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Registration Statement No. 33-XXXXX
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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E. I. DU PONT DE NEMOURS AND COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
1007 MARKET STREET
DELAWARE WILMINGTON, DELAWARE 19898 51-0014090
(STATE OR OTHER (ADDRESS OF PRINCIPAL (I.R.S. EMPLOYER
JURISDICTION EXECUTIVE OFFICES) IDENTIFICATION
OF INCORPORATION NO.)
OR ORGANIZATION)
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QUALICON RETIREMENT AND SAVINGS PLAN
(FULL TITLE OF THE PLAN)
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GARY M. PFEIFFER, SENIOR VICE PRESIDENT -- DU PONT FINANCE
E. I. DU PONT DE NEMOURS AND COMPANY
1007 MARKET STREET
WILMINGTON, DELAWARE 19898
(NAME AND ADDRESS OF AGENT FOR SERVICE)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENTS FOR SERVICE:
302-774-1000
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APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLAN:
From time to time after July 9, 1999
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock 15,000 $68.50 $1,027,500.00 $285.65
$.30 par value
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The documents listed below, previously filed with the Securities and
Exchange Commission, are incorporated by reference in this Registration
Statement:
(a) DuPont's Annual Report on Form 10-K, as amended by DuPont's
filing on Form 10-K/A for the year ended December 31, 1998.
(b) DuPont's Quarterly Report on Form 10-Q, as amended by DuPont's
filing on Form 10-Q/A, for the quarter ended March 31, 1999.
(c) DuPont's Current Reports on Form 8-K as filed on January 27,
February 4, March 1, March 10, March 12, March 15, April 16,
April 27, June 14, and July 2, 1999.
All documents subsequently filed by DuPont and/or the Qualicon
Retirement and Savings Plan pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of DuPont Common Stock
Holders of DuPont Common Stock are entitled to receive dividends that
may be declared by the Board of Directors of DuPont from surplus or net
earnings, but not until all cumulative dividends on preferred stock shall have
been declared and set apart for payment at the annual rates of $4.50 a share for
the $4.50 Series and $3.50 a share for the $3.50 Series. Holders of DuPont
Common Stock have the right to vote on all questions to the exclusion of all
other stockholders, except as otherwise expressly provided by law or unless
DuPont shall be in default in the payment of dividends on preferred stock for a
period of six months. In the latter event, until accumulated and unpaid
dividends on preferred stock of all series shall have been paid, the holders of
the outstanding preferred stock shall have the exclusive right, voting
separately and as a class, to elect two directors, or if the total number of
directors of DuPont be only three, then only one director, at each meeting of
stockholders held for the purpose of electing directors.
On liquidation, dissolution, or winding up of DuPont, whether
voluntary or involuntary, after payments have been made to holders of preferred
stock, holders of DuPont Common Stock have the right to share ratably the
remaining assets available for distribution. In the event of voluntary
liquidation, holders of preferred stock are entitled to accumulated dividends
and $115 a share for the $4.50 Series and $107 a share for the $3.50 Series; in
the
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event of involuntary liquidation, holders of both series are entitled to
accumulated dividends and $100 a share. Holders of DuPont Common Stock do not
have any preemptive rights.
Item 5. Interests of Named Experts and Counsel
The validity of the issue of DuPont Common Stock offered hereby has
been passed on by Calissa W. Brown, Esq., Senior Counsel of DuPont. Ms. Brown
beneficially owned as of July 8, 1999, 1289 Shares of Common Stock of DuPont,
including 600 shares of which she has the right to acquire beneficial ownership
within 60 days through the exercise of stock options awarded under DuPont's
Corporate Sharing Plans.
Item 6. Indemnification of Directors and Officers
Under provisions of the Bylaws of DuPont, each person who is or was a
director or officer of DuPont shall be indemnified by DuPont to the full extent
permitted or authorized by the General Corporation Law of Delaware against any
liability, cost or expense asserted against such director or officer and
incurred by such director or officer in any such person's capacity as director
or officer, or arising out of any such person's status as a director or officer.
DuPont has purchased liability insurance policies covering its directors and
officers to provide protection where DuPont cannot indemnify a director or
officer.
Item 8. Exhibits
Exhibit
Number Description
- ------ ------------
4(a) DuPont's Restated Certificate of Incorporation, effective May 29, 1997,
defining the rights of the holders of DuPont Common Stock, incorporated
by reference to DuPont's Current Report on Form 8-K filed on June 13,
1997.
4(b) Qualicon Retirement and Savings Plan
5(a) Opinion of Counsel
5(b) ERISA qualification undertaking
23(a) Consent of Independent Accountants
23(b) Consent of Calissa W. Brown, Esq. included in the opinion filed as
Exhibit 5(a) to this Registration Statement
24 Powers of attorney authorizing certain officers to sign this
registration statement and amendments thereto on behalf of officers and
directors
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Item 9. S-K Item 512 Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement.
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any 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
(a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Wilmington, State of Delaware, on July 2, 1999.
E. I. DU PONT DE NEMOURS
AND COMPANY
By /s/ Gary M. Pfeiffer
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Gary M. Pfeiffer,
Senior Vice President - DuPont Finance
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
[C. O. Holliday, Jr., Chairman and Director
L. C. Duemling, Director
E. B. du Pont, Director
L. D. Juliber, Director
W. K. Reilly, Director
H. R. Sharp, III, Director
C. M. Vest, Director
E. S. Woolard, Jr., Director]
By /s/ Gary M. Pfeiffer
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Gary M. Pfeiffer
Senior Vice President- DuPont Finance
(Principal Financial and Accounting Officer
and Attorney-In-Fact for bracketed
individuals)
(July 2, 1999)
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By /s/ Howard J. Rudge
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Howard J. Rudge
Senior Vice President and General Counsel-
DuPont Legal
(Attorney-In-Fact for bracketed individuals)
(July 2, 1999)
Powers of attorney authorizing Gary M. Pfeiffer and Howard J. Rudge jointly,
to sign the registration statement and amendments thereto on behalf of the
above-named directors and officers are filed with the registration statement.
Pursuant to the requirement of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wilmington, State of
Delaware, on July 2, 1999.
QUALICON RETIREMENT AND
SAVINGS PLAN
By /s/ Udo Henseler
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Udo Henseler
Vice President Finance and Chief
Financial Officer and Member of the
Administrative Committee formed under
the Qualicon Retirement and Savings Plan
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INDEX TO EXHIBITS
Exhibit
Number Description
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4(a) DuPont's Restated Certificate of Incorporation, effective May 29, 1997,
defining the rights of the holders of DuPont Common Stock,
incorporated by reference to DuPont's Current Report on Form 8-K filed
on June 13, 1997.
4(b) Qualicon Retirement and Savings Plan
5(a) Opinion of Counsel
5(b) ERISA qualification undertaking
23(a) Consent of Independent Accountants
23(b) Consent of Calissa W. Brown, Esq. included in the opinion filed as
Exhibit 5(a) to this Registration Statement
24 Powers of attorney authorizing certain officers to sign this
registration statement and amendments thereto on behalf of officers and
directors
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EXHIBIT 4(b)
QUALICON RETIREMENT AND SAVINGS PLAN
TABLE OF CONTENTS
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I. PURPOSE 1
II. PARTICIPATION 1
III. ENROLLMENT 1
IV. AFTER-TAX AND BEFORE-TAX AMOUNTS 2
1. Amount of After-Tax and Before-Tax Contributions 2
2. Change in Amount of After-Tax and Before-Tax 7
Contribution
3. Collection of After-Tax Contributions 8
4. Voluntary Suspension of After-Tax and Before-Tax 8
Contributions
V. COMPANY CONTRIBUTION 8
1. Matching Contributions 8
2. Profit Sharing Contributions 9
VI. INVESTMENT FUNDS 9
1. Fund A - Reserved 10
2. Fund B - Fixed Income 10
3. Fund C - Equity Mutual Funds 10
4. Fund D - DuPont Common Stock 10
5. Fund E - Three-Way Asset Allocation Fund 10
6. Fund L - Loans 10
7. Fund O - Conoco Class B Stock 10
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VII. INVESTMENT DIRECTION 11
1. Investment of After-Tax Contributions 11
2. Investment of Before-Tax Contributions 11
3. Investment of Company Contribution 11
4. Change in Investment Direction 11
5. Separate Accounting and Non-forfeitability 11
6. Investment of Contributions 12
VIII. FUND TRANSFERS 12
1. Transfers Among Funds B, C, D and E 12
2. Transfers to Fund L from Funds B, C, D and E 12
3. Transfers to Funds B, C, D and E from Fund L 13
4. Transfers from Fund O 14
IX. OPERATION OF FUND 0 14
1. Account Holder's Account 14
2. Valuation of Fund O 15
3. Voting of Shares 15
X. OPERATION OF FUNDS B, C and E 16
1. Fund Investments 16
2. Fund Valuation 17
3. Fund Units or Shares 17
4. Separate Fund 18
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XI. OPERATION OF FUND D 19
1. Purchase of Company Common Stock 19
2. Account Holder's Account 19
3. Valuation of Fund D 20
4. Voting and Tender of Shares 21
XII. OPERATION OF FUND L 21
1. Establishment of Loan Account 21
2. Interest 22
3. Repayments 22
4. Fund Valuation 22
XIII. PARTICIPANT LOANS 22
1. Determination of Borrowable Account Balance 22
2. Amount of Loan 23
3. Interest 23
4. Term of Loans 23
5. Repayment 24
6. Declaration and Notice of Default 25
7. Deemed Withdrawal 26
8. General Conditions 27
XIV. WITHDRAWALS 29
1. General Conditions 29
2. Withdrawal Sequence 31
3. Withdrawal Maximum 31
XV. HARDSHIP WITHDRAWALS FROM BEFORE-TAX ACCOUNT 32
1. Definition of Hardship - Safe Harbor Only 32
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2. Establishment of Immediate and Heavy
Financial Need 32
3. Distribution Necessary to Satisfy
Immediate and Heavy Financial Need 33
4. Amount Withdrawable 34
5. Suspensions 34
XVI. TERMINATION OF PARTICIPATION 34
1. General Conditions 34
2. No Forfeiture 35
3. Distribution of Accounts 35
4. Form of Payment 41
5. Periodic Payment Option 41
6. Reenrollment in Plan 47
XVII. NONASSIGNMENT 47
XVIII. OPERATION OF THE PLAN AS A TOP-HEAVY PLAN 47
1. Minimum Vesting 47
2. Minimum Contributions 47
3. Compensation Limitation 48
4. Effect on Limitation on Annual Additions 48
5. Definitions 48
XIX. MISCELLANEOUS PROVISIONS 49
1. Plan Administration 49
2. Administrative Expense 52
3. Modification or Termination 53
4. Transition to Amended Plan 53
5. Transfer of Assets 53
6. No Guarantee of Security Values 57
7. Limitations on Annual Additions 57
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8. Qualified Domestic Relations Orders 58
9. Early Retirement Age 59
10. Normal Retirement Age 59
11. Compensation Taken into Account 59
12. No Decrease of Accrued Benefit 59
13. Change to Vesting Schedule 59
14. Definitions 60
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QUALICON
RETIREMENT AND SAVINGS PLAN
I. PURPOSE
The purpose of this Plan is to encourage and assist employees in following
a systematic savings program suited to their individual financial
objectives.
II. PARTICIPATION
An employee who is employed by the Company on June 1, 1998 (the "Effective
Date") shall automatically be eligible to participate in the Plan. An
employee who is hired after the Effective Date shall become eligible for
participation in the Plan as of the first day of the month coincident with
or next following the date of hire.
In addition, any employee who was an employee of E. I. du Pont de Nemours
and Company ("DuPont") and who becomes an employee of the Company
immediately following his termination of employment with DuPont shall be
eligible to participate as of the date of hire.
Once an employee is eligible to participate in the Plan, he remains
eligible.
III. ENROLLMENT
An employee may enroll at any time on or after the date he becomes a
eligible under Section II by authorizing deductions from his salary or
wages or electing deferrals of compensation or both under the provisions of
this Plan, subject to any deadlines or election periods the Company may
establish from time to time. However, the effective date of any employee's
participation in the Plan shall be the first day of the month specified in
Section II whether or not the employee enrolls to make contributions as of
that date.
IV. AFTER-TAX AND BEFORE TAX-AMOUNTS
1. Amount of After-Tax and Before-Tax Contributions
(a) After-Tax and Before Tax Contributions
An individual may authorize his employer to (A) make a payroll
deduction (hereafter, After-Tax Contribution) and/or (B) defer a
portion of his compensation (hereafter, Before-Tax Contribution)
and pay it under this Plan in an amount per month, and in the
case of any applicable Variable Pay, at the time of such payment,
equal to any selected whole percentage
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(except as required to comply with subparagraph (iii) below),
from 1% to 16%, of his Monthly Pay and any such Variable Pay,
provided that (i) the sum of a Participant's After-Tax
Contributions and Before-Tax Contributions (including the ratable
portion of the Benefit Allowance contributed pursuant to an
election under the Qualicon Flexible Benefit Plan) may not exceed
16% of his Monthly Pay and any applicable Variable Pay,(ii)
during a period when Company Contributions are suspended in
accordance with Section XIV, XV or XVI of the Plan, the
Participant's After-Tax rate will be limited to 10% and (iii) a
Participant may not defer Before-Tax Contributions of more than
$10,000 per year (or such other amount as may be allowable in
accordance with applicable statute, regulations or official
announcements made by the Secretary of the Treasury).
(b) Reduction of After-Tax and/or Before-Tax Percentage
(1) If the Plan Administrator estimates that the discrimination
standards of Code Sections 401 (k) and/or 401(m) and the
regulations thereunder may not be satisfied, the selected
Before-Tax Contribution, After-Tax Contribution and/or
Matching Contribution portion of Company Contributions, as
appropriate, percentage for Highly Compensated Participants
may be reduced in 1% increments from 16% until the Plan
Administrator determines that the standards will be
satisfied. The Plan Administrator will communicate the
reduction in savings rate to the participant.
(c) The Plan Administrator may determine periodically whether the
Before-Tax and After-Tax Contributions elected by Highly
Compensated Participants will, based on projections to the end of
the Plan Year, cause the Plan not to comply with the limitations
on contributions imposed by sections 401(k) and 401(m) of the
Code. Such projections will be made by assuming constant
compensation and constant elected contribution percentages. If
the projections indicate that the limitations will be exceeded,
the Plan Administrator shall take the following action:
(1) The Plan Administrator will determine the maximum
percentages of Before Tax and After-Tax Contributions,
respectively, that can be made by Highly Compensated
Participants for the following month or months without
causing the Plan, on a projected basis, to exceed such
limitations ("Allowable Percentages"). Reductions in the
Allowable Percentages, if any, determined for this purpose
will be made in 1% increments and will be applied uniformly
to all Highly Compensated Participants.
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(2) The Plan Administrator will reduce or adjust the percentages
of Before Tax and After-Tax Contributions of each
Participant to reflect the Allowable Percentages in
accordance with the following rules:
(i) If the elected percentage designated by the Highly
Compensated Participant for the Before Tax Account
exceeds the Allowable Percentage for Before Tax
Contributions, the Plan Administrator will pay the
excess to him. Plan Administrator in this case means
the Company as per section XIX.1(e).
(ii) If the elected percentage designated by the Highly
Compensated Participant for the Regular Account exceeds
the Allowable Percentage for After-Tax Contributions,
the Plan Administrator will pay the excess to him.
Plan Administrator in this case means the Company as
per section XIX.1(e).
(d) If it is determined after the close of a Plan Year that
participation by Highly Compensated Participants has exceeded the
discrimination standards of Code sections 401(k) ("Excess
Contributions") or 401(m) ("Excess Aggregate Contributions"), the
amount of the Excess Contributions or the Excess Aggregate
Contributions shall be refunded to the Highly Compensated
Participants in accordance with the following rules:
(1) Determination of the amount of Excess Contributions for a
Highly Compensated Participant shall be made in the
following manner: First, the Before-Tax Contributions of
the Highly Compensated Participant with the highest dollar
amount of such contributions will be reduced to the extent
necessary to satisfy the actual deferral percentage ("ADP")
test or cause such amount to equal the dollar amount of the
Highly Compensated Participant with the next highest dollar
amount. This process shall be repeated until the ADP test
is satisfied. The amount of Excess Contributions for a
Highly Compensated Participant will be equal to the total
dollar amount of elective contributions that were reduced in
order to satisfy the ADP test. The reductions under this
paragraph shall be made in accordance with the methodology
prescribed in IRS Notice 97-2 or other applicable notices or
Treasury regulations.
(2) Determination of the amount of Excess Aggregate
Contributions for a Highly Compensated Participant shall be
determined in the
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same manner as described in Paragraph (1), above,
("Leveling") but substituting "ACP test" for "ADP test".
(3) For purposes of applying this Paragraph (d), the ADP and ACP
of Participants who are not Highly Compensated Participants
that are used in applying the ADP test and ACP test for a
particular Plan Year shall be the percentages determined for
the previous Plan Year. However, the ADP and ACP for said
group of Participants for 1998 shall be the greater of 3% or
the actual ADP and ACP of said group for 1998.
(4) The amount of Excess Contributions to be distributed shall
be reduced by deferrals in excess of Code section 402(g)
limits ("Excess Deferrals") previously distributed for the
taxable year ending in the same Plan Year, and Excess
Deferrals to be distributed for a taxable year will be
reduced by Excess Contributions previously distributed for
the Plan Year beginning in such taxable year.
(5) Distribution (or forfeiture, if applicable) of Excess
Aggregate Contributions or of Excess Contributions will
include the income allocable thereto. The income allocable
to the Excess Aggregate Contributions or Excess
Contributions includes income for the Plan Year for which
the Excess Aggregate Contributions or Excess Contributions
were made but does not include income for the period between
the end of the Plan Year and the date of distribution (or
forfeiture).
(6) If a distribution of Excess Aggregate Contributions or
Excess Contributions results in a distribution of Matched
After-Tax or Before-Tax Contributions, the Matching
Contributions which relate to such Matched Contributions
must be distributed or forfeited, as applicable.
(7) A distribution of Excess Aggregate Contributions or Excess
Contributions shall be made within 2-1/2 months of the end
of the Plan Year in which they were made.
(8) Re-characterization of Before-Tax Contributions as After-Tax
Contributions is not allowed.
(e) If one or more Highly Compensated Employees is a Participant in
both the portion of this Plan subject to the ACP test and that
which is subject to the ADP test, then the tests shall be applied
in such a way as to avoid multiple
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use of the alternative limitation in accordance with Treasury
regulations 1.401(m)-2 and section 401(m)(9) of the Code.
If there is an impermissible multiple use of the alternative
limitation, the Plan Administrator shall reduce the ACP, treating
the reduction as an excess aggregate contribution, or the ADP,
treating the reduction as an excess contribution, to the extent
necessary to eliminate the impermissible multiple use in
accordance with applicable regulations and IRS Notices.
(f) Distribution of Excess Before-Tax Contribution
(1) If the Plan Administrator determines that a Participant has
made a contribution under Paragraph l(a) of this Section
which for any calendar year exceeds $10,000 (or such other
amount as may be permitted by regulation or other official
announcement by the Secretary of Treasury), the excess
amount (plus any income and minus any loss allocable
thereto, as calculated in accordance with regulations),
shall be distributed to the Participant not later than April
15th following the close of such calendar year.
(2) If a Participant participates in another plan which includes
a qualified cash or deferred arrangement, and such
Participant contributes in the aggregate more than the
exclusion limit under Paragraph 1(a) of this Section and the
corresponding provisions of the other plan and the
Participant notifies the Plan Administrator not later than
March 1st following the close of such calendar year, then
the Plan Administrator shall distribute to the Participant
not later than April 15th following the close of such
calendar year the excess amount (plus any income and minus
any loss allocable to such amount) which the Participant
allocated to this Plan.
2. Change in Amounts of After-Tax and Before-Tax Contributions
A Participant may change his After-Tax and Before-Tax Contribution
amounts by authorizing the Company to deduct or defer any higher or
lower amount permitted by Paragraph 1 of this Section.
3. Collection of After-Tax Contributions
After-Tax Contributions shall be permitted only by deduction from a
Participant's salary, wages, or Variable Pay.
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4. Voluntary Suspension of After-Tax and Before-Tax Contributions
A Participant who has an account balance in the Plan may authorize
suspension of his After-Tax and Before-Tax Contributions without
terminating his participation in the Plan. During such suspension, the
related Matching Contribution described in Section V shall also be
suspended. After a minimum suspension of one month, the Participant
may authorize the resumption of After-Tax and/or Before-Tax
Contributions. A Participant is not permitted to make up suspended
After-Tax Contributions or Before-Tax Contributions. In order to
accomplish this, a participant must elect a 0% savings rate for either
the Before-Tax, After-Tax or both accounts.
V. COMPANY CONTRIBUTIONS
The Company will contribute amounts (hereafter, Company Contributions) as
follows:
1. Matching Contributions
Except to the extent limited during a period of suspension in
accordance with Section IV.4, XIV, XV or XVI, the Company will
contribute monthly, and in the case of Variable Pay at the time of
such payment, to the Funds selected by each Participant in accordance
with Paragraph 3 of Section VII an amount equal to 50% of the
Participant's After-Tax and Before-Tax Contributions during that month
and, if applicable, at the time of payment of any Variable Pay except
that no such contribution will be made on the total of any
Participant's After-Tax and Before-Tax Contributions (including the
ratable portion of the Benefit Allowance contributed pursuant to an
election under the Qualicon Flexible Benefit Plan) in excess of 6% of
his combined Monthly Pay and any applicable Variable Pay. For purposes
of determining whether a Participant's After-Tax or Before-Tax
Contributions are matched or unmatched, the Matching Contribution will
be deemed to have first matched the Before-Tax Contributions.
2. Profit Sharing Contributions
The Company shall contribute to the trust for the Plan such amount, if
any, as the Board may determine in its sole discretion by resolution
adopted prior to the close of the Plan Year. Such amount, if any,
shall be referred to as the Company "Profit Sharing Contribution".
The Company shall pay any such Profit Sharing Contribution to the
Trustee prior to the due date for filing the Company's federal income
tax return for such Plan Year.
The Profit Sharing Contribution shall be allocated as of the last day
of the Plan Year (even though receipt of the Profit Sharing
Contribution by the Trustee may take place after the close of such
Plan Year) to the accounts of each Participant who was entitled to
receive Matching Contributions (or would have been entitled
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to receive such contributions except for a period of suspension in
accordance with Section IV.4, XIII, XIV, XV or XVI) during the Plan
Year. Such allocation shall be in the ratio that such Participant's
Compensation during the Plan Year bears to the to all Compensation
during the Plan Year of all Participants entitled to share in such
Profit Sharing Contribution.
VI. INVESTMENT FUNDS
The following Funds shall be established for the investment of After-Tax,
Before-Tax, and Company Contributions.
1. Fund A - Reserved (Hold for possible future use)
2. Fund B - Fixed Income
Amounts deposited in the Stable Value Fund shall be invested so as to
preserve principal and to pay a stable rate of return over time.
3. Fund C - Equity Mutual Funds
Amounts deposited in Fund C shall be invested, as directed by
Participants, in one or more mutual funds or other equity investment
vehicles designated by the Company. The Company may in its sole
discretion add investment options, merge options, or delete existing
investment options at any time.
4. Fund D - DuPont Common Stock
Amounts deposited in Fund D shall be invested in DuPont common stock.
5. Fund E - Three-way Asset Allocation Fund
Amounts deposited in Fund E shall be invested in a three-way asset
allocation fund consisting of a portfolio diversified among the stock,
bond, and cash sectors of the securities marketplace. Assets in Fund
E are transferred among these sectors in such manner and to such
extent as the fund manager of Fund E shall select.
6. Fund L - Loans
Amounts transferred to Fund L from the other Funds shall be loaned to
Participants.
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7. Fund O - Conoco Class B Stock
Fund O shall be invested in shares of Class B common stock of Conoco
Inc., received pursuant to the Tender Offer. No amounts may be
invested in Fund O other than as a result of such Tender Offer.
VII. INVESTMENT DIRECTION
1. Investment of After-Tax Contributions
Each Participant shall authorize the Company to allocate his After-Tax
Contributions to his Regular Account in Funds B, C, D or E in selected
percentages in whole multiples of one percent (1%).
2. Investment of Before-Tax Contributions
Each Participant shall authorize the Company to allocate his Before-
Tax Contributions to his Before-Tax Account in Funds B, C, D or E in
selected percentages in whole multiples of one percent (1%).
3. Investment of Company Contribution
Each Participant shall authorize the Company to allocate Company
Contributions to his Regular Account in accordance with the
Participant's current investment direction of After-Tax Contributions.
An After Tax investment direction will be required upon enrollment.
4. Change in Investment Direction
A Participant may change his investment direction to Funds B, C, D or
E by authorizing any other allocation permitted by Paragraphs 1 and 2
of this Section.
5. Separate Accounting and Non-forfeitability
A Participant's Before-Tax Contributions and After-Tax Contributions
and earnings thereon will be nonforfeitable. A Participant's Before-
Tax Account will be maintained in a separate account from a
Participant's After-Tax Contributions, Company Contributions and
earnings thereon.
6. Investment of Contributions
Contributions generally shall be invested pursuant to the
Participant's directions as soon as administratively feasible
following receipt by the Trustee. However, the Company may provide
for temporary delays in
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investment of contributions to the extent the Company determines in
its sole discretion to be necessary or appropriate for the
administration of the Plan. During any such temporary delay, the
amounts may be held uninvested, or may be invested in a money market
fund or similar short-term investment, in which case any temporary
earnings on such contributions may be allocated to the Accounts of
Participants in such manner as the Trustee deems appropriate, or may
be applied to pay expenses of administering the Plan.
VIII. FUND TRANSFERS
1. Transfers Among Funds B, C, D and E
An account holder, other than a non-Spouse Beneficiary, may authorize
the transfer of all or part of the value of his Regular Account in
Fund B, C, D or E or his Before-Tax Account in Fund B, C, D or E from
one Fund to the other. Such Transfers may be made in any whole
multiple of 1% or in any number of Fund Units and/or Shares. Amounts
may not be transferred into and out of the same Fund on the same
business day. The determination of values for this purpose shall be
made in accordance with the provisions of Sections X and XI.
2. Transfers to Fund L from Funds B, C, D and E
A Participant who is granted a loan or loans from the Plan shall
designate the sequence in which Funds will be liquidated and authorize
the Transfer of cash to Fund L in an amount equal to the principal
amount of the loan or loans. Such Transfers shall be made from the
Participant's borrowable account balance in the following order:
(a) Rollover Contributions & Earnings
(b) Company Contributions matching After-Tax Contributions &
Earnings;
(c) Company Contributions matching Before-Tax Contributions &
Earnings;
(d) After-Tax Supplemental Contributions & Earnings;
(e) After-Tax Basic Contributions & Earnings;
(f) Pre-'87 After-Tax Contributions & Earnings;
(g) Before-Tax Supplemental Contributions & Earnings;
(h) Before-Tax Basic Contributions & Earnings;
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3. Transfers to Funds B, C, D and E from Fund L
Repayments of principal and interest to Fund L shall be transferred to
Funds B, C, D and/or E in the Before-Tax Account, or Funds B, C, D
and/or E in the Regular Account. Such Transfers shall be made in the
same proportion that current investment direction of After-Tax and/or
Before-Tax Contributions are made to those Funds under Sections VII. 1
and 2. If there is no current investment direction of After-Tax
and/or Before-Tax Contributions, Transfers under this Paragraph shall
be made to Fund B. Repayments of principal under this Paragraph shall
be restored to the Participant's Regular and/or Before-Tax Account in
reverse order from that set forth in Paragraph 2 of this Section.
Payments of interest shall be treated as Earnings and shall be
allocated to the Regular and/or Before-Tax Account in the same
proportion that unpaid principal from each Account bears to the total
unpaid principal prior to such payment.
4. Transfers from Fund O
An accountholder may authorize the transfer of all or part of the
value of his account invested in Fund O into any other investment fund
as otherwise provided under the terms of the Plan, but notwithstanding
any other provision of this Plan to the contrary, may not authorize
any transfer into Fund O other than as a result of the Tender Offer.
Fund O shall be treated as an investment fund other than Fund L for
determining availability of loans and withdrawals and for all other
purposes as appropriate under this Plan.
IX. OPERATION OF FUND O
1. Account Holder's Account
(a) Amounts allocated to an account holder's Fund O shall be credited
in a proportionate number of full shares and fractional interests
in a share of Conoco stock.
(b) An account holder shall be credited with a proportionate number
of full shares and fractional interests in a share of any Conoco
stock acquired by the Trustee as a result of any addition due to
stock dividends, stock purchase warrant, split-up or other
change, or distribution of property applicable to such stock.
Such proportionate number shall be determined on the basis of the
ratio of his total shares to the total of all shares in Fund O to
which such addition applies. In the event an account holder has
transferred all funds out of Fund O prior to payment of a stock
dividend, stock purchase warrant, split-up or other change, or
distribution of property applicable to stock held in Fund O, the
full shares or fractional interests in a share, if any, allocable
to such transferred funds on account
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of such stock purchase, warrant, split-up or other change, or
distribution or property shall be paid in cash in accordance with
the account holder's current investment direction.
(c) Cash dividends and any other amounts accrued with respect to
Conoco stock shall be invested in the other Funds in accordance
with the account holder's current investment direction.
2. Valuation of Fund O
(a) Valuation: Account Status
The current value of an account in the Fund on any business day
shall be the total number of shares and fractional interests in a
share in the account multiplied by the closing price of Conoco
stock on the New York Stock Exchange for that business day.
(b) Valuation: Fund Transfers Out, Loans, Withdrawals and Termination
or Other Distributions
For purposes of Fund Transfers Out, Loans, Withdrawals and
Termination or Other Distributions, the value of shares
liquidated in connection with the transaction shall be the
average selling price as determined by the Trustee on the date of
the transaction.
3. Voting of Shares
Each account holder shall be entitled to direct the Trustee as to the
manner in which voting rights with respect to any Conoco stock
attributable to the number of shares and fractional interests in a
share represented by the account holder's account in Fund O are to be
exercised. The Trustee shall vote the number of shares in accordance
with such instructions. If an account holder does not return proper
voting instructions in a timely manner, such inaction shall be deemed
an election not to vote such shares or to vote such shares as the
default option described on the proxy or voting instructions, as
applicable.
X. OPERATION OF FUNDS B, C AND E
Throughout this Section, the words "the Fund" shall mean Fund B, Fund
C or Fund E.
1. Fund Investments
(a) Amounts allocated to the Fund(s) in accordance with the terms of
this Plan shall be paid by the Company to or at the direction of
Trustee(s) appointed
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by the Company for the Fund(s), and shall be deposited in an
account for the Fund(s).
(b) Amounts deposited in the Stable Value Fund shall be delivered to
the Trustee and invested as designated by the Company pursuant to
arrangements with one or more entities chosen by the Company,
including, but not limited to, insurance companies, banks and
other investment organizations. These arrangements shall provide
for the return of principal in full plus the payment of interest
at a predetermined rate applicable for a specified period of
time. In addition, a portion of the Stable Value Fund shall be
invested in a short-term fund(s) (i.e., a cash buffer) so as to
provide sufficient liquidity to accommodate daily trading
activity.
(c) All amounts received by the Trustee of Fund C shall be invested,
as directed by account holders, in one or more mutual funds or
other investment vehicles designated by the Company. Assets of
Fund C shall be held in the name of the Trustee(s) or one or more
of its/their designated nominees.
(d) All amounts received by the Trustee of Fund E shall be invested
by the Trustee in a portfolio diversified among the stock, bond,
and cash sectors of the securities marketplace in such manner and
to such extent as the fund manager of Fund E shall select.
Assets of Fund E shall be held in the name of the Trustee or of
one or more of its designated nominees.
2. Fund Valuation
(a) All deposits to the Stable Value Fund shall be expressed as units
of participation in the Stable Value Fund. The Trustee of the
Stable Value Fund shall determine each day's unit value based on
the assets of the Stable Value Fund. Assets shall consist of all
deposits to the Stable Value Fund and all interest credited or
accrued to such deposits pursuant to investment arrangements. No
participant in the Stable Value Fund shall have ownership in any
particular investment in the Stable Value Fund.
(b) The Trustee(s) of Fund C and E shall determine the current fair
market value of all assets held by such Fund, including accrued
income, each day on which business is transacted on the New York
Stock Exchange.
(c) Fund valuations determined in accordance with Paragraphs 2(a) and
2(b) of this Section shall be made before recording in the Fund
After-Tax Contributions, Before-Tax Contributions, Company
Contributions, Withdrawals, Terminations of Participation, and
Transfers among Funds.
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3. Fund Units or Shares
(a) Amounts allocated to the Fund(s) shall be credited to account
holder's accounts in dollars, in shares, and/or in units, as
appropriate, of ownership in the Fund(s).
(1) The value of a unit or share shall be determined as follows:
(i) The value of a unit in Fund B or E shall be determined
by dividing the total value of the Fund for that
business day by the corresponding total number of units
in the Fund before adding or subtracting any units for
that business day.
(ii) The value of each mutual fund share or other investment
in Fund C shall be determined on each business day by
the Investment Manager(s) of Fund C.
(2) The number of units or shares credited to each account
holder's account for the current business day shall be
determined by dividing the amounts of the account holder's
After-Tax Contributions, Before-Tax Contributions, Company
Contributions, and/or Transfers among Funds for the current
business day by the value of one unit or share for that day.
(b) The current value of an account holder's account in the Fund, as
needed for Withdrawals, Termination of Participation, Loans,
Transfers among Funds, or periodic reports to account holders,
shall be determined by multiplying the total number of his
respective Units and/or shares in the Fund (after additions for
the current day) by the value of one Unit and/or share
respectively for that business day; also, the number of
respective Units and/or shares to be deducted from an account
holder's account because of forfeiture, Loan, or Withdrawal of a
specified amount shall be determined by dividing such amount by
the value of one Unit and/or share respectively for that day.
4. Separate Fund
For purposes of allocating income and losses with respect to Fund C,
each mutual fund or other investment option under Fund C shall be
treated as if it were a separate "Fund".
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XI. OPERATION OF FUND D
1. Purchase of DuPont Common Stock
Amounts allocated to Fund D shall be used to purchase DuPont common
stock. Such purchases may be made in the open market or from DuPont
if it shall have made treasury or authorized but unissued shares
available for such purchases. In the case of stock purchased from
DuPont, the purchase price shall be the closing price of such stock as
reported on the New York Stock Exchange - Composite Transactions on
the last trading day preceding the date of such purchase from DuPont.
Purchases made on the open market shall be the average price for all
shares purchased by the Plan during that day. Such DuPont common stock
and any other assets of Fund D shall be held in the name of the
Trustee or of one or more of its designated nominees. The Trustee may
sell any stock purchase warrants or distribution of property received,
and the proceeds shall be invested currently in DuPont common stock.
Any stock dividend, split-up or other change in DuPont common stock,
or any distributions of property applicable to the shares held by the
Trustee, shall be applied for the exclusive benefit of the account
holders in Fund D.
2. Account Holder's Account
(a) Amounts allocated to an account holder's Fund D shall be credited
in dollars and in a proportionate number of full shares and
fractional interests in a share of DuPont common stock. Such
proportionate number shall be determined on the basis of the
ratio of the amount allocated to his account to the total of all
amounts allocated to Fund D for the business day.
(b) An account holder shall be credited with a proportionate number
of full shares and fractional interests in a share of any DuPont
common stock acquired by the Trustee with income accruing to Fund
D, or as a result of any addition due to stock dividends, stock
purchase warrant, split-up or other change, or distribution of
property applicable to such stock. Such proportionate number
shall be determined on the basis of the ratio of his total shares
to the total of all shares in Fund D to which such income or
addition applies. In the event an account holder has transferred
all funds out of Fund D prior to payment of a stock dividend,
stock purchase warrant, split-up or other change, or distribution
of property applicable to stock held in Fund D, the full shares
or fractional interests in a share, if any, allocable to such
transferred funds on account of such stock purchase, warrant,
split-up or other change, or distribution or property shall be
paid in cash in accordance with the account holder's current
investment direction.
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3. Valuation of Fund D
(a) Valuation: Account Status
The current value of an account in the Fund on any business day
shall be the total number of shares and fractional interests in a
share in the account multiplied by the closing price of DuPont
common stock on the New York Stock Exchange for that business
day, plus any proportionate ownership of accrued income and cash
held for an account holder by the Trustee for Fund D.
(b) Valuation: Fund Transfers Out, Loans, Withdrawals and Termination
or Other Distributions
For purposes of Fund Transfers Out, Loans, Withdrawals and
Termination or Other Distributions, the value of shares
liquidated in connection with the transaction shall be the
average selling price as determined by the Trustee on the date of
the transaction.
(c) Valuation: Fund Transfers In and Purchases of DuPont Common
Stock.
For purpose of Fund Transfers In and Purchases of DuPont Common
Stock, the value of the DuPont common stock purchased in
connection with the transaction shall be the average purchase
price as determined by the Trustee on the date of the
transaction.
4. Voting and Tender of Shares
(a) Each account holder shall be entitled to direct the Trustee as to
the manner in which voting rights with respect to any DuPont
stock attributable to the number of shares and fractional
interest in a share represented by the accountholder's account in
Fund D are to be exercised. The Trustee shall vote the number of
shares in accordance with such instructions. Any such
instructions shall remain in the strict confidence of the
Trustee.
(b) Each account holder shall be entitled to direct the Trustee as to
whether to exercise a tender offer with respect to any DuPont
stock credited to such account holder's account in Fund D. The
Trustee shall tender such shares in accordance with such
instructions. If an account holder does not return proper
instructions relating to such tender offer to the Trustee in a
timely manner, such inaction by the account holder shall be
deemed a decision not to tender, and the Trustee shall not tender
shares credited to such account holder's account.
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XII. OPERATION OF FUND L
1. Establishment of Loan Account
Amounts transferred to this Fund shall be loaned to the Participant
provided the Loan Administrator has received the documents described
in Section XIII.8(d). There is no promissory note. There is an EZ-Loan
procedure where an amortization schedule will be attached to the loan
check and the signed check will serve as the promissory note.
2. Interest
Interest at the rate prescribed in the loan agreement shall accrue
daily.
3. Repayments
The Administrator shall reduce the account balance in Fund L to
reflect repayments of principal and interest, and such amounts shall
be transferred to the Participant's Account(s) as provided in Section
VIII.3. There will be no promissory note to return to the participant
4. Fund Valuation
The current value of the account on any date shall be the outstanding
loan balance plus any unpaid accrued interest.
XIII. PARTICIPANT LOANS
A Participant with a borrowable account balance in Funds B, C, D, E and O
of $1,000 or more may request a loan subject to the conditions stated in
this Section (hereafter, Loan).
1. Determination of Borrowable Account Balance
For purposes of this Section and Section VIII, the borrowable account
balance in Funds B, C, D, E and O shall equal one-half of the amount
distributable from those Funds under Section XVI on account of
termination of employment from the Controlled Group for any reason
other than those described in Section XVI.2(b) less amounts held
pursuant to a qualified domestic relations order.
2. Amount of Loan
Loans shall not be for less than $1,000. The maximum amount of any
Loan from this Plan may not exceed the Participant's borrowable
account balance in Funds B, C, D, E and O and, when added to the
outstanding balance(s) of all other loans
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from this or any other qualified plans sponsored by any member of the
Controlled Group, shall not exceed the lesser of:
(a) $50,000, reduced by the highest outstanding balance of Loans from
the Controlled Group plans during the one-year period ending on
the day before the date on which such Loan was made, or
(b) One-half of the Participant's nonforfeitable account balance(s)
in all Controlled Group plans less any outstanding loan principal
amounts.
3. Interest
The rate of interest for Loans granted during any monthly period shall
be determined as of the last working day of the month preceding the
date on which the Loan application is made and shall be the average
rate for secured personal loans (rounded to the next lower one-quarter
percent (1/4%) then in effect at five banks selected by the Plan
Administrator; provided however, that the interest rate shall not
exceed the maximum amount allowed by law.
4. Term of Loans
The term of the Loan shall be the period requested by the Participant
and accepted by the Administrator. The minimum term shall be 12 months
and the maximum term 60 months, except for a qualified residential
Loan. The maximum term for a qualified residential Loan shall be 120
months. The Administrator shall determine, based on information
furnished by the Participant, whether a Loan is a qualified
residential Loan, as defined in Paragraph 8(e) of this Section. If
the Plan Administrator determines that the Residential Loan should be
denied, the Plan Administrator will contact the Recordkeeper.
5. Repayment
(a) Payroll Deduction
Except as provided in Subparagraph (b) below, Loans shall be repaid in
monthly installments by deduction from a Participant's salary or wages
according to the amortization schedule in the disclosure statement.
Notwithstanding the foregoing, a Participant shall have the right to
repay at any time prior to the expiration of the term of the Loan,
without penalty, the outstanding balance of the Loan plus accrued
interest to the end of the month in which repayment occurs. Such
payment shall be made in such form as permitted by the Administrator
or by incurring a Deemed Withdrawal from his account pursuant to
Paragraph 7(a) of this Section.
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If the Participant's salary or wage payment is not sufficient to allow
deduction of the full installment and the Participant does not make a
direct payment, as provided in Paragraph 5(b) of this Section, on or
before the 45th day following the day on which such payment was due, a
default will be declared under Paragraph 6(a) of this Section.
(b) Direct Payment
The Administrator, at the Participant's request, may permit
installments of principal and interest to be repaid in a manner
other than by payroll deduction under the following
circumstances:
(1) The Participant, at Company request, is transferred to a
Related Business Entity, and does not elect under Section
XIX.5(b) to transfer his account to the qualified plan of
the Related Business Entity to which he is transferred or
employed, or
(2) the Participant is granted a leave of absence without pay,
or
(3) the Participant's salary or wage payment is not sufficient
to allow deduction of the full installment payment.
6. Declaration and Notice of Default
If, for any of the reasons described in this Paragraph, a Loan is
declared in default, the Loan Administrator shall issue a Notice of
Default which shall be delivered to the Participant.
(a) Nonpayment
If while any portion of a Loan granted under this Section is
outstanding, the Participant fails to make a scheduled repayment
or a direct payment as provided in Paragraphs 5(a) and (b) of
this Section, respectively, on or before the 45th day following
the day on which such payment was due, the Loan shall be declared
in default.
(b) Termination of Employment
If a Participant terminates employment for any reason, other than
on account of death or a transfer described in Paragraph 5(b)(1),
and does not elect to defer distribution of the balance of his
accounts, a Deemed Withdrawal shall occur as of the last day of
the month within which the Participant terminates employment. In
the event of death, notwithstanding Section XII.2, the accrual of
interest shall cease as of the last day of the month in which
death occurs and a Deemed Withdrawal shall occur as of
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the date on which distribution of the balance of the
Participant's accounts is made unless an election is made in
which case a Deemed Withdrawal shall occur as of the last day of
the month in which such election is made.
(c) Transfers to Another Employer
If a Participant is, at Company request, transferred to an
employer described in Paragraph 5(b)(1), and does not make an
election under Section XIX.5(b), or the Trustee of the receiving
plan will not accept transfer of the Fund L account, a Deemed
Withdrawal shall occur as of the last day of the month within
which the Participant terminates employment from such employer.
(d) Reinstatement of Loan
The Plan Administrator may reinstate a Loan following a
declaration of default, provided:
(1) all payments of principal and interest in arrears are
received by the Plan Administrator prior to a Deemed
Withdrawal under Paragraph 7 of this Section; and
(2) the Plan Administrator receives adequate assurance that
future installments will be received by Fund L on a timely
basis.
7. Deemed Withdrawal
(a) The balance of the Participant's Fund L account shall be deemed
to have been withdrawn from the Plan by the Participant under
Section XIV or XVI, whichever is applicable (Deemed Withdrawal),
if the Plan Administrator does not reinstate a Loan under Section
XIII.6(d) on the earlier of the date of distribution of the
Participant's Accounts or the 45th day after a default for any
reason set forth in Section XIII.6. A Deemed Withdrawal shall
not be considered a withdrawal for purposes of the limitation on
the number of withdrawals permitted under Section XIV. 1.
(b) Notwithstanding the foregoing, no Deemed Withdrawal shall be
permitted if such withdrawal would adversely affect the status of
the Plan under Section 401(a) or 401 (k) of the Code. The Plan
Administrator may take such action as it deems necessary to
insure repayment of Loans made under this Section and compliance
with applicable law. If a Deemed Withdrawal under Section
XIII.7(a) would adversely affect the status of the Plan under
Section 401 (a) or 401 (k) of the Code:
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(1) the balance of the Participant's Regular Account in Funds B,
C, D, E and O shall be distributed subject to Section XIV in
accordance with the consent of the Participant given at the
time of the Loan initiation;
(2) the Participant shall deposit neither After-Tax nor Before-
Tax Contributions during the period beginning with the month
following the month in which the notice of default is issued
and ending with the month in which the Loan is reinstated
under Section XIII.6(d); and
(3) Company Matching Contributions shall be suspended for a
period not to extend beyond the later of six months after
the month in which the notice of default is issued or the
end of the month in which the Loan is reinstated under
Section XIII.6(d).
8. General Conditions
(a) Any Participant may receive a Loan from the Plan. For purposes
only of the Loan program provided for herein, Participant shall
mean any "Party in Interest", as that term is defined in Section
3(14) of the Employee Retirement Income Security Act (ERISA) who
has a borrowable account balance in the Plan of at least $1,000,
or to any person who has a vested account under the Plan and who
is employed by an Affiliated Company. For purposes of this
Article XIII, Affiliated Company shall mean a corporation that
has adopted the Plan or any other plan and is a member of the
controlled group of corporations (within the meaning of Section
1663(a) of the Code, determined without regard to Code Section
1563(a)(4) and Section 1563(e)(3)(c)) of which the Company is
parent, and any corporation which is not a member of the
controlled group of corporations but in which the Company has an
ownership interest, or which has an ownership interest in the
Company or is a member of the controlled group of a corporation
which has an ownership interest in the Company.
(b) A Participant may not have more than five (5) Loans from the Plan
outstanding at any time.
(c) At all times during the term of the Loan(s), the Participant must
have a balance in Fund L equal to the outstanding balance of the
Loan(s).
(d) A loan shall be made to a Participant when:
(1) The Participant calls and initiates a loan issuance with a
Participant Services Representative.
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(2) The EZ Loan Procedure is followed, and the check will be
issued with a conditional endorsement. The endorsement of
the check will signify that the Participant agrees to the
terms and conditions of the loan as set forth in the
disclosure statement described in paragraph (f) below which
is included with the check.
(3) The Participant authorizes payroll deductions when
requesting a loan issuance over the phone.
(4) The Participant authorizes liquidation of assets to fund the
loan amount.
(e) A "qualified residential Loan" is a Loan used to acquire or
construct any dwelling unit which within a reasonable time
(determined at the time the Loan is made) is to be used as a
principal residence of the Participant.
(f) All Participants granted Loans under this Section shall receive a
statement disclosing the terms of the Loan, including the
interest rate, amount of interest to be paid over the term of the
Loan and payment conditions (disclosure statement).
(g) No Loan may be granted that would adversely affect the status of
the Plan as one which qualifies under Section 401(a) or 401(k) of
the Code or the status of the trust as one which is exempt from
Federal income tax under Section 501(a) of the Code.
(h) Notwithstanding anything above to the contrary, the Loan
Administrator may deny a Loan if in its judgment the Participant
will not have sufficient income to meet his Loan payments as they
become due.
(i) The Loan Administrator is responsible for the administration of
the loan program described in this section.
XIV. WITHDRAWALS
1. General Conditions
(a) In addition to a distribution pursuant to Section XVI. 1., a
Participant, Former Participant, Alternate Payee or Spouse
Beneficiary of a deceased Participant or Former Participant may
make three withdrawals in any calendar year under the provisions
of this Section from his Regular and/or Before-Tax Accounts.
Withdrawals shall not be permitted:
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(i) from the Before-Tax Account before the Participant attains
age 59 1/2, becomes disabled, or incurs a hardship;
(ii) from Fund L, except as provided in Section XIII. 7.
(b) Withdrawn amounts will be valued as of the valuation date on
which the transaction is processed.
(c) Company Contributions shall be suspended for six (6) months if a
Participant withdraws any or all of:
(i) his matched After-Tax Contributions deposited during the
last two (2) years of participation;
(ii) his Matched Before-Tax Contributions during the last two (2)
years of participation;
(iii) the nonforfeitable Company Contributions deposited in his
Regular Account during the last two (2) years of
participation.
(d) Distribution from Regular Accounts and Before-Tax Accounts under
this Section may be made in cash or in kind as provided in
Section XVI.3(a) or XVI.3(b), whichever is applicable.
(e) Participants shall designate the sequence in which Funds will be
liquidated to provide for less than total withdrawals.
2. Withdrawal Sequence
Withdrawals by the Participant shall be made from his Regular Account
in the following order:
(a) Pre '87 After Tax Contributions and Earnings;
(b) Unmatched After-Tax Contributions & Earnings;
(c) Rollover Assets & Earnings;
(d) Matched After-Tax Contributions held for more than two years &
Earnings;
(e) Matched After-Tax Contributions contributed during the last two
years of participation & Earnings;
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(f) Nonforfeitable Matching Contributions held for more than two
years & Earnings;
(g) Nonforfeitable Matching Contributions contributed during the last
two years of participation & Earnings;
Withdrawals by the Participant shall be made from his Before-Tax
Account in the following order:
(a) Unmatched Before-Tax Contributions & Earnings;
(b) Matched Before-Tax Contributions held for more than two years &
Earnings;
(c) Matched Before-Tax Contributions contributed during the last two
years of participation & Earnings;
3. Withdrawal Maximums
The maximum withdrawal from any category in Section XIV.2. above shall
be the lesser of
(a) the amount in such category in the Participant's Fund(s), or
(b) the value of the Units, shares, and/or dollars, as appropriate,
attributable to such category in the Participant's Fund(s) at the
valuation date on which the transaction is processed.
XV. HARDSHIP WITHDRAWALS FROM BEFORE-TAX ACCOUNT
1. Definition of Hardship - Safe Harbor only.
A Participant may make a withdrawal in cash from his Before-Tax
Account by establishing hardship. In order to prove hardship, a
Participant must show (1) that he has an immediate and heavy
financial need; and (2) that the hardship distribution is
necessary to satisfy the immediate and heavy financial need. The
Plan Administrator shall act on requests for withdrawals and
appeals under this Section. The amount of an immediate and heavy
financial need may, at the participant's request, include any
amounts necessary to pay any federal income taxes or penalties
reasonably anticipated to result from the distribution.
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2. Establishment of Immediate and Heavy Financial Need
A Participant may establish the existence of an immediate and heavy
financial need only by demonstrating that the need results from one of
the following deemed hardship conditions:
a. Medical expenses described in Section 213(d) of the Internal
Revenue Code incurred or to be obtained by the Participant, the
Participant's spouse, or any dependents of the Participant;
b. Purchase (excluding mortgage payments) of a principal residence
for the Participant;
c. Payment of tuition, related educational fees, and room and board
for the next 12 months of post-secondary education for the
Participant, the Participant's spouse, children or dependents; or
d. The need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the
Participant's principal residence.
3. Distribution Necessary to Satisfy Immediate and Heavy Financial Need
A Participant's request for a distribution to meet an immediate and
heavy financial need will be deemed necessary to satisfy the need only
if the Participant establishes in a sworn and notarized statement
that:
(a) The distribution is not in excess of the amount of the
Participant's immediate and heavy financial need; and
(b) The Participant has obtained all distributions, other than
hardship distributions, and all loans currently available under
all plans maintained by the Controlled Group of companies.
The following consequences shall, in all events, apply:
(i) The Participant will be prohibited from making any Before-Tax and
After-Tax Contributions under the this Plan and all other plans,
with the exception of health and welfare benefit plans, including
ones that are part of a cafeteria plan within the meaning of
Section 125 of the Code maintained by the Controlled Group of
companies for a period of twelve (12) months after receipt of the
hardship distribution; and
(ii) The Participant will be prohibited from making Before-Tax
Contributions under this Plan and all other plans maintained by
the Controlled Group of
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companies for the Participant's taxable year immediately
following the year of the hardship distribution in excess of the
applicable limit under Section 402(g) of the Internal Revenue
Code for such next taxable year less the amount of such
Participant's Before-Tax Contributions for the taxable year of
the hardship distribution.
4. Amount Withdrawable
The amount which may be withdrawn cannot exceed the total of the
Participant's Before-Tax Contributions nor the amount necessary to
satisfy the immediate and heavy financial need created by the
hardship. A Participant may direct withdrawals under this Section in
accordance with Section XIV. 1.(e). The withdrawal sequence will be
as set forth in Section XIV.2.
5. Suspensions
Except as provided otherwise in this Section, Hardship Withdrawals are
subject to the same suspensions provided in Section XIV for other
withdrawals from Before-Tax Accounts, provided, however, that a
Hardship Withdrawal shall not be considered a withdrawal for purposes
of the limitation on the number of withdrawals permitted under Section
XIV. 1.
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XVI. TERMINATION OF PARTICIPATION
1. General Conditions
(a) An individual's participation in the Plan will end when his
service with the Company and its Controlled Group is terminated
or the Plan is terminated. In either such event, notwithstanding
the restriction on the number of withdrawals contained in Section
XIV. 1., the Former Participant may request distribution of the
balance in his Accounts. Distribution of the Participant's total
interest in the Plan will be made as described in this Section.
(b) Notwithstanding Paragraph (a), distribution of the individual's
Before-Tax Account upon termination of the Plan may be made as
described in this Section only after he attains age 59 1/2,
becomes disabled, or terminates his service with the Controlled
Group, whichever occurs first. Any termination on account of a
liquidation, merger, or consolidation of the Company, which
involves (1) no substantial change in the make-up of employees,
(2) only a technical change in the employment relationship, and
(3) no meaningful change in the beneficial ownership of the
business will not be considered a termination of service.
Distribution of such Former Participant's Regular Account will be
made when the Plan or his service with the Company is terminated
or, at his option, when his Before-Tax Account is distributed. A
Former Participant who, prior to his termination of service,
elected to defer receipt of his Regular Account balance under
this Subparagraph may, at any time prior to settlement of his
accounts, request immediate distribution of the balance in his
Regular Account.
2. No Forfeiture
A Participant shall always be 100% vested in his After-Tax
Contributions, Before-Tax Contributions, Company Contributions and
earnings thereon. No forfeiture of Company Contributions will be
charged against a Participant as a result of termination of
employment.
3. Distribution of Accounts
(a) Subject to the conditions in Paragraph 1 of this Section and
Subparagraphs (b) and (e) of this Paragraph, as soon as
practicable after termination of participation in the Plan,
distribution of the balance in the individual's accounts will be
made on the following bases:
(1) For Funds B, C and E, cash equal to the value of the
individual's Units and/or Shares, as appropriate, therein at
the valuation date on
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which the termination of participation occurs, or, where
termination is on account of death, the valuation date on
the business day preceding the day of distribution.
(2) For Fund D, delivery of full shares of DuPont common stock
in the individual's account, plus the value in cash of any
fractional interests in a share of such stock and accrued
income at the valuation date on which termination of
participation occurs or, at the election of the individual,
some or all in cash.
(3) For Fund L, EZ Loan will be used and outstanding loans will
be deemed as withdrawals.
(4) For Fund O, delivery of full shares of Conoco stock in the
individual's account, plus the value in cash of any
fractional interests in a share of such stock and accrued
income at the valuation date on which termination of
participation occurs or, at the election of the individual,
some or all in cash.
(b) Beneficiary Designation
(1) A Participant, Former Participant, or Spouse Beneficiary may
designate any beneficiary or beneficiaries he chooses to
receive all or part of his interests in Funds B, C, D and E
in case of his death, and he may replace or revoke such
designation. However, in the event the Participant, or
Spouse Beneficiary has a spouse, no designation of a person
other than the spouse shall be permitted, unless such spouse
has consented in writing in the manner prescribed by the
Company to another beneficiary, or such consent could not be
obtained because the spouse could not be located or because
of such other reasons as applicable Treasury Regulations may
provide, in which case distribution shall be made as
provided in Paragraph 4(a) or (b) of this Section. If no
surviving spouse exists and no beneficiary designation is in
effect, distribution of the benefit shall be made to, or in
accordance with the directions of, the executor or
administrator of the decedent's estate.
With respect to non-Spouse Beneficiaries (including a
beneficiary who is a spouse of a Former Participant), the
balance of a deceased Participant's, Former Participant's,
or Alternate Payee's Plan assets will remain in the accounts
and Funds as of the time of his death, pending distribution.
Total distribution shall be made to such beneficiaries no
later than the end of the twelfth month following the death
of the Participant, Former Participant, or Alternate Payee.
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If in the opinion of the Company there is a question as to
the legal right of any beneficiary to receive a distribution
under the Plan, the amount in question may be paid to the
decedent's estate, in which event the Trustee and the
Company shall have no further liability to anyone with
respect to such amounts. Non-Spouse Beneficiaries may not
designate beneficiaries; account balances remaining at the
time of their death will be paid to their estates as soon as
practicable following the death of the Non-Spouse
Beneficiary.
(2) If the Plan Administrator receives a qualified disclaimer
(as defined in Code section 2518) from any designated
beneficiary entitled to benefits as a result of, and within
nine months after, the death of a Participant, Former
Participant, Spouse Beneficiary, or Alternate Payee, such
benefits shall instead be paid to an alternate beneficiary
determined according to a valid beneficiary designation made
by the deceased. Payment to an alternate beneficiary on
account of receipt of a qualified disclaimer shall not be
treated as a violation of Section XVII of the Plan.
(c) Retirement Deferral Election
(1) Notwithstanding the provisions of Paragraph 3(a) of this
Section,
(i) a Participant who has attained his Normal or Early
Retirement Age, or
(ii) the Spouse Beneficiary of a deceased Participant who
had not reached his Required Beginning Date,
may elect, revoke, or reelect an option to have the
distribution in the Participant's Accounts made no later
than his Required Beginning Date except that, in the case of
a Spouse Beneficiary, distribution of the balance in the
accounts shall commence on or before the later of the end of
the year in which the deceased employee would have attained
age 70 1/2 or the end of the year after that in which the
employee died. A Participant or Spouse Beneficiary may
revoke the election and request distribution of the balance
in the accounts at any time prior to the time prescribed by
this subparagraph.
(2) With respect to a Participant or Spouse Beneficiary who has
made an election under this Section:
(i) Transfers between Funds B, C, D and E of the Regular
Account and Funds B, C, D and E of the Before-Tax
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Account shall be permitted as set forth in Section
VIII.l.; and,
(ii) up to three (3) Withdrawals may be made during each
calendar year in accordance with Section XIV.
(3) At any time prior to settlement of the accounts under this
subparagraph, the Participant, retired Participant or Spouse
Beneficiary may direct payment of the balance of his
accounts in accordance with Paragraphs 4 or 5 of this
Section. In the absence of such direction, the distribution
will be valued as of the date of settlement.
(d) Sale of Business or Facility
A Participant whose employment with the Company or with a Related
Business Entity with whom such Participant was employed at
Company request is to be terminated in connection with the sale
by the Company of any business or facility or of the Company's
interest in such Related Business Entity, may, at any time prior
to termination of employment, designate that the balance in his
Before-Tax and After-Tax Accounts (including the balances in Fund
L) be paid in cash, DuPont or Conoco common stock and/or Fund L
loan documents directly to the trustee of a qualified defined
contribution plan maintained by the purchaser of the business or
facility if such plan will accept the transfer of assets and loan
documents.
Payment to the trustee of the receiving plan will be made as soon
as practicable after the Company receives satisfactory proof that
the requirements of Section 414(1) of the Code will be satisfied
in the transfer of assets. At any time prior to such transfer of
assets, the individual may request distribution of the balance of
his accounts. Such payment to the trustee of the receiving plan
or distribution to the individual will be in cash (DuPont or
Conoco common stock and/or Fund L loan documents, if applicable)
as of the valuation date on which such proof or request,
respectively, is received by the Company.
(e) Post Termination Participation
After termination of service, Former Participants whose vested
account balances exceed $5,000 at the time of termination or ever
exceeded $5,000 and who do not consent to the distribution of
their account balances may elect to participate in the Plan to
the extent provided in this Subparagraph. No further Company
Contributions or After-Tax Contributions or Before-Tax
Contributions will be permitted. A total distribution may be
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taken at any time. Total distribution shall be made under this
Subparagraph no later than the Participant's Required Beginning
Date.
(f) If a distribution is required under the terms of this Plan,
pursuant to the Code, pursuant to a Qualified Domestic Relations
Order, or because an account holder requested a distribution and
the account holder or alternate payee to whom such a benefit must
be paid or who requested payment cannot be located, such
distribution shall be held without interest and forfeited six (6)
months after the end of the month in which the distribution was
required to be made or requested; provided that the amount of
such forfeiture shall be reinstated without interest if, prior to
termination of the Plan, a claim is made by the account holder or
alternate payee for the forfeited distribution.
(g) If an account is created for an Alternate Payee pursuant to a
Qualified Domestic Relations Order, no Company Contribution or
employee After-Tax and/or Before-Tax Contributions to such
account will be permitted. A total distribution may be taken at
any time. Total distribution shall be made to the Alternate Payee
under this Subparagraph no later than April 1 of the calendar
year following the year in which the Participant, from whom the
Alternate Payee's account was derived, attains age 70 1/2.
4. Form of Payment
(a) All distributions shall be in the form of a lump sum distribution
of the individual's entire benefit, except for:
(1) Withdrawals under Section XIV prior to the Participant's
Required Beginning Date or the date any other individual is
required to receive distribution under this Section;
(2) Distributions payable to Participants, retired Participants
and/or Spouse Beneficiaries eligible to elect an alternative
form of distribution described in Paragraph 5 of this
Section.
5. Periodic Payment Options
(a) In lieu of distribution of accounts in accordance with Paragraph
4 of this Section,
(i) a Participant who is otherwise entitled to a distribution of
his accounts as a result of his separation from service from
the Company and its Controlled Group on or after the
attainment of his Early or Normal Retirement Age, at any
time prior to settlement of his accounts,
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(ii) the Spouse Beneficiary of a deceased Participant, or retired
Participant who had not reached his Required Beginning Date,
or
(iii) a Participant in February of the calendar year that
contains his Required Beginning Date,
may elect, revoke or reelect to have some or all of the proceeds
of his accounts paid out in one of the following methods of
periodic payments, except that in the case of XVI.5(a)(iii) only
Lifetime Periodic Payments pursuant to Section XVI.5(a)(B) may be
elected:
(A) Variable Periodic Payments
Under this option, the proceeds in the Participant,
retired Participant, or Spouse Beneficiary's Before-Tax
and Regular Accounts will be paid out in a specified
number of monthly or annual periodic payments beginning
in the month following that in which the Participant
retires or that in which the Participant, retired
Participant, or Spouse Beneficiary elects a periodic
payout in lieu of deferral under Section XVI.4(c) and
ending (subject to amounts available in the account)
after the specified number of payments have been made
or in the month of notification to the Plan
Administrator of the death of the Participant, retired
Participant or Spouse Beneficiary, the remainder being
paid to the designated beneficiary(ies) in accordance
with Section XVI.4(b); provided that the number of
monthly periodic payments cannot exceed the actuarial
life expectancy(ies) specified in the Unisex annuity
tables promulgated by the Department of Treasury under
Code Section 72 for those the same age(s) as the
Participant (retired Participant or Spouse
Beneficiary), or as the Participant (retired
Participant or Spouse Beneficiary) and the oldest
designated primary beneficiary, if any; provided
further, that the distribution cannot be less than the
amount needed to satisfy the minimum distribution
incidental benefit requirement of Code Section
401(a)(9), and further that a Spouse Beneficiary may
continue to receive the remaining periodic payments
after the death of the Participant (or retired
Participant); or
(B) Lifetime Periodic Payments
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Under this option, the proceeds in the Participant,
retired Participant, or Spouse Beneficiary's Before-Tax
Account and Regular Account will be paid out in monthly
or annual life expectancies specified in the Unisex
Annuity tables promulgated by the Department of
Treasury under Code Section 72, recalculated annually,
of the Participant (retired Participant or Spouse
Beneficiary), or the Participant (retired Participant
or Spouse Beneficiary) and the oldest designated
primary beneficiary, beginning with the month following
that in which the Participant retires or that in which
the Participant, retired Participant, or Spouse
Beneficiary elects periodic payout in lieu of deferral
under Section XVI.4(c), and ending (subject to amounts
available in the account) in the month of notification
to the Plan Administrator of the death of the
Participant, retired Participant, or Spouse
Beneficiary, provided that the distribution cannot be
less than the amount needed to satisfy the minimum
distribution incidental benefit requirement of Code
Section 401(a)(9). The remainder shall be paid to the
designated beneficiary(ies) in accordance with Section
XVI.4(b) except that a Spouse Beneficiary of a
Participant or retired Participant receiving lifetime
periodic payments under this Section XVI.5(a)(B) based
on their joint life expectancies may continue receiving
installments which shall be recalculated annually based
on the spouse's life expectancy after the death of the
Participant or retired Participant.
(C) Fixed Payments
Under this option, the proceeds in the Participant,
retired Participant or Spouse Beneficiary's Before-Tax
Account and Regular Account will be paid out in a
specified monthly or annual amount designated by the
Participant, retired Participant or Spouse Beneficiary.
The designated amount shall be paid on a monthly or
annual basis beginning in the month following that in
which the Participant retires or that in which the
retired Participant or Spouse Beneficiary elects the
Fixed payment option and end at such time as the
account balance is zero.
(D) Level Periodic Payments
Under this option, the proceeds in the Participant,
retired Participant or Spouse Beneficiary's Before-Tax
Account
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and Regular Account will be paid in equal monthly or
annual payments calculated by amortizing the account
balance over a number of years equal to the life
expectancy of such Participant, retired Participant or
Spouse Beneficiary or the joint life and last survivor
expectancy of such Participant, retired Participant or
Spouse Beneficiary or the joint life and last survivor
expectancy of such Participant, retired Participant or
Spouse Beneficiary and a designated beneficiary at
reasonable interest determined on the date payments
begin by the Plan Administrator.
(b) For subparagraphs (A) Variable and (B) Lifetime, each periodic
payment during a calendar year (subject to amount available in
the account) shall be equal to the amount determined by dividing
the value of the account, at the payment commencement or the last
recalculation date, by the number of months remaining in the term
selected for payments under subparagraph (A), or in the life
expectancy for payments under subparagraph (B), except that the
last payment in a term selected under subparagraph (A) will be
adjusted if necessary to liquidate the account. A recalculation
will be performed as of each December 31.
(c) A Participant, retired Participant or Spouse Beneficiary who
elects periodic payments may make Fund Transfers in accordance
with Section VIII.1 of this Plan.
(d) At any time during the periodic payout period, the Participant,
retired Participant or Spouse Beneficiary may request
distribution of the balance in his accounts. Such distribution
will be based on the value of the account as of the valuation
date on which the request is made. During each calendar year of
the periodic payout period, a retired Participant or Spouse
Beneficiary is also eligible to take up to three withdrawals in
accordance with Section XIV.
(e) If a retired Participant receiving monthly periodic payments
pursuant to this Paragraph is reemployed prior to April 1 of the
calendar year following the calendar year in which he attains age
70-1/2, periodic payments shall terminate. At the earlier of (i)
his separation from service from the Company or its Controlled
Group or (ii) March 1 of the calendar year following the calendar
year in which he attains age 70-1/2, he shall designate any type
of distribution of the balance in his accounts permitted under
Paragraphs 4 or 5 of this Section.
(f) Notwithstanding any other provision of this Plan or election by a
Participant or Spouse Beneficiary to the contrary, distributions
shall be made in such minimum amounts and at such times as
required by Code
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Section 401(a)(9) and all regulations thereunder. If no payment
election has been received by the Plan Administrator at the time
minimum distributions are required to be made, the Plan will
commence monthly payments under the lifetime periodic payments
under Subparagraph (B).
(g) A Participant, retired Participant or Spouse Beneficiary who has
received one or more periodic payments under the Lifetime,
Variable, Fixed or Level Payments may revoke his prior election
no more than one a year and elect to receive his account balance
in any other periodic payment option.
6. Re-enrollment in Plan
If a Participant who has had his participation terminated because his
service with the Company was terminated is re-employed, he shall
immediately be eligible to participate in the Plan.
XVII. NONASSIGNMENT
Except as provided by Section 401(a)(13) of the Code, no assignment of
the rights or interests of account holders under this Plan will be
permitted or recognized, nor shall such rights or interests be subject to
attachment or other legal processes for debts.
XVIII. OPERATION OF THE PLAN AS A TOP-HEAVY PLAN
If it is determined that the Plan is a top-heavy plan, within the
meaning of Section 416(g) of the Code, for any Plan Year, this Section will
supersede all other provisions to the contrary and apply for such Plan
Year.
l. Minimum Vesting
Each Participant shall have a nonforfeitable right to the Company
Contributions and earnings thereon in his Regular Account.
2. Minimum Contributions
Contributions by the Company under the Plan, including Before Tax
Contributions, on behalf of each Participant who has not separated
from service at the end of the Plan year and who is a non-key employee
shall not be less than three percent (3%) of his Compensation.
3. Compensation Limitation
For any plan year in which the Plan is a top-heavy plan, the
compensation limitation set forth in Code Section 416(a) shall apply.
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4. Effect on Limitation on Annual Additions
For any plan year in which the Plan is top-heavy, the combined
limitation described in Section XIX.7(b) shall be applied by
substituting "1.0" for "1.25" wherever it appears in Sections XIX.
14(s) and (v).
5. Definitions - For purposes of these top-heavy provisions, the
following definitions shall apply:
(a) Key employees and non-key employees. In determining which
employees are key employees and which are non-key employees, the
criteria set forth in Code Section 416 and the regulations
thereunder shall be applied.
(b) Top-heavy ratio. The top-heavy ratio shall be computed in
accordance with Code Section 416 and the regulations thereunder.
(c) Aggregation Group. For purposes of determining if the Plan is a
top-heavy plan for a particular Plan Year, each tax qualified
plan of the Company in which a key employee participates in the
Plan Year containing the determination date, or any of the four
preceding Plan Years, and each other tax qualified plan of the
Company, which during this period, enables any plan, in which a
key employee participates, to meet the requirements of Code
Sections 401 (a)(4) or 410 shall be aggregated within the
required aggregation group. All other tax qualified plans which
are not required to be aggregated under the preceding sentence
but that satisfy the requirements of Code Sections 401(a)(4) and
410 when considered together with the required aggregation group
shall also be aggregated.
(d) Determination Date. The determination date for any Plan Year
shall be September 30 of the preceding Plan Year.
(e) Valuation Date. The valuation date applicable to the
determination date shall be September 30 of the preceding Plan
Year.
XIX. MISCELLANEOUS PROVISIONS
1. Plan Administration
(a) The Company shall control and manage the operation and
administration of the Plan and shall be the "Named Fiduciary" for
purposes of ERISA. The administrative responsibilities shall be
under the supervision of the Plan Administrator. The Plan
Administrator may designate or may employ one or more persons to
render advice with regard to any responsibility of the Company or
the Plan Administrator under the Plan.
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(b) All authorizations, designations and requests concerning the Plan
shall be made by employees in the manner prescribed by the Plan
Administrator.
(c) The Company, or its designee by written instrument, shall have
the responsibility of appointing Trustees. The Plan
Administrator, or its designee by written instrument, shall have
the authority to appoint an investment manager or managers to
manage and control Plan assets and, by such appointment, unless
specifically excluded in any agreement with such investment
manager or managers, delegates to such investment manager or
managers the power to appoint additional investment managers with
respect to all or part of the assets managed by such investment
manager.
(d) The Plan Administrator shall have the discretionary authority to
determine eligibility for benefits hereunder and to construe the
terms and conditions of the Plan. The decision of the Plan
Administrator shall be final with respect to any questions
arising as to interpretation of this Plan.
(e) The Plan Administrator shall be a committee consisting of the
following individuals: Vice President, Finance & Chief Financial
Officer; Vice President, Operations & Chief Technology Officer
and such other individuals as the aforementioned individuals
shall appoint. The committee may act at meetings at which a
majority of its members shall be present. The action of a
majority of the committee shall constitute the action of the
committee. The committee may also act by written resolution or
conference call without the holding of a meeting. Any resolution
concurred in by a majority of its members shall be the action of
the committee. A written record shall be maintained of the
committee's actions.
(f) Subject to the requirements of the Code, the Company may
authorize the Trustees of the Plan to accept a rollover of assets
in cash and/or DuPont common stock received in a qualified
distribution from a qualified employer plan as described in Code
Section 402(a)(5), or received in a distribution from an
individual retirement account, as described in Code Section
408(d)(3)(A)(ii). Any DuPont common stock received will be
allocated to the Regular Account, Fund D. The Account Holder
shall designate the manner in which all other rollover
contributions to the Plan will be invested. All amounts so
received will be treated as Earnings in the Regular Account. Only
taxable amounts may be rolled over under this Section.
(g) A newly hired employee who has made a rollover contribution to
the Plan in accordance with Subparagraph (f) who has not
otherwise become a Participant of the Plan may make, with respect
to his rollover contribution,
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fund transfers in accordance with Section VIII and withdrawals in
accordance with Section XIV; provided, however, that such
employee shall not have a right to make Before-Tax Contributions,
After-Tax Contributions or have Company Contributions made on his
behalf or institute loans until he has otherwise satisfied the
requirements imposed by Section II.
(h) Subject to the requirements of the Code, the Plan Administrator
may authorize the Trustees of the Plan to accept a trust-to-trust
transfer of assets requested by a Participant in cash, DuPont
common stock, and/or loan documents received from a qualified
defined contribution plan. The DuPont common stock shall be
allocated to the Regular Account, Fund D. The account holder
shall designate the manner in which all other transferred
contributions to the Plan will be invested. Taxable amounts
received pursuant to this Section will be treated as Earnings in
the Regular Account. Nontaxable amounts will be treated as
Unmatched After-Tax Contributions. Transfers from any qualified
defined contribution plan maintained by DuPont are specifically
authorized under this paragraph.
(i) Payments from the Plan may be "eligible rollover distributions"
if they are not payments for an account holder's lifetime (or
life expectancy), or account holder's lifetime and his
beneficiary's lifetime (or life expectancy) or a period of ten
years or more. Only taxable amounts of the distributions are
"eligible for rollover distribution".
A Participant, Former Participant, Spouse Beneficiary or
Alternate Payee may instruct the Plan Administrator to make a
direct rollover of all or a portion of his distribution that is
an "eligible rollover distribution" to another qualified plan or
an Individual Retirement Account.
In the event a Participant, Former Participant, Spouse
Beneficiary or Alternate Payee elects not to make a direct
rollover of all or any portion of his "eligible rollover
distribution", the distribution shall be subject to the 20%
withholding specified in Code Section 3405.
(j) Overpayments of a distribution under this Plan shall be repaid
within thirty (30) days after written demand is made for
repayment by the Plan Administrator. In the event repayment is
not made either within thirty (30) days of such demand or in
accordance with such terms as may be agreed to by the Plan
Administrator, an amount, to the extent available, equivalent to
the overpaid amount shall be deemed to have been withdrawn by the
account holder under Section XIV, XV or XVI, whichever is
applicable, and the limitation on the number of Withdrawals
contained in Section XIV.1. shall not apply to such Withdrawal.
Until any remaining overpaid amount is repaid or restored, a
Participant shall neither deposit After-Tax
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Contributions nor make Before-Tax Contributions, and Company
Contributions shall be suspended.
(k) Notwithstanding any other provision of the Plan, benefits under
the Plan shall be limited as required by the Internal Revenue
Code.
2. Administrative Expense
Reasonable expenses of administering the Plan, including, but not
limited to, record-keeping expenses, trustee fees, and transactional
costs shall, at the election of the Plan Administrator, be paid by
account holders. Brokerage fees, transfer taxes, investment fees and
other expenses incident to the purchase and sale of securities and
other investments in Funds B, C, D and E shall be included in the cost
of such securities or investments, or deducted from the sales
proceeds, as the case may be.
3. Modification or Termination
The Company reserves the right to change or discontinue this Plan in
its discretion by action of the Board or the Plan Administrator. In
the event of the complete or partial termination of the Plan, or
complete discontinuance of Company Contributions under the Plan,
distribution of full shares of DuPont common stock, and all cash
balances including those resulting from the liquidation of Funds B and
C will be made to the affected Participants in accordance with Section
XVI.4(a).
4. Transition to Amended Plan
Where an individual is in a bargaining unit represented by a union for
collective bargaining, with which discussions have been had concerning
this Plan as last amended, the provisions of the amended Plan shall
not become effective for such individual unless and until (i) such
discussions or (ii) existing collective bargaining agreements result
in favor of applicability of the amended Plan. The terms of the Plan
in effect immediately prior to the last amendment shall continue to
apply to an individual so excluded unless and until discussions with
the union representing his unit have concluded in favor of
applicability to the unit of the amended Plan or of other employee
benefits in lieu thereof, or unless and until the individual is made
eligible under the amended Plan by lawful unilateral action of the
Company.
5. Transfer of Assets
(a) In the case of any merger or consolidation with, or transfer of
assets or liabilities to, any other plan, each employee shall (if
the Plan is then terminated) receive a benefit immediately after
the merger, consolidation,
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or transfer which is no less than the benefit to which he would
have been entitled immediately before the merger, consolidation,
or transfer (if the Plan had then terminated).
(b) (1) In connection with an individual's transfer of employment to
a Related Business Entity, he may elect to have the value of
the balances in his accounts in Funds B, C, D, E, L and O in
this Plan transferred to the qualified plan of the Related
Business Entity. The transfer of account balances may be
made in cash or in kind, whichever the Plan Administrator
determines complies with the tax-qualified status of the
Plan and is most appropriate under the circumstances. The
balance in the individual's Before-Tax Account will not be
transferred unless the plan to which it is to be transferred
satisfies the requirements of Code Section 401 (k). The
balance in his account in Fund L will not be transferred if
the trustee under the receiving plan will not accept the
individual's Fund L loan documents. Account balances to be
transferred will be valued and transferred as soon as
practicable following receipt by the Plan Administrator of
proof satisfactory to the Plan Administrator that the Plan
to which assets are being transferred is a tax-qualified
plan under the Code. The individual may exercise this option
at any time prior to termination of employment with the
Related Business Entity. At any time prior to making such
election, the individual will be considered a Participant,
except that such Participant shall not be permitted to make
deposits to his Accounts. If the individual terminates
employment with the Related Business Entity prior to
exercising his option, distribution of the balances in his
accounts will be made as provided in Paragraphs 4 and 5 of
Section XVI.
(2) In connection with an individual's transfer of employment
from a Related Business Entity to the Company, the balances
in his qualified plan accounts if transferred to this Plan
will be deposited in Regular and Before-Tax Accounts, as
appropriate, and allocated in cash or in kind to Funds B, C
D, E or O, except that any cash transferred will be
deposited in Fund B and any promissory note(s) will be
converted to a loan document under this Plan and transferred
to Fund L. The determination of whether the account
balances are to be transferred in cash or in kind shall be
made by the Plan Administrator. All amounts transferred to
this Plan under this Paragraph (2), and the earnings on
those amounts, will be 100% vested at all times.
An individual's period of participation under this Plan will
include his period of continuous participation in the
qualified plan of the
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Related Business Entity immediately preceding the transfer
of employment. An individual with respect to whom company
contributions to the plan of the Related Business Entity
were suspended at the time of his transfer or of his
employment by the Company from such Related Business Entity
will not be entitled to Company Contributions under this
Plan until the suspension period lapses. A withdrawal by a
participant of any part of a qualified plan account
remaining to his credit in the plan of the Related Business
Entity, where such account remains after his transfer from
such entity, will have the same effect on his participation
in this Plan as if he made such withdrawal from this Plan.
(c) In connection with the acquisition of a business or facility, the
Company, in its discretion, may direct the Trustee of Fund B of
the Plan to accept a transfer of assets, in cash, or the Trustees
of Funds B and L to accept a transfer of assets in a combination
of cash and promissory note(s) which note(s) must be converted to
loan documents under this Plan and transferred to Fund L from the
trustee(s) of a qualified defined contribution plan maintained by
the seller of the business or facility. The cash received will be
allocated to the employees' accounts in Fund B based on the value
on the date in which the transfer takes place. Amounts received
which were employee contributions will be treated as Unmatched
After-Tax amounts; amounts which were Before-Tax Contributions
will be treated as Unmatched Before-Tax amounts; amounts which
were Earnings on Before-Tax amounts will be treated as Earnings
on Before-Tax amounts; and all other amounts received will be
treated as Earnings in the Regular Account. The Company may
recognize service with the seller by an employee for purposes of
eligibility in this Plan and may also recognize participation in
the seller's plan by an employee who enrolls in the Plan and
whose entire account assets are transferred to this Plan for
purposes of participation in this Plan, and the assets
transferred for his account will be valued in accordance with
Section X.3.
(d) In connection with the previous acquisition of a business or
facility in which the seller agreed to later reemploy individuals
who had become employees of the Company, the Company may, in its
discretion, direct the Trustees of the Plan to transfer account
balances of Former Participants who are so re-employed to the
trustee of the seller's qualified defined contribution plan,
provided the requirements of Code Section 414(1) will be
satisfied in the transfer of assets.
6. No Guarantee of Security Values
The Company does not guarantee or represent in any way that the value
of stocks and other assets in which the account holder has an interest
will increase or will
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not decrease. Each Participant assumes all risks in connection with
any changes in the value of securities and other assets in the various
Funds in which he may have an interest.
7. Limitations on Annual Additions
This Plan provision supersedes any other Plan provision which would
conflict with this one.
(a) In no case may annual additions to a Participant's account,
determined on a calendar year basis, either solely under the Plan
or under an aggregation of the Plan with all other Defined
Contribution Plans maintained by the Corporate Employer, exceed
the lesser of 25% of his Compensation or $30,000 (adjusted for
each Plan Year to reflect cost of living increases for that year
published by the Secretary of Treasury). For this purpose,
"annual additions" are, for any year, the sum of (1)
contributions to a Defined Contribution Plan on behalf of a
Participant by the Corporate Employer, including deferrals under
Code Section 401(k), and (2) employee contributions. If the
limitation in this paragraph would otherwise be exceeded, After-
Tax and Before-Tax Contributions will be returned or paid, and
Company Contributions will be removed from the employee's account
and applied to reduce the subsequent contributions of the Company
under the Plan, to the extent necessary, as determined by the
Plan Administrator.
(b) Prior to January 1, 1999, when annual additions are viewed in
conjunction with an employee's interest in all other Defined
Benefit and Defined Contribution Plans of the Corporate Employer,
the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction for any year shall not exceed 1.0. If
the limitation in this paragraph would otherwise be exceeded, the
Plan Administrator shall determine the extent to which the
Participant's benefit under any one or more of such plans shall
be reduced in order to comply with that limitation in such a
manner as to maximize the aggregate benefits payable to the
Participant.
(c) From time to time, and at least annually, the level of
participation in the Plan will be reviewed and, if necessary, the
amount of After-Tax and Before-Tax Contributions which may be
elected in accordance with Paragraph 1 of Section IV will be
adjusted to assure that the Plan continues to satisfy Internal
Revenue Service guidelines.
8. Qualified Domestic Relations Orders
The Plan will make payment from an account holder's Regular and/or
Before-Tax Account as required by a qualified domestic relations
order, as defined under
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Code Section 414(p). Any amounts awarded to an alternate payee, prior
to the death of the Participant or Former Participant pursuant to a
domestic relations order determined by the Plan Administrator to be
qualified shall be distributed within 90 days of such determination,
unless the qualified domestic relations order specifies that the
Alternate Payee shall have an account in the Plan. No Loan,
Withdrawal, or other action otherwise permissible pursuant to any
provision of the Plan shall be taken which, in the opinion of the Plan
Administrator, may be inconsistent with the provisions of a qualified
domestic relations order.
9. Early Retirement Age
Early Retirement Age under the Plan is age 55 with 10 or more Years of
Service.
10. Normal Retirement Age
Normal retirement age under the Plan is age 65.
11. Compensation Taken into Account
The maximum amount of annual compensation of a Participant that shall
be taken into account under this Plan for any year shall not exceed
the amount prescribed in Code Section 401 (a)(17).
12. No Decrease of Accrued Benefit
No amendment to the Plan shall be effective to the extent it has the
effect of decreasing a Participant's accrued benefit. For purposes of
this paragraph, a Plan amendment which has the effect of decreasing
the Participant's account balance or eliminating an optional form of
benefit, with respect to the benefits attributable to service before
the amendment shall be treated as reducing an accrued benefit.
13. Change to Vesting Schedule
If the Plan's vesting schedule is amended, or the Plan is amended in
any way that directly or indirectly affects the computation of the
Participant's nonforfeitable percentage or if the Plan is deemed
amended by an automatic change to or from a top-heavy vesting
schedule, each Participant with at least three (3) Years of Service
with the Employer 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:
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(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 Employer or Plan Administrator.
Furthermore, if the vesting schedule of a 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 Employer-derived accrued benefit will not be
less than his percentage computer under the Plan without regard to
such amendment.
14. Definitions
(a) The term "Affiliated Group" means the Controlled Group, but does
not include any foreign subsidiary or any domestic subsidiary
which derives in excess of 50% of its gross income for a taxable
year from sources without the United States (as defined in
Section 7701(a.)(9) of the Code).
(b) The term "Code" means the Internal Revenue Code of 1986, as
amended.
(c) The term "Company" means Qualicon,Inc. a Delaware corporation.
It also includes any wholly owned subsidiary, joint venture or
partnership in which the Company has an ownership interest,
provided that such entity (1) adopts this Plan with the approval
of the Company, or such person or persons as the Company may
designate and (2) agrees to make contributions in respect of any
of its employees who become Participants of the Plan.
(d) The term "Controlled Group" means the Company and its controlled
group of corporations within the meaning of Section 1563(a) of
the Code. Any reference to the "Controlled Group" of E. I. du
Pont de Nemours and Company means the controlled group related
to said corporation within the meaning of Code Section 1563(a).
(e) The term "Before-Tax Account" means the account in which a
Participant's Before-Tax Contributions and earnings thereon are
maintained.
(f) The term "employee"
(1) Includes all employees of the Company.
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(2) Excludes an individual who is on temporary assignment with
the Company from a foreign affiliate of the Company with the
expectation that he will return to duties with the foreign
affiliate at the end of a period not exceeding three years.
(3) Excludes any individual during any period during which the
individual is classified by the Company as an independent
contractor or as any other status in which the person is not
treated as a common law employee of the Company for purposes
of withholding taxes, regardless of the correct legal status
of the individual. The previous sentence applies to all
periods of such service of an individual who is subsequently
reclassified as an employee, whether the reclassification is
retroactive or prospective.
(4) Includes an individual who must be treated as an employee
under code Section 414(n) (a "Leased Employee"), but only to
the extent required by that Code section and final
regulations thereunder. A Leased Employee shall be treated
as an employee for purposes of determining Hours of Service
for participation and nonforfeitability of benefits (in the
event the individual becomes an employee without regard to
this paragraph). A Leased Employee shall be treated as an
employee for purposes of the other requirements set out in
Section 414(n)(3) of the Code. Notwithstanding anything
herein to the contrary, no Leased Employee shall be a
Participant in this Plan.
(g) "Service" with the Company will be measured in "Hours of Service"
and "Years of Service".
(1) The term "Hour of Service" means each hour for which an
employee is compensated or entitled to compensation for the
performance of duties and includes each such hour for which back
pay, irrespective of mitigation of damages, has been awarded or
agreed to. An hour also includes each hour for which an employee
is compensated or entitled to compensation due to vacation,
holiday, illness, incapacity (including disability), jury duty,
military duty or leave of absence. No more than 501 hours shall
be credited hereunder to any employee on account of any single
continuous period during which no duties are performed. Hours
shall be credited to the period during which the duties are
performed or to which the payment relates and, in the case of a
period where no duties are performed, shall be credited on the
basis of the number of regularly scheduled working hours during
the period. Hours shall be computed with respect to service with
the Company and all other members of the Company's Controlled
Group, and shall be aggregated for service with all such
employers. All hours shall be credited in conformance with
Section 2530.200b-2(b) and (c) of
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Department of Labor regulations, which is incorporated herein by
reference.
(2) The term "Year of Service" shall mean a 12-month computation
period in which an employee is credited with at least 1,000 Hours
of Service. For such purposes, the computation period shall be
the Plan Year.
(h) The term "Matched Before-Tax" means Before-Tax Contributions on
which related Matching Contributions are based.
(i) The term "Matched After-Tax" means After-Tax Contributions on
which related Matching Contributions are based.
(j) The term "Monthly Pay" means an employee's base salary or wages
and overtime pay paid to the employee by the Company during a
particular month. Monthly Pay does not include severance pay,
allowances or reimbursements for expenses, fringe benefits, long
term incentive compensation or gain sharing, or any other extra
or added types of compensation. However, Monthly Pay includes
Before-Tax and After-Tax Contributions to this Plan (including
the ratable portion of the Benefit Allowance contributed pursuant
to an election under the Qualicon Flexible Benefit Plan) and any
pre-tax salary reductions for any plan subject to Code Section
125.
(k) The term "Plan Year" means the calendar year.
(l) The term "Regular Account" means the account in which a
Participant's After-Tax Contributions, Company Contributions, and
earnings thereon are maintained. The Company may direct that
separate sub-accounts shall be maintained for After-Tax
Contributions Matching Contributions and earnings attributable
to each type of contributions.
(m) The term "Matching Contributions" and "Profit Sharing
Contributions" have the meanings assigned to them in Section V.
(n) The term "Settlement" means final valuation of an account
holder's accounts in preparation for distribution of the balance
of his accounts.
(o) The term "Unmatched Before-Tax" means Before-Tax Contributions on
which no related Matching Contributions are based.
(p) The term "Unmatched After-Tax" means After-Tax Contributions
deposited in the Participant's accounts, on which no related
Matching Contributions are based.
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(q) The term "Corporate Employer" shall mean the Controlled Group, as
modified by Code Section 415(h).
(r) The term "Defined Benefit Plan" shall mean a defined benefit plan
as defined in Code Section 414(j) that is qualified under the
Code.
(s) The term "Defined Benefit Plan Fraction" for any year shall be a
fraction, the numerator of which is an amount representing the
total Projected Annual Benefit of the employee under all Defined
Benefit Plans of the Corporate Employer, determined as of the
close of the year, and the denominator of which is the lesser of
(i) the product of 1.25 multiplied by the dollar limitation set
forth in Code Section 415(b)(1)(A) (as adjusted under Code
Section 415(b)(2) or in accordance with regulations or other
official announcements issued by the Secretary of Treasury), or
(ii) the product of 1.4 multiplied by 100% of the employee's
average Compensation for his high 3 years.
(t) The term "Compensation" shall mean the compensation of the
Participant, as defined in Treasury Reg. 1.415-2(d), but
including any elective deferrals not includible in the gross
income of the employee pursuant to Code Sections 125 or 401(k),
from the Corporate Employer for the year. The annual compensation
of each Participant taken into account for determining all
benefits provided under the Plan for any determination period
shall not exceed $160,000 for Plan Years after 1997, as such
limit is adjusted by the Secretary as provided under Code Section
415(d). If the period for determining compensation used in
calculating an allocation for a determination period is a short
Plan Year (i.e., shorter than 12 months), the annual compensation
limit is an amount equal to the otherwise applicable annual
compensation limit multiplied by a fraction, the numerator of
which is the number of months in the short Plan Year, and the
denominator of which is 12.
(u) The term "Defined Contribution Plan" shall mean a defined
contribution plan as defined in Code Section 414(i) that is
qualified under the Code.
(v) The term "Defined Contribution Plan Fraction" for any year shall
mean a fraction, the numerator of which is the sum of the annual
additions to the employee's account under all Defined
Contribution Plans of the Corporate Employer as of the close of
the year, and the denominator of which is the sum of the lesser
of the following amounts determined for such year and for each
prior year of service with the Corporate Employer: (i) the
product of 1.25 multiplied by the dollar limitation under Code
Section 415(c)(1)(A) for such year (determined without regard to
Code Section
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415(c)(6)), or (ii) the product of 1.4 multiplied by 25% of the
employee's Compensation for such year.
(w) The term "Projected Annual Benefit" shall mean the benefits which
are projected to be paid annually under all Defined Benefit Plans
of the Corporate Employer to an employee payable as a straight
life annuity commencing at normal retirement age. Such projection
shall be based on the assumptions that:
(1) The employee's compensation for all future years will equal
his Compensation for the year of computation,
(2) The employee's future participation in the Defined Benefit
Plans of the Corporate Employer will continue uninterrupted
until he has reached normal retirement age and that he will
earn a full year of service for each full year he
participates in the Defined Benefit Plans of the Corporate
Employer during that period, and
(3) All other relevant factors considered in computing the
benefits will remain constant with the year of computation.
(x) The term "Transfer" means transfer of Plan assets between or
among the various Plan Funds in accordance with Section VIII of
the Plan.
(y) The term "Highly Compensated Employee" shall mean an individual
described as such in Code Section 414(q). Unless otherwise
provided in Code Section 414(q), each employee who meets one of
the following requirements is a "Highly Compensated Employee":
(1) The employee at any time during the current or prior Plan
Year was a more than 5-percent owner as defined in Code
Section 414(q)(2), or was the spouse, child, parent or
grandparent of such an owner to whom the owner's stock is
attributed pursuant to Code Section 318 (regardless of the
Compensation of the owner or family member).
(2) The employee received Compensation from the employer in
excess of $80,000 for the prior Plan Year. The dollar
amount specified in the previous sentence shall be indexed
for cost of living increases for each calendar year after
1998 as provided in the applicable Treasury regulations.
For any Plan Year, the applicable dollar amount shall be the
dollar amount in effect for the calendar year in which the
Plan Year commences.
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(3) The individual is a former employee who had a separation
year prior to the current Plan Year and such individual
performed services for the employer and was a Highly
Compensated Employee for either (i) such separation year, or
(ii) any Plan Year ending on or after the individual's 55th
birthday. A "separation year" is the Plan Year in which the
individual separates from service with the employer.
For purposes of this Paragraph (y), "employer" includes the
Company and all Affiliated Group members, and "employee" includes
Leased Employees.
(z) The term "Variable Pay" shall mean the variable payment under a
pay program that relates a portion of total pay to business
objectives such that if objectives are met, targeted pay levels
are reached; but if objectives are exceeded or are not met, pay
is above or below targeted levels. The term includes only
amounts paid under a short-term annual program, and does not
include long-term incentives.
(aa) The term "Spouse Beneficiary" shall mean a spouse who is
designated a primary beneficiary of a deceased Participant who at
the time of his death had attained his Early or Normal Retirement
Age.
(bb) The term "Participant" shall mean an employee of the Company who
is participating in this Plan in accordance with the terms of the
Plan.
(cc) The term "Former Participant" shall mean an individual who had
been a Participant but whose service with the Company and its
Controlled Group has terminated.
(dd) A Participant's "Required Beginning Date" is April 1 of the
calendar year following the later of (i) the calendar year in
which the Participant attained age 70 1/2, or (ii) the calendar
year in which the Participant's termination of employment occurs.
However, clause (ii) of the previous sentence does not apply to
any Participant who is more than 5-percent owner of the Company
(as defined in Code Section 416) with respect to the Plan Year
ending in the calendar year in which the Participant attains age
70 1/2.
(ee) A "Related Business Entity" shall mean a company in the
Affiliated Group or Controlled Group or a partnership or joint
venture in which the Company has an ownership interest.
(ff) The term "Benefit Allowance" means the allowance described in
Section 4.1 of the Qualicon Flexible Benefit Plan.
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(gg) The term "Effective Date" means June 1, 1998.
(hh) The term "Tender Offer" means the tender offer by DuPont to
shareholders of DuPont common stock pursuant to which the DuPont
shareholders may exchange their DuPont shares for shares of Class
B common stock of Conoco, Inc.
(ii) The term "Conoco stock" means shares of Class B common stock of
Conoco, Inc.
IN WITNESS WHEREOF, the undersigned officer of the Company, hereby
adopts this plan document pursuant to the Written Consent of the Board of
Directors of Qualicon, Inc. dated May 20, 1998.
/s/ Robert A. McMillen /s/ K N McKelvey
- ---------------------- ----------------
Witness
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EXHIBIT 5(a)
July 8, 1999
E. I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Sir/Madam:
Reference is made to the Registration Statement being filed by you
with the Securities and Exchange Commission, relating to fifteen thousand
(15,000) shares of E. I. du Pont de Nemours and Company (hereinafter called "the
Company") $0.30 par value Common Stock ("Common Stock"). It is my opinion that:
(a) the Company is duly organized and existing under the laws of the
State of Delaware; and
(b) all shares of Common Stock so registered are or will when sold, be
legally issued, fully paid and nonassessable.
I hereby consent to the use of this opinion in connection with the
above-mentioned Registration Statement.
Very truly yours,
/s/ Calissa W. Brown
---------------------
Calissa W. Brown
Senior Counsel
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EXHIBIT 5(b)
The registrant hereby undertakes that it will submit or has submitted
the plan and any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the plan.
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8, relating to the Qualicon Retirement and Savings Plan, of
our report dated February 19, 1999, appearing on page 40 of E.I. du Pont de
Nemours and Company and its subsidiaries' 1998 Annual Report to Stockholders
which is incorporated in its Annual Report on Form 10-K/A Amendment No. 1. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 25 of E.I. du Pont de Nemours and
Company and its subsidiaries' Annual Report on Form 10-K/A Amendment No. 1.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Thirty South Seventeenth Street
Philadelphia, Pennsylvania 19103
July 8, 1999
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EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ C. O. Holliday, Jr. 10/25/97
- ----------------------- --------
Director Date
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<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ Louisa C. Duemling October 28, 1997
- ---------------------- ----------------
Director Date
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<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ Edward B. du Pont (undated)
- --------------------- ---------
Director Date
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<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ Lois D. Juliber 10/25/97
- ------------------- --------
Director Date
70
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ William K. Reilly Dec 17, 1997
- --------------------- ------------
Director Date
71
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ H. Rodney Sharp, III 10/29/97
- ------------------------ --------
Director Date
72
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ Charles M. Vest Dec. 17, 1997
- -------------------- ---------------
Director Date
73
<PAGE>
POWER OF ATTORNEY
------------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints (1) the Senior Vice President and General
Counsel or any Associate General Counsel of E. I. du Pont de Nemours and Company
(hereinafter referred to as the "Company"), and (2) the Chief Financial Officer
of the Company, or any Vice President, DuPont Finance, jointly, in his or her
name, place and stead, in any and all capacities, to execute and file, or cause
to be filed, with the Securities and Exchange Commission, Registration
Statements on Form S-8 relating to DuPont common stock, $0.30 par value, offered
under various compensation and benefit plans of the Company and its subsidiaries
and affiliates, any and all amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration under the Securities Act of 1933, as amended, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
/s/ Edgar S. Woolard, Jr. 10-24-97
- ------------------------- --------
Director Date
74
