding such
Diversification Election Period, minus (2) the number of shares of ESOP
Contribution Units which were previously diversified pursuant to a
Diversification Election. In the case of the Diversification Election Period
following Option Year 6, "twenty-five percent (25%)" shall be changed to "fifty
percent (50%)" in the previous sentence.
(c) DIVERSIFICATION ELECTION. A Qualified Participant shall effect his or
------------------------
her election to diversify his or her ESOP Contribution Account by timely filing
his or her written Diversification Election with the Committee or its delegate
no later than the last day of the Diversification Election Period for that Plan
Year. The Committee or its delegate shall, no later than the ninetieth (90th)
day after the end of such Diversification Election Period, invest the amount so
elected by the Qualified Participant in one or more of the funds in Fund A Group
pursuant to Code Section 401(a)(28)(B) and any regulations thereunder.
(d) EXCEPTION FOR DE MINIMIS AMOUNTS. Except as provided in the next
--------------------------------
sentence, no Diversification Election may be made by a Qualified Participant if
the Fair Market Value (determined as of the Valuation Date which immediately
precedes the first day of a Diversification Election Period) of the ESOP
Contribution Units acquired by or contributed to the Plan and allocated to such
Qualified Participant's ESOP Contribution Account is $500 or less.
Notwithstanding the foregoing sentence, if the Fair Market Value (as determined
pursuant to the preceding sentence) of the ESOP Contribution Units acquired by
or contributed to the Quaker State Employee Stock Ownership Plan and allocated
to a Qualified Participant's ESOP Contribution Account exceeds $500 with respect
to any Diversification Election Period, then the
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Qualified Participant shall be able to make a Diversification Election for
that Diversification Election Period and for all of his or her remaining
Diversification Election Periods.
20.04 DISTRIBUTION LIMITATIONS. Unless another provision of the Plan
------------------------
requires an earlier date, if the Participant elects the distribution of the
Participant's Account Balance in the ESOP Contribution Account, distribution of
such Account will commence not later than one (1) year after the close of the
Plan Year (a) in which the Participant separates from service by reason of the
attainment of his Retirement Date, Disability, or death, or (b) which is the
fifth (5th) Plan Year following the Plan Year in which the Participant otherwise
separates from service, except that this Section 20.04 shall not apply if the
Participant is reemployed by the Company before distribution is required to
begin under this Section 20.04. Notwithstanding any other provision of the Plan
to the contrary, unless the Participant elects otherwise in accordance with
Section 9.01, the distribution of the Participant's ESOP Contribution Account
will be in substantially equal periodic payments (not less frequently than
annually) over a period not longer than the greater of (a) five (5) years, or
(b) in the case of a Participant with an ESOP Contribution Account balance in
excess of five hundred thousand dollars ($500,000), five (5) years plus one (1)
additional year (but not more than five (5) additional years) for each one
hundred thousand dollars ($100,000) or fraction thereof by which such balance
exceeds five hundred thousand dollars ($500,000). Such dollar amounts will be
adjusted at the same time and in the same manner as under Code Section 415(d).
20.05 TRUST FUND INVESTMENTS .Except as provided below in this Section, in
----------------------
Article IX, and in Sections 20.03 and 20.06, the Trustee shall invest all
amounts attributable to the ESOP Contribution Accounts, cash dividends on Quaker
State Capital Stock, and any other form of cash income attributable to ESOP
Contribution Accounts in Fund B. Except as provided below in this Section, the
Trustee shall retain in the Trust Fund all Quaker State Capital Stock acquired
by it for distribution as provided in Section 9.01. Except as otherwise provided
herein, the Trustee is directed by the Board to invest in and to hold one
hundred percent (100%) of the Trust Fund attributable to ESOP Contribution
Accounts in Fund B except as provided in Section 20.03; however, the Trustee may
retain some part of the Trust Fund attributable to such Accounts in short-term
interest-bearing securities, interest-bearing money market accounts, or other
interest-bearing cash equivalents or cash, and may sell Quaker State Capital
Stock as the Trustee determines, to meet administrative requirements of the
Plan. The Trustee may also sell Quaker State Capital Stock to make distributions
under Section 9.01. Upon direction by the Board, the Trustee shall purchase
Quaker State Capital Stock from, or sell Quaker State Capital Stock to, Quaker
State or any other person.
20.06 SALE OF QUAKER STATE CAPITAL STOCK. If any Quaker State Capital Stock
-----------------------------------
allocated to Participants' ESOP Contribution Accounts is sold or exchanged
pursuant to Section 12.04 relating to Tender, Exchange, or Purchase Offers, any
cash received therefor shall be held in a separate investment fund in the Trust
Fund for the ESOP Contribution Accounts of the Participants and Beneficiaries in
respect of whose interests shares of Quaker State Capital Stock were sold or
exchanged. Any securities received shall be sold by the Trustee as soon as
practicable and the cash proceeds thereof deposited in the same separate
investment fund. Any
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cash shall be invested in short-term interest-bearing securities, interest-
bearing money market accounts, or other interest-bearing cash equivalents
pending instructions from the Committee to invest such cash in Quaker State
Capital Stock, amendment of the Plan to provide for the future investment of
same, or the termination of the Plan.
ARTICLE XXI
ROLLOVER CONTRIBUTIONS
----------------------
PREAMBLE. The following provisions relate solely to amounts rolled over to
the Plan from another employer's qualified plan directly or from a conduit
individual retirement account or annuity.
21.01 IN GENERAL.
----------
(a) Any Employee (regardless of whether a Participant) may make written
application on forms provided by and filed with the Plan Manager or his or her
delegate to transfer in cash to this Plan an amount which constitutes a Rollover
Contribution (as defined in Section 21.07). In such application, the Employee
shall state whether the amount to be rolled over is to be transferred directly
from a "qualified trust" (as defined in Code Section 401(a)) or a rollover
individual retirement account or annuity.
(b) The Plan Manager may require an Employee to furnish such evidence as
the Plan Manager deems appropriate to assure that the acceptance of the rollover
will not adversely affect the continued tax qualified status of the Plan.
Following receipt of the completed Rollover Contribution application and receipt
of additional information requested, the Plan Manager, in his or her sole
discretion, shall determine whether or not such Rollover Contribution will be
accepted hereunder and shall notify the Employee promptly of the determination.
(c) In the event a Rollover Contribution is made to the Plan by an
Employee who was not previously a Participant, such Employee shall become a
Participant hereunder, but shall not otherwise be eligible to participate in the
Plan until after meeting the requirements of Section 3.01 and enrolling in
accordance with Section 3.02.
21.02 CREDITING OF ROLLOVER CONTRIBUTIONS. Rollover Contributions made on
-----------------------------------
or after the Effective Date shall be credited to the Participant's Rollover
Contributions Account as soon as practicable after the Rollover Contribution is
received by the Trustee.
21.03 PAYMENT AND INVESTMENT OF ROLLOVER CONTRIBUTIONS. Rollover
------------------------------------------------
Contributions must be: (a) made by a check which is issued from the prior plan,
individual retirement account, or individual retirement annuity trustee or
sponsor and which is payable to the Plan Trustee for the benefit of the
Employee; and (b) delivered by the Employee to the Plan Manager or his or her
delegate. The Plan Manager or his or her delegate will promptly deliver the
Rollover Contribution to the Trustee. Rollover Contributions shall be invested
in the manner described in Section 6.01.
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21.04 VESTING OF ROLLOVER CONTRIBUTIONS. The interest of a Participant in
---------------------------------
the value of his or her Rollover Contributions shall be fully (100%) vested at
all times.
21.05 WITHDRAWALS, LOANS, AND DISTRIBUTIONS OF ROLLOVER CONTRIBUTIONS.
---------------------------------------------------------------
Rollover Contributions credited to the Employee's Rollover Contributions Account
shall be subject to the withdrawal, loan, and distribution provisions which are
applicable to such Account, as set forth in Articles VIII and IX.
21.06 BENEFICIARY DESIGNATION. In the event a Rollover Contribution is made
-----------------------
to the Plan by an Employee who was not previously a Participant, such Employee
shall designate a Beneficiary in accordance with Section 12.08.
21.07 DEFINITION OF ROLLOVER CONTRIBUTION. A "Rollover Contribution" means
-----------------------------------
that amount which is transferred to the Plan:
(a) from a qualified plan, as defined in Code Section 401(a), which
amount represents all or a part of the accrued benefit of the Employee and
which amount meets the provisions of Code Section 402(c)(4); provided that
no amount may be a Rollover Contribution if it would cause any portion of
the Plan to be subject to the qualified joint and survivor annuity and
qualified preretirement survivor annuity requirements of Code Sections
401(a)(11) and 417; or
(b) from an individual retirement account or annuity maintained for
the benefit of an Employee, which amount meets the requirements of Code
Section 408(d)(3) as a distribution from a rollover individual retirement
account or annuity.
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IN WITNESS WHEREOF, QUAKER STATE CORPORATION has caused this instrument to
be executed by its officers thereunto duly authorized and its corporate seal to
be hereunto affixed this 29th day of December, 1998.
QUAKER STATE CORPORATION
By /s/ C. A. Conrad
--------------------------------
Title: Vice Chairman and CFO
ATTEST:
By C. Sherwood
----------------------
Title: Assistant Secretary
(CORPORATE SEAL)
-83-
<PAGE>
EXHIBIT 4.4
QUAKER STATE CORPORATION
THRIFT AND STOCK PURCHASE PLAN
(As Amended and Restated Effective January 1, 1997)
First Amendment
---------------
Quaker State Corporation, a Delaware corporation (the "Company"),
having established the Quaker State Corporation Thrift and Stock Purchase Plan,
effective July 1, 1960, having thereafter amended and restated said Plan, the
latest such amendment and restatement being effective January 1, 1997, having
merged the Quaker State Employee Stock Ownership Plan into said Plan, effective
January 1, 1998 (the "Plan"), and having reserved the right under Section 11.01
thereof to amend the Plan, does hereby amend the Plan, effective as of December
31, 1998 to read as follows:
1. The Plan is hereby amended to change the name of the Plan to the
Pennzoil-Quaker State Company Thrift and Stock Purchase Plan and to change all
references in the Plan from Quaker State to Pennzoil-Quaker State, except as
specifically noted below.
2. Section 2.30 of the Plan is hereby amended by amending the definition
of Fund B in its entirety to read as follows:
"FUND B means the 'Pennzoil-Quaker State Stock Fund' to be comprised
------
of Pennzoil-Quaker State Stock in which Participants may invest Tax
Deferred Contributions, Thrift Contributions, Rollover Contributions and
contributions held in the Prior Blue Coral 401(k) Account and the Prior
Slick 50 Match Account and in which all Company Matching Contributions,
Company Profit-Sharing Contributions, contributions held in the ESOP
Contribution Account and contributions held in the Tye-Profit Sharing
Account shall be invested, together with all dividends or other allocations
of property received with respect to such Pennzoil-Quaker State Stock."
-1-
<PAGE>
3. Article II is hereby amended by deleting Sections 2.49 and 2.50 in
their entirety, by inserting Sections 2.40 and 2.41 to read as follows and by
renumbering Sections 2.40 through 2.48 as Sections 2.42 through 2.50:
"2.40 PENNZOIL-QUAKER STATE means Pennzoil-Quaker State Company."
---------------------
"2.41 PENNZOIL-QUAKER STATE STOCK means the class of Common Stock of
---------------------------
Pennzoil- Quaker State existing on the effective date of the merger of
Pennzoil-Quaker State and Quaker State Corporation."
4. Section 3.01 of the Plan is hereby amended by adding a paragraph
thereto to read as follows:
"Any individual who is a Member, as such term is defined in the
Pennzoil-Quaker State Savings and Investment Plan (the "Pennzoil-Quaker
State Plan"), or who becomes a Member in the Pennzoil-Quaker State Plan
shall not be eligible to participate in or make contributions to this
Plan."
5. Article XIX of the Plan is hereby amended by adding a Section 19.02
thereto to read as follows:
"19.02 VESTING OF ALL ACCOUNTS. Notwithstanding anything herein to
-----------------------
the contrary, any Participant who terminated employment with the Company on
or after January 1, 1997 and who on the date of such termination had a
Prior Slick 50 Match Account is fully vested in such Account."
IN WITNESS WHEREOF, Quaker State Corporation has caused these presents
to be executed by its duly authorized officers in a number of copies, all of
which shall constitute one
-2-
<PAGE>
and the same instrument, which may be sufficiently evidenced by any executed
copy thereof, this 13th day of January, 1999, but effective as
herein provided.
QUAKER STATE CORPORATION
By:/s/ Keith Krzeminski
----------------------
Keith Krzemniski
Vice President and Controller
-3-
<PAGE>
EXHIBIT 5
BAKER & BOTTS, L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
February 23, 1999
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 200,000 shares ("Shares") of common stock,
par value $0.10 per share, of the Company issuable under the terms of the
Pennzoil-Quaker State Company Thrift and Stock Purchase Plan (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 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 consideration at least equal to the par value of such Shares, such Shares will
be validly issued, fully paid and nonassessable.
<PAGE>
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 Thrift and Stock Purchase Plan of our report dated
June 2, 1998 included in Pennzoil-Quaker State Company's Form 10/A effective
December 10, 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
February 22, 1999
<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 Thrift and Stock
Purchase Plan 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/A filed by Pennzoil-
Quaker State Company on December 1, 1998.
PricewaterhouseCoopers LLP
Houston, Texas
February 19, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Pennzoil-Quaker State Company on Form S-8 of our report dated January 27, 1998,
on our audits of the consolidated financial statements and financial statement
schedule of Quaker State Corporation as of December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
February 22, 1999
<PAGE>
EXHIBIT 24
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ David P. Alderson II
--------------------------------
David P. Alderson II
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ Clyde W. Beahm
----------------------------
Clyde W. Beahm
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ Linda F. Condit
-------------------------------
Linda F. Condit
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ Raymond Fischer
----------------------------
Raymond Fischer
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ James J. Postl
----------------------------
James J. Postl
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ Cherylon B. Reid
----------------------------
Cherylon B. Reid
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ W. M. Robb
----------------------------
W. M. Robb
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 Thrift and Stock Purchase Plan (the
"Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and JAMES
J. POSTL, 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
23rd day of February, 1999.
/s/ James W. Shaddix
----------------------------
James W. Shaddix
<PAGE>
EXHIBIT 24
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Howard H. Baker Jr
-----------------------
Howard H. Baker, Jr
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE COMPANY, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1993, as amended, a Registration
Statement on Form S-8 (the "Registration Statement") relating to the
Pennzoil-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Herbert M. Baum
--------------------
Herbert M. Baum
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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 23rd day of February, 1999.
/s/ W.L. Lyons Brown, Jr.
-------------------------
W.L. Lyons Brown, Jr.
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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 herby ratifying and approving the acts of
said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
23rd day of February, 1999.
/s/ Ernest H. Cockrell
------------------------
Ernest H. Cockrell
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, and each of them severally, his
true an 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, 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
23rd day of February, 1999.
/s/ Alfonso Fanjul
---------------------
Alfonso Fanjul
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ C. Frederick Fetterolf
--------------------------
C. Frederick Fetterolf
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Forrest R. Haselton
------------------------
Forrest R. Haselton
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Berdon Lawrence
-------------------------------------
Berdon Lawrence
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ L. David Myatt
--------------------
L. David Myatt
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-
Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ James L. Pate
------------------
James L. Pate
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ James J. Postl
--------------------
James J. Postl
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan 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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Gerald B. Smith
---------------------
Gerald B. Smith
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL-QUAKER STATE 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-Quaker State Company Thrift and Stock Purchase Plan and the Common
Stock of the Company issuable thereunder, together with any and all exhibits and
other documents having relation hereto;
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 J. POSTL, 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, 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
23rd day of February, 1999.
/s/ Lorne R. Waxlax
-------------------
Lorne R. Waxlax
