<PAGE>
As filed with the Securities and Exchange Commission on May 27, 1999.
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____
BP Amoco p.l.c.
(Exact name of registrant as specified in its charter)
England None
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation No.)
or organization)
Britannic House
1 Finsbury Circus
London EC2M 7BA, England
(Address of principal executive offices)
The BP America Capital Accumulation Plan
The DirectSave Plan
The BP America Partnership Savings Plan
The BP America Savings and Investment Plan
The BP Amoco Share Option Plan
(Full titles of plans)
Robert D. Agdern
Vice President and General Counsel
BP America Inc.
200 E. Randolph Drive
Chicago, Illinois
(312) 856-6111
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Offering Maximum
Securities Amount Price Aggregate Amount of
To be to be Per Offering Registration
Registered Registered Share(2) Price(2) Fee(2)
Ordinary Shares (1) 50,000,000 $108 1/8 $901,041,667 $250,490
(1) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to certain of the employee benefit plans described
herein.
(2) Estimated solely for the purposes of calculating the
registration fee. Such estimate has been computed in
accordance with Rule 457(h) based on the average of the high
and low sales prices on the New York Stock Exchange Composite
Tape on May 20, 1999 for American Depositary Shares of BP
Amoco p.l.c., each of which represents six Ordinary Shares.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The reports listed below have been filed with or furnished
to the Securities Exchange Commission (the "Commission") by BP
Amoco p.l.c., formerly The British Petroleum Company p.l.c. ("BP
Amoco"), and are incorporated herein by reference to the extent
not superseded by documents or reports subsequently filed or
furnished:
- BP Amoco's Annual Report on Form 20-F for the year ended
December 31, 1998.
- BP Amoco's Registration Statement on Form 8-A filed
December 31, 1998 (File No. 1-6262).
In addition, all filings on Form 20-F filed by BP Amoco
pursuant to the Securities Exchange Act of 1934 and, to the
extent designated therein, Reports on Form 6-K filed by BP Amoco,
after the date of this Registration Statement and prior to the
termination of the distribution contemplated hereby are
incorporated by reference in this Registration Statement from the
date of filing or furnishing such documents or reports.
The following reports have been filed with or furnished to
the Commission by the following plans, and are incorporated
herein by reference to the extent not superseded by documents or
reports subsequently filed or furnished: The Annual Reports on
Form 11-K of The BP America Capital Accumulation Plan and The BP
America Savings and Investment Plan for the year ended December
30, 1997, and The DirectSave Plan and The BP America Partnership
Savings Plan for the year ended December 31, 1997 (collectively,
the "BP Savings Plans").
Item 4. Description of Securities.
Not applicable.
Item 5. Counsel.
The validity of the Ordinary Shares registered herein has
been passed upon by Peter B.P. Bevan, Group General Counsel of BP
Amoco. The validity of the plan interests in the BP Savings
Plans has been passed upon by Robert D. Agdern, Vice President
and General Counsel of BP America Inc.
Item 6. Indemnification of Directors and Officers.
Article 137 of BP Amoco's Articles of Association provides:
"Subject to the provisions of and so far as may be
consistent with the Statutes, every Director, Auditor, Secretary
or other officer of the Company shall be entitled to be
indemnified by the Company against all costs, charges, losses,
expenses and liabilities incurred by him in the execution and/or
discharge of his duties and/or the exercise of his powers and/or
otherwise in relation to or in connection with his duties, powers
or office."
Section 310 of the Companies Act 1985 (as amended by Section
137 of the Companies Act 1989) provides as follows:
"310 - Provisions exempting officers and auditors from liability.
(1) This section applies to any provision, whether contained in
a company's articles or in any contract with the company or
otherwise, for exempting any officer of the company or any
person (whether an officer or not) employed by the company as
auditor from, or indemnifying him against, any liability which
by virtue of any rule of law would otherwise attach to him in
respect of any negligence, default, breach of duty or breach
of trust of which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such
provision is void.
(3) This section does not prevent a company
(a) from purchasing and maintaining for any such officer or
auditor insurance against any such liability, or
(b) from indemnifying any such officer or auditor against
any liability incurred by him -
(i) in defending any proceedings (whether civil or
criminal) in which judgment is given in his favor or
he is acquitted, or
(ii) in connection with any application under section
144(3) or (4) (acquisition of shares by innocent
nominee) or Section 727 (general power to grant
relief in case of honest and reasonable conduct) in
which relief is granted to him by the court."
Section 727 of the Companies Act 1985 of the United Kingdom
provides as follows:
"727 - Power of court to grant relief in certain circumstances:
(1) If in any proceedings for negligence, default, breach of
duty or breach of trust against an officer of a company or a
person employed by a company as auditor (whether he is or is
not an officer of the company) it appears to the court hearing
the case that officer or person is or may be liable in respect
of the negligence, default, breach of duty or breach of trust,
but that he has acted honestly and reasonably, and that having
regard to all the circumstances of the case (including those
connected with his appointment) he ought fairly to be excused
for the negligence, default, breach of duty or breach of
trust, that court may relieve him, either wholly or partly,
from his liability on such terms as it things fit.
(2) If any such officer or person as above-mentioned has reason
to apprehend that any claim will or might be made against him
in respect of any negligence, default, breach of duty or
breach of trust, he may apply to the court for relief; and the
court on the application has the same power to relieve him as
under this section it would have had if it had been a court
before which proceedings against that person for negligence,
default, breach of duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried
by a judge with a jury, the judge, after hearing the evidence,
may, if he is satisfied that the defendant or defender ought
in pursuance of that subsection to be relieved either in whole
or in part from the liability sought to be enforced against
him, withdraw the case in whole or in part from the jury and
forthwith direct judgment to be entered for the defendant or
defender on such terms as to costs or otherwise as the judge
may think proper."
BP Amoco maintains directors' and officers' liability insurance
for its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index which is incorporated herein by
reference. The Registrant hereby undertakes that it will
submit, or has submitted, the BP Savings Plans and any
amendments thereto to the Internal Revenue Service ("IRS"),
and has made or will make all changes required by the IRS in
order to qualify the BP Savings Plans.
Item 9. Undertakings.
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 or any material change
to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
The undersigned Registrant hereby undertakes that, for purpose
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report on Form 20-F
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and each filing of each of the Savings
Plans annual reports on Form 11-K 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.
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
provisions set forth in Item 6, 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.
<PAGE>
SIGNATURE OF BP AMOCO P.L.C.
Pursuant to the requirements of the Securities Act of 1933,
BP Amoco p.l.c. 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 London, England, on the 26th day of May 1999.
BP AMOCO P.L.C.
By: /s/ John Browne
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints Robert D. Agdern
and Daniel B. Pinkert, his or her true and lawful attorneys-in-
fact, each with power of substitution, in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits
thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto the said
attorneys-in-fact and agents and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, 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 or any of them, or their or his or
her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the indicated capacities on the 26th day of May, 1999.
Name Title
Chief Executive Officer,
/s/ John Browne Executive Director
Sir John Browne (Principal Executive Officer)
/s/ J. Buchanan Chief Financial Officer, Executive Director
Dr. J. Buchanan (Principal Financial and Accounting Officer)
/s/ P. D. Sutherland Co-Chairman
P.D. Sutherland
/s/ H. Laurance Fuller Co-Chairman
H. Laurance Fuller
Deputy Chairman,
/s/ Ian Prosser Non-Executive Director
Sir Ian Prosser
Deputy Chief Executive Officer,
/s/ Rodney Chase Executive Director
Rodney Chase
Non-Executive Director
Ruth S. Block
Non-Executive Director
John H. Bryan
Non-Executive Director
Erroll B. Davis, Jr.
Non-Executive Director
Richard J. Ferris
/s/ C. S. Gibson-Smith Executive Director
Dr. C. S. Gibson-Smith
Non-Executive Director
Charles F. Knight
Non-Executive Director
Floris A. Maljers
Non-Executive Director
Dr. Walter E. Massey
/s/ H. Michael P. Miles Non-Executive Director
H. Michael P. Miles
/s/ Robin Nicholson Non-Executive Director
Sir Robin Nicholson
/s/ Richard L. Olver Executive Director
Richard L. Olver
/s/ Bryan K. Sanderson Executive Director
Bryan K. Sanderson
Non-Executive Director
Michael H. Wilson
/s/ R. P. Wilson Non-Executive Director
R. P. Wilson
/s/ The Lord Wright of Richmond Non-Executive Director
The Lord Wright of Richmond
/s/ John F. Campbell Authorized Representative in the United States
John F. Campbell
<PAGE>
SIGNATURE OF THE BP AMERICA CAPITAL ACCUMULATION PLAN
Pursuant to the requirements of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cleveland, State of
Ohio, on May 26, 1999.
THE BP AMERICA CAPITAL
ACCUMULATION PLAN
By: The BP America Capital
Accumulation Plan,
Plan Administrator
By: /s/ William E. Boswell
William E. Boswell
SIGNATURE OF THE DIRECTSAVE PLAN
Pursuant to the requirement of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cleveland, State of
Ohio, on May 26, 1999.
THE DIRECTSAVE PLAN
By: The DirectSave Plan, Plan
Administrator
By: /s/ William E. Boswell
William E. Boswell
SIGNATURE OF THE BP AMERICA PARTNERSHIP SAVINGS PLAN
Pursuant to the requirement of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cleveland State of
Ohio, on May 26, 1999.
THE BP AMERICA PARTNERSHIP SAVINGS
PLAN
By: The BP America Partnership
Savings Plan,
Plan Administrator
By: /s/ William E. Boswell
William E. Boswell
SIGNATURE OF THE BP AMERICA SAVINGS AND INVESTMENT PLAN
Pursuant to the requirement of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cleveland, State of
Ohio, on May 26, 1999.
THE BP AMERICA SAVINGS AND
INVESTMENT PLAN
By: The BP America Savings and
Investment Plan,
Plan Administrator
By: /s/ William E. Boswell
William E. Boswell
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4(a) Memorandum and Articles of Association of BP Amoco as
amended to date, incorporated by reference to BP
Amoco's report on Form 6-K dated January 4, 1999.
4(b) Amended and Restated Deposit Agreement dated as of
December 31, 1998 to Deposit Agreement dated as of
February 1, 1970, among BP Amoco, p.l.c., Amoco
Corporation, Morgan Guaranty Trust Company of New York
and all holders from time to time of American
Depositary Receipts issued thereunder, including the
form of American Depositary Receipts, incorporated by
reference to Exhibit (a) of post-effective Amendment
No. 1 to the Registration Statement on Form F-6 (Reg.
No. 333-9566).
4(c) The BP America Capital Accumulation Plan.
4(d) The DirectSave Plan.
4(e) The BP America Partnership Savings Plan.
4(f) The BP America Savings and Investment Plan.
4(g) The BP Amoco Share Option Plan
5(a) Opinion of Peter B.P. Bevan, General Counsel of BP
Amoco, as to the validity of the Ordinary Shares being
registered.
5(b) Opinion of Robert D. Agdern, General Counsel of BP
America, as to the validity of the plan interests
being registered.
23(a) Consent of Ernst & Young, independent auditors,
London, England.
23(b) Consent of Ernst & Young LLP, independent auditors,
Cleveland, Ohio
23(c) Consent of PricewaterhouseCoopers LLP, independent
accountants, Chicago, Illinois
23(d) Consent of Peter B.P. Bevan, General Counsel of BP
Amoco (included in Exhibit 5).
23(e) Consent of Robert D. Agdern, General Counsel of BP
America (included in Exhibit 5)
24 Powers of Attorney (included on the signature page
hereof).
<PAGE>
Exhibit 4(c)
THE BP AMERICA
CAPITAL ACCUMULATION PLAN
(Amended and Restated Effective as of January 1, 1994)
FEBRUARY 1996 PLAN No. 035
<PAGE>
PREAMBLE
The Internal Revenue Service (IRS) issued a favorable
determination letter dated February 5, 1996 with regard to the
Plan, provided that certain proposed amendments reviewed by the
IRS are adopted and made effective as of January 1, 1994 or other
dates as required by law. All such required amendments have been
incorporated into the Plan as amended and restated herein.
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
PLAN 035
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Capital Accumulation Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has the
authority to amend the Plan, subject to its provisions;
NOW THEREFORE, the Plan is hereby amended, effective as of
September 30, 1998 as follows:
1. Appendix A of the Plan, Description of Classes or Groups of
Eligible Employees, is replaced in its entirety with the
following Attachment.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 18th day of December, 1998.
BP AMERICA INC.
By:
Steven W. Percy
Chief Executive Officer
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
September 30,1998
The following groups have been designated as employment
classifications eligible for participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP America Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
BP Chemicals Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
BP Performance Polymers salaried staff
(full-time, part-time & regular part-
time)
BP PlasTec salaried staff & hourly
(full-time, part-time & regular part-
time)
Green Lake and Lima salaried staff
(full-time, part-time & regular part-
time)
Green Lake and Lima union hourly
BP Exploration Gulf of Mexico salaried staff (full-
time, part-time & regular part-time)
Alaska salaried staff (full-time, part-
time & regular part-time)
ACTIVE GROUPS CONT:
Colombia salaried staff (full-time,
part-time & regular part-time)
North Slope salaried staff (full-time,
part-time & regular part-time)
Secondees
Interns and Co-ops
Gulf of Mexico production hourly
North Slope union hourly
BP Oil Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
Salaried staff (full-time, part-time &
regular part-time) of:
Air BP
Alliance and Toledo Refineries
ANS Trading & Transportation
BP Marine
Commercial Marketing
Logistics
Oil Traders International
Oil Technology Network
Pipelines
Retail Marketing
Supply
Air BP hourly
Logistics hourly (excluding East Coast
District)
Pipeline hourly (excluding Woodbury
District)
TERMINATED EMPLOYEE GROUPS:
BP America Alternate Fuels Technology salaried
staff (full-time, part-time & regular
part-time)
Alternate Energy Development salaried
staff (full-time, part-time & regular
part-time)
Kaldair salaried staff (full-time, part-
time & regular part-time)
Research salaried staff (full-time,
part-time, and regular part-time)
BP Chemicals BP Performance Polymers of Rockport and
Visalia salaried staff (full-time, part-
time and regular part-time)
Filon/Silmar salaried staff (full-time,
part-time & regular part-time)
Filon/Silmar salaried staff of
Covington, Hawthorne and Jonesboro
(full-time, part-time & regular part-
time)
BP Coal Salaried staff of Basin Resources,
Blossom Coal, BP Coal, BP Coal America,
Franklin Coal, Franklin Coal Sales,
Hinch Coal, Kitt Energy, Mingo-Logan,
Old Ben, Old Ben Coal Sales, Pike Coal
(full-time, part-time and regular part-
time)
BP Exploration Tex-Con salaried staff (full-time, part-
time & regular part-time)
Tex-Con hourly
BP Oil East Coast terminals and Woodbury
District pipeline salaried staff and
union and non-union hourly (full-time,
part-time & regular part-time)
Ferndale Refinery salaried staff (full-
time, part-time & regular part-time)
Gibbs hourly
TERMINATED EMPLOYEE GROUPS CONT:
Lake Charles Calciner salaried staff
and hourly
Lima Refinery salaried staff (full-
time, part-time & regular part-time
Lima Refinery clerical union hourly
Marcus Hook salaried staff (full-time,
part-time regular part-time)
Mountaineer Carbon salaried staff and
hourly
Truckstops of America salaried staff
(full-time, part-time & regular part-
time)
Truckstops of America general managers
Truckstops of America Profit Center
managers RRA
West Coast service station managers and
assistant managers - RRA
West Coast Terminals salaried staff and
hourly
BP Minerals Amselco salaried staff
Kennecott salaried staff
Carborundum Applied Composites St. Charles salaried
staff
Chief Executive
DWA Composite Salaried staff (full-time, part-time &
Specialties regular part-time)
Industrial Products Chase Brass salaried staff
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
PLAN 035
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Capital Accumulation Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has
authority to amend the Plan, subject to its provisions;
NOW, THEREFORE, the Plan is hereby amended, effective as of
August 10, 1998 (the "Closing Date"), in accordance with the
Agreement for the Purchase and Sale of Lima Oil Refinery between
BP Exploration and Oil Inc. et. al., and Clark Refining and
Marketing Inc. ("Clark"), dated July 1, 1998 (the "Agreement"):
The Accounts and related liabilities of those Participants
whose employment transferred on the Closing Date to Clark as
a result of the Agreement (excluding the BDO Employees
listed on Attachment A and any Participants who separate
from service with Clark prior to the date of transfer) shall
be spun off from the Plan and shall be transferred to the
Clark Retirement Savings Plan,
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By: By:
Iain C. Conn William E. Boswell
Senior Vice President, BP Oil Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
PLAN 035
ATTACHMENT A
The following BDO Employees' Accounts and related liabilities
remained in the Plan following the Closing Date, i.e., were not
spun off from the Plan and transferred to the Clark Retirement
Savings Plan effective as of the Closing Date:
Name Social Security Number
Gilbreath, D. L. ###-##-####
Simmonds, T. D. ###-##-####
Walsh, S. M. ###-##-####
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
PLAN 035
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Capital Accumulation Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has
authority to amend the Plan, subject to its provisions; and,
WHEREAS, the Company intends to amend the eligibility
requirements of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of April
1, 1998, as follows:
1. Section 2.1, "Eligibility Requirements," is amended to read
in its entirety as follows:
Effective for Employees with Employment Commencement Dates
on and after April 1, 1998, an Employee shall be eligible to
participate in the Plan effective on his Employment
Commencement Date; provided that he is employed in a
classification listed in Appendix A. Such participation
shall become effective upon satisfaction of the election
requirements of Section 2.4.
For any Employee with an Employment Commencement Date prior
to April 1, 1998, such Employee shall become eligible to
participate in the Plan as of the first pay date after he
both (i) attains age 21, and (ii) completes a twelve-month
period of employment during which he is credited with at
least 1,000 Hours of Service. The twelve-month period shall
be (a) twelve consecutive months commencing on the
individual's Employment Commencement Date, or (b) any Plan
Year commencing subsequent to that date. Notwithstanding
the foregoing, any Employee who has not yet satisfied the
conditions for eligibility to participate described in the
preceding two sentences shall, as of April 1, 1998, become
eligible to participate in the Plan effective upon
satisfaction of the election requirements of Section 2.4;
provided that he is employed in a classification listed in
Appendix A.
Employees covered under a collective bargaining agreement
are not eligible to participate in the Plan unless such
agreement specifically provides for coverage by the Plan or
the collective bargaining representative agrees to accept
Plan changes without the requirement of further collective
bargaining.
2. Section 2.2, "Reemployment," is amended to read in its
entirety as follows:
If an Employee incurs a Severance Date at any time and
subsequently has a Reemployment Date as an Employee on or
after April 1, 1998, such Employee shall be eligible to
participate in the Plan effective on his Reemployment Date;
provided that he is employed in a classification listed in
Appendix A. Such participation shall become effective upon
satisfaction of the election requirements of Section 2.4.
if an Employee incurs a Severance Date prior to April 1,
1998 and is subsequently rehired as an Employee prior to
April 1, 1998, the following special rules apply to
eligibility for participation:
(a) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date prior to April 1,
1998 and within the twelve-month period following his
original Employment Commencement Date, for purposes of
eligibility to participate, such Employee shall be
treated as if he had never incurred a Severance Date;
provided that he is employed in a classification listed
in Appendix A.
(b) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date prior to April 1,
1998 and after the twelve-month period following his
original Employment Commencement Date but within seven
years after such Severance Date, such Employee will be
eligible to participate in the Plan as of any pay date
following the Plan Year in which he completes 1,000
Hours of Service and is age 21; provided that he is
employed in a classification listed in Appendix A.
Notwithstanding the foregoing, any Employee who has not
yet satisfied the conditions for eligibility to
participate described in the preceding sentence shall,
as of April 1, 1998, become eligible to participate in
the Plan effective upon satisfaction of the election
requirements of Section 2.4; provided that he is
employed in a classification listed in Appendix A.
(c) If an Employee has met the Plan's eligibility
requirements, is not yet vested in his Plan account at
the time he incurs a Severance Date and has a
Reemployment Date prior to April 1, 1998 within seven
years after such Severance Date, such Employee is
eligible to participate in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(d) If an Employee is vested in his Separate Accounts
at the time he incurs a Severance Date, such Employee
can resume participation in the Plan as of any pay date
following a Reemployment Date prior to April 1, 1998;
provided that he is employed in a classification listed
in Appendix A.
(e) If an Employee is not vested in his Separate
Accounts at the time he incurs a Severance Date and
does not incur a Reemployment Date within seven years
after such Severance Date and prior to April 1, 1998,
such Employee will be subject to the same eligibility
requirements that are applicable to a new Employee.
3. Section 2.3, "Service in Non-Employee Capacity," is amended
to read in its entirety as follows:
For purposes of this Article II for periods prior to April
1, 1998, all common law employment with the Affiliated Group
(in a capacity other than as an Employee), or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall
be treated as if such employment was employment as an
Employee for purposes of this Article II; provided, however,
that no person shall be eligible to participate in the Plan
until he has satisfied the requirements of Section 2.1.
4. Section 2.4, "Election to Participate," is amended to read
in its entirety as follows:
On or after April 1, 1998, an Eligible Employee shall become
a Participant as soon as administratively practicable after
his Employment Commencement Date or Reemployment Date, as
applicable, if he has timely filed with the Company an
election, in the form prescribed by the Plan Administrator,
which contains:
(a) his authorization for his Employer to reduce his
Base Pay in order to make Before-Tax Contributions on
his behalf in accordance with the provisions of Section
3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of
Section 3.2; and
(c) his election as to the investment of all
contributions allocated to him in accordance with the
provisions of Article VI.
Prior to April 1, 1998, an Eligible Employee shall become a
Participant as of his Eligibility Date or any subsequent pay
date, as applicable, if he has timely filed with the Company
a written election, in the form prescribed by the Plan
Administrator, which contains:
(a) his authorization for his Employer to reduce his
Base Pay in order to make Before-Tax Contributions on
his behalf in accordance with the provisions of Section
3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of
Section 3.2; and
(c) his election as to the investment of all
contributions allocated to him in accordance with the
provisions of Article VI.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan on December 18, 1998.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
Plan No. 035
WHEREAS, BP America Inc. (the "Company"), desires to amend
the BP America Capital Accumulation Plan (the "Plan") to
implement certain changes to the Investment Funds established and
maintained under the terms of the Plan and to clarify certain
terms used in the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Appendix B, Investment Funds, is hereby amended as
follows:
a. Effective July 1, 1997, the following descriptions of
two new investment funds available to Participants are added
to Appendix B:
The Wellesley Income Fund is a mutual fund that seeks
to provide a high level of income, long-term growth of
income and moderate long-term growth of capital. The
fund's assets are divided between bonds and common
stocks. It is offered and managed by the Vanguard
Group.
The Index Trust - Small Capitalization Stock Portfolio
("Small Cap Portfolio") is a mutual fund that holds
stocks of small U.S. companies, seeking to provide the
long-term investment growth of small-sized companies
with results that parallel the performance of the
unmanaged Russell 2000 Small Stock Index. The Small
Cap Portfolio is offered and managed by the Vanguard
Group.
b. Effective July 1, 1997, The Quantitative Fund has been
renamed "The Growth and Income Portfolio."
c. Effective October 1, 1997, The Fixed Income Fund has
been renamed "The Income Fund."
2. In order to clarify the Company's long-standing
practice and intent with regard to calculation of the Matching
Contributions, Section 3.3 is hereby amended to read as follows:
3.3 Matching Contributions. Subject to the provisions
of Section 3.4, the Employers shall pay, as soon as
practicable after the last day of each Plan Year quarter, to
the Trustee as a Matching Contribution for investment in the
Company Stock Fund an amount that is equal to 100 percent of
the sum (limited separately for each payroll period) of
After-Tax and Before-Tax Contributions, not in excess of six
percent of Base Pay, made on behalf of, or by, each
Participant during such prior Plan Year quarter; provided,
however, that no Matching Contributions made with respect to
a year on behalf of a Participant shall exceed the
limitations set forth in Article IV.
3. To clarify the Company's long-standing practice and
intent, the definition of "Employee" in Section 1.1(19) is hereby
amended by addition of the following:
Further, the term "Employee" shall not include a person who
is a resident or nonresident alien of the United States and
who performs services under an expatriate or temporary duty
policy of the Company or an Affiliate.
4. To clarify the Company's long-standing practice and
intent with regard to restoration of account balances upon
reemployment, Section 10.5 is hereby amended to read as follows:
10.5 Buy-Back and Restoration of Forfeited Amounts: If a
Participant terminates service and is entitled to receive
the value of his vested account balance, any nonvested
portion of the account balance will be treated as a
forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within
seven years of his Severance Date shall have such forfeited
amount restored to his Separate Accounts, along with
interest credited at the Income Fund rate of return over the
period of the forfeiture, and invested in accordance with a
new investment election. However, if such a Participant has
received a distribution of part or all of his account, he
must repay, in cash, the full amount of such distribution on
or before his final repayment date and such forfeited amount
shall be restored to his Separate Accounts and invested in
accordance with a new investment election. In this case, no
interest shall be accrued on such forfeited amount from the
time of the distribution until the time the distribution is
repaid. Any restoration of Matching Contributions shall be
made from a special Company contribution which shall not
constitute an Annual Addition within the meaning of Section
4A. For purposes of repaying the distribution amount the
"final repayment date" shall be five years after the first
date on which he is subsequently reemployed.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 19th day of December,
1997.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
By
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
THIS AMENDMENT to the BP America Capital Accumulation Plan (the
"Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT:
in order to clarify the Company's long-standing practice and
intent, particularly with regard to eligibility under the Plan
and responsibilities of the Plan Administrator, the definition of
"Employee" in Section 1.1(19) is hereby amended by addition of
the following:
The term "Employee" shall not include any individual
retained by the Employer directly or through an agency to
perform services for the Company or an Affiliate (for either
a definite or indefinite duration) in the capacity of a fee-
for-service worker or independent contractor or any similar
capacity including, without limitation, any such individual
who is or has been determined by a government entity, court,
arbitrator or other third party to be an employee of the
Company or an Affiliate for any purpose including tax
withholding, employment tax, employment law or for purposes
of any other employee benefit plan of the Company or an
Affiliate. For this purpose, the term "fee-for-service
worker" is not a specific term but is meant to be
interpreted broadly in a generic sense.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan as of the 20th day of December, 1996.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
THIS AMENDMENT to the BP America Capital Accumulation Plan (the
"Plan") made by BP America Inc. (the "Company"), effective April
1, 1996;
WITNESSETH THAT:
Section 12.8(a) is hereby amended in the entirety to read as
follows:
12.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, she be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company. In
addition to the provisions of Section 10.4, the Company may
determine that such costs and expenses shall be paid from
assets of the Plan, to the extent available; provided,
however, that such payments shall not reduce the amounts
already allocated to the Separate Account of any Participant
or the earnings already accrued on any such Separate
Account.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the day and year first above written.
By
S. W. Percy
Chief Executive Officer
<PAGE>
AMENDMENT NO. 2
BP AMERICA CAPITAL ACCUMULATION PLAN
THIS AMENDMENT to the BP America Capital Accumulation Plan (the
"Plan") made by BP America Inc. (the "Company"), effective
January 1, 1996
WITNESSETH THAT:
1. Section 7.1 shall hereby be amended in its entirety to read
as follows:
7.1 Vesting in Matching Contributions. A Participant shall
be 100 percent vested in the Matching Contributions credited to
his Matching Contributions account as well as all earnings
credited to such Account, if:
(a) such Participant is credited with at least five years
of Vesting Service;
(b) such Participant attains age 65;
(c) such Participant is declared mentally incompetent or
becomes permanently and totally disabled;
(d) such Participant dies;
(e) such Participant's employment is involuntarily
terminated due to an involuntary separation program
sponsored by the company, or as a result of the sale or
other disposition of a subsidiary or division or part
thereof of the Company (or an Affiliate of the Company); or,
(f) the Company contracts to outsource a particular job
function and a Participant continues to perform his or her
same job function as an employee of the contractor company.
2. Section 9.3 is amended by addition of the following
paragraph:
Retired Participants or Terminated Participants may
continue to repay an outstanding loan under the same
terms and conditions as Active Participants. However,
the Plan reserves the right to charge a minimal fee for
setting up a coupon repayment system for such Retired
Participants or Terminated Participants.
3. Section 9.4(c) is hereby deleted.
4. Section 9.5(b) is modified to read as follows:
In the event of death of the Participant, the
Participant's estate must pay off the outstanding
balance of the loan by certified check no later than 60
days from the date of default
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this Amendment No. 2
to the Plan effective as of the day and year first above written.
BP AMERICA INC.
By
Felix R. Strater
Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA CAPITAL ACCUMULATION PLAN
Plan No. 035
WHEREAS, BP America Inc., (the "Company") desires to amend the BP
America Capital Accumulation Plan (the "Plan") to implement
certain changes to the Funds established and maintained under the
terms of the Plan and to permit Rollover Contributions from the
BP America Retirement Accumulation Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Effective July 1, 1995, the following paragraphs are added
to Section 3.5:
Effective July 1, 1995, the Plan will accept Rollover
Contributions from the BP America Retirement Accumulation
Plan ("RAP") from Participants who retired or terminated
January 1, 1995 or later and have not previously made a
distribution election in RAP. A fee of not less than $50.00
for payment of outside administrative costs will be deducted
from the rollover amount. The Plan Administrator may review
and adjust such fee from time to time.
Rollover Contributions from RAP may include the entire RAP
account where the balance is distributed as a single sum or
part of the RAP account where the balance is distributed as
annuity payments.
2. Effective October 1, 1995, Appendix B, Investment Funds, is
hereby amended as
follows:
a. Two new investment funds will be available to
Participants:
The Fidelity Blue Chip Growth Fund is a mutual fund
which seeks to achieve long-term capital appreciation
from a portfolio of equity securities issued by
established, recognized companies that are experiencing
growth.
The J. P. Morgan Institutional International Equity
Fund is a mutual fund which seeks to provide a high
total return from a portfolio of equity securities
(stocks) of foreign corporations. The Fund assumes a
long-term investment holding period to pursue its
objective.
b. The Balanced Fund will be transferred to The INVESCO
Total Return Fund:
The INVESCO Total Return Fund is a mutual fund which
seeks to achieve a high total return on investment
through capital appreciation and current income by
investment in a combination of equity securities and
fixed income securities. The Fund's objective is to
achieve reasonably consistent total returns over up and
down market cycles Equity securities will generally
consist of common stocks which are fisted on a national
securities exchange and which usually pay regular
dividends. Fixed and variable income securities will
generally consist of investments in obligations of the
U.S. Government and U.S. Government agencies maturing
in three to five years, and under normal circumstances,
in corporate debt obligations which are rated by
Moody's or Standard & Poor's in their four highest
ratings of corporate obligations, or if not rated, in
securities which in the fund manager's opinion have
investment characteristics similar to those described
under such ratings.
c. The U.S. Government Bond Fund, which has been frozen to
new investment since September 1990, will be eliminated
completely. Any investments remaining in the U.S.
Government Bond Fund will automatically be transferred to
the Fixed Income Fund.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 8th day of December,
1995.
BP America Inc.
By
Charles H. Bowman
Chief Executive Officer
By
Felix R. Strater
Plan Administrator
<PAGE>
AMENDMENT NO. 1
BP AMERICA CAPITAL ACCUMULATION PLAN
THIS AMENDMENT to the BP America Capital Accumulation Plan (the
"Plan") made by BP America Inc. (the "Company"), effective July 1, 1995;
WITNESSETH THAT:
1. Section 3.5 shall hereby be amended in its entirety to read
as follows:
"3.5 Rollover Contributions. An Employee who becomes an
Employee after the Effective Date and who does not
transfer directly from employment in any capacity with
an Employer or an Affiliate and who is entitled to make
a rollover contribution in accordance with Section
402(c)(1)(B), Section 403(a)(4) or Section
408(d)(3)(A)(ii) of the Code, may elect to make a
Rollover Contribution to the Plan by delivering, or
causing to be delivered, to the Trustee the assets in
cash which constitute such Rollover Contribution at
such time or times and in such manner as shall be
specified by the Plan Administrator. Upon receipt by
the Trustee, such assets shall be deposited in the
Investment Funds described in Article VI, in accordance
with the Participant's investment election with respect
to such Rollover Contributions. The Trustee shall then
credit the Rollover Account of such Participant with
the amount of such Rollover Contribution. Such
Rollover Contribution by an Employee pursuant to this
Section 3.5 shall not be deemed to be a contribution of
such Employee for purposes of Section 415 of the Code
and shall be fully vested in the Employee at all times.
Notwithstanding the foregoing, a Participant who
terminated employment or retired on or after January 1,
1995 with an Employer or an Affiliate, with an account
in the BP America Retirement Accumulation Plan ("RAP")
and an account under this Plan, may elect to make a
rollover contribution of such RAP account into the Plan
provided it meets the requirements of a direct rollover
contribution within the meaning of Treasury Regulation
Section 1.401(a)(31)-1, Q&A-3. Such rollover shall be
made in the manner and in accordance with procedures as
shall be specified by the Plan Administrator. A
Participant who elects to make such a contribution
shall deliver or cause to be delivered directly to the
Trustee, the assets in cash which, minus any
administrative processing fee, shall constitute the
"RAP Rollover Contribution." Upon receipt by the
Trustee, such RAP Rollover Contribution shall initially
be deposited in the Fixed Income Fund described in
Article VI and Appendix B. The Trustee shall then
credit the Rollover Account of such Participant with
the amount of the RAP Rollover Contribution. The
Participant may elect to transfer funds from the Fixed
Income Fund in accordance with the Participant's
investment elections pursuant to Section 6.4. Such RAP
Rollover Contribution by a Participant pursuant to this
Section 3.5 shall not be deemed to be a contribution of
such Participant for purposes of Section 415 of the
Code and shall be fully vested in the Participant at
all times."
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this Amendment No. 1
to the Plan effective as of the day and year first above written.
BP AMERICA INC.
By
Felix R. Strater
Plan Administrator
<PAGE>
TABLE OF CONTENTS
Section Page No.
ARTICLE I DEFINITIONS 3
1.1 Definitions 3
1.2 Grammatical References 10
ARTICLE II ELIGIBILITY AND PARTICIPATION 11
2.1 Eligibility Requirements 11
2.2 Reemployment 11
2.3 Service in Non-Employee Capacity 12
2.4 Election to Participate 12
ARTICLE III CONTRIBUTIONS 14
3.1 Before-Tax Contributions 14
3.2 After-Tax Contributions 14
3.3 Matching Contributions 15
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions 15
3.5 Rollover Contributions 16
3.6 Effect of Plan Termination 17
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS 18
4A. Code Section 415 18
4A.1 Code Section 415 Governs 18
4A.2 Definitions 18
4A.3 Limitations on Contributions 19
4A.4 Defined Benefit Plan Coverage 20
4A.5 Elimination of Excess Annual Additions 21
4B. Code Sections 402(g), 401(k) and 401(m) 22
4B.1 Code Section 402(g) Limit 22
4B.2 Nondiscrimination Tests 23
4B.3 Correction of Excesses 25
4B.4 Special Rules 26
ARTICLE V ESTABLISHMENT OF SEPARATE ACCOUNTS AND ADMINISTRATION
OF CONTRIBUTIONS 27
5.1 Separate Accounts 27
5.2 Account Balances 27
5.3 Notification 27
5.4 Delivery of Contributions 28
5.5 Allocation of Matching Contributions 28
5.6 Crediting of Contributions 29
5.7 Changes in Reduction and Deduction Authorizations 29
5.8 Suspension of Contributions 29
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE VI ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF
CONTRIBUTIONS 31
6.1 Establishment of Investment Funds 31
6.2 Investment Direction of Contributions 31
6.3 Investment of Contributions 31
6.4 Election of Participants to Transfer Invested Amounts 32
ARTICLE VII VESTING 33
7.1 Vesting in Matching Contributions 33
7.2 Reemployment 33
7.3 Vesting in Before-Tax and After-Tax Contributions 34
7.4 Election of Former Vesting Schedule 34
ARTICLE VIII WITHDRAWALS WHILE EMPLOYED 35
8.1 Withdrawal of After-Tax Contributions 35
8.2 Withdrawal of Rollover Contributions 35
8.3 Withdrawal of Company Matching Contributions 36
8.4 Withdrawal of Before-Tax Contributions 36
8.5 Withdrawal on Account of Permanent and Total Disability 37
ARTICLE IX LOANS 38
9.1 Approval and Nature of Loans 38
9.2 Terms and Conditions 38
9.3 Repayment of Loans 39
9.4 Default 40
9.5 Default Remedies 40
9.6 Reemployment 41
9.7 Administration of Loans 41
ARTICLE X DISTRIBUTIONS UPON RETIREMENT OR OTHER TERMINATION OF
EMPLOYMENT 42
10.1 Eligibility for Distribution 42
10.2 Distributions 42
10.3 Forms of Distributions 46
10.4 Disposition of Forfeited Balances 48
10.5 Buy-Back and Restoration of Forfeited Amounts 49
10.6 Payments to Incompetents or Minors 49
10.7 Limitations on Commencement and Distribution of Benefit
Payments 50
10.8 Reemployment 51
ARTICLE XI BENEFICIARIES 52
11.1 Designation of Beneficiary 52
11.2 Beneficiary in the Absence of Designated Beneficiary 52
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
11.3 Spousal Consent to Beneficiary Designation 53
ARTICLE XII ADMINISTRATION 54
12.1 Plan Administrator and Named Fiduciary 54
12.2 Duties of Plan Administrator and Named Fiduciary 54
12.3 Rules and Regulations 57
12.4 Trust Agreement and Trustee 57
12.5 Determination of Benefits and Claims Review 58
12.6 Agency 58
12.7 Records Conclusive 58
12.8 Expenses 59
12.9 Qualified Domestic Relations Orders 59
ARTICLE XIII ASSETS HELD BY TRUSTEE 60
13.1 Assets Held by Trustee 60
13.2 Options, Rights, or Warrants 60
13.3 Voting Rights 61
13.4 Cost and Proceeds of Securities Transactions 62
13.5 Brokerage Charges 62
ARTICLE XIV AMENDMENT AND TERMINATION 63
14.1 Amendments 63
14.2 Limitation of Amendments 63
14.3 Termination 63
14.4 Withdrawal of an Employer 64
14.5 Corporate Reorganization 65
ARTICLE XV MISCELLANEOUS PROVISIONS 66
15.1 No Commitment as to Employment 66
15.2 Rights to Trust Assets 66
15.3 Precedent 66
15.4 Duty to Furnish Information 66
15.5 Merger, Consolidation, or Transfer of Plan Assets 67
15.6 Return of Contributions to Employers 67
15.7 Filing of Notices and Plan Information 68
15.8 Governing Law 68
15.9 Restriction on Alienation 68
15.10 Adoption by Subsidiaries 70
15.11 Rollovers to Other Plans or IRAs 70
15.12 Administrative Corrections 71
ARTICLE XVI TOP-HEAVY PROVISIONS 72
16.1 Applicability 72
16.2 Top-Heavy Definitions 72
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
16.3 Accelerated Vesting 74
16.4 Minimum Matching Contribution 75
16.5 Adjustments to Section 415 Limitations 76
Appendix A: Covered Employment Classification 78
Appendix B: Investment Funds 82
<PAGE>
The BP America
Capital Accumulation Plan
(Amended and Restated Effective as of January 1, 1994)
WHEREAS, the Company and its predecessors adopted and
established a profit-sharing and savings plan (known as the Sohio
Employees Investment Plan) as of July 1, 1952, for the exclusive
benefit of eligible employees of the Company and participating
subsidiaries of the Company with the purposes of encouraging
savings by employees and assisting in providing retirement
income; and
WHEREAS, that plan has been amended and restated on several
occasions, most recently as of April 1, 1986, wherein the plan
was renamed the Standard Oil Company Savings and Investment Plan
("SIP"); and
WHEREAS, as a result of the collective bargaining process,
the Company determined that effective January 1, 1992, SIP would
cover only certain employees whose level of benefits were subject
to collective bargaining; and
WHEREAS, effective as of January 1, 1992, the Company
established, through a mirrored spin-off from SIP, the BP America
Capital Accumulation Plan (hereinafter referred to as the
"Plan"), for the benefit of those employees formerly covered by
SIP whose level of benefits were not subject to collective
bargaining.
NOW THEREFORE, the Company hereby amends and restates the
Plan as of January 1, 1994, and where applicable, effective
retroactively to such other dates as required by law or indicated
herein, as follows.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words and phrases used
herein shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(1) The term "Act" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(2) The term "Affiliate" shall mean any member of any
of the following groups if such group includes the Company
(but a member of such a group shall be considered an
"Affiliate" only during the period in which it was or has
been such a member): (a) a controlled group of corporations
within the meaning of Section 414(b) of the Code; (b) a
group of trades or businesses (whether or not incorporated)
that are under common control within the meaning of Section
414(c) of the Code; (c) an affiliated service group within
the meaning of Section 414(m)(2) of the Code; (d) an
affiliated service group within the meaning of Section
414(m)(5) of the Code; or (e) any other group required to be
aggregated with the Company pursuant to regulations under
Section 414(o) of the Code.
(3) The term "Affiliated Group" shall mean the group
of entities which are Affiliates.
(4) The term "After-Tax Account" shall mean the
Separate Account to which the After-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(5) The term "After-Tax Contributions" shall mean
contributions made by a Participant to the Plan in
accordance with the provisions of Section 3.2.
(6) The term "Base Pay" shall mean the regular salary
or wages paid to an Employee for normally prescribed hours,
payments to an Employee during sick leave (not to exceed
twelve consecutive months) or other leaves of absence, and
Before-Tax Contributions made under the Plan, but generally
excluding unscheduled overtime, premiums, bonuses, and
living or other allowances. The Plan Administrator shall
review the pay practices of various operations covered by
the Plan in determining Base Pay, and any such determination
shall be conclusive. In the event a Participant is paid in
foreign currency, each After-Tax or Before-Tax Contribution
amount shall be based on the U.S. Base Pay.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the
Plan to the contrary, (i) for Plan Years beginning on or
after January 1, 1989, the Base Pay of each employee taken
into account under the Plan shall not exceed an annual
compensation limit of $200,000; and (ii) for Plan Years
beginning on or after January 1, 1994, the Base Pay of each
employee taken into account under the Plan shall not exceed
an annual compensation limit of $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17). The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar
year. If a determination period for the Plan as a whole
consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12. In determining the Base
Pay of an Employee for purposes of this limitation, the
rules of Code Section 414(q)(6) shall apply, except that in
applying such rules, the term family shall include only the
spouse of the Employee and any lineal descendants of the
Employee who have not attained age 19 before the close of
the Plan Year.
(7) The Term "Before-Tax Account" shall mean the
Separate Account to which the Before-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(8) The term "Before-Tax Contributions" shall mean the
contributions made on behalf of a Participant in accordance
with the provisions of Section 3.1 and of Section 401(k) of
the Code.
(9) The term "Beneficiary" shall mean the person or
persons who, in accordance with the provisions of Article XI
hereof, shall be entitled to receive distribution hereunder
in the event a Participant, Terminated Participant or
Retired Participant, dies before his interest under the Plan
shall have been distributed to him in full.
(10) The term "Board of Directors" shall mean the Board
of Directors of the Company, such committee of the Board of
Directors or such officer, officers, or other employees of
the Company duly authorized by the Board of Directors to act
on its behalf with respect to the Plan.
(11) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
(12) The term "Company" shall mean BP America Inc., a
Delaware corporation, its corporate successors, and the
surviving corporation resulting from any merger or
consolidation of BP America Inc. with any other corporation
or corporations.
(13) The term "Company Stock" shall mean American
Depositary Shares (each representing a number of ordinary
shares) of The British Petroleum Company, p.l.c.
(14) The term "Company Stock Fund" shall mean the Fund
established and maintained pursuant to the provisions of
Section 6.1.
(15) The term "Effective Date" shall mean January 1,
1989, or such other dates as required by law or set forth
herein.
(16) The term "Eligibility Date" shall mean the
earliest date on which an Employee becomes an Eligible
Employee in accordance with the provisions of Article II.
(17) The term "Eligibility Service" shall mean the
period of service with which an Employee is credited in
accordance with the provisions of Section 2.1 for the
purpose of determining his eligibility to participate in the
Plan.
(18) The term "Eligible Employee" shall mean an
Employee of an Employer who is employed on or after the
Effective Date in an employment classification listed in
Appendix A and is eligible to participate in the Plan in
accordance with the provisions of Article II.
(19) The term "Employee" shall mean any common law
employee of the Company or an Affiliate, in an employment
classification listed in Appendix A, excluding any person
who renders service to an Employer solely as a director or
an independent contractor, any casual employee or any person
who is a nonresident alien and who receives no earned income
within the meaning of Code Section 911(d)(2) from an
Employer which constitutes income from sources within the
United States, as defined in Code Section 861(a)(3).
(20) The term "Employer" shall mean the Company or any
Subsidiary which adopts the Plan as herein provided, so long
as the Subsidiary has not withdrawn from the Plan. The term
"Employer" shall also include The British Petroleum Company,
p.l.c., or one of its subsidiaries; provided, however, that
employment with any of these companies is preceded
immediately by employment with the Company or a Subsidiary
as described in the foregoing sentence.
(21) The term "Employment Commencement Date" shall mean
the first date on which an Employee completes an Hour of
Service.
(22) The term "Financial Hardship" shall mean an
immediate and heavy financial need of a Participant which
satisfies the requirements of Section 401(k) of the Code and
regulations issued thereunder.
(23) The term "Fund" shall mean any of the funds
established and maintained in accordance with the provisions
of Article VI.
(24) The term "Highly Compensated Employee" shall
include highly compensated active employees and highly
compensated former employees.
A highly compensated active employee includes any
employee who performs service for an Employer during the
determination year and who, during the look-back year: (i)
received compensation from the employer in excess of $75,000
(as adjusted pursuant to Code Section 415(d)); (ii) received
compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member
of the top-paid group for such year; or (iii) was an officer
of the employer and received compensation during such year
that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). The term Highly
Compensated Employee also includes: (i) employees who are
both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 100 employees who
received the most compensation from the employer during the
determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation
requirement of (iii) above during either a determination
year or look-back year, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. For
this purpose, the determination year shall be the plan year.
The look-back year shall be the twelve-month period
immediately preceding the determination year.
A highly compensated former employee includes any
employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no
service for the employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after
the employee's 55th birthday.
If an employee is, during a determination year or look-
back year, a family member of either a 5 percent owner who
is an active or former employee or a Highly Compensated
Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the
employer during such year, then the family member and the 5
percent owner or top-ten Highly Compensated Employee shall
be aggregated. In such case, the family member and 5
percent owner or top-ten Highly Compensated Employee shall
be treated as a single employee receiving compensation and
plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated
Employee. For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated
Employee, including the determinations of the number and
identity of employees in the top-paid group, the top 100
employees, the number of employees treated as officers and
the compensation that is considered, will be made in
accordance with Code Section 414(q) and the regulations
thereunder.
(25) The term "Hour of Service" shall mean an hour for
which an Employee is paid, or entitled to be paid, with
respect to the performance of duties for an Employer or an
Affiliate either as regular wages, salary, or commissions or
pursuant to an award or agreement requiring an Employer or
an Affiliate to pay back wages. Hours under this paragraph
(25) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which is
incorporated herein by reference.
(26) The term "Leased Worker" shall be a person (other
than a person who is an employee without regard to this
paragraph (26)) engaged in performing services for the
Company or an Affiliate (collectively, the "Recipient")
pursuant to an agreement between the Recipient and any other
person ("Leasing Organization") who meets the following
requirements:
(a) he has performed services for the Recipient (or
for any other "related persons," determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least
one year;
(b) such services are of a type historically performed
in the business field of the Recipient, in the United
States, by employees; and
(c) he is not participating in a "safe harbor plan" of
the Leasing Organization. For this purpose a "safe
harbor plan" is a plan that satisfies the requirements
of Section 414(n)(5) of the Code, which generally will
be a money purchase pension plan providing (i) a
nonintegrated employer contribution of at least 10
percent of compensation (as defined in Section
415(c)(3) of the Code but including amounts contributed
pursuant to a salary reduction agreement that are
excluded from gross income under Code Section 125 or
under a qualified cash or deferred arrangement as
defined in Code section 401(k)(2)), (ii) immediate
participation, and (iii) full and immediate vesting;
provided, however, that this subparagraph (c) shall
only apply if Leased Workers do not constitute more
than 20 percent of the Recipient's non-highly
compensated workforce.
A person who is a Leased Worker shall be considered an
employee of the Company or an Affiliate during such period
(and solely for the purpose of determining length of service
for vesting purposes, shall also be considered to have been
an employee for any earlier period in which he was a Leased
Worker) but shall not be a Participant and shall not
otherwise be eligible to become covered by the Plan during
any period in which he is a Leased Worker. Notwithstanding
the foregoing, the sole purpose of this paragraph (26) is to
define and apply the term "Leased Worker" strictly (and
only) to the extent necessary to satisfy the minimum
requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be
interpreted, applied, and, if and to the extent necessary,
deemed modified without formal amendment of language, so as
to satisfy solely the minimum requirements of Section 414(n)
of the Code.
(27) The term "Matched Percentage" shall mean the
percentage of the After-Tax and Before-Tax Contributions
made by, or on behalf of, a Participant which is to be
matched by contributions of the Employers as set forth in
Section 3.3.
(28) The term "Matching Contributions" shall mean the
contributions which the Employers contribute to the Plan in
accordance with the provisions of Section 3.3.
(29) The term "Matching Contributions Account" shall
mean the Separate Account to which Matching Contributions of
a Participant are credited in accordance with the provisions
of Section 5.6.
(30) The term "Named Fiduciary" shall mean the chief
financial officer of the Company or as otherwise specified
by the Board of Directors. If there is no Named Fiduciary
designated by the Board of Directors, the Company shall be
substituted.
(31) The term "Normal Retirement Age" shall mean the
later of the date the Participant attains age 65 or the
fifth anniversary of the date the Participant commenced
participation in the Plan.
(32) The term "Participant" shall mean an Eligible
Employee who elects to participate in the Plan in accordance
with the provisions of Article II. The term "Participant"
shall also include an Employee whose contributions are
suspended or one who has transferred out of a participating
class of Employees but for whom a Separate Account is
maintained.
(33) The term "Plan" shall mean the BP America Capital
Accumulation Plan, a profit-sharing plan, as herein set
forth.
(34) The term "Plan Administrator" shall mean the Vice
President of BP Exploration & Oil Inc. responsible for Human
Resource functions or the successor to such office as
specified by the Board of Directors.
(35) The term "Plan Year" shall mean the 12-month
period beginning each December 31 and terminating each
subsequent December 30.
(36) The term "Reemployment Date" shall mean the first
date on which an Employee completes an Hour of Service by
performing services as an Employee after a Severance Date.
(37) The term "Retired Participant" shall mean any
Participant who retires under the terms of a qualified
pension plan maintained by an Employer or an Affiliate.
(38) The term "Rollover Contributions" shall mean the
contributions made to, or transferred to, the Plan in
accordance with the provisions of Section 3.5.
(39) The term "Rollover Account" shall mean the
Separate Account to which Rollover Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(40) The term "Separate Account" shall mean the After-
Tax Account, the Before-Tax Account, the Matching
Contributions Account or the Rollover Account of a
Participant which is established and maintained in
accordance with the provisions of Section 5.1.
(41) The term "Service Date" shall mean the Employment
Commencement Date or Reemployment Date, if applicable, of
any Employee.
(42) The term "Severance Date" shall mean the earlier
of (i) the date on which an Employee retires, dies, or
otherwise terminates employment from an Employer or an
Affiliate, or (ii) the first anniversary of the first date
of a period of absence from service with the Affiliated
Group for any other reason; provided, however, that if an
Employee is absent from employment on a long term disability
leave of absence or is absent from employment while on any
other Employer-approved leave of absence, he shall not incur
a Severance Date until such leave of absence is terminated;
and provided further that if an Employee is absent from
employment while on active service in the Armed Forces of
the United States, his Severance Date shall be the date on
which he terminated his employment, unless he returns to
employment with an Employer or an Affiliate during the time
period prescribed by federal law; and provided further that
no Employee shall incur a Severance Date until the second
anniversary of the first date on which such Employee is
absent from employment with an Employer or an Affiliate for
maternity or paternity reasons. For purposes of this
paragraph (42), an absence for maternity or paternity
reasons means an absence due to (i) the pregnancy of the
employee, (ii) the birth of a child of the Employee, (iii)
the placement of a child with the Employee in connection
with the adoption of such child by the Employee, or (iv) the
caring of such child for a period beginning immediately
following such birth or placement. Notwithstanding the
foregoing, if an Employee retires or dies, or his employment
otherwise is terminated during a period of absence from
employment for any reason other than retirement or
termination, his Severance Date shall be the date of such
retirement death of other termination of employment.
(43) The term "Subsidiary" shall mean any wholly owned
subsidiary of the Company including any wholly owned
subsidiary of another Subsidiary of the Company.
(44) The term "Terminated Participant" shall mean a
Participant who has terminated employment with an Employer
or an Affiliate.
(45) The term "Trust" shall mean the trust, maintained
in conjunction with the Plan under a trust agreement entered
into with the Trustee, for the purpose of receiving, holding
and investing amounts contributed under the Plan and from
which Plan benefits are paid.
(46) The term "Trustee" shall mean any trustee which is
designated, legally qualified, and authorized to act as the
trustee of the Trust.
(47) The term "Vesting Service" shall mean the period
of service, calculated in accordance with the elapsed time
method of credited service outlined in Treasury regulation
Section 1.410(a)-7, with which a Participant is credited for
the purpose of determining his vested interest in his
Separate Accounts attributable to Matching Contributions
under Section 7.1.
(48) The term "Year of Service" means, for purposes of
determining eligibility to participate under Article II, the
twelve-month period immediately following an Employee's
Employment Commencement Date, or any Plan Year commencing
after the Employee's Employment Commencement Date in which
the Employee is credited with at least 1000 Hours of
Service.
1.2 Grammatical References. The masculine shall include
the feminine and the singular shall include the plural except as
otherwise required by the context.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements. An Employee shall become
eligible to participate in the Plan as of the first pay date
after he both (i) attains age 21, and (ii) completes a twelve-
month period of employment during which he is credited with at
least 1,000 Hours of Service. The twelve-month period of
employment shall be (a) twelve consecutive months commencing on
the individual's Employment Commencement Date, or (b) any Plan
Year commencing subsequent to that date.
Employees covered under a collective bargaining agreement
are not eligible to participate in the Plan unless such agreement
specifically provides for coverage by the Plan or the collective
bargaining representative agrees to accept plan changes without
the requirement of further collective bargaining.
2.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply to eligibility for participation:
(a) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date within the twelve-month
period following his original Employment Commencement Date,
for purposes of eligibility to participate, such Employee
shall be treated as if he had never incurred a Severance
Date; provided that he is employed in a classification
listed in Appendix A.
(b) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and has a
Reemployment Date after the twelve-month period following
his original Employment Commencement Date but within seven
years after such Severance Date, such Employee will be
eligible to participate in the Plan as of any pay date
following the Plan Year in which he completes 1,000 Hours of
Service and is age 21; provided that he is employed in a
classification listed in Appendix A.
(c) If an Employee has met the Plan's eligibility
requirements, is not yet vested in his Plan account at the
time he incurs a Severance Date and has a Reemployment Date
within seven years after such Severance Date, such Employee
is eligible to participate in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(d) If an Employee is vested in his Separate Accounts at
the time he incurs a Severance Date, such Employee can
resume participation in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(e) If an Employee is not vested in his Separate Accounts
at the time he incurs a Severance Date and does not incur a
Reemployment Date within seven years after such Severance
Date, such Employee will be subject to the same eligibility
requirements that are applicable to a new Employee.
2.3 Service in Non-Employee Capacity. For purposes of this
Article II, all common law employment with the Affiliated Group
(in a capacity other than as an Employee), or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall be
treated as if such employment was employment as an Employee for
purposes of this Article 2; provided, however, that no person
shall be eligible to participate in the Plan until he has
satisfied the requirements of Section 2.1.
2.4 Election to Participate. Each Eligible Employee shall
become a Participant as of his Eligibility Date or any subsequent
pay date, if he has timely filed with the Company a written
election, in the form prescribed by the Plan Administrator, which
contains:
(a) his authorization for his Employer to reduce his Base
Pay in order to make Before-Tax Contributions on his behalf
in accordance with the provisions of Section 3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of Section
3.2; and
(c) his election as to the investment of all contributions
allocated to him in accordance with the provisions of
Article VI.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions. Any Participant may elect to
have Before-Tax Contributions made to the Plan by his Employer in
an integral percentage of his Base Pay of not less than one
percent nor more than 16 percent; provided, however, that in no
event may the percentage of Before-Tax Contributions made on
behalf of a Participant, when added to the percentage of his
After-Tax Contributions, if any, equal less than one percent or
more than 16 percent of his Base Pay. The Base Pay of such
Participant shall be reduced by the percentage elected under the
compensation reduction authorization in effect for such
Participant; provided, however, that no Before-Tax Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.2 After-Tax Contributions. Any Participant may elect to
make After-Tax Contributions by payroll deduction in an integral
percentage of his Base Pay of not less than one percent nor more
than sixteen percent; provided, however, that in no event may the
percentage of the After-Tax Contributions of a Participant, when
added to the percentage of Before-Tax Contributions, if any, made
on his behalf equal less than one percent or more than sixteen
percent of his Base Pay. Any payroll deduction with respect to
After-Tax Contributions shall be made from the Base Pay of a
Participant by his Employer in accordance with the terms of the
payroll deduction authorization in effect for such Participant;
provided, however, that no After-Tax Contributions made with
respect to a year on behalf of a Participant shall exceed the
limitations set forth in Article IV.
3.3 Matching Contributions. Subject to the provisions of
Section 3.4, as of the last day of each Plan Year quarter, the
Employers shall pay to the Trustee as a Matching Contribution for
investment in the Company Stock Fund an amount that is equal to
100 percent of the sum of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of, or
by, each Participant during such Plan Year quarter; provided,
however, that no Matching Contributions made with respect to a
year on behalf of a Participant shall exceed the limitations set
forth in Article IV.
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions. Notwithstanding any other provision of the Plan
to the contrary, Before-Tax and After-Tax Contributions, and
accrued Company Matching Contributions of any Participant as of
any date within the calendar year will be considered in
determining the amount of contributions not exceeding the
limitations of Article IV.
As of any date within the calendar year, if Before-Tax and
After-Tax Contributions and accrued Company Matching
Contributions would exceed 25 percent of the Participant's
Compensation, Before-Tax Contributions will be automatically
converted to After-Tax Contributions to the extent necessary to
satisfy the contribution limitation to 25 percent of the
Participant's Compensation, as described in Section 4A.3. If the
limitation is still not satisfied, After-Tax Contributions will
be automatically reduced and paid to the Participant to the
extent necessary to satisfy the limitations of Section 4A.3.
If the Defined Contribution Dollar Limit as defined in
Section 4A.2(c) is reached as of any date within the calendar
year, subsequent After-Tax and Before-Tax Contributions will be
automatically discontinued. Accrued Company Matching
contributions for the calendar year not in excess of the
limitation may be made on behalf of the Participant at any time
during the calendar year and during the first quarter of the
subsequent calendar year, according to Plan provisions.
3.5 Rollover Contributions. An Employee who becomes an
Employee after the Effective Date and who does not transfer
directly from employment in any capacity with an Employer or an
Affiliate and who is entitled to make a rollover contribution in
accordance with Section 402(c)(1)(B), Section 403(a)(4) or
Section 408(d)(3)(A)(ii) of the Code, may elect to make a
Rollover Contribution to the Plan by delivering, or causing to be
delivered, to the Trustee the assets in cash which constitute
such Rollover Contribution at such time or times and in such
manner as shall be specified by the Plan Administrator. Upon
receipt by the Trustee, such assets shall be deposited in the
Investment Funds described in Article VI, in accordance with the
Participant's investment election with respect to such Rollover
Contributions. The Trustee shall then credit the Rollover
Account of such Participant with the amount of such Rollover
Contribution. Such Rollover Contribution by an Employee pursuant
to this Section 3.5 shall not be deemed to be a contribution of
such Employee for purposes of Section 415 of the Code and shall
be fully vested in the Employee at all times.
3.6 Effect of Plan Termination. Notwithstanding any other
provision of the Plan to the contrary, any termination of the
Plan shall terminate the liability of an Employer to make further
Matching Contributions hereunder.
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415.
4A.1 Code Section 415 Governs. Notwithstanding anything to
the contrary contained in the Plan, effective January 1, 1987,
the amount of Matching Contributions, Before-Tax Contributions,
and After-Tax Contributions which may be credited to the Separate
Accounts of Participants shall be subject to the provisions
hereinafter set forth. The limitations contained in this Article
4A are intended to comply with the provisions of Section 415 of
the Code. If there is any discrepancy between the provisions of
this Section 4A and the provisions of Section 415 of the Code,
such discrepancy shall be resolved in such a manner so as to give
full effect to the provisions of Section 415 of the Code which
are hereby incorporated by reference
4A.2 Definitions. For purposes of this Section 4A the
following terms shall have the meanings hereinafter set forth:
(a) "Annual Additions" shall mean the amount credited to a
Participant's Separate Accounts for the Limitation Year that
constitutes:
(i) Employer contributions,
(ii) Employee contributions,
(iii) Forfeitures, and
(iv) Amounts described in Code Section 415(l)(1) or in
Code
Section 419A(d)(2), if any.
(b) "Compensation" shall mean (for purposes of Section 4A
of the Plan) wages, salaries and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
an Employer or an Affiliate to the extent that the amounts
are includable in gross income (including, but not limited
to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a non-
accountable plan, but excluding:
(i) Employer contributions to a plan of deferred
compensation which are not includible in the employee's
gross income for the taxable year in which contributed,
or any distributions from a qualified deferred
compensation plan;
(ii) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which receive special tax benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
(c) "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the Limitation Year; provided,
however, that in the case of a Limitation Year less than 12
months in duration due to an amendment changing the
Limitation Year to a different 12-month period, the Defined
Contribution Dollar Limitation shall be a fraction of the
foregoing amount equal to the number of full months in the
Limitation Year divided by 12.
(d) "Employee Contributions" shall mean After-Tax
Contributions to the Plan made by a Participant during the
Limitation Year.
(e) "Employer Contributions" shall mean Before-Tax
Contributions and Matching Contributions credited by an
Employer to the Plan on behalf of a Participant for the
Limitation Year.
(f) "Limitation Year" shall mean each 12-month period
beginning each January 1 and terminating each subsequent
December 31.
4A.3 Limitations on Contributions.
(a) Maximum Annual Additions. The maximum Annual Additions
that may be contributed or allocated to a Participant's
Separate Accounts under the Plan and/or any other qualified
defined contribution plan maintained by the Company or an
Affiliate for any Limitation Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for
the Limitation Year.
For purposes of implementing this limitation, the Plan
Administrator may estimate the Compensation of the
Participant to be paid during the Limitation Year and
restrict the Before-Tax and/or After-Tax Contribution
elections of Participants.
(b) Special Rules. The compensation limitation referred to
in Section 4A.3(a)(ii) shall not apply to any contribution
for any medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(l)(1) or
Section 419A(d)(2) of the Code.
4A.4 Defined Benefit Plan Coverage. If any Participant in
the Plan is covered by one or more qualified defined benefit
plans (whether or not terminated) maintained by an Employer or an
Affiliate concurrently covered by the Plan, the sum of the
defined benefit plan fraction with respect to such Participant
and the defined contribution plan fraction with respect to such
Participant shall not exceed 1.0. For purposes of this section,
defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) "Defined benefit plan fraction" shall mean a fraction,
the numerator of which is the projected annual benefit of
such Participant under all such defined benefit plans
(determined as of the close of such Limitation Year) and the
denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect under Sections 415(b) and 415(d)
of the Code for such year or (ii) 140 percent of the highest
average compensation, including any adjustment, under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined
benefit plans maintained by an Employer or an Affiliate
which were in existence on May 6, 1986, the denominator of
this fraction will not be less than 125 percent of the sum
of the annual benefits under such plans which the
Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 for all
Limitation Years beginning before January 1, 1987.
(b) "Defined contribution plan fraction" shall mean a
fraction, the numerator of which is the sum of the annual
additions to the participant's account under all the defined
contribution plans (whether or not terminated) maintained by
an Employer or Affiliate for the current and all prior
Limitation Years, and the denominator of which is the sum of
the maximum aggregate amounts for the current and all prior
Limitation Years of service with the Employer (regardless of
whether a defined contribution plan was maintained by the
Employer or Affiliate). The maximum aggregate amount in any
Limitation Year is the lesser of 125 percent of the dollar
limitation determined under Sections 415(b) and (d) of the
Code in effect under Section 415(c)(1)(A) of the Code or 35
percent of the participant's compensation for such year.
The Plan Administrator may elect to apply the transitional
rules stated in Sections 415(e)(4) and 415(e)(6).
If the defined benefit plan(s) and defined contribution
plans(s) of an Employer or Affiliate in existence on May 6,
1986, satisfied the applicable requirements of Section 415
of the Code as in effect for all Limitation Years beginning
before January 1, 1987, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury, if necessary, so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
under Section 415(e)(1) of the Code does not exceed 1.0 for
such Limitation Year.
The annual additions for years beginning before January 1,
1987 shall not be recomputed to treat all employee
contributions as annual additions.
4A.5 Elimination of Excess Annual Additions. To the extent
that any of the limitations set forth under this Section 4A would
be exceeded, the following procedures shall be followed to
prevent such excess(es).
(a) If the Annual Additions to the Separate Accounts of a
Participant in any Limitation Year would exceed the
limitation contained in this Section 4A absent such
limitation, the excess shall be avoided as follows:
(i) The Before-Tax Contributions that would have been
contributed for the Participant's benefit shall be
reduced and automatically converted to After-Tax
Contributions; and
(ii) Next, After-Tax Contributions made during the
Limitation Year shall be returned to the Participant.
In each case specified above, the amount to be converted or
returned shall be that amount as is necessary to permit the
maximum amount of the Annual Additions to the Participant's
Separate Accounts for such year to be made under the Plan
without violating the restrictions contained herein or in
Section 415 of the Code.
In the event that, notwithstanding the foregoing, the
limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of the allocations of
forfeitures or a reasonable error in estimating the
Participant's annual Compensation, the portion of such
excess attributable to Matching Contributions shall be held
in a suspense account and, if such Participant remains a
Participant after the end of the Limitation Year, shall be
used to reduce Matching Contributions for such Participant
for the succeeding Limitation Years, and, if such
Participant ceases participating in the Plan, shall
thereafter be used to reduce Matching Contributions for all
other Participants in the Limitation Year in which he ceases
to be a Participant and succeeding Limitation Years, as
necessary.
4B. Code Sections 402(g), 401(k) and 401(m).
4B.1 Code Section 402(g) Limit. No Participant shall be
permitted to have Before-tax Contributions made under this Plan
(or any other qualified plan maintained by an Employer or an
Affiliate), during any taxable year, in excess of the dollar
limitation under Code Section 402(g) in effect at the beginning
of such taxable year.
If the amount of Before-Tax Contributions elected by a
Participant under the Plan during a calendar year would cause the
Code Section 402(g) dollar limitation to be exceeded, such amount
will be reduced and automatically converted to After-Tax
Contributions during the calendar year. If any excess deferrals
(as defined in Code Section 402(g)) exist subsequent to the end
of the calendar year, the Plan Administrator may notify the Plan
of such excess deferrals and may direct the Trustee to refund
such excess deferrals to affected Participants (along with any
income allocable to the excess deferrals for the taxable year)
prior to the 15th of April immediately following such calendar
year. If any such excess deferrals are distributed more than two
and one-half (2-1/2) months after the last day of the Plan Year
in which they arose, a ten (10) percent excise tax will be
imposed on the Company with respect to such amounts.
4B.2 Nondiscrimination Tests. This Section 4B.2 is
effective as of January 1, 1987. For purposes of the
nondiscrimination tests of this Section 4B.2, the portion of the
Plan that benefits a unit of employees covered by a collective
bargaining agreement will be treated as comprising a separate
plan from the non-collectively bargained portion of the Plan. To
the extent that there are multiple units of employees covered by
collective bargaining agreements, the Company at its option may
treat two or more collective bargaining units as a single unit,
provided that the combinations of collective bargaining units are
determined on a basis that is reasonable and reasonably
consistent from year to year.
(a) Actual Deferral Percentage ("ADP") Test Notwithstanding
Section 3.1 or any other provision of the Plan, during any
Plan Year the Before-Tax Contributions made on behalf of
Eligible Employees who are Highly Compensated Employees
shall be restricted to the extent necessary to satisfy at
least one of the following tests:
Test No. 1: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ADP of Eligible Employees who are not
Highly Compensated Employees
Test No. 2: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ADP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ADP of Eligible
Employees who are not Highly Compensated Employees.
For these purposes, "ADP" shall mean the ratio
(expressed as a percentage) of Before-Tax Contributions
made on behalf of an Eligible Employee for the Plan
Year to the Eligible Employee's Compensation, as
defined below, for the Plan Year.
(b) Actual Contribution Percentage ("ACP") Test
Notwithstanding Sections 3.2 and 3.3 or any other provision
of the Plan, during any Plan Year the After-Tax
Contributions (including any Before-Tax Contributions
automatically converted to After-Tax Contributions pursuant
to Section 4B.1) and Matching Contributions paid to the Plan
with respect to Eligible Employees who are Highly
Compensated Employees shall be restricted to the extent
necessary to satisfy at least one of the following tests:
Test No 1: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ACP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ACP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ACP of Eligible
Employees who are Not Highly Compensated Employees
For these purposes, "ACP" shall mean the ratio
(expressed as a percentage) of total After-Tax and
Matching Contributions made by or on behalf of an
Eligible Employee for the Plan Year to the Eligible
Employee's "Compensation," as defined below, for the
Plan Year.
(c) Multiple Use Limitation Test. In addition to the
limitations of paragraphs (a) and (b) above, and
notwithstanding Sections 3.1, 3.2 and 3.3 of the Plan or any
other provision of the Plan, during any Plan Year in which
Test No. 2 of paragraph (a) is used to satisfy the ADP Test
and Test No. 2 of paragraph (b) is used to satisfy the ACP
Test, the Before-Tax Contributions, After-Tax Contributions
and Matching Contributions paid to the Plan with respect to
Participants who are Highly Compensated Employees shall be
restricted to the extent necessary to assure that the sum of
the ADP and ACP of such Highly Compensated Eligible
Employees does not exceed the greater of:
(i) 1.25 times the ADP of Eligible Employees who are
not Highly Compensated Employees, plus the ACP of such
Eligible Employees, plus the lesser of 2 percent or the
ACP of such Eligible Employees, or
(ii) 1.25 times the ACP of Eligible Employees who are
not Highly Compensated Employees, plus the ADP of such
Eligible Employees, plus the lesser of 2 percent or the
ADP of such Eligible Employees.
(d) Definition of "Compensation" For purposes of the ADP,
ACP and Multiple Use Tests, "Compensation" means wages,
salaries and fees for professional services and other
amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in
the course of employment with an Employer or an Affiliate to
the extent that the amounts are includable in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan) plus any elective
contributions made by an Employer or an Affiliate that are
not includable in gross income under Section 125 and Section
402(e)(3) of the Code, but excluding:
(i) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iii) Other amounts which receive special tax
benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
4B.3 Correction of Excesses.
(a) In the event that the ADP test set forth in 4B.2 above
is exceeded, an amount of Before-Tax Contributions of Highly
Compensated Employees will be reduced and automatically
converted to After-Tax Contributions. Such amount shall be
determined by reducing the maximum percentage of Before-Tax
Contributions of the Highly Compensated Employees from its
highest limit to such smaller percentage which will result
in the ADP test being passed. Any amounts so converted to
After-Tax Contributions shall nevertheless remain non-
forfeitable and remain subject to the distribution
limitations that apply to Before-Tax Contributions to the
extent required by the Code.
(b) In the event that the ACP test or the multiple use test
set forth in 4B.2 above is exceeded, an amount of After-Tax
Contributions for Highly Compensated Employees will be
reduced and automatically returned (along with any income
allocable to such amount during the Plan Year) to the
Participants within the time frame required under the Code.
Such amount shall be determined by reducing the maximum
percentage of After-Tax Contributions of the Highly
Compensated Employees from its highest limit to such smaller
percentage which will result in the ACP test or the multiple
use test being passed.
If any amounts returned to correct the ACP test are
distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which the excess arose, a
ten (10) percent excise tax will be imposed on the Company
with respect to those amounts.
4B.4 Special Rules.
(a) The ADP or ACP for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax, After-Tax or Matching
Contributions allocated to his account under two or more
plans or arrangements described in Code Sections 401(a)
and/or 401(k) that are maintained by an Employer or
Affiliate, shall be determined as if all such Contributions
were made under a single plan or arrangement.
(b) For purposes of determining the ADP or ACP of a
Participant who is a Highly Compensated Employee, the
Contributions and Compensation of such Participant shall
include the Contributions and Compensation of family members
(as described in Code Section 414(q)(6)(B)). The
Contributions and Compensation of such family members shall
be disregarded in determining the ADP or ACP of Participants
who are not such Highly Compensated Employees.
(c) The determination and treatment of a Participant's ADP
or ACP shall satisfy such other requirements as may be
prescribed by law.
<PAGE>
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND ADMINISTRATION
OF CONTRIBUTIONS
5.1 Separate Accounts. Each Participant shall, where
applicable, have established in his name the following Separate
Accounts:
(a) a Before-Tax Account which shall reflect the Before-Tax
Contributions made on behalf of a Participant, as well as
the investment income thereon in the Funds;
(b) an After-Tax Account which shall reflect the After-Tax
Contributions of a Participant, as well as the investment
income thereon in the Funds.
(c) a Matching Contributions Account which shall reflect
the Matching Contributions of a Participant, as well as the
investment income thereon in the Funds.
(d) a Rollover Account which shall reflect the Rollover
Contributions of a Participant made after December 31, 1992,
as well as the investment income thereon in the Funds.
5.2 Account Balances. For all purposes of the Plan, the
balance of each Separate Account as of any date shall be the
balance of such account after all credits and charges thereto,
for and as of such date, have been made as provided herein. The
determination of the Plan Administrator as to Separate Account
balances shall be final.
5.3 Notification. At least annually the Company shall
notify each Participant, Terminated Participant and Retired
Participant of the balance of his Separate Accounts as of the
last day of such year.
5.4 Delivery of Contributions. Each Employer shall cause
to be delivered to the Trustee all After-Tax, Before-Tax, and
Matching Contributions made in accordance with the provisions of
Article III as soon as reasonably practicable, but no later than
90 days after the contributions are made, and in accordance with
procedures established by the Plan Administrator.
If a Participant is paid in foreign currency, each After-Tax
or Before-Tax Contribution amount shall be based on the United
States dollar equivalent of the Participant's foreign Base Pay.
The conversion to United States dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as elected
by the employee. The resulting amount, after conversion into
United States dollars, will be transferred to the Trustee and
credited on behalf of the Participant to the proper Separate
Account. All statements setting forth a Participant's Separate
Accounts will be expressed in United States dollars.
5.5 Allocation of Matching Contributions. The Matching
Contributions of an Employer for each Plan Year quarter shall be
allocated quarterly among Participants who are Eligible Employees
of such Employer during such quarter and who made, or had made on
their behalf, After-Tax or Before-Tax Contributions for such
quarter. Each such Participant's allocated share of the Matching
Contributions of an Employer for such quarter shall be equal to
the matched percentage of his After-Tax and Before-Tax
Contributions specified pursuant to Section 3.3 with respect to
such quarter.
5.6 Crediting of Contributions. Subject to the provisions
of Sections 4A, 4B and Article VII, contributions shall be
credited to the Separate Accounts of a Participant in the
following manner:
(a) the amount of Before-Tax Contributions made on behalf
of a Participant shall be credited to such Participant's
Before-Tax Account;
(b) the amount of After-Tax Contributions made by a
Participant shall be credited to such Participant's After-
Tax Account;
(c) the amount of Matching Contributions allocated to a
Participant shall be credited to the Participant's Matching
Contributions Account.
(d) the amount of Rollover Contributions made by a
Participant after December 31, 1992 shall be credited to the
Participant's Rollover Account.
Such Before-Tax, After-Tax, Rollover and Matching
Contributions shall be invested by the Trustee in accordance with
the provisions of Section 6.3 and procedures established by the
Plan Administrator.
5.7 Changes in Reduction and Deduction Authorizations. The
percentage of Before-Tax Contributions and After-Tax
Contributions made by, or on behalf of, a Participant may be
changed to satisfy legal requirements in accordance with
procedures established by the Plan Administrator; to an integral
percentage which does not exceed the limitations specified in
Articles III and IV.
5.8 Suspension of Contributions. Any Participant who is
making, or having made on his behalf, Before-Tax and/or After-Tax
Contributions under Sections 3.1 or 3.2 may suspend part or all
of such Contributions at any time by notifying the Company in
accordance with procedures established by the Plan Administrator.
Any such suspension shall remain in effect until such
Contributions are resumed.
<PAGE>
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds. The Company shall
select and establish certain funds (the "Investment Funds" or
"Funds") that it shall cause to be maintained for the purpose of
investing assets held under the Plan which relate to the Separate
Accounts of Plan Participants. One such Fund shall be a Company
Stock Fund which shall invest solely in Company Stock.
Descriptions of the various funds are contained in Appendix B.
6.2 Investment Direction of Contributions. Any Before-Tax,
After-Tax, Matching, and Rollover Contributions of a Participant
shall be invested by the Trustee in accordance with directions
received from the Participant based upon the investment elections
of each Participant made in accordance with the provisions of
Sections 6.3 and 6.4, in the various Investment Funds selected by
the Participant, including a Company Stock Fund for the initial
investment of Matching Contributions as described in section 6.3
below.
6.3 Investment of Contributions. Each Participant, upon
electing to become a Participant under the Plan, shall make
investment elections directing the manner in which his Before-Tax
and After-Tax Contributions, and, if applicable, his Rollover
Contributions shall be invested by the Trustee. Such election
shall be the same for Before-Tax and After Tax contributions.
Contributions that are credited to a Separate Account of such
Participant shall be invested in the various Investment Funds in
any combination of integral percentages that equals 100 percent.
In the absence of a valid Participant election, Before-Tax
Contributions and After-Tax Contributions shall be invested by
the Trustee in the Fixed Income Fund pending receipt of a valid
investment direction from the Participant. Investment elections
shall be made by a Participant in accordance with uniform
administrative and operational rules established by the Plan
Administrator.
Subject to the provisions of Section 6.4, the investment
options so elected by a Participant shall remain in effect until
he changes his investment elections or ceases to be a Participant
in accordance with the provisions of the Plan.
Matching Contributions shall be automatically invested in
the Company Stock Fund.
6.4 Election of Participants to Transfer Invested Amounts.
A Participant, Terminated Participant or Retired Participant may
elect at any time to have a portion or all of the balance of the
assets liquidated and transferred from the Investment Funds in
which they are currently invested to one or more of the other
Funds in accordance with uniform administrative and operational
rules established by the Plan Administrator. Such an election
shall become effective, and the Participant may thereafter change
or revoke such election, at such times and in the manner
established by the Plan Administrator.
<PAGE>
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions. A Participant shall
be 100 percent vested in the Matching Contributions credited to
his Matching Contributions Account as well as all earnings
credited to such Account, if:
(a) such Participant is credited with at least five years
of Vesting Service;
(b) such Participant attains age 65;
(c) such Participant is declared mentally incompetent or
becomes permanently and totally disabled;
(d) such Participant dies, or
(e) such Participant's employment is involuntarily
terminated due to an involuntary separation program
sponsored by the Company, or as a result of the sale or
other disposition of a Subsidiary or division or part
thereof of the Company (or an Affiliate of the Company).
7.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply for purposes of vesting under the Plan:
(a) If a Participant incurs a Severance Date and
subsequently has a Reemployment Date within twelve months
following the Severance Date, such Participant's years of
Vesting Service will be calculated as if such Participant
had never incurred a Severance Date.
(b) If a Participant who is vested in his Separate Accounts
incurs a Severance Date and then has a Reemployment Date
more than twelve months after the Severance Date, such
Participant's years of Vesting Service earned prior to the
Severance Date will be restored for purposes of vesting
under the Plan. However, such a Participant will not be
credited with years of Vesting Service for the period of the
Participant's absence.
(c) If a Participant who is not vested in his Separate
Accounts incurs a Severance Date and then has a Reemployment
Date more than twelve months but less than seven years after
the Severance Date, such Participant's years of Vesting
Service earned prior to the Severance Date will be restored
for purposes of vesting under the Plan. However, such a
Participant will not be credited with years of Vesting
Service for the period of the Participant's absence.
7.3 Vesting in Before-Tax and After-Tax Contributions. A
Participant shall always be 100 percent vested in Before-Tax and
After-Tax Contributions credited to his Before-Tax and After-Tax
Accounts, and in any Rollover Contributions credited to his
Rollover Account, as well as all earnings credited to such
Accounts.
7.4 Election of Former Vesting Schedule. In the event of
an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his
Separate Accounts attributable to Matching Contributions, any
Participant who is a Participant on the effective date of such
amendment or who is credited with three or more years of Vesting
Service shall have a right to have his nonforfeitable interest in
such accounts continue to be determined under the vesting
schedule in effect prior to such amendment rather than under the
new vesting schedule, unless the nonforfeitable interest of such
Participant in such accounts under the Plan, as amended, at any
time is not less than such interest determined without regard to
such amendment. Notwithstanding the foregoing provisions of this
Section 7.4, the vested interest of each Participant on the
effective date of such amendment shall not be less than his
vested interest under the Plan as in effect immediately prior to
the effective date of such amendment.
<PAGE>
ARTICLE VIII
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion up to the entire value of his After-
Tax Contributions made to the Plan and all earnings on After-Tax
Contributions less any such amounts previously withdrawn. Such a
withdrawal will be taken first from any After-Tax Contributions
made to the Plan prior to 1987. When pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
proportionately from After-Tax Contributions made to the Plan
after 1986 and earnings on all After-Tax Contributions. After-
Tax Contributions withdrawn will be taken first from those not
subject to Matching Contributions and then from those subject to
Matching Contributions.
8.2 Withdrawal of Rollover Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion, up to the entire value of his
Rollover Contributions made to the Plan after 1992 and all
earnings on such Rollover Contributions less any such amounts
previously withdrawn; provided, however, that he has first
withdrawn the total value of his After-Tax Account pursuant to
Section 8.1.
8.3 Withdrawal of Company Matching Contributions. By
applying to the Company in the form and manner prescribed by the
Plan Administrator, a Participant who is vested pursuant to
Section 7.1 may elect to withdraw in cash or in kind, or both,
any portion up to the entire value of all Matching Contributions
under his Matching Contributions Account and any earnings on such
Contributions less any amounts previously withdrawn; provided
that he first withdraws the value of all his After-Tax
Contributions and Rollover Contributions and earnings thereon
pursuant to the provisions of Sections 8.1 and 8.2; and provided
further that a vested Participant who has not participated in the
Plan for at least five years may only withdraw Matching
Contributions that have been in the Plan for at least two years.
8.4 Withdrawal of Before-Tax Contributions. Subject to the
provisions of this Section 8.4, a Participant may apply to the
Company in the form and manner prescribed by the Plan
Administrator, for a withdrawal in cash from his Separate Account
attributable to Before-Tax Contributions and any earnings accrued
through December 31, 1988, on such Contributions less any such
amounts previously withdrawn; provided that he has first
withdrawn the total value of his After-Tax Account, the total
value of his Rollover Account, and, if the Participant is vested,
the total value of the Matching Contributions Account pursuant to
Sections 8.1, 8.2 and 8.3.
At any time after a Participant has attained age 59-1/2 or
becomes totally and permanently disabled, earnings accrued after
December 31, 1988, on Before-Tax Contributions may also be
withdrawn. The amounts in such Participant's Before-Tax Account
will be aggregated with his After-Tax Account for the purpose of
making withdrawals from the Plan; and such Participant's Before-
Tax Contributions, including any interest, dividends, and
appreciation thereon, less any amounts previously withdrawn, may
be withdrawn in connection with an After-Tax Contribution
withdrawal under Section 8.1.
Except for a Participant who has attained age 59-1/2 or
become totally and permanently disabled, a withdrawal of Before-
Tax Contributions and any earnings thereon, except as indicated
below, shall be permitted only if the Plan Administrator
determines that such withdrawal is needed for a Financial
Hardship and that such withdrawal will not exceed the lesser of
(i) the amount required to meet the need for which the withdrawal
is requested, or (ii) the value of his Before-tax Account.
However, if such Participant has not yet attained age 59-1/2 or
become totally and permanently disabled, any earnings accrued
after December 31, 1988, on his Before-Tax Contributions are not
available for withdrawal even in the case of a Financial
Hardship.
8.5 Withdrawal on Account of Permanent and Total
Disability. In the event the Participant becomes permanently and
totally disabled, he shall be eligible to withdraw up to the
entire value of his Separate Accounts under the provisions of
Sections 8.1, 8.2, 8.3 and 8.4. In this instance, permanent and
total disability shall be defined according to uniform procedures
established by the Plan Administrator.
<PAGE>
ARTICLE IX
LOANS
9.1 Approval and Nature of Loans. Any Participant who is
employed by an Employer or an Affiliate may, in accordance with
written procedures established by the Plan Administrator apply to
the Company (for any reason other than the acquisition of
securities) for a loan pursuant to the provisions of this Article
IX. Any loan granted to a Participant shall be deemed an
earmarked investment made for such Participant's benefit and
shall be charged against his Separate Accounts.
9.2 Terms and Conditions. The Plan Administrator shall
prescribe the terms and conditions of any loan made under this
Article IX, but in any event the following shall apply:
(a) The annual loan interest rate shall equal one percent
plus the prime interest rate as in effect on the fifteenth
calendar day of the month immediately preceding the calendar
year quarter in which such loan is approved, and such
interest rate shall apply for the entire term of the loan.
(b) The term of any loan shall be specified by the
Participant, in half-year increments, but in no event shall
such term be less than one year and no greater than five
years. A loan shall be amortized on a substantially level
basis, and payments shall be made no less frequently than
quarterly.
(c) The principal amount of any such loan shall be in
increments of $100 and shall not be less than $1,000 and
shall not exceed the lesser of:
(i) $50,000 reduced by the excess (if any) of the
highest outstanding loan balance during the one-year
period ending on the day the loan is made, over the
outstanding balance of loans from all qualified plans
sponsored by the Company or an Affiliate on the date
the loan is made, or
(ii) one-half the present value of the vested portion
of the Separate Accounts of the Participant as of the
most recent valuation.
(d) A Participant may have only one loan outstanding under
the Plan at any time, and may only borrow if at least a one-
month period has elapsed since the repayment date of his
most recent loan.
(e) Any loan hereunder shall be made from the Separate
Accounts in the following order: First, from the
Participant's Before-Tax Account (but in no event will
income on Before-Tax Contributions accrued after December
31, 1988, be available for a loan); second, from the
Rollover Account; third from the Matching Contributions
Account; and fourth, from the After-Tax Account. The
amounts will be drawn pro rata from the Investment funds in
a Separate Account; provided that if any assets in the U.S.
Government Bond Fund would have to be liquidated to fund the
loan, that entire Fund must be liquidated prior to the Loan.
9.3 Repayment of Loans. The loan shall be repaid, with
interest, in accordance with its terms. The Trustee shall credit
each payment and allocate such monies among the Separate Accounts
of such Participant charged with such loan; provided that such
allocation shall be made first to the Participant's After-Tax
Account; second, to the Matching Contributions Account; third, to
the Rollover Account; and fourth, to the Before-Tax Account. The
recrediting among the Funds with respect to any Separate Account
shall be made in accordance with the Participant's most recent
investment election.
The outstanding balance of the Loan may be prepaid any time after
three monthly payments have been made.
If an amount less than two months' repayment is not paid when
due, the term of the loan shall be extended to cover such
repayments if such extension does not increase the term of the
loan beyond five years.
9.4 Default. An event of default under the loan shall
occur in the following circumstances:
(a) Delinquent payments total two months or more, including
delinquency as a result of bankruptcy.
(b) Delinquent payments total less than two months and the
loan repayment term cannot be extended.
(c) A Participant terminates employment, including
retirement or death, with an outstanding loan, but not
including termination under certain voluntary or involuntary
separation programs if the separation program permits such
continuance of the loan under its terms.
9.5 Default Remedies.
(a) In the event a Participant, Terminated Participant or
Retired Participant who is eligible to make monthly loan
repayments to the Plan incurs a default resulting from
Sections 9.4(a) or 9.4(b), such Participant has 60 days from
the time of default to (i) make up the missed payments, or
(ii) repay the outstanding balance of the loan. If such
Participant chooses to make up the missed payments under
(i), and the missed payments are made within the 60-day time
limit, the default will be cured and the loan continued as
if no default had occurred.
(b) In the event of a default resulting from 9.4(c), the
Participant or the Participant's estate must pay off the
outstanding balance of the loan by certified check no later
than 60 days from the date of default.
(c) If payment is not received within 60 days from the date
of default, the Participant shall be deemed to have incurred
a taxable event and, at the time permitted by law, to have
elected to make a withdrawal from his Separate Accounts in
the amount of the balance of his outstanding loan, with
accrued interest, or in such lesser amount as is then
permitted by law, and to have elected to have such withdrawn
amount applied against his loan. In the case of a
termination of employment, the Separate Accounts of such
Participant shall be charged with the amount of such loan
balance, along with accrued interest, and such amount shall
be deemed, at the time permitted by law, to be a
distribution to such Participant.
(d) An Employee who defaults on a Plan loan will not be
eligible for another loan for a period of one year from the
date of default and will be suspended from contributing to
the Plan for a period of one year.
9.6 Reemployment. If a Participant with an outstanding
loan from the Plan terminates, causing the loan to go into
default, and if the Participant is rehired such that the loan
repayments can be reinstated within 60 days of his termination
and such that the overall length of the loan repayment period
(both pre-termination and post-termination) does not exceed five
years, the default of the loan may be voided and the loan
reinstated upon his reemployment.
9.7 Administration of Loans. The Plan Administrator, or
his designee, is responsible for administering the loan
provisions established under the Plan. Such administration shall
be performed such that:
(a) loans shall be made available to Participants on a
reasonably equivalent basis; and
(b) loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made
available to other Participants.
<PAGE>
ARTICLE X
DISTRIBUTIONS UPON RETIREMENT OR OTHER TERMINATION OF EMPLOYMENT
10.1 Eligibility for Distribution. Each Participant shall
be entitled to receive the vested amount of his Separate Accounts
upon retirement or other termination of employment with the
Affiliated Group for any reason, including death.
10.2 Distributions. The Plan Administrator shall direct the
Trustee to make distribution to, or for the benefit of, a
Participant, who becomes eligible to receive the vested amount of
his Separate Accounts under Section 10.1 in the manner
hereinafter set forth.
(a) Distributions to Participants Upon Retirement or Other
Termination of Employment (Other than Death). In the case
of a Participant who retires or terminates employment with
the Affiliated Group (for reasons other than death), if the
combined value of the vested interest of the Participant
under the Plan and all other qualified profit-sharing plans
maintained by the Affiliated Group is (and was at the time
of any prior distribution) $3,500 or less, distribution of
such Participant's vested interest under the Plan shall be
made to him as soon as practicable in a single lump-sum
payment. If the value of the vested interest of such
Participant under the Plan and all other qualified profit-
sharing plans maintained by the Affiliated Group is (or was
at the time of any prior distribution) in excess of $3,500,
distribution of such Participant's vested interest under the
Plan shall be made in one or more of the following methods,
in accordance with rules established by the Plan
Administrator, as the Participant shall select:
(i) in a single lump-sum payment payable at any time
prior to the April 1 of the calendar year following the
calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law; or
(ii) in the form of an immediate or deferred
nontransferable annuity contract that complies with the
requirements of this Plan and Section 401(a)(9) of the
Code and is purchased on behalf of such Participant in
accordance with procedures established by the Plan
Administrator; or
(iii) in a series of monthly or annual installments
over a period not in excess of the normal life
expectancy of the Participant or the joint life
expectancies of the Participant and his Beneficiary,
such installments to be equal in amount, except as
necessary to adjust for any net earnings and changes in
the market value of his Separate Accounts, or by any
other method reasonably calculated to provide a more
rapid distribution of his interest. Notwithstanding
the foregoing, a Participant may defer commencing
distribution until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law. For purposes of
this subparagraph (iii), the life expectancy of a
Participant and such Participant's Beneficiary may be
redetermined, but not more frequently than annually,
and in accordance with such rules as may be prescribed
by Treasury regulations. Further, life expectancy and
joint and last survivor expectancy shall be computed
using the return multiples of Treasury regulation 1.72-
9. A Participant wishing to have the life expectancy
used to calculate his benefit redetermined annually,
must so elect no later than the commencement of his
payments, and such election is irrevocable. If such an
election is not made, the life expectancy used to
calculate his benefit will not change, and no
redetermination of life expectancy may be elected at a
future date.
The form of the installment payments may be changed
from monthly to annual or from annual to monthly once
subsequent to the initiation of the installment
payments. Such change must become effective with the
payment anniversary date. The dollar amount of an
installment payment, the length of the payment period
under an installment payment or the type of installment
payment may be changed once per year effective with the
payment anniversary date; provided, that any such
changes meet the requirements of Section 10.7 hereof
(taking into consideration any amendment of Section
401(a)(9) of the Code). An installment payment under
this subparagraph (iii) may be changed to another form
of payout under subparagraphs 10.2(a)(i) or(iv), or
such other form of payout under subparagraphs
10.2(a)(i) or (iv) may be changed to an installment
payment under this subparagraph (iii) once after such
payment or payout commences. A Participant receiving
installment payments under this subparagraph (iii) may
effect a non-periodic distribution under subparagraph
10.2(a)(iv) once in a calendar year. For purposes of
this subparagraph (iii), "payment anniversary date"
shall mean the anniversary of the date that the
installment payments commenced.
(iv) in non-periodic distributions, in cash or in kind,
or both, up to twice a year in accordance with the
provisions of Section 10.7; provided, however, that the
Participant may defer making or commencing
distributions until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law.
Notwithstanding the foregoing provisions of this paragraph
(a), if the life expectancy of a person other than the
Participant or his spouse is utilized in determining the
amount of any benefit payment, the value of the payments to
be made during the life expectancy of such Participant shall
be computed pursuant to the minimum distribution incidental
benefit requirement of Treasury regulations.
(b) Distributions Due to Death. Unless a valid election of
an annuity contract under subparagraph (a)(ii) of this
Section 10.2 is effective, and death occurs before the
"required beginning date," (as defined in Section 10.7(c))
distribution of the Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed by December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
(ii) Spouse Beneficiary designated. The entire account
must be distributed over a period not exceeding the
Beneficiary's life expectancy. Payments must begin by
the later of (1) December 31 of the year following the
year of the Participant's death, or (2) December 31 of
the year the Participant would have attained age 70-
1/2.
(iii) Non-Spouse Beneficiary Designated. The
entire account must be distributed over a period not
exceeding the Beneficiary's life expectancy. Payments
must begin by December 31 of the year following the
year of the Participant's death, or as soon as
administratively feasible thereafter.
(iv) Distribution Exception. In cases in which a
Beneficiary does not wish to receive a distribution
over his/her life expectancy under (ii) or (iii) above
(as applicable), either the Participant or, following
the Participant's death the Beneficiary, may elect to
have the distribution paid out under (i) above. Such
an election must be made by, and may not be revoked
following, the earlier of (1) December 31 of the year
the distribution is required to commence under (ii) or
(iii) above, or (2) December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
In the absence of any specific election by the Participant
or Beneficiary as to the form of the distribution, the
distribution will be paid out under (ii) or (iii) as
applicable.
If death occurs after the Retired or Terminated
Participant's "required beginning date," distribution of the
remaining portion of a Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed immediately.
(ii) Beneficiary Designated.
(1) Payments made over the Participant's life
expectancy only. If no election to recalculate
life expectancy was made, the remaining account
must be distributed to the Beneficiary at least as
rapidly as under the method of distribution in
effect at the Participant's death. The life
expectancy schedule for a deceased Participant
would continue to be used, with the Beneficiary
having the option to increase the payments. If an
election to recalculate life expectancy was made,
the remaining account must be paid out to the
Beneficiary by December 31 of the year following
the year of the Participant's death.
(2) Payments being made over the joint life
expectancy of the Participant and Beneficiary. If
no election to recalculate life expectancy was
made, the Beneficiary will continue to receive
distributions based on the joint life expectancy
factors already in effect (as if no death had
occurred), with the Beneficiary having the option
to increase the amount of the payments. If an
election is made by the Participant to have his
life expectancy recalculated and either (a) no
election is made to have his designated
Beneficiary's life expectancy recalculated, or (b)
the designated Beneficiary is not the
Participant's spouse, the Beneficiary will receive
the regularly scheduled payment in the year of the
Participant's death, and the remaining account
will be distributed over the Beneficiary's single
life expectancy with no recalculation. The
Beneficiary has the option to increase the amount
of the payments. If an election to recalculate
the Participant's and the spousal Beneficiary's
life expectancies was made, the Beneficiary will
receive the regularly scheduled payment in the
year of the Participant's death, and the remaining
account will be distributed over the Beneficiary's
single life expectancy with recalculation. The
Beneficiary has the option to increase the amount
of the payments.
10.3 Forms of Distributions. All distributions under this
Article X shall be made in the following manner:
(a) Any distributions, other than annuity contracts or
monthly installment payments, may be made in cash or in
kind, or both, in accordance with the election of the
Participant or Beneficiary.
(b) Any distributions to a Participant in a monthly
installment form under subparagraph (a)(iii) of Section 10.2
shall be made in cash.
(c) If a Participant elects distribution of his entire
vested interest in an annuity form pursuant to 10.2(a)(ii),
such annuity shall provide that if the Participant is not
married on his Annuity Starting Date, his benefit will be
paid as a single life annuity unless he elects otherwise;
and if he is married on his Annuity Starting Date, his
benefit will be paid in the form of a Qualified Joint and
Survivor Annuity with his spouse as the contingent
annuitant, unless prior to the Annuity Starting Date the
Participant elects to receive payment of his interest in a
different annuity form. For married Participants, the
Qualified Joint and Survivor Annuity form of benefit will be
at least as valuable as any other optional form of benefit
available under the Plan at the same time. The Participant
may elect to have such annuity distributed upon attainment
of the Earliest Retirement Age.
If the Participant is married and elects to receive
payment of his interest in a different annuity form or to
designate a contingent annuitant other than his spouse, the
spouse of such Participant must consent in writing thereto
and such consent must acknowledge the effect of such action,
the optional form of payment elected and, if applicable, any
contingent annuitant other than the spouse, and be witnessed
by a notary public, unless a Plan representative finds that
such consent cannot be obtained because the spouse cannot be
located or because of other circumstances set forth in
Section 401(a)(11) of the Code and regulations issued
thereunder. Any election made under this paragraph (c) may
be made at any time during the 90-day period ending on the
Annuity Starting Date.
(d) The annuity described in Section 10.2(a)(ii) and
distributed to Participant shall provide that if the
Participant dies prior to the Annuity Starting Date, is
survived by a spouse, and was married to such spouse during
the one-year period preceding his death, his surviving
spouse shall receive a Preretirement Survivor Annuity,
unless he filed a Qualified Waiver with the Plan
Administrator during the Applicable Election Period. The
Preretirement Survivor Annuity will be calculated as of the
Earliest Retirement Age if the Participant dies before such
time, or at death if the Participant dies after the Earliest
Retirement Age. Reasonable actuarial adjustments will be
made to reflect a payment earlier or later than the Earliest
Retirement Age.
(e) For purposes of this Section 10.3, the following
definitions apply:
The "Annuity Starting Date" means - (i) the first day
of the first period for which an amount is payable as
an annuity, or (ii) in the case of a benefit not
payable in the form of an annuity, the first day on
which all events have occurred which entitle the
participant to such benefit.
The "Applicable Election Period" is the period
commencing on the first day of the Plan Year in which a
Participant attains age 35 and ending on the date of
the Participant's death. If a Participant separates
from service prior to the first day of the plan year in
which age 35 is attained, with respect to the account
balance as of the date of separation, the election
period shall begin on the date of separation.
The "Earliest Retirement Age" shall be the date on
which the Participant could elect to receive retirement
benefits.
The "Preretirement Survivor Annuity" shall be an
annuity for the life of the surviving spouse of the
Retired or Terminated Participant, payable immediately
upon the Retired or Terminated Participant's death, the
actuarial equivalent of which is not less than 50% of
the Participant's vested interest in the Plan as of the
date of death. Any security interest held by the Plan
by reason of a loan outstanding to the Participant
shall be taken into account in determining the amount
of the qualified Preretirement Survivor Annuity.
The "Qualified Joint and Survivor Annuity" shall be an
annuity for the life of the Participant, with a
survivor annuity for the life of the spouse that is not
less than 50 percent (and not greater than 100 percent)
of the amount payable during the joint lives of the
Participant and the spouse.
The "Qualified Waiver" is a waiver of the Preretirement
Survivor Annuity to which the spouse of the Retired or
Terminated Participant consents in writing and such
consent acknowledges the effect of such action and, if
applicable, any optional form of Preretirement Survivor
Annuity or contingent annuitant and is witnessed by a
notary public, unless a Plan representative finds that
such consent cannot be obtained because the spouse
cannot be located or because of other circumstances set
forth in Section 401(a)(11) of the Code and regulations
issued thereunder.
(f) In the case of a qualified joint and survivor annuity,
the Plan Administrator shall no less than 30 days and no
more than 90 days prior to the Annuity Starting Date cause
to be provided to each Participant who elects to receive
payment in the form of an annuity a written explanation of:
(i) the terms and conditions of a qualified joint and
survivor annuity; (ii) the Participant's right to make and
the effect of an election to waive the qualified joint and
survivor annuity form of benefit; (iii) the rights of a
Participant's spouse; and (iv) the right to make, and the
effect of, a revocation of a previous election to waive the
qualified joint and survivor annuity.
In the case of a qualified Preretirement Survivor Annuity,
the Plan Administrator shall cause to be provided to each
Participant within the "applicable period" for such
Participant a written explanation of the qualified
Preretirement Survivor Annuity in such terms and in such
manner as would be comparable to the explanation provided
for meeting the requirements outlined above applicable to a
qualified joint and survivor annuity.
The "applicable period" for supplying the explanation of a
qualified preretirement survivor annuity to a participant is
whichever of the following periods ends last: (i) the period
beginning with the first day of the plan year in which the
participant attains age 32 and ending with the close of the
plan year preceding the plan year in which the participant
attains age 35; (ii) a reasonable period ending after the
individual becomes a participant; or, (iii) a reasonable
period ending after Code section 401(a)(11) first applies to
the Participant due to his election of an annuity under this
Plan. Notwithstanding the foregoing, notice must be
provided within a reasonable period ending after separation
from service in the case of a Participant who separates from
service before attaining age 35.
For purposes of applying the preceding paragraph, a
"reasonable period" is the end of the two-year period
beginning one year prior to and ending one year after the
date of the applicable event described in (ii) or (iii).
10.4 Disposition of Forfeited Balances. If a termination of
employment results in a forfeiture of Matching Contributions,
such forfeiture may either be used to reduce the Employers'
Matching Contribution obligation or be applied, as directed by
the Plan Administrator or Named Fiduciary, as appropriate, to pay
such administrative expenses of the Plan as are legally permitted
to be paid from the Trust and as are actually paid not later than
the next succeeding Plan Year quarter. If the amount of all such
forfeitures during the quarter exceeds the amount used before the
end of the next succeeding quarter to reduce Matching
Contributions and to pay expenses of the Plan, the excess may be
applied thereafter only to reduce matching contribution
obligations for succeeding quarters until eliminated.
10.5 Buy-Back and Restoration of Forfeited Amounts. If a
Participant terminates service and receives the value of his
vested account balance, any nonvested portion will be treated as
a forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within
seven years of his Severance Date shall have such forfeited
amount restored to his Separate Accounts, along with interest
credited at the Fixed Income Fund rate of return over the period
of the forfeiture, and invested in accordance with a new
investment election. If such a Participant receives a
distribution of part or all of his account, he must repay, in
cash, the full amount of such distribution on or before his final
repayment date and such forfeited amount shall be restored to his
Separate Accounts and invested in accordance with a new
investment election. In this case, no interest shall be accrued
on such forfeited amount from the time of the distribution until
the time the distribution is repaid. Any restoration of Matching
Contributions shall be made from a special Company contribution
which shall not constitute an Annual Addition within the meaning
of Section 4A. For purposes of repaying the distribution amount,
the "final repayment date" shall be five years after the first
date on which he is subsequently reemployed.
10.6 Payments to Incompetents or Minors. If any individual
to whom an amount is payable hereunder is incapable of attending
to his financial affairs because of any mental or physical
condition, including the infirmities of advanced age, or is a
minor, such amount (unless prior claim therefor shall have been
made by a duly qualified guardian or other legal representative)
may, in the discretion of the Plan Administrator, be paid to a
duly appointed guardian or to another person for the use or
benefit of the individual found to be a minor or incapable of
attending to his financial affairs or in satisfaction of legal
obligations incurred by or on behalf of such individual. The
Trustee shall make such payment only upon receipt of written
instructions to such effect from the Plan Administrator. Any
such payment shall be charged to the Separate Accounts from which
any such payment would otherwise have been paid to the individual
found to be a minor or incapable of attending to his financial
affairs and shall be a complete discharge of any liability
therefor under the Plan.
10.7 Limitations on Commencement and Distribution of Benefit
Payments.
(a) Unless the Participant otherwise elects (or is deemed
to elect otherwise because the combined present value of
such Participant's nonforfeitable accrued benefit under the
Plan and all other qualified profit-sharing plans maintained
by the Affiliated Group does not exceed $3,500), the payment
of benefits under the Plan to such Participant shall begin
not later than the 60th day after the close of the Plan Year
in which the latest of the following events occurs:
(i) The date on which such Participant attains age 65;
(ii) The tenth anniversary of the date on which such
Participant commenced participation in the Plan; and
(iii) The date on which such Participant terminates
service with the Affiliated Group.
(b) Notwithstanding the foregoing, such Participant's
entire interest in his Separate Accounts (including any
distribution of incidental death benefits) must be
distributed, or begun to be distributed, to him not later
than his "required beginning date."
(c) A Participant's "required beginning date" is the April
1st of the calendar year following the year in which the
Participant attains age 70-1/2. For a Participant who
attains age 70-1/2 before January 1, 1988, and is not a 5-
percent owner, the term "required beginning date" means
April 1 of the calendar year following the later of (1) the
calendar year in which the Participant attains age 70-1/2 or
(2) the calendar year in which the employee retires. For a
Participant who attains age 70-1/2 before January 1, 1988,
and is a 5-percent owner, the term "required beginning date"
means April 1 of the calendar year following the later of
(1) the calendar year in which the Participant attains age
70-1/2, or (2) the earlier of (i) the calendar year with or
within which ends the Plan Year in which the Participant
becomes a 5-percent owner, or (ii) the calendar year in
which the Participant retires.
(d) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined under Code Section 416(i) at any time
during the Plan Year ending with or within the calendar year
in which such owner attains age 66-1/2 or any subsequent
year.
(e) Notwithstanding any provision in this Plan to the
contrary, if not made in a lump-sum, the interest of a
Participant in his Separate Accounts under the Plan must be
distributed, in accordance with Treasury regulations
promulgated under Section 401(a)(9) of the Code, over one of
the four following periods:
(i) the life of such Participant;
(ii) the joint lives of such Participant and such
Participant's Beneficiary;
(iii) a period not extending beyond the life
expectancy of such Participant; or
(iv) a period not extending beyond the joint life
expectancies of such Participant and such Participant's
beneficiary.
10.8 Reemployment. In the event a Participant is reemployed
by an Employer or an Affiliate, and if such Retired Participant
again becomes an active Participant, his Separate Accounts from
his prior participation shall be consolidated with the Separate
Accounts established in his name after such reemployment.
<PAGE>
ARTICLE XI
BENEFICIARIES
11.1 Designation of Beneficiary. A Participant, Retired
Participant, or Terminated Participant may designate a
Beneficiary to whom distribution shall be made hereunder in the
event such Participant dies before his interest is distributed to
him in full. If such Participant has a spouse, his spouse shall
be his Beneficiary and shall receive distribution of his
remaining interest in accordance with the provisions of Section
10.2(b); provided, however, that a person or persons other than
his spouse may be designated as his Beneficiary if the
requirements of Section 11.3 are met. Any such designation or
change of designation shall be subject to the provisions of
Section 11.3, shall be made in writing in the form prescribed by
the Plan Administrator, and shall become effective only when
filed with the Plan Administrator; provided, however, that any
such designation or change of designation which is received by
the Plan Administrator after the death of the Participant,
Retired Participant or Terminated Participant shall be
disregarded.
11.2 Beneficiary in the Absence of Designated Beneficiary.
If (i) a Participant, Retired Participant, or Terminated
Participant who dies does not have a surviving spouse and if no
Beneficiary has been designated pursuant to the provisions of
Section 11.1, or (ii) no Beneficiary survives such Participant,
then the Beneficiary shall be the estate of such Participant. If
any Beneficiary designated pursuant to Section 11.1 dies after
becoming entitled to receive distributions hereunder and before
such distributions are made in full and if no other person or
persons have been designated to receive the balance of such
distributions upon the happening of such contingency, the estate
of such deceased Beneficiary shall become the Beneficiary as to
such balance.
11.3 Spousal Consent to Beneficiary Designation. In the
event a Participant, Retired Participant, or Terminated
Participant is married, any Beneficiary designation, other than a
designation of his spouse as Beneficiary, shall be effective only
if his spouse consents in writing thereto and such consent
acknowledges the specific designation of Beneficiary and the
effect of such action, and is witnessed by a notary public,
unless a Plan representative finds that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
Treasury regulations issued thereunder.
<PAGE>
ARTICLE XII
ADMINISTRATION
12.1 Plan Administrator and Named Fiduciary. The Plan shall
be administered by the Vice President of BP Exploration & Oil
Inc. with responsibility for Human Resources (or the successor to
such office as designated by the Board of Directors) who shall
serve as Plan Administrator within the meaning of ERISA. The
chief financial officer of the Company shall serve as Named
Fiduciary except as otherwise designated by the Board of
Directors.
The Board of Directors may arrange for the delegation by the
Trustee to the Named Fiduciary of any functions normally
performed by trustees (except the custody of assets, the voting
with respect to shares held by the Trustee, and the purchase and
sale or redemption of securities.)
12.2 Duties of Plan Administrator and Named Fiduciary. The
Plan Administrator shall have the authority and responsibility
for control of the operation and administration of the Plan. The
Named Fiduciary shall have the responsibility to manage and
control the assets of the Plan, which includes the investment of
Plan assets. The Plan Administrator and the Named Fiduciary may,
from time to time, designate, or revoke the designation of, one
or more persons other than themselves to carry out one or more
specific fiduciary responsibilities. Each such designation
shall:
(a) be in writing signed by the Plan Administrator or Named
Fiduciary, as applicable;
(b) specify one or more fiduciary duties in connection with
the Plan for which such designee shall be responsible; and
(c) be accepted by such designee. The revocation of any
such designation shall be in writing signed by the Plan
Administrator or Named Fiduciary, whichever originally made
such designation, and, shall include a statement that such
designee has been notified of such revocation.
The Plan Administrator and the Named Fiduciary shall also
have such additional responsibilities and authority with respect
to the Plan as are specifically vested in them from time to time
by action of the Board of Directors of the Company. The
authority of the Plan Administrator and the Named Fiduciary to
delegate any of their duties as fiduciaries under the Plan to any
designee may be limited pursuant to action of such Board of
Directors. Each such designated fiduciary may rely upon any such
direction, information, or action of the Plan Administrator,
Named Fiduciary or another designated fiduciary as being proper
under this Plan or the Trust, and is not required under this Plan
or the Trust to inquire into the propriety of any such direction,
information, or action. It is intended under the Plan and the
Trust that each fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another fiduciary.
No designated fiduciary, Plan Administrator, Named Fiduciary nor
the Group guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
No bond or other security shall be required of the Plan
Administrator or the Named Fiduciary or anyone delegated to act
on behalf of either, nor shall they receive additional
compensation for services performed by them in the administration
of this Plan, except as may otherwise be required by law.
No director, officer or Employee of the Group shall be
personally liable for any act or omission to act in connection
with the operation or administration of the Plan, except for his
own willful misconduct or gross negligence, except as may
otherwise be required by law.
The Plan Administrator and the Named Fiduciary and each of
their designees, if any, may serve, subject to the foregoing
provisions of this Section 12.2, in more than one fiduciary
capacity with respect to the Plan and may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
The Plan Administrator shall have the sole and exclusive
discretion and authority to apply, construe and interpret all
provisions and terms of the Plan, to grant and/or deny any and
all claims for benefits, and to determine and decide any and all
issues and factual circumstances relating to eligibility for
benefits. All findings, decisions and determinations of any kind
made by the Plan Administrator shall not be disturbed unless the
Plan Administrator has acted in an arbitrary and capricious
manner. Subject to the requirements of law, the Plan
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and in any determination of
eligibility for a benefit. All decisions of the Plan
Administrator shall be final and binding on all parties. The
Plan Administrator shall exercise his powers in a uniform and
nondiscriminatory manner.
12.3 Rules and Regulations. The Plan Administrator may from
time to time prescribe rules or regulations for the
administration of the Plan. Without limiting the generality of
the foregoing, the Plan Administrator may adopt such rules or
regulations with respect to the signature by an Employee and/or
the spouse of an Employee, any directions or other papers to be
signed by Employees, and similar matters as the Plan
Administrator shall determine to be necessary or advisable in
view of the laws of any state or country.
12.4 Trust Agreement and Trustee. The Named Fiduciary and
the Trustee have entered into a trust agreement pursuant to which
the Trustee is to act as trustee under the Plan. The Named
Fiduciary may, without further reference to, or action by, any
Subsidiary participating in the Plan, from time to time enter
into such further agreements with the Trustee or other parties
and make such amendments to such trust agreement or such further
agreements as it may deem necessary or desirable.
The Named Fiduciary may from time to time designate a
successor Trustee which shall be a bank or trust company with
capital and surplus of not less than $10,000,000, and the Named
Fiduciary may require the Trustee to take such steps and execute
such instruments as the Named Fiduciary may deem necessary or
desirable to make effective the transfer of the Trust assets to
the successor Trustee and to maintain the Plan.
12.5 Determination of Benefits and Claims Review. The Plan
Administrator or his designee shall make all initial
determinations as to the right of any person to a benefit. The
Plan Administrator shall establish and follow a procedure for
review of any such determination consistent with regulations of
the Department of Labor under Section 503 of the Act.
12.6 Agency. The Plan Administrator, the Named Fiduciary,
or the Trustee need not recognize the agency of any party for a
Participant or a Beneficiary unless it shall receive documentary
evidence thereof satisfactory to it and thereafter from time to
time, as the Plan Administrator, the Named Fiduciary, or the
Trustee may determine, additional documentary evidence showing
the continuance of such agency. The Plan Administrator, the
Named Fiduciary, or the Trustee shall be entitled to rely upon
the continuance of such agency and to deal with the agent as if
he or it were the Participant or the Beneficiary.
12.7 Records Conclusive. The records of the Trustee, Plan
Administrator, Named Fiduciary, Employers, and Subsidiaries shall
be conclusive in respect of all matters involved in the
administration of the Plan.
12.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company.
(b) Taxes, if any, on any assets held by the Trustee or
income therefrom which are payable by the Trustee shall be
charged against the Participant's Separate Accounts as the
Trustee shall determine.
12.9 Qualified Domestic Relations Orders. The Plan
Administrator shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
Anything to the contrary in the Plan notwithstanding, in the
event a qualified domestic relations order provides for a
distribution of a Participant's, Terminated Participant's or
Retired Participant's Separate Accounts, or any portion thereof,
to an alternate payee as defined under Section 414(p)(8) of the
Code, such distribution may include Before-Tax Contributions,
After-Tax Contributions, Rollover Contributions and Matching
Contributions, as well as earnings thereon, without regard to the
date as of which such Participant, Terminated Participant or
Retired Participant separates from service or attains age 59-1/2.
<PAGE>
ARTICLE XIII
ASSETS HELD BY TRUSTEE
13.1 Assets Held by Trustee. All cash, bonds, stock
certificates, and contracts representing monies on deposit with
insurance companies shall, until disposed of pursuant to the
provisions of this Plan, be held in the possession or name of the
Trustee; provided, however, that transferable securities may be
registered in the name of the Trustee or in the name of its
nominee. All Mutual Fund shares may be held as unissued shares
(not in certificate form), in the name of the Trustee. Non-
transferable securities shall be issued in such name or names as
the Trustee may elect, subject to any applicable laws or
regulations at the time in effect with respect thereto. In the
sole discretion of the Trustee, investments in a particular issue
of stock, security, or a particular issue of bonds made at the
direction of more than one Participant may be represented by a
single certificate, single contract, or single bond, as the case
may be.
The assets of the Trust will be valued annually at fair
market value as of the last day of the Plan Year. The respective
accounts of Participants shall be adjusted in accordance with the
valuation.
13.2 Options, Rights, or Warrants. in the event that any
options, rights, or warrants shall be granted or issued with
respect to shares of stock held by the Trustee under the Plan,
the Trustee shall give to the Participant who directed the
investment in such shares a reasonable opportunity to direct the
Trustee to exercise such options, rights, or warrants for his
Separate Account, and if any cash shall be required in connection
with such exercise, such Participant shall, simultaneously with
his direction to the Trustee, authorize the Trustee to use for
such purpose any uninvested funds held for him and/or make
available to the Trustee any additional necessary funds. Such
additional funds may be made available to the Trustee either by
payment thereof in cash or by written direction to the Trustee on
forms prescribed by the Plan Administrator to sell any security
held for him; provided, however, that any such additional funds
deposited by any Participant with the Trustee for the aforesaid
purpose shall not be deemed a Before-Tax or After-Tax
Contribution under Article Ill. Any securities acquired as the
result of the exercise of any such options, rights, or warrants
shall be added to the Participant's Separate Accounts. If any
Participant shall not, within the time designated by the Trustee,
direct the Trustee to exercise any such option, right, or warrant
and make available to the Trustee any necessary funds, the
Trustee shall sell such option, right, or warrant on any
registered security exchange, if there be any market therefor,
and the cash proceeds from the sale of any such options, rights,
or warrants shall be credited to the Participant's Separate
Accounts. The foregoing provisions notwithstanding, the Trustee
shall reserve the right to determine whether any dividends on
Company Stock held by the Plan shall be paid in cash or in kind
under a share dividend plan.
13.3 Voting Rights. The Trustee shall vote the Company
Stock held in the Company Stock Fund for the respective accounts
of Participants in accordance with such Participants' directions
which may be certified to the Trustee by the Plan Administrator
or any agent designated by the Plan Administrator; provided that
any such shares with respect to which no such direction shall be
received and any fractional shares shall be voted by the Trustee
in the same proportions as shares as to which voting instructions
have been received.
13.4 Cost and Proceeds of Securities Transactions. If the
purchase or sale of securities by the Trustee, whether in
pursuance of standing directions or specific directions, cannot
be completed in a single transaction, but requires multiple
transactions, the price per unit (including prices determined by
the Trustee in cases of matched purchases and sales) at which all
securities of that particular issue are purchased or sold by the
Trustee shall be the weighted average net price per unit at which
all securities of that particular issue are purchased or sold for
the multiple transactions.
13.5 Brokerage Charges. Brokerage commissions, transfer
taxes, and other charges and expenses in connection with the
purchase or sale of securities shall be added to the cost of such
securities or deducted from the proceeds thereof, as the case may
be.
<PAGE>
ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 Amendments. Subject to the provisions of Section 14.2,
the Board of Directors is authorized to amend the provisions of
the Plan at any time in its sole discretion. This authority may
be delegated from time to time by resolutions of the board of
Directors to certain officers of the Group, which delegations
shall constitute part of the Plan.
14.2 Limitation of Amendments. The Company shall make no
amendment to the Plan which shall result in the forfeiture or
reduction of the interest of any Employee, Eligible Employee,
Participant, Terminated Participant, Retired Participant or
person claiming under or through any one or more of them pursuant
to the Plan; provided, however, that nothing herein contained
shall restrict the right to amend the provisions hereof relating
to the administration of the Plan and Trust. Moreover, no
amendment shall be made hereunder which shall permit any part of
the Trust property to revert to any Employer or be used for or be
diverted to purposes other than the exclusive benefit of
Employees, Eligible Employees, Participants, Terminated
Participants, Retired Participants and persons claiming under or
through them pursuant to the Plan.
14.3 Termination. The Company reserves the right, by action
of its Board of Directors, to terminate the Plan as to all
Employers at any time, which termination shall become effective
upon notice in writing to the Trustee (the effective date of such
termination being hereinafter referred to as the "termination
date"). The Plan shall terminate automatically if there is a
complete discontinuance of contributions hereunder by all
Employers. Upon any such termination of the Plan, the Trustee
and the Company shall take the following actions for the benefit
of Participants, Terminated Participants, Retired Participants,
and Beneficiaries:
(a) As of the termination date, the Trustee shall value the
Funds hereunder, and the Plan Administrator shall adjust all
Separate Accounts accordingly. The termination date shall
become a valuation date. In determining the net worth of
the Funds hereunder, the Trustee shall include as a
liability such amounts as in its judgment shall be necessary
to pay all expenses in connection with the termination of
the Trust and the liquidation and distribution of the Trust
property, as well as other expenses, whether or not accrued.
and shall include as an asset all accrued income.
(b) The Trustee, upon instructions from the Plan
Administrator, shall then segregate and, subject to
applicable provisions of the Code relating to distribution
of Before-Tax Contributions, distribute an amount equal to
the entire interest of each Participant, Terminated
Participant, Retired Participant and Beneficiary in the
Funds to or for the benefit of each such Participant or
Beneficiary in accordance with the provisions of Section
10.2.
Notwithstanding anything to the contrary contained herein,
upon any such Plan termination, the interest of any Participant
and Beneficiary shall become fully vested and nonforfeitable;
and, if there is a partial termination of the Plan within the
meaning of the Code, the interest of each Participant and
Beneficiary who is affected by such partial termination shall
become fully vested and nonforfeitable.
14.4 Withdrawal of an Employer. An Employer other than the
Company may, by action of its board of directors, withdraw from
the Plan, such withdrawal to be effective upon notice in writing
to the Company and shall thereupon cease to be an Employer for
all purposes of the Plan. An Employer shall be deemed
automatically to withdraw from the Plan in the event of its
complete discontinuance of contributions or (subject to the
provisions of Section 14.5) in the event it ceases to be a
Subsidiary.
14.5 Corporate Reorganization. The merger, consolidation,
or liquidation of the Company or any Employer with or into the
Company or any other Employer shall not constitute a termination
of the Plan as to the Company or such Employer.
<PAGE>
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 No Commitment as to Employment. Nothing herein
contained shall be construed as a commitment on the part of any
Employer to continue the employment or rate of compensation of
any Employee hereunder for any period.
15.2 Rights to Trust Assets. Nothing in the Plan shall be
construed to confer any right or claim upon any person other than
the parties hereto, Participants, Terminated Participants,
Retired Participants and Beneficiaries. All payments of benefits
as provided in the Plan shall be made solely out of the assets of
the Trust. and none of the fiduciaries shall be liable therefor
in any manner.
15.3 Precedent. Except as otherwise specifically provided
or required by law, no action taken in accordance with the terms
of the Plan, by an Employer, the Company, or any fiduciary for
the Plan, shall be construed or relied upon as a precedent for
similar action under similar circumstances.
15.4 Duty to Furnish Information. Each of the Employers,
the Company, or the Trustee shall furnish to any of the others
any documents, reports, returns, statements, or other information
that any other reasonably deems necessary to perform its duties
imposed hereunder or otherwise imposed by law.
15.5 Merger, Consolidation, or Transfer of Plan Assets. The
Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another
plan, unless, immediately after such merger, consolidation, or
transfer of assets or liabilities, each Participant, Terminated
Participant, Retired Participant or Beneficiary will receive a
benefit which is at least equal to the benefit he was entitled to
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (if the plan had then terminated).
15.6 Return of Contributions to Employers. If a Before-Tax
Contribution or a Matching Contribution
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the Contribution under
Section 404 of the Code and such deduction is disallowed, or
(c) is conditioned upon initial qualification of the Plan
under Section 401(a) of the Code and the Plan does not so
qualify,
such a Contribution may be returned to the Employers within one
year after the mistaken payment of the contribution, the
disallowance of the deduction (to the extent disallowed), or the
date of denial of the qualification of the Plan, whichever is
applicable. For this purpose, all Contributions made by the
Employers are expressly declared to be conditioned upon their
deductibility under Section 404 of the Code and the qualification
of the Plan.
15.7 Filing of Notices and Plan Information. Any Plan forms
to be filed with the Plan shall be mailed by first-class mail or
otherwise delivered to the BP America Participant Service Center
at the following address:
BT Services Tennessee, Inc.
Bankers Trust New York Corp.
P. O. box 305049
Nashville, TN 37230-5049
Such forms must be actually received by the applicable due date
under the Plan. Any Plan notices or communications to be filed
with the Plan Administrator or Named Fiduciary shall be mailed by
first-class mail or otherwise delivered to such individual at 200
Public Square, Cleveland, Ohio 44114-2375. Legal notices shall
be directed to the Corporate Secretary, BP America Inc., 200
Public Square, Cleveland, Ohio 44114-2375.
15.8 Governing Law. Except as provided under federal law,
the provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.
15.9 Restriction on Alienation. Except as provided in
Sections 401(a)(13)(B) and 414(p) of the Code relating to
qualified domestic relations orders or as otherwise provided
under Section 401(a)(13) of the Code and related regulations, no
benefit under the Plan at any time shall be subject in any manner
to anticipation, alienation, assignment (either at law or in
equity), encumbrance, garnishment, levy, execution, or other
legal or equitable process. No person shall have power in any
manner to anticipate, transfer, assign (either at law or in
equity), alienate, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void. If by reason of any attempt
by a Participant, Terminated Participant, Retired Participant or
Beneficiary to alienate, sell, transfer, assign, pledge, encumber
or otherwise dispose of any right or interest under the Plan, or
if by reason of bankruptcy or insolvency or because of any
attachment, garnishment or other proceeding or, any order,
finding or judgment of any court, either in law or in equity,
prior to the actual transfer and delivery of such right or
interest to such Participant or Beneficiary, such right or
interest except for this Section would be payable to, or enjoyed
by some person, firm, or corporation other than such Participant
or Beneficiary, then any such right or interest shall cease, and
thereafter the Trustee, upon the direction of the Plan
Administrator, shall from time to time as and when payments would
otherwise (except for this Section) become due and payable to
such Participant or Beneficiary, pay or deliver to or expend for
the use and benefit of such Participant or Beneficiary or to or
for the use of any person dependent upon such Participant for
support from any amount which would have been payable or
distributable to such Participant or Beneficiary, except for this
Section, such sums as the Plan Administrator in its sole
discretion may deem necessary or advisable for his support or for
the support of any one dependent upon him. At the time when,
except for this Section, final payment would be required to be
made to such Participant or Beneficiary, there shall be paid to
such Participant or Beneficiary only so much of the balance
remaining to his credit under the Plan as the Plan Administrator,
in the exercise of its sole discretion, may direct and the
remainder thereof, if any, shall be paid over and delivered to
his spouse, if any, or if none, to his children, if any, in equal
shares. If there is no spouse or children of such Participant or
Beneficiary alive at such time, the Trustee shall pay and deliver
any portion of any such remaining balance which is not paid to
such Participant or Beneficiary to the estate of such Participant
or Beneficiary.
15.10 Adoption by Subsidiaries. Any Subsidiary of the
Company which at the time is not an Employer may, with the
consent of the Board of Directors of the Company, adopt the Plan
and become an Employer hereunder. An appropriate written
instrument evidencing such adoption shall be executed and filed
with the Company.
15.11 Rollovers to Other Plans or IRAs. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
Definitions:
(1) Eligible Rollover Distribution. An Eligible Rollover
Distribution is any distribution of all or any portion
of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not
include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the
Distributee's beneficiary, or for a specified period of
ten years or more;
(b) any distribution to the extent such distribution
is required under Code Section 401(a)(9); and
(c) the portion of any distribution that is not
includable in gross income (determined without regard
to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible Retirement Plan. An Eligible Retirement Plan
is an individual retirement account described in Code
Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the
Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee. A Distributee includes a Participant,
Retired Participant or Terminated Participant. In
addition, the Participant's, Retired Participant's or
Terminated Participant's surviving spouse, or former
spouse who is the alternate payee under a qualified
domestic relations order as defined in Code Section
414(p), are Distributees with regard to the interest of
the spouse or former spouse.
(4) Direct Rollover. A Direct Rollover is a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
15.12 Administrative Corrections. The Plan
Administrator or the Named Fiduciary, as appropriate, may take
reasonable actions, consistent with applicable law, as may be
necessary to correct any omissions, defects, or inconsistencies
in the operation or administration of the Plan.
<PAGE>
ARTICLE XVI
TOP-HEAVY PROVISIONS
16.1 Applicability. Notwithstanding any other provision to
the contrary, in the event the Plan is deemed to be a top-heavy
plan for any Plan Year, the provisions contained in this Article
XVI with respect to vesting and Matching Contributions shall be
applicable with respect to such Plan Year. In the event the Plan
is determined to be a top-heavy plan and upon a subsequent
Determination Date is determined to no longer be a top-heavy
plan, the vesting and the Employer contribution provisions in
effect immediately preceding the Plan Year in which the Plan was
determined to be a top-heavy plan shall again become applicable
as of such subsequent Determination Date; provided, however, that
in the event such prior vesting schedule does again become
applicable, the provisions of Section 7.4 and Section 14.2 shall
apply (i) to preserve the nonforfeitable accrued benefit of any
Participant or Beneficiary and (ii) to permit in accordance with
Section 7.4, a Participant to elect to continue to have his
nonforfeitable interest in his Employer contributions determined
in accordance with the vesting schedule applicable while the Plan
was a top-heavy plan.
16.2 Top-Heavy Definitions. For purposes of this Article
XVI, the following definitions shall apply:
(a) The term "Determination Date" with respect to any Plan
Year shall mean the last day of the preceding Plan Year.
(b) The term "Determination Period" shall mean the Plan
Year containing the Determination Date or the four preceding
plan years.
(c) The term "Key Employee" shall mean any Employee or
former Employee (and the beneficiaries of such Employee) who
at any time during the Determination Period was an officer
of the Company if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the
Company if such individual's compensation exceeds 100
percent of the dollar limitation under Code Section
415(c)(1)(A), a 5-percent owner of the Company, or a one-
percent owner of the Company who has an annual compensation
of more than $150,000. For purposes of this definition, the
term "compensation" has the meaning given to such term by
Code section 414(q)(7).
(d) The term "Non-Key Employee" shall mean any Participant
who is not a Key Employee.
(e) The term "Permissive Aggregation Group" shall mean
those plans not included in an Employers Required
Aggregation Group in conjunction with any other plan or
plans of such Employer, so long as the entire group of plans
would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(f) The term "Required Aggregation Group" shall include (i)
all plans of an Employer in which a Key Employee is a
participant and (ii) all other plans of an Employer which
enable a plan described in clause (i) hereof to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(g) A "Super Top-Heavy Group" with respect to a particular
Plan Year shall mean a Required or Permissive Aggregation
Group that, as of the Determination Date, would qualify as a
top-heavy group under the definition in paragraph (h) of
this Section 16.2 with "90 percent" substituted for "60
percent" each place where "60 percent" appears in such
definition.
(h) The term "Super Top-Heavy Plan" with respect to a
particular Plan Year shall mean a plan that, as of the
Determination Date, would qualify as a top-heavy plan under
the definition in paragraph (i) of this Section 16.2 with
"90 percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also a
"Super Top-Heavy Plan" if it is part of a Super Top-Heavy
Group.
(i) The term "top-heavy group" with respect to a particular
Plan Year shall mean a required or a Permissive Aggregation
Group if the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
group and the aggregate of the account balances of Key
Employees under all defined contribution plans included in
such group exceeds 60 percent of a similar sum determined
for all employees covered by the plans included in such
group.
(j) The term "top-heavy plan" with respect to a particular
Plan Year shall mean (i), in the case of a defined
contribution plan, a plan for which, as of the Determination
Date, the aggregate of the accounts (within the meaning of
Section 416(g) of the Code and the regulations thereunder)
of Key Employees exceeds 60 percent of the aggregate of the
accounts of all Participants under the plan, with the
accounts valued as of the relevant Valuation Date, (ii) in
the case of a defined benefit plan, a plan for which, as of
the Determination Date, the present value of the cumulative
accrued benefits payable under the plan (within the meaning
of Section 416(g) of the Code and the regulations
thereunder) to Key Employees exceeds 60 percent of the
present value of the cumulative accrued benefits under the
plan for all employees, with present value of accrued
benefits to be determined in accordance with the actuarial
assumptions specified in such defined benefit plan, and
(iii) a plan that is part of a top-heavy group. For
purposes of this paragraph, a Participant's accrued benefit
in a defined benefit plan will be determined under a uniform
accrual method applied under all defined benefit plans
maintained by the Company or an Affiliate or, where there is
no such method, as if such benefit accrued not more rapidly
than the slowest rate of accrual permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
Notwithstanding the foregoing provisions of this paragraph,
however, a plan shall be deemed not to be a top-heavy plan
if it is part of a required or Permissive Aggregation Group
that is not a top-heavy group.
(k) The term "Valuation Date" shall mean the most recent
valuation date within a twelve-month period ending on the
Determination Date.
16.3 Accelerated Vesting. In the event the Plan is
determined to be a top-heavy plan with respect to any Plan Year,
a Participant who is not vested in his Separate Accounts
attributable to Matching Contributions in accordance with the
provisions of Article VII shall be eligible to receive a
nonforfeitable percentage of Matching Contributions allocated to
his Separate Accounts which shall be determined by application of
the following vesting schedule:
Years of Vesting Service Nonforfeitable Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
An involuntary cash-out shall not be an amount less than the
present value of a Participant's entire employer-derived non-
forfeitable benefit at the time of the distribution.
16.4 Minimum Matching Contribution. In the event the Plan
is determined to be a top-heavy plan with respect to any Plan
Year, the Matching Contributions allocated to the Separate
Accounts of each Non-Key Employee who is a Participant and who is
not separated from service with the Employer as of the end of
such Plan Year shall be no less than the lesser of (a) three
percent of his compensation or (b) the largest percentage of
compensation that is allocated for such Plan Year to the Separate
Accounts of any Key Employee, provided that, in the event the
Plan is part of a Required Aggregation Group, and the Plan
enables a defined benefit plan included in such group to meet the
requirements of Section 401(a)(4) or 410 of the Code, the minimum
allocation of Matching Contributions to the Separate Accounts of
each Non-Key Employee shall be three percent of the compensation
of such Non-Key Employees, and provided further that, if the
highest rate allocated to any Key Employee is less than three
percent, amounts contributed as a result of a salary reduction
agreement must be included in determining contributions made on
behalf of Key Employees. Any minimum allocation to the Separate
Accounts of a Participant required by this Section 16.4 shall be
made without regard to any social security contribution made by
the Employer on behalf of the Participant and without regard to
whether or not a Non-Key Employee withdraws his Before Tax or
After Tax Contributions. This minimum allocation shall be made
for a Non-Key Employee who has not separated from service at the
end of the Plan Year, regardless of whether the Non-Key Employee
has less than 1000 hours for the year. Notwithstanding the
minimum top-heavy allocation requirements of this Section 16.4,
in the event that the Plan is a top-heavy plan, each Non-Key
Employee hereunder who is also covered under a top-heavy defined
benefit plan maintained by an Employer will receive the top-heavy
benefits provided for under such defined benefit plan in lieu of
the minimum top-heavy allocation under the Plan.
16.5 Adjustments to Section 415 Limitations.
Notwithstanding the provisions of Section 4A, in the event that
the Plan is a top-heavy plan and the Employer maintains a defined
benefit plan covering some or all of the employees that are
covered by the Plan, Section 415(e)(2)(B) and 415(e)(3)(B) of the
Code shall be applied to the Plan by substituting "1.0" for
"1.25" and Section 415(e)(6)(B)(i) of the Code shall be applied
to the Plan by substituting "$41,500" for "$51,875", except that
such substitutions shall not be applied to the Plan if (a) the
Plan is not a Super Top-Heavy Plan and (b) each Non-Key Employee
who is a Participant, who also participates in a defined benefit
plan maintained by an Employer, will receive a defined benefit
minimum top-heavy benefit of three percent per year of service
(up to 30%), and (c) each Non-Key Employee who is a Participant
who does not participate in a defined benefit plan maintained by
an Employer will receive a defined contribution minimum
allocation of four percent of compensation.
* * *
This amendment and restatement of the BP America Capital
Accumulation Plan was executed at Cleveland, Ohio, this 19th day
of February, 1996.
BP AMERICA INC.
By
Felix R. Strater
Vice President, Human
Resources
BP Exploration & Oil Inc.
Plan Administrator
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
January 1, 1994
The following groups have been designated by the Board of
Directors as employment classifications eligible for
participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP America Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
Kaldair salaried staff (full-time, part-
time & regular part-time)
BP Chemicals Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
BP Performance Polymers salaried staff
(full-time, part-time & regular part-
time)
Green Lake and Lima salaried staff
(full-time, part-time & regular part-
time)
Green Lake and Lima union hourly
BP Exploration Alaska salaried staff (full-time, part-
time & regular part-time)
North Slope salaried staff (full-time,
part-time & regular part-time)
North Slope hourly
Houston salaried staff (full-time, part-
time & regular part-time)
Colombia salaried staff (full-time,
part-time & regular part-time)
Interns and Co-ops
BP Oil Salaried staff (full-time, part-time &
regular part-time)
Secondees
Interns and Co-ops
Salaried staff (full-time, part-time &
regular part-time) of:
Air BP
ANS Trading & Transportation
BP Marine
Manufacturing and Supply
Oil Traders International
Pipelines
Refining
Retail
Terminals and Distribution (T&D)
Air BP hourly
Lima Refinery clerical union hourly
Pipeline hourly
Terminals & Distribution hourly
Gibbs hourly
Carborundum Chief Executive
TERMINATED EMPLOYEE GROUPS:
BP America Alternate Fuels Technology salaried
staff (full-time, part-time & regular
part-time)
Alternate Energy Development salaried
staff (full-time, part-time & regular
part-time)
BP Chemicals BP Performance Polymers of Rockport and
Visalia salaried staff (full-time, part-
time and regular part-time)
Filon/Silmar salaried staff (full-time,
part-time & regular part-time)
Salaried staff of Filon/Silmar
Covington, Hawthorne and Jonesboro
(full-time, part-time & regular part-
time)
BP Coal Mingo-Logan
Salaried staff of Basin Resources,
Blossom Coal, BP Coal, BP Coal America,
Franklin Coal, Franklin Coal Sales,
Hinch Coal, Kitt Energy, Mingo-Logan,
Old Ben, Old Ben Coal Sales, Pike Coal
(full-time, part-time and regular part-
time)
BP Exploration Tex-Con salaried staff (full-time, part-
time & regular part-time)
Tex-Con hourly
BP Oil Ferndale Refinery salaried staff (full-
time, part-time & regular part-time)
Lake Charles Calciner salaried staff
and hourly
Mountaineer Carbon salaried staff and
hourly
Truckstops of America salaried staff
(full-time, part-time & regular part-
time)
Truckstops of America general managers
Truckstops of America Profit Center
managers - RRA
West Coast service station managers and
assistant managers - RRA
West Coast Terminals salaried and
hourly
BP Minerals Amselco salaried
Kennecott salaried
Carborundum Applied Composites St. Charles salaried
staff
DWA Composite Salaried staff (full-time, part-time &
Specialties regular part-time)
Industrial Products Chase Brass salaried staff
<PAGE>
APPENDIX B
INVESTMENT FUNDS
January 1, 1996
Company Stock Fund. The assets of the Company Stock Fund
shall be invested solely in Company Stock. Company Stock shall
be purchased on the open market or shall be acquired through the
support of newly issued Ordinary Shares of the Company's ultimate
parent, the British Petroleum Company, p.l.c. ("BP"), in
accordance with any procedures which may be established by the
Named Fiduciary. Any purchase of Company Stock on the open
market shall be made only for fair market value as determined by
the Trustee, and any acquisition of Company Stock supported by
newly issued BP Ordinary Shares shall be made only for adequate
consideration. No commission shall be charged or paid with
respect to any acquisition or sale of Company Stock, except in
the case of Company Stock purchased or sold on a registered
national securities exchange. Except as may otherwise be agreed
to by the Named Fiduciary, any acquisition of Company Stock
resulting from the initial investment of Matching Contributions
shall be acquired through the support of newly issued BP Ordinary
Shares using the closing price of Company Stock on the New York
Stock Exchange on the last trading day of the calendar quarter to
which the Matching Contributions relate.
Fixed Income Fund. The Fixed Income Fund shall consist of
assets which are invested or held for investment intended to
provide a fixed rate of return including, but not limited to,
those governmental or corporate obligations, trust and
participation certificates and mortgages, insurance contracts
and/or bank contracts which provide for the repayment of funds
invested plus a fixed rate of interest. The Trustee may also, as
directed by the Named Fiduciary from time to time, purchase third
party bonds, guarantees or other forms of insurance on any and
all investments in the Fixed Income Fund and may purchase or hold
property in a short-term investment fund consisting of, but not
limited to, short term notes, debentures, Treasury bills, savings
bond deposits, commercial paper, and any other property for which
the maturity is fixed for a period of time not in excess of 12
months, or a collective trust comprised of such securities
provided such trust is maintained for trusts which form parts of
a pension or profit-sharing plan qualified under the Code. To
the extent that any such assets are so invested in a collective
trust, the instrument establishing the collective trust and the
trust maintained thereunder shall be a part of the Plan and
Trust.
INVESCO Total Return Fund. The INVESCO Total Return Fund
seeks to achieve a high total return on investment through
capital appreciation and current income by investment in a
combination of equity securities and fixed income securities.
Above all, the Fund's objective is to achieve reasonably
consistent total returns over up and down market cycles.
The Windsor Fund. The Windsor Fund is a mutual fund which
seeks long-term growth of capital and income. As a secondary
objective, it seeks a reasonable level of current income. The
Windsor Fund is a value-oriented growth fund seeking investment
opportunities in stocks that are out of favor or undervalued.
The Fund's manager attempts to identify securities with good
return potential based on earnings power and growth potential,
but which are also available at low prices relative to current
earnings. The Windsor Fund is part of the Vanguard Group and is
managed by Wellington Management Company.
The Quantitative Fund. The Quantitative Fund is a mutual
fund which seeks a total return greater than that of the U.S.
stock market as measured by the S&P 500 market index, while
maintaining a risk posture similar to that of the index. It
invests in a broadly diversified group of common stocks having
investment characteristics similar to the stocks represented in
the S&P 500 but with emphasis on stocks that the Fund's manager
considers to be undervalued by the market. The Quantitative Fund
is part of the Vanguard Group and is managed by Franklin
Portfolio Associates, Inc.
Fidelity Blue Chip Growth Fund. The Fidelity Blue Chip
Growth Fund seeks to achieve long-term capital appreciation from
a portfolio of equity securities issued by established,
recognized companies that are experiencing growth.
J. P. Morgan Institutional International Equity Fund. The
J. P. Morgan Institutional International equity Fund seeks to
provide a high total return from a portfolio of equity securities
(stocks) of foreign corporations. The fund assumes a long-term
investment horizon to pursue its objective.
<PAGE>
Exhibit 4(d)
THE BP AMERICA
DIRECTSAVE PLAN
(Amended and Restated Effective as of January 1, 1994)
FEBRUARY 1996 PLAN No. 033
<PAGE>
PREAMBLE
The Internal Revenue Service (IRS) issued a favorable
determination letter dated February 5, 1996 with regard to the
Plan, provided that certain proposed amendments reviewed by the
IRS are adopted and made effective as of January 1, 1994 or other
dates as required by law. All such required amendments have been
incorporated into the Plan as amended and restated herein.
<PAGE>
AMENDMENT TO
BP AMERICA DIRECTSAVE PLAN
PLAN 033
WHEREAS, BP America Inc. (the "Company") maintains the BP America
DirectSave Plan (the "Plan");
WHEREAS, pursuant to Article XIII of the Plan, the Company has
the authority to amend the Plan, subject to its provisions;
NOW THEREFORE, Section 14.5, Merger, Consolidation or Transfer of
Plan Assets is hereby amended by addition of the following
paragraph:
Effective June 1, 1998, a Participant who no longer
contributes to the Plan, and who has an account under either
the BP America Partnership Savings Plan ("PSP") or the BP
America Capital Accumulation Plan ("CAP") to which the
Participant is currently eligible to make contributions, or
to which the Participant made contributions immediately
prior to terminating employment or retiring, may voluntarily
elect to irrevocably transfer the balance of his accounts in
the Plan to either PSP or CAP, as applicable. This
voluntary election will be made available within sixty days
of the Participant becoming eligible for such transfer or at
any time thereafter.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By:
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA DIRECTSAVE PLAN
Plan No. 033
WHEREAS, BP America Inc. (the "Company"), desires to amend
the BP America DirectSave Plan (the "Plan") to implement certain
changes to the Investment Funds established and maintained under
the terms of the Plan and to clarify certain terms used in the
Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Appendix B, Investment Funds, is hereby amended as
follows:
a. Effective July 1, 1997, the following descriptions of
two new investment funds available to Participants are added
to Appendix B:
The Wellesley Income Fund is a mutual fund that seeks
to provide a high level of income, long-term growth of
income and moderate long-term growth of capital. The
fund's assets are divided between bonds and common
stocks. It is offered and managed by the Vanguard
Group.
The Index Trust - Small Capitalization Stock Portfolio
("Small Cap Portfolio") is a mutual fund that holds
stocks of small U. S. companies, seeking to provide the
long-term investment growth of small-sized companies
with results that parallel the performance of the
unmanaged Russell 2000 Small Stock Index. The Small
Cap) Portfolio is offered and managed by the Vanguard
Group.
b. Effective July 1, 1997, The Quantitative Fund has been
renamed "The Growth and Income Portfolio."
c. Effective October 1, 1997, The Fixed Income Fund has
been renamed "The Income Fund."
2. To clarify the Company's long-standing practice and
intent, the definition of "Employee in Section 1.1(19) is hereby
amended by addition of the following:
Further, the term "Employee" shall not include a person who
is a resident or nonresident alien of the United States and
who performs services under an expatriate or temporary duty
policy of the Company or an Affiliate.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 19th day of December,
1997.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
By
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
THE DIRECTSAVE PLAN
THIS AMENDMENT to the DirectSave Plan (the "Plan") made by BP
America Inc. (the "Company"), effective April 1, 1996;
WITNESSETH THAT:
Section 11.8(a) is hereby be amended in the entirety to read as
follows:
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company. The
Company may determine that such costs and expenses shall be
paid from assets of the Plan, to the extent available;
provided, however, that such payments shall not reduce the
amounts already allocated to the Separate Account of any
Participant or the earnings already accrued on any such
Separate Account.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the day and year first above written.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
AMENDMENT TO THE
BP AMERICA DIRECTSAVE PLAN
THIS AMENDMENT to the BP America DirectSave Plan (the "Plan")
made by BP America Inc. (the "Company");
WITNESSETH THAT:
In order to clarify the Company's long-standing practice and
intent, particularly with regard to eligibility under the Plan
and responsibilities of the Plan Administrator, the definition of
"Employee" in Section 1.1(19) is hereby amended by addition of
the following:
The term "Employee" shall not include any individual
retained by the Employer directly or through an agency to
perform services for the Company or an Affiliate (for either
a definite or indefinite duration) in the capacity of a fee-
for-service worker or independent contractor or any similar
capacity including, without limitation, any such individual
who is or has been determined by a government entity, court,
arbitrator or other third party to be an employee of the
Company or an Affiliate for any purpose including tax
withholding, employment tax, employment law or for purposes
of any other employee benefit plan of the Company or an
Affiliate. For this purpose, the term "fee-for-service
worker," is not a specific term but is meant to be
interpreted broadly in a generic sense.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan as of the 20th day of December, 1996.
By
S. W. Percy
Chief Executive Officer
<PAGE>
TABLE OF CONTENTS
Section Page No.
ARTICLE I DEFINITIONS 2
1.1 Definitions 2
1.2 Grammatical References 9
ARTICLE II ELIGIBILITY AND PARTICIPATION 10
2.1 Eligibility Requirements 10
2.2 Reemployment 10
2.3 Service in Non-Employee Capacity 11
2.4 Election to Participate 11
ARTICLE III CONTRIBUTIONS 13
3.1 Before-Tax Contributions 13
3.2 After-Tax Contributions 13
3.3 Coordination of Before-Tax and After-Tax Contributions 14
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS 15
4A. Code Section 415 15
4A.1 Code Section 415 Governs 15
4A.2 Definitions 15
4A.3 Limitations on Contributions 17
4A.4 Defined Benefit Plan Coverage 17
4A.5 Elimination of Excess Annual Additions 18
4B. Code Sections 402(g), 401(K) and 401(m) 19
4B.1 Code Section 402(q) Limit 19
4B.3 Correction of Excesses 22
4B.4 Special Rules 23
ARTICLE V ESTABLISHMENT OF SEPARATE ACCOUNTS AND ADMINISTRATION
OF CONTRIBUTIONS 24
5.1 Separate Accounts 24
5.2 Account Balances 24
5.3 Notification 24
5.4 Delivery of Contributions 25
5.5 Crediting of Contributions 25
5.6 Changes in Reduction and Deduction Authorizations 26
5.7 Suspension of Contributions 26
ARTICLE VI ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF
CONTRIBUTIONS 27
6.1 Establishment of Investment Funds 27
6.2 Investment Direction of Contributions 27
6.3 Investment of Contributions 27
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
6.4 Election of Participants to Transfer Invested Amounts 28
ARTICLE VII VESTING 29
7.1 Vesting in Service Bonus Contributions 29
7.2 Reemployment 29
7.3 Vesting in Before-Tax and After-Tax Contributions 30
7.4 Election of Former Vesting Schedule 30
ARTICLE VIII WITHDRAWALS WHILE EMPLOYED 31
8.1 Withdrawal of After-Tax Contributions 31
8.2 Withdrawal of Before-Tax Contributions 31
8.3 Withdrawal on Account of Permanent and Total Disability 32
8.4 No Withdrawal of Service Bonus Contributions 33
ARTICLE IX DISTRIBUTIONS UPON RETIREMENT OR OTHER TERMINATION OF
EMPLOYMENT 34
9.1 Eligibility for Distribution 34
9.2 Distributions 34
9.3 Forms of Distributions 35
9.4 Payments to Incompetents or Minors 35
9.5 Limitations on Commencement and Distribution of Benefit
Payments 35
ARTICLE X BENEFICIARIES 38
10.1 Designation of Beneficiary 38
10.2 Beneficiary in the Absence of Designated Beneficiary 38
10.3 Spousal Consent to Beneficiary Designation 39
ARTICLE XI ADMINISTRATION 40
11.1 Plan Administrator and Named Fiduciary 40
11.2 Duties of Plan Administrator and Named Fiduciary 40
11.3 Rules and Regulations 43
11.4 Trust Agreement and Trustee 43
11.5 Determination of Benefits and Claims Review 44
11.6 Agency 44
11.7 Records Conclusive 44
11.8 Expenses 45
11.9 Qualified Domestic Relations Orders 45
ARTICLE XII ASSETS HELD BY TRUSTEE 46
12.1 Assets Held by Trustee 46
12.2 Options, Rights, or Warrants 46
12.3 Voting Rights 47
12.4 Cost and Proceeds of Securities Transactions 48
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
12.5 Brokerage Changes 48
ARTICLE XIII AMENDMENT AND TERMINATION 49
13.1 Amendments 49
13.2 Limitation of Amendments 49
13.3 Termination 49
13.4 Withdrawal of an Employer 50
13.5 Corporate Reorganization 51
ARTICLE XIV MISCELLANEOUS PROVISIONS 52
14.1 No Commitment as to Employment 52
14.2 Rights to Trust Assets 52
14.3 Precedent 52
14.4 Duty to Furnish Information 52
14.5 Merger, Consolidation, or Transfer of Plan Assets 53
14.6 Return of Contributions to Employers 53
14.7 Filing of Notices and Plan Information 54
14.8 Governing Law 54
14.9 Restriction on Alienation 54
14.10 Adoption by Subsidiaries 56
14.11 Rollovers to Other Plans or IRAs 56
14.12 Administrative Corrections 57
ARTICLE XV TOP-HEAVY PROVISIONS 58
15.1 Applicability 58
15.2 Top-Heavy Definitions 58
15.3 Accelerated Vesting 60
15.4 Minimum Service Bonus Contribution 61
15.5 Adjustments to Section 415 Limitations 62
Appendix A Covered Employment Classification 64
Appendix B Investment Funds 1
<PAGE>
The BP America DirectSave Plan
(Amended and Restated Effective as of January 1, 1994)
WHEREAS, the Company and its predecessors adopted and
established a profit-sharing and savings plan (known as the
Service Station Savings Plan B) as of April 1, 1988, for the
exclusive benefit of eligible employees of the Company and
participating subsidiaries of the Company with the purposes of
encouraging savings by employees and assisting in providing
retirement income; and
WHEREAS, that plan has been amended and restated, most
recently as of January 1, 1992, wherein the plan was renamed the
BP America DirectSave Plan (hereinafter referred to as the
'Plan"); and
WHEREAS, effective as of January 1, 1992, hourly employees
of Truckstops of America became eligible to participate in the
Plan, and the accounts of those employees were transferred to the
Plan from The Truckstops of America Savings Plan.
NOW, THEREFORE, the Company hereby amends and restates the
Plan as of January 1, 1994, and, where applicable, effective
retroactively to such other dates as required by law or indicated
herein, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words and phrases used
herein shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(1) The term "Act" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(2) The term "Affiliate" shall mean any member of any
of the following groups if such group includes the Company
(but a member of such a group shall be considered an
"Affiliate" only during the period in which it was or has
been such a member): (a) a controlled group of corporations
within the meaning of Section 414(b) of the Code; (b) a
group of trades or businesses (whether or not incorporated)
that are under common control within the meaning of Section
414(c) of the Code; (c) an affiliated service group within
the meaning of Section 414(m)(2) of the Code; (d) an
affiliated service group within the meaning of Section
414(m)(5) of the Code; or (e) any other group required to be
aggregated with the Company pursuant to regulations under
Section 414(o) of the Code.
(3) The term "Affiliated Group" shall mean the group
of entities which are Affiliates.
(4) The term "After-Tax Account" shall mean the
Separate Account to which the After-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.5.
(5) The term "After-Tax Contributions" shall mean
contributions made by a Participant to the Plan in
accordance with the provisions of Section 3.2.
(6) The term "Base Pay" Shall mean the regular wages
paid to an Employee for normally prescribed hours and Before-
Tax Contributions made under this Plan, but generally
excluding overtime, premiums, bonuses and living or other
allowances. The Plan Administrator shall review the pay
practices of various operations covered by the Plan in
determining Compensation, and such determination shall be
conclusive. In no event, however, shall Compensation be
less than the applicable required minimum wage as in effect
from time to time.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the
Plan to the contrary, (i) for Plan Years beginning on or
after January 1, 1989, the Base Pay of each employee taken,
into account under the Plan shall not exceed an annual
compensation limit of $200,000; and (ii) for Plan Years
beginning on or after January 1, 1994, the Base Pay of each
employee taken into account under the Plan shall not exceed
an annual compensation limit of $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17). The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar
year. If a determination period for the Plan as a whole
consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12. In determining the Base
Pay of an Employee for purposes of this limitation, the
rules of Code Section 414(q)(6) shall apply, except that in
applying such rules, the term family shall include only the
spouse of the Employee and any lineal descendants of the
Employee who have not attained age 19 before the close of
the Plan Year.
(7) The Term "Before-Tax Account" shall mean the
Separate Account to which the Before-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.5.
(8) The term "Before-Tax Contributions" shall mean the
contributions made on behalf of a Participant in accordance
with the provisions of Section 3.1 and of Section 401(k) of
the Code.
(9) The term "Beneficiary" shall mean the person or
persons who, in accordance with the provisions of Article X
hereof, shall be entitled to receive distribution hereunder
in the event a Participant, Terminated Participant or
Retired Participant, dies before his interest under the Plan
shall have been distributed to him in full.
(10) The term "Board of Directors" shall mean the Board
of Directors of the Company, such committee of the Board of
Directors or such officer, officers, or other employees of
the Company duly authorized by the Board of Directors to act
on its behalf with respect to the Plan.
(11) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
(12) The term "Company" shall mean BP America Inc., a
Delaware corporation, its corporate successors, and the
surviving corporation resulting from any merger or
consolidation of BP America Inc. with any other corporation
or corporations.
(13) The term "Company Stock" shall mean American
Depositary Shares (each representing a number of ordinary
shares) of The British Petroleum Company, p.l.c.
(14) The term "Company Stock Fund" shall mean the Fund
established and maintained pursuant to the provisions of
Section 6.1.
(15) The term "Effective Date" shall mean January 1,
1989, or such other dates as required by law or set forth
herein..
(16) The term "Eligibility Date" shall mean the
earliest date on which an Employee becomes an Eligible
Employee in accordance with the provisions of Article 11.
(17) The term "Eligibility Service" shall mean the
period of service with which an Employee is credited in
accordance with the provisions of Section 2.1 for the
purpose of determining his eligibility to participate in the
Plan.
(18) The term "Eligible Employee" shall mean an
Employee of an Employer who is employed on or after the
Effective Date in an employment classification listed in
Appendix A and is eligible to participate in the Plan in
accordance with the provisions of Article II.
(19) The term "Employee" shall mean any common law
employee of the Company or an Affiliate, in an employment
classification listed in Appendix A, excluding any person
who renders service to an Employer solely as a director or
an independent contractor, any casual employee or any person
who is a nonresident alien and who receives no earned income
within the meaning of Code Section 911(d)(2) from an
Employer which constitutes income from sources within the
United States, as defined in Code Section 861(a)(3).
(20) The term "Employer" shall mean the Company or any
Subsidiary which adopts the Plan as herein provided, so long
as the Subsidiary has not withdrawn from the Plan. The term
"Employer" shall also include The British Petroleum Company,
p.l.c., or one of its subsidiaries; provided, however, that
employment with any of these companies is preceded
immediately by employment with the Company or a Subsidiary
as described in the foregoing sentence.
(21) The term "Employment Commencement Date" shall mean
the first date on which an Employee completes an Hour of
Service.
(22) The term "Financial Hardship" shall mean an
immediate and heavy financial need of a Participant which
satisfies the requirements of Section 401(k) of the Code and
regulations issued thereunder.
(23) The term "Fund" shall mean any of the funds
established and maintained in accordance with the provisions
of Article VI.
(24) The term "Highly Compensated Employee" shall
include highly compensated active employees and highly
compensated former employees.
A highly compensated active employee includes any employee
who performs service for an Employer during the
determination year and who, during the look-back year: (i)
received compensation from the employer in excess of $75,000
(as adjusted pursuant to Code Section 415(d)); (ii) received
compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member
of the top-paid group for such year; or (iii) was an officer
of the employer and received compensation during such year
that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). The term Highly
Compensated Employee also includes: (i) employees who are
both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 100 employees who
received the most compensation from the employer during the
determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation requirement of
(iii) above during either a determination year or look-back
year, the highest paid officer for such year shall be
treated as a Highly Compensated Employee. For this purpose,
the determination year shall be the plan year. The look-
back year shall be the twelve-month period immediately
preceding the determination year.
A highly compensated former employee includes any employee
who separated from service (or was deemed to have separated)
prior to the determination year, performs no service for the
employer during the determination year, and was a highly
compensated active employee for either the separation year
or any determination year ending on or after the employee's
55th birthday.
If an employee is, during a determination year or look-back
year, a family member of either a 5 percent owner who is an
active or former employee or a Highly Compensated Employee
who is one of the 10 most Highly Compensated Employees
ranked on the basis of compensation paid by the employer
during such year, then the family member and the 5 percent
owner or top-ten Highly Compensated Employee shall be
aggregated. In such case, the family member and 5 percent
owner or top-ten Highly Compensated Employee shall be
treated as a single employee receiving compensation and plan
contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated
Employee. For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
employees in the top-paid group, the top 100 employees, the
number of employees treated as officers and the compensation
that is considered, will be made in accordance with Code
Section 414(q) and the regulations thereunder.
(25) The term "Hour of Service" shall mean an hour for
which an Employee is paid, or entitled to be paid, with
respect to the performance of duties for an Employer or an
Affiliate either as regular wages, salary, or commissions or
pursuant to an award or agreement requiring an Employer or
an Affiliate to pay back wages. Hours under this paragraph
(25) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which is
incorporated herein by reference.
(26) The term "Leased Worker" shall be a person (other
than a person who is an employee without regard to this
paragraph (26)) engaged in performing services for the
Company or an Affiliate (collectively, the "Recipient")
pursuant to an agreement between the Recipient and any other
person ("Leasing Organization") who meets the following
requirements:
(a) he has performed services for the Recipient (or
for any other "related persons," determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least
one year;
(b) such services are of a type historically performed
in the business field of the Recipient, in the United
States, by employees; and
(c) he is not participating in a "safe harbor plan" of
the Leasing Organization. For this purpose a "safe
harbor plan" is a plan that satisfies the requirements
of Section 414(n)(5) of the Code, which generally will
be a money purchase pension plan providing (i) a
nonintegrated employer contribution of at least 10
percent of compensation (as defined in Section
415(c)(3) of the Code but including amounts contributed
pursuant to a salary reduction agreement that are
excluded from gross income under Code Section 125 or
under a qualified cash or deferred arrangement as
defined in Code section 401(k)(2)), (ii) immediate
participation, and (iii) full and immediate vesting;
provided, however, that this subparagraph (c) shall
only apply if Leased Workers do not constitute more
than 20 percent of the Recipient's non-highly
compensated workforce.
A person who is a Leased Worker shall be considered an
employee of the Company or an Affiliate during such period
(and solely for the purpose of determining length of service
for vesting purposes, shall also be considered to have been
an employee for any earlier period in which he was a Leased
Worker) but shall not be a Participant and shall not
otherwise be eligible to become covered by the Plan during
any period in which he is a Leased Worker. Notwithstanding
the foregoing, the sole purpose of this paragraph (26) is to
define and apply the term "Leased Worker" strictly (and
only) to the extent necessary to satisfy the minimum
requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be
interpreted, applied, and, if and to the extent necessary,
deemed modified without formal amendment of language, so as
to satisfy solely the minimum requirements of Section 414(n)
of the Code.
(27) The term "Named Fiduciary" means the chief
financial officer of the Company or as otherwise specified
by the Board of Directors. If there is no Named Fiduciary
designated by the Board of Directors, the Company shall be
substituted.
(28) The term "Normal Retirement Age" shall mean the
later of the date the Participant attains age 65 or the
fifth anniversary of the date the Participant commenced
participation in the Plan.
(29) The term "Participant" shall mean an Eligible
Employee who elects to participate in the Plan in accordance
with the provisions of Article 11. The term "Participant"
shall also include an Employee whose contributions are
suspended or one who has transferred out of a participating
class of Employees but for whom a Separate Account is
maintained.
(30) The term "Plan" shall mean the BP America
DirectSave Plan, a profit-sharing plan, as herein set forth.
(31) The term "Plan Administrator" or "Administrator"
means the Vice President of BP Exploration & Oil Inc.
responsible for Human Resource functions or the successor to
such office as specified by the Board of Directors.
(32) The term "Plan Year" shall mean the 12-month
period beginning each January 1 and terminating each
subsequent December 31.
(33) The term "Reemployment Date" shall mean the first
date on which an Employee completes an Hour of Service by
performing services as an Employee after a Severance Date.
(34) The term "Retired Participant" shall mean any
Participant who retires under the terms of a qualified
pension plan maintained by an Employer or an Affiliate.
(35) The term "Separate Account" shall mean the After-
Tax Account, the Before-Tax Account or the Service Bonus
Account of a Participant which is established and maintained
in accordance with the provisions of Section 5.1 .
(36) The term "Service Bonus Contribution" shall mean
those Company contributions made to the Plan on behalf of
each Participant who was employed by Truckstops of America
as of the last day of the Plan Year. Such contributions
were equal to a specified percentage of the Base Pay of each
Participant during the Plan Year and were credited to the
Participant's Service Bonus Account as of the last day of
the Plan Year. Service Bonus Contributions were
discontinued after the 1992 Plan Year as a result of the
sale of Truckstops of America during 1993.
(37) The term "Service Bonus Account" shall mean the
Separate Account to which Service Bonus Contributions of a
Participant are credited in accordance with the provisions
of Section 5.5(c).
(38) The term "Service Date" shall mean the Employment
Commencement Date or Reemployment Date, if applicable, of
any Employee.
(39) The term "Severance Date" shall mean the earlier
of (i) the date on which an Employee retires, dies, or
otherwise terminates employment from an Employer or an
Affiliate, or (ii) the first anniversary of the first date
of a period of absence from service with the Affiliated
Group for any other reason; provided, however, that if an
Employee is absent from employment while on an Employer-
approved leave of absence, he shall not incur a Severance
Date until such leave of absence is terminated; and provided
further that if an Employee is absent from employment while
on active service in the Armed Forces of the United States,
his Severance Date shall be the date on which he terminated
his employment, unless he returns to employment with an
Employer or an Affiliate during the time period prescribed
by federal law; and provided further that no Employee shall
incur a Severance Date until the second anniversary of the
first date on which such Employee is absent from employment
with an Employer or an Affiliate for maternity or paternity
reasons. For purposes of this paragraph (39), an absence
for maternity or paternity reasons means an absence due to
(i) the pregnancy of the employee, (ii) the birth of a child
of the Employee, (iii) the placement of a child with the
Employee in connection with the adoption of such child by
the Employee, or (iv) the caring of such child for a period
beginning immediately following such birth or placement.
Notwithstanding the foregoing, if an Employee retires or
dies, or his employment otherwise is terminated during a
period of absence from employment for any reason other than
retirement or termination, his Severance Date shall be the
date of such retirement, death or other termination of
employment.
(40) The term "Subsidiary" shall mean any wholly owned
subsidiary of the Company including any wholly owned
subsidiary of another Subsidiary of the Company.
(41) The term "Terminated Participant" shall mean a
Participant who has terminated employment with an Employer
or an Affiliate.
(42) The term "Trust" shall mean the trust, maintained
in conjunction with the Plan under a trust agreement entered
into with the Trustee, for the purpose of receiving, holding
and investing amounts contributed under the Plan and from
which Plan benefits are paid.
(43) The term "Trustee" shall mean any trustee which is
designated, legally qualified, and authorized to act as the
trustee of the Trust.
(44) The term "Vesting Service" shall mean the period
of service, calculated in accordance with the elapsed time
method of credited service outlined in Treasury regulation
Section 1.410(a)-7, with which a Participant is credited for
the purpose of determining his vested interest in his
Separate Accounts attributable to Service Bonus
Contributions under Section 7.1.
(45) The term "Year of Service" means, for purposes of
determining eligibility to participate under Article 11, the
twelve-month period immediately following an Employee's
Employment Commencement Date, or any Plan Year commencing
after the Employee's Employment Commencement Date in which
the Employee is credited with at least 1000 Hours of
Service.
1.2 Grammatical References. The masculine shall include
the feminine and the singular shall include the plural except as
otherwise required by the context.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements. An Employee shall become
eligible to participate in the Plan as of the first pay date
after he both (i) attains age 21, and (ii) completes a twelve-
month period of employment during which he is credited with at
least 1,000 Hours of Service. The twelvemonth period of
employment shall be (a) twelve consecutive months commencing on
the individual's Employment Commencement Date, or (b) any Plan
Year commencing subsequent to that date.
Employees covered under a collective bargaining agreement
are not eligible to participate in the Plan unless such agreement
specifically provides for coverage by the Plan or the collective
bargaining representative agrees to accept plan changes without
the requirement of further collective bargaining.
2.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply to eligibility for participation:
(a) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date within the twelve-month
period following his original Employment Commencement Date,
for purposes of eligibility to participate, such Employee
shall be treated as if he had never incurred a Severance
Date; provided that he is employed in a classification
listed in Appendix A.
(b) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and has a
Reemployment Date after the twelve-month period following
his original Employment Commencement Date but within seven
years after such Severance Date, such Employee will be
eligible to participate in the Plan as of any pay date
following the Plan Year in which he completes 1,000 Hours of
Service and is age 21; provided that he is employed in a
classification listed in Appendix A.
(c) If an Employee has met the Plan's eligibility
requirements, is not yet vested in his Plan account at the
time he incurs a Severance Date and has a Reemployment Date
within seven years after such Severance Date, such Employee
is eligible to participate in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(d) If an Employee is vested in his Separate Accounts at
the time he incurs a Severance Date, such Employee can
resume participation in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(e) If an Employee is not vested in his Separate Accounts
at the time he incurs a Severance Date and does not incur a
Reemployment Date within seven years after such Severance
Date, such Employee will be subject to the same eligibility
requirements that are applicable to a new Employee.
2.3 Service in Non-Employee Capacity. For purposes of this
Article 11, all common law employment with the Affiliated Group
(in a capacity other than as an Employee), or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall be
treated as if such employment was employment as an Employee for
purposes of this Article 2; provided, however, that no person
shall be eligible to participate in the Plan until he has
satisfied the requirements of Section 2.1.
2.4 Election to Participate. Each Eligible Employee shall
become a Participant as of his Eligibility Date or any pay date,
if he has timely filed with the Company a written election, in
the form prescribed by the Plan Administrator, which contains:
(a) his authorization for his Employer to reduce his Base
Pay in order to make Before-Tax Contributions on his behalf
in accordance with the provisions of Section 3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of Section
3.2; and
(c) his election as to the investment of all contributions
allocated to him in accordance with the provisions of
Article VI.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions. Any Participant may elect to
have Before-Tax Contributions made to the Plan by his Employer in
an integral percentage of his Base Pay of not less than one
percent nor more than 16 percent; provided, however, that in no
event may the percentage of Before-Tax Contributions made on
behalf of a Participant, when added to the percentage of his
After-Tax Contributions, if any, equal less than one percent or
more than 16 percent of his Base Pay. The Base Pay of such
Participant shall be reduced by the percentage elected under the
compensation reduction authorization in effect for such
Participant provided, however, that no Before-Tax Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.2 After-Tax Contributions. Any Participant may elect to
make After-Tax Contributions by payroll deduction in an integral
percentage of his Base Pay of not less than one percent nor more
than sixteen percent; provided, however, that in no event may the
percentage of the After-Tax Contributions of a Participant, when
added to the percentage of Before-Tax Contributions, if any, made
on his behalf equal less than one percent or more than sixteen
percent of his Base Pay. Any payroll deduction with respect to
After-Tax Contributions shall be made from the Base Pay of a
Participant by his Employer in accordance with the terms of the
payroll deduction authorization in effect for such Participant;
provided, however, that no After-Tax Contributions made with
respect to a year on behalf of a Participant shall exceed the
limitations set forth in Article IV.
3.3 Coordination of Before-Tax and After-Tax Contributions.
Notwithstanding any other provision of the Plan to the contrary,
Before-Tax and After-Tax Contributions of any Participant as of
any date within the calendar year will be considered in
determining the amount of contributions not exceeding the
limitations of Article IV.
As of any date within the calendar year, if Before-Tax and
After-Tax Contributions would exceed 25 percent of the
Participant's Compensation, Before-Tax Contributions will be
automatically converted to After-Tax Contributions to the extent
necessary to satisfy the contribution limitation to 25 percent of
the Participant's Compensation, as described in Section 4A.3. If
the limitation is still not satisfied, After-Tax Contributions
will be automatically reduced and paid to the Participant to the
extent necessary to satisfy the limitations of Section 4A.3.
If the Defined Contribution Dollar Limit as defined in
Section 4A.2(c) is reached as of any date within the calendar
year, subsequent After-Tax and Before-Tax Contributions will be
automatically discontinued.
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415.
4A.1 Code Section 415 Governs. Notwithstanding anything to
the contrary contained in the Plan, effective January 1, 1987,
the amount of Before-Tax Contributions, and After-Tax
Contributions which may be credited to the Separate Accounts of
Participants shall be subject to the provisions hereinafter set
forth. The limitations contained in this Article 4A are intended
to comply with the provisions of Section 415 of the Code. If
there is any discrepancy between the provisions of this Section
4A and the provisions of Section 415 of the Code, such
discrepancy shall be resolved in such a manner so as to give full
effect to the provisions of Section 415 of the Code which are
hereby incorporated by reference.
4A.2 Definitions. For purposes of this Section 4A the
following terms shall have the meanings hereinafter set forth-
(a) "Annual Additions" shall mean the amount credited to a
Participant's Separate Accounts for the Limitation Year that
constitutes:
(i) Employer contributions,
(ii) Employee contributions,
(iii) Forfeitures, and
(iv) Amounts described in Code Section 415(l)(1) or in
Code Section 419A(d)(2), if any.
(b) "Compensation" shall mean (for purposes of Section 4A
of the Plan) wages, salaries and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
an Employer or an Affiliate to the extent that the amounts
are includable in gross income (including, but not limited
to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a non-
accountable plan, but excluding:
(i) Employer contributions to a plan of deferred
compensation which are not includible in the employee's
gross income for the taxable year in which contributed,
or any distributions from a qualified deferred
compensation plan;
(ii) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which receive special tax benefits).
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
(c) "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the Limitation Year; provided,
however, that in the case of a Limitation Year less than 12
months in duration due to an amendment changing the
Limitation Year to a different 12-month period, the Defined
Contribution Dollar Limitation shall be a fraction of the
foregoing amount equal to the number of full months in the
Limitation Year divided by 12.
(d) "Employee Contributions" shall mean After-Tax
Contributions to the Plan made by a Participant during the
Limitation Year.
(e) "Employer Contributions" shall mean Before-Tax
Contributions credited by an Employer to the Plan on behalf
of a Participant for the Limitation Year.
(f) "Limitation Year" shall mean each 12-month period
beginning each January 1 and terminating each subsequent
December 31.
4A.3 Limitations on Contributions.
(a) Maximum Annual Additions. The maximum Annual Additions
that may be contributed or allocated to a Participant's
Separate Accounts under the Plan and/or any other qualified
defined contribution plan maintained by the Company or an
Affiliate for any Limitation Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for
the Limitation Year.
For purposes of implementing this limitation, the Plan
Administrator may estimate the Compensation of the
Participant to be paid during the Limitation Year and
restrict the Before-Tax and/or After-Tax Contribution
elections of Participants.
(b) Special Rules. The compensation limitation referred to
in Section 4A.3(a)(ii) shall not apply to any contribution
for any medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(l)(1) or
Section 419A(d)(2) of the Code.
4A.4 Defined Benefit Plan Coverage. If any Participant in
the Plan is covered by one or more qualified defined benefit
plans (whether or not terminated) maintained by an Employer or an
Affiliate concurrently covered by the Plan, the sum of the
defined benefit plan fraction with respect to such Participant
and the defined contribution plan fraction with respect to such
Participant shall not exceed 1.0. For purposes of this section,
defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) "Defined benefit plan fraction" shall mean a fraction,
the numerator of which is the projected annual benefit of
such Participant under all such defined benefit plans
(determined as of the close of such Limitation Year) and the
denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect under Sections 415(b) and 415(d)
of the Code for such year or (ii) 140 percent of the highest
average compensation, including any adjustment, under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined
benefit plans maintained by an Employer or an Affiliate
which were in existence on May 6, 1986, the denominator of
this fraction will not be less than 125 percent of the sum
of the annual benefits under such plans which the
Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 for all
Limitation Years beginning before January 1, 1987.
(b) "Defined contribution fraction" shall mean a fraction,
the numerator of which is the sum of the annual additions to
the participant's account under all the defined contribution
plans (whether or not terminated) maintained by an Employer
or Affiliate for the current and all prior Limitation Years,
and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether a
defined contribution plan was maintained by the Employer or
Affiliate). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in
effect under Section 415(c)(1)(A) of the Code or 35 percent
of the participant's compensation for such year.
The Plan Administrator may elect to apply the transitional
rules stated in Sections 415(e)(4) and 415(e)(6).
If the defined benefit plan(s) and defined contribution
plan(s) of an Employer or Affiliate in existence on May 6,
1986, satisfied the applicable requirements of Section 415
of the Code as in effect for all Limitation Years beginning
before January 1, 1987, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury, if necessary, so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
under Section 415(e)(1) of the Code does not exceed 1.0 for
such Limitation Year.
The annual additions for years beginning before January 1,
1987 shall not be recomputed to treat all employee
contributions as annual additions.
4A.5 Elimination of Excess Annual Additions. To the extent
that any of the limitations set forth under this Section 4A would
be exceeded due to a reasonable error in estimating a
Participant's annual compensation, the following procedures shall
be followed to prevent such excess(es).
(a) If the Annual Additions to the Separate Accounts of a
Participant in any Limitation Year would exceed the
limitation contained in this Section 4A absent such
limitation, the excess shall be avoided as follows:
(i) The Before-Tax Contributions that would have been
contributed for the Participant's benefit shall be
reduced and automatically converted to After-Tax
Contributions; and
(ii) Next, After-Tax Contributions made during the
Limitation Year shall be returned to the Participant to
the extent necessary to satisfy the limitations on
Annual Additions.
In each case specified above, the amount to be converted or
returned shall be that amount as is necessary to permit the
maximum amount of the Annual Additions to the Participant's
Separate Accounts for such year to be made under the Plan
without violating the restrictions contained herein or in
Section 415 of the Code.
4B. Code Sections 402(g), 401(K) and 401(m)
4B.1 Code Section 402(q) Limit. No Participant shall be
permitted to have Before-tax Contributions made under this Plan
(or any other qualified plan maintained by an Employer or an
Affiliate), during any taxable year, in excess of the dollar
limitation under Code Section 402(g) in effect at the beginning
of such taxable year.
If the amount of Before-Tax Contributions elected by a
Participant under the Plan during a calendar year would cause the
Code Section 402(g) dollar limitation to be exceeded, such amount
will be reduced and automatically converted to After-Tax
Contributions during the calendar year. If any excess deferrals
(as defined in Code Section 402(g)) exist subsequent to the end
of the calendar year, the Plan Administrator may notify the Plan
of such excess deferrals and may direct the Trustee to refund
such excess deferrals to affected Participants (along with any
income allocable to the excess deferrals for the taxable year)
prior to the 15th of April immediately following such calendar
year. If any such excess deferrals are distributed more than two
and one-half (2-1/2) months after the last day of the Plan Year
in which they arose, a ten (10) percent excise tax will be
imposed on the Company with respect to such amounts.
4B.2 Nondiscrimination Tests. This Section 4B.2 is
effective as of January 1, 1987. For purposes of the
nondiscrimination tests of this Section 4B.2, the portion of the
Plan that benefits a unit of employees covered by a collective
bargaining agreement will be treated as comprising a separate
plan from the non-collectively bargained portion of the Plan. To
the extent that there are multiple units of employees covered by
collective bargaining agreements, the Company at its option may
treat two or more collective bargaining units as a single unit,
provided that the combinations of collective bargaining units are
determined on a basis that is reasonable and reasonably
consistent from year to year.
(a) Actual Deferral Percentage ("ADP") Test.
Notwithstanding Section 3.1 or any other provision of the
Plan, during any Plan Year the Before-Tax Contributions made
on behalf of Eligible Employees who are Highly Compensated
Employees shall be restricted to the extent necessary to
satisfy at least one of the following tests:
Test No. 1: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ADP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ADP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ADP of Eligible
Employees who are not Highly Compensated Employees.
For these purposes, "ADP" shall mean the ratio
(expressed as a percentage) of Before-Tax Contributions
made on behalf of an Eligible Employee for the Plan
Year to the Eligible Employee's Compensation, as
defined below, for the Plan Year.
(b) Actual Contribution Percentage ("ACP") Test
Notwithstanding Section 3.2 or any other provision of the
Plan, during any Plan Year the After-Tax Contributions
(including any Before-Tax Contributions automatically
converted to After-Tax Contributions pursuant to Section
4B.1) with respect to Eligible Employees who are Highly
Compensated Employees shall be restricted to the extent
necessary to satisfy at least one of the following tests:
Test No 1: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ACP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ACP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ACP of Eligible
Employees who are Not Highly Compensated Employees.
For these purposes, "ACP" shall mean the ratio
(expressed as a percentage) of total After-Tax
Contributions for the Plan Year to the Eligible
Employee's "Compensation", as defined below, for the
Plan Year
(c) Multiple Use Limitation Test. In addition to the
limitations of paragraphs (a) and (b) above, and
notwithstanding Sections 3.1 and 3.2 of the Plan or any
other provision of the Plan, during any Plan Year in which
Test No. 2 of paragraph (a) is used to satisfy the ADP Test
and Test No. 2 of paragraph (b) is used to satisfy the ACP
Test, the Before-Tax Contributions and After-Tax
Contributions paid to the Plan with respect to Participants
who are Highly Compensated Employees shall be restricted to
the extent necessary to assure that the sum of the ADP and
ACP of such Highly Compensated Eligible Employees does not
exceed the greater of:
(i) 1.25 times the ADP of Eligible Employees who are
not Highly Compensated Employees, plus the ACP of
such Eligible Employees, plus the lesser of 2
percent or the ACP of such Eligible Employees, or
(ii) 1.25 times the ACP of Eligible Employees who are
not Highly Compensated Employees, plus the ADP of
such Eligible Employees, plus the lesser of 2
percent or the ADP of such Eligible Employees.
(d) Definition of "Compensation"
For purposes of the ADP, ACP and Multiple Use Tests,
"Compensation" means wages, salaries and fees for
professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of
employment with an Employer or an Affiliate to the extent
that the amounts are includable in gross income (including,
but not limited to, commissions paid salesmen, compensation
for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances
under a nonaccountable plan), plus any elective
contributions made by an Employer or an Affiliate that are
not includable in gross income under Section 125 and Section
402(e)(3) of the Code, but excluding:
(i) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iii) Other amounts which receive special tax
benefits.
If a Participant is employed outside the United States
and paid in foreign currency, Compensation will be
based on foreign pay elements converted to U. S.
Dollars. The conversion to U. S. Dollars is made using
a payroll transaction exchange rate and/or a fixed
exchange rate as elected by the Participant during the
Limitation Year.
4B.3 Correction of Excesses.
(a) In the event that the ADP test set forth in 4B.2 above
is exceeded, an amount of Before-Tax Contributions of Highly
Compensated Employees will be reduced and automatically
converted to After-Tax Contributions. Such amount shall be
determined by reducing the maximum percentage of Before-Tax
Contributions of the Highly Compensated Employees from its
highest limit to such smaller percentage which will result
in the ADP test being passed. Any amounts so converted to
After-Tax Contributions shall nevertheless remain non-
forfeitable and remain subject to the distribution
limitations that apply to Before-Tax Contributions to the
extent required by the Code.
(b) In the event that the ACP test or the multiple use test
set forth in 413.2 above is exceeded, an amount of After-Tax
Contributions for Highly Compensated Employees will be
reduced and automatically returned (along with any income
allocable to such amount during the Plan Year) to the
Participants within the time frame required under the Code.
Such amount shall be determined by reducing the maximum
percentage of After-Tax Contributions of the Highly
Compensated Employees from its highest limit to such smaller
percentage which will result in the ACP test or the multiple
use test being passed.
If any amounts returned to correct the ACP test are
distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which the excess arose, a
ten (10) percent excise tax will be imposed on the Company
with respect to these amounts.
4B.4 Special Rules
(a) The ADP or ACP for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax, After-Tax or Matching
Contributions allocated to his account under two or more
plans or arrangements described in Code Sections 401(a)
and/or 401(k) that are maintained by an Employer or
Affiliate, shall be determined as if all such Contributions
were made under a single plan or arrangement
(b) For purposes of determining the ADP or ACP of a
Participant who is a Highly Compensated Employee, the
Contributions and Compensation of such Participant shall
include the Contributions and Compensation of family members
(as described in Code Section 414(q)(6)(B)). The
Contributions and Compensation of such family members shall
be disregarded in determining the ADP or ACP of Participants
who are not such Highly Compensated Employees.
(c) The determination and treatment of a Participant's
ADP or ACP shall satisfy such other requirements as may be
prescribed by law.
<PAGE>
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS
AND ADMINISTRATION OF CONTRIBUTIONS
5.1 Separate Accounts. Each Participant shall, where
applicable, have established in his name the following Separate
Accounts:
(a) a Before-Tax Account which Shall reflect the Before-Tax
Contributions made on behalf of a Participant, as well as
the investment income thereon in the Funds;
(b) an After-Tax Account which shall reflect the After-Tax
Contributions of a Participant, as well as the investment
income thereon in the Funds;
(c) a Service Bonus Account which shall reflect the Service
Bonus Contributions of a Participant, as well as the
investment income thereon in the funds.
5.2 Account Balances. For all purposes of the Plan, the
balance of each Separate Account as of any date shall be the
balance of such account after all credits and charges thereto,
for and as of such date, have been made as provided herein. The
determination of the Plan Administrator as to Separate Account
balances shall be final.
5.3 Notification. At least annually the Company shall
notify each Participant, Terminated Participant and Retired
Participant of the balance of his Separate Accounts as of the
last day of such year.
5.4 Delivery of Contributions. Each Employer shall cause
to be delivered to the Trustee all After-Tax and Before-Tax
Contributions made in accordance with the provisions of Article
III as soon as reasonably practicable, but no later than 90 days
after the contributions are made, and in accordance with
procedures established by the Plan Administrator.
If a Participant is paid in foreign currency, each After-Tax
or Before-Tax Contribution amount shall be based on the United
States dollar equivalent of the Participant's foreign Base Pay.
The conversion to United States dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as elected
by the employee. The resulting amount, after conversion into
United States dollars, will be transferred to the Trustee and
credited on behalf of the Participant to the proper Separate
Account. All statements setting forth a Participant's Separate
Accounts will be expressed in United States dollars.
5.5 Crediting of Contributions. Subject to the provisions
of Sections 4A, 4B and Article VII, contributions shall be
credited to the Separate Accounts of a Participant in the
following manner:
(a) the amount of Before-Tax Contributions made on behalf
of a
Participant shall be credited to such Participant's Before-
Tax
Account;
(b) the amount of After-Tax Contributions made by a
Participant shall be credited to such Participant's After-
Tax Account; and
(c) the amount of Service Bonus Contributions allocated to
a Participant shall be credited to the Participant's Service
Bonus Account.
Such Before-Tax, After-Tax Contributions and Service Bonus
Contributions shall be invested by the Trustee in accordance with
the provisions of Section 6.3 and procedures established by the
Plan Administrator.
5.6 Changes in Reduction and Deduction Authorizations. The
percentage of Before-Tax Contributions and After-Tax
Contributions made by, or on behalf of, a Participant may be
changed to satisfy legal requirements in accordance with
procedures established by the Plan Administrator; to an integral
percentage which does not exceed the limitations specified in
Articles III and IV.
5.7 Suspension of Contributions. Any Participant who is
making, or having made on his behalf, Before-Tax and/or After-Tax
Contributions under Sections 3.1 or 3.2 may suspend part or all
of such Contributions at any time by notifying the Company in
accordance with procedures established by the Plan Administrator.
Any such suspension shall remain in effect until such
Contributions are resumed.
<PAGE>
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds. The Company shall
select and establish certain funds (the "Investment Funds" or
"Funds") that it shall cause to be maintained for the purpose of
investing assets held under the Plan which relate to the Separate
Accounts of Plan Participants. One such Fund shall be a Company
Stock Fund which shall invest solely in Company Stock.
Descriptions of the various funds are contained in Appendix B.
6.2 Investment Direction of Contributions. Any Before-Tax
and After-Tax Contributions of a Participant shall be invested by
the Trustee in accordance with directions received from the
Participant, based upon the investment elections of each
Participant made in accordance with the provisions of Sections
6.3 and 6.4 in the various Investment Funds selected by the
Participant.
6.3 Investment of Contributions. Each Participant, upon
electing to become a Participant under the Plan, shall make
investment elections directing the manner in which his Before-Tax
and After-Tax Contributions shall be invested by the Trustee.
Such election shall be the same for Before-Tax and After-Tax
Contributions. Contributions that are credited to a Separate
Account of such Participant shall be invested in the various
Investment Funds in any combination of integral percentages that
equals 100 percent. In the absence of a valid Participant
election, Before-tax Contributions and After-Tax Contributions
shall be invested by the Trustee in the Fixed Income Fund pending
receipt of a valid investment direction from the Participant.
Investment elections shall be made by a Participant in accordance
with uniform administrative and operational rules established by
the Plan Administrator.
All Service Bonus Contributions, along with earnings
thereon, shall be invested in and shall remain invested in the
Fixed Income Fund.
Subject to the provisions of Section 6.4, the investment
options so elected by a Participant shall remain in effect until
he changes his investment elections or ceases to be a Participant
in accordance with the provisions of the Plan.
6.4 Election of Participants to Transfer Invested Amounts.
A Participant, Terminated Participant or Retired Participant may
elect at any time to have a portion or all of the balance of the
assets (except those Service Bonus Contributions invested in the
Fixed Income Fund) liquidated and transferred from the Investment
Funds in which they are currently invested to one or more of the
other Funds in accordance with uniform administrative and
operational rules established by the Plan Administrator. Such an
election shall become effective, and the Participant may
thereafter change or revoke such election, at such times and in
the manner established by the Plan Administrator.
<PAGE>
ARTICLE VII
VESTING
7.1 Vesting in Service Bonus Contributions. Effective with
the sale of Truckstops of America on December 10, 1993, a
Participant shall be 100 percent vested in the Service Bonus
Contributions in his Service Bonus Account.
7.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply for purposes of vesting under the Plan:
(a) If a Participant incurs a Severance Date and
subsequently has a Reemployment Date within twelve months
following the Severance Date, such Participant's years of
Vesting Service will be calculated as if such Participant
had never incurred a Severance Date.
(b) If a Participant who is vested in his Separate Accounts
incurs a Severance Date and then has a Reemployment Date
more than twelve months after the Severance Date, such
Participant's years of Vesting Service earned prior to the
Severance Date will be restored for purposes of vesting
under the Plan. However, such a Participant will not be
credited with years of Vesting Service for the period of the
Participant's absence.
(c) If a Participant who is not vested in his Separate
Accounts incurs a Severance Date and then has a Reemployment
Date more than twelve months but less than seven years after
the Severance Date, such Participant's years of Vesting
Service earned prior to the Severance Date will be restored
for purposes of vesting under the Plan. However, such a
Participant will not be credited with years of Vesting
Service for the period of the Participant's absence.
7.3 Vesting in Before-Tax and After-Tax Contributions. A
Participant shall always be 100 percent vested in Before-Tax and
After-Tax Contributions credited to his Before-Tax and After-Tax
Accounts, as well as all earnings credited to such Accounts.
7.4 Election of Former Vesting Schedule. In the event of
an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his
Separate Accounts attributable to Company contributions, if any,
a Participant who is a Participant on the effective date of such
amendment or who is credited with three or more years of Vesting
Service shall have a right to have his nonforfeitable interest in
such accounts continue to be determined under the vesting
schedule in effect prior to such amendment rather than under the
new vesting schedule, unless the nonforfeitable interest of such
Participant in such accounts under the Plan, as amended, at any
time is not less than such interest determined without regard to
such amendment. Notwithstanding the foregoing provisions of this
Section 7.4, the vested interest of each Participant on the
effective date of such amendment shall not be less than his
vested interest under the Plan as in effect immediately prior to
the effective date of such amendment.
<PAGE>
ARTICLE VIII
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion up to the entire value of his After-
Tax Contributions made to the Plan and all earnings on After-Tax
Contributions less any such amounts previously withdrawn. Such a
withdrawal will be taken first from any After-Tax Contributions
made to the Plan prior to 1987. When pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
proportionately from After-Tax Contributions made to the Plan
after 1986 and earnings on all After-Tax Contributions.
8.2 Withdrawal of Before-Tax Contributions. Subject to the
provisions of this Section 8.2, a Participant may apply to the
Company in the form and manner prescribed by the Plan
Administrator, for a withdrawal in cash from his Separate Account
attributable to Before-Tax Contributions and any earnings accrued
through December 31, 1988, on such Contributions less any such
amounts previously withdrawn; provided that he has first
withdrawn the total value of his After-Tax Account.
At any time after a Participant has attained age 59-1/2 or
becomes totally and permanently disabled, earnings accrued after
December 31, 1988, on Before-Tax Contributions may also be
withdrawn. The amounts in such Participant's Before-Tax Account
will be aggregated with his After-Tax Account for the purpose of
making withdrawals from the Plan; and such Participant's Before-
Tax Contributions, including any interest, dividends, and
appreciation thereon, less any amounts previously withdrawn, may
be withdrawn in connection with an After-Tax Contribution
withdrawal under Section 8.1
Except for a Participant who has attained age 59-1/2 or has
become totally and permanently disabled, a withdrawal of Before-
Tax Contributions and any earnings thereon, except as indicated
below, shall be permitted only if the Plan Administrator
determines that such withdrawal is needed for a Financial
Hardship and that such withdrawal will not exceed the lesser of
(i) the amount required to meet the need for which the withdrawal
is requested, or (ii) the value of his Before-tax Account.
However, if such Participant has not yet attained age 59-1/2 or
become totally and permanently disabled, any earnings accrued
after December 31, 1988, on his Before-Tax Contributions are not
available for withdrawal even in the case of a Financial
Hardship.
8.3 Withdrawal on Account of Permanent and Total
Disability. In the event the Participant becomes permanently and
totally disabled, he shall be eligible to withdraw up to the
entire value of his Separate Accounts under the provisions of
Sections 8.1 and 8.2. In this instance, permanent and total
disability shall be defined according to uniform procedures
established by the Plan Administrator.
8.4 No Withdrawal of Service Bonus Contributions. Service
Bonus Contributions and earnings thereon are not subject to
withdrawal until the Participant incurs a Severance Date.
<PAGE>
ARTICLE IX
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
9.1 Eligibility for Distribution. Each Participant shall
be entitled to receive the vested amount of his Separate Accounts
upon retirement or other termination of employment with the
Affiliated Group for any reason, including death.
9.2 Distributions. The Plan Administrator shall direct the
Trustee to make distribution to, or for the benefit of, a
Participant, who becomes eligible to receive the vested amount of
his Separate Accounts under Section 9.1 in the manner hereinafter
set forth.
(a) Distributions to Participants Upon Retirement or Other
Termination of Employment (Other than Death). In the case
of a Participant who retires or terminates employment with
the Affiliated Group (for reasons other than death), if the
combined value of the vested interest of the Participant
under the Plan and all other qualified profit-sharing plans
maintained by the Affiliated Group is (and was at the time
of any prior distribution) $3,500 or less, distribution of
such Participant's vested interest under the Plan shall be
made to him as soon as practicable in a single lumpsum
payment. If the value of the vested interest of such
Participant under the Plan and all other qualified profit-
sharing plans maintained by the Affiliated Group is (or was
at the time of any prior distribution) in excess of $3,500,
distribution of such Participant's vested interest under the
Plan shall be made in a single lump-sum payment payable at
any time prior to the April 1 of the calendar year following
the calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law.
(b) Distributions Due to Death. In the case of a
Participant's death, the vested interest of the
Participant's entire account will be distributed as soon as
practicable (but no more than five years after the
Participant's death) to the Beneficiary in accordance with
procedures established by the Plan Administrator; provided
that, if distribution of the Participant's account has begun
pursuant to Sections 9.5(c) and (e), the remaining portion
of the Participant's account will be distributed at least as
rapidly as under the method of distribution in effect as of
the date of the Participant's death.
9.3 Forms of Distributions. All distributions under this
Article IX may be made in cash or in kind, or both, in accordance
with the election of the Participant or Beneficiary.
9.4 Payments to Incompetents or Minors. If any individual
to whom an amount is payable hereunder is incapable of attending
to his financial affairs because of any mental or physical
condition, including the infirmities of advanced age, or is a
minor, such amount (unless prior claim therefor shall have been
made by a duly qualified guardian or other legal representative)
may, in the discretion of the Plan Administrator, be paid to a
duly appointed guardian or to another person for the use or
benefit of the individual found to be a minor or incapable of
attending to his financial affairs or in satisfaction of legal
obligations incurred by or on behalf of such individual. The
Trustee shall make such payment only upon receipt of written
instructions to such effect from the Plan Administrator. Any
such payment shall be charged to the Separate Accounts from which
any such payment would otherwise have been paid to the individual
found to be a minor or incapable of attending to his financial
affairs and shall be a complete discharge of any liability
therefor under the Plan.
9.5 Limitations on Commencement and Distribution of Benefit
Payments.
(a) Unless the Participant otherwise elects (or is (deemed
to elect otherwise because the combined present value of
such Participant's nonforfeitable accrued benefit under the
Plan and all other qualified profit-sharing plans maintained
by the Affiliated Group does not exceed $3,500), the payment
of benefits under the Plan to such Participant shall begin
not later than the 60th day after the close of the Plan Year
in which the latest of the following events occurs:
(i) The date on which such Participant attains age 65;
(ii) The tenth anniversary of the date on which such
Participant commenced participation in the Plan; and
(iii) The date on which such Participant terminates
service with the Affiliated Group.
(b) Notwithstanding the foregoing, such Participant's
entire interest in his Separate Accounts (including any
distribution of incidental death benefits) must be
distributed, or begun to be distributed, to him not later
than his "required beginning date".
(c) A Participant's "required beginning date" is the April
1st of the calendar year following the year in which the
Participant attains age 70-1/2. For a Participant who
attains age 70-1/2 before January 1, 1988, and is not a 5-
percent owner, the term "required beginning date" means
April 1 of the calendar year following the later of (1) the
calendar year in which the Participant attains age 70-1/2 or
(2) the calendar year in which the employee retires. For a
Participant who attains age 70-1/2 before January 1, 1988,
and is a 5-percent owner, the term "required beginning date"
means April 1 of the calendar year following the later of
(1) the calendar year in which the Participant attains age
70-1/2, or (2) the earlier of (i) the calendar year with or
within which ends the Plan Year in which the Participant
becomes a 5-percent owner, or (ii) the calendar year in
which the Participant retires.
(d) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined under Code Section 416(i) at any time
during the Plan Year ending with or within the calendar year
in which such owner attains age 66-1/2 or any subsequent
year
(e) Notwithstanding any provision in this Plan to the
contrary, if not made in a lump-sum, the interest of a
Participant in his Separate Accounts under the Plan must be
distributed, in accordance with Treasury regulations
promulgated under Section 401(a)(9) of the Code, over one of
the four following periods:
(i) the life of such Participant;
(ii) the joint lives of such Participant and such
Participant's Beneficiary;
(iii) a period not extending beyond the life
expectancy of such Participant; or
(iv) a period not extending beyond the joint life
expectancies of such Participant and such Participant's
beneficiary.
<PAGE>
ARTICLE X
BENEFICIARIES
10.1 Designation of Beneficiary. A Participant, Retired
Participant, or Terminated Participant may designate a
Beneficiary to whom distribution shall be made hereunder in the
event such Participant dies before his interest is distributed to
him in full. If such Participant has a spouse, his spouse shall
be his Beneficiary and shall receive distribution of his
remaining interest in accordance with the provisions of Section
9.2; provided, however, that a person or persons other than his
spouse may be designated as his Beneficiary if the requirements
of Section 10.3 are met. Any such designation or change of
designation shall be subject to the provisions of Section 10.3,
shall be made in writing in the form prescribed by the Plan
Administrator, and shall become effective only when filed with
the Plan Administrator; provided, however, that any such
designation or change of designation which is received by the
Plan Administrator after the death of the Participant, Retired
Participant or Terminated Participant shall be disregarded.
10.2 Beneficiary in the Absence of Designated Beneficiary.
If (i) a Participant, Retired Participant, or Terminated
Participant who dies does not have a surviving spouse and if no
Beneficiary has been designated pursuant to the provisions of
Section 10.1, or (ii) no Beneficiary survives such Participant,
then the Beneficiary shall be the estate of such Participant. If
any Beneficiary designated pursuant to Section 10.1 dies after
becoming entitled to receive distributions hereunder and before
such distributions are made in full and if no other person or
persons have been designated to receive the balance of such
distributions upon the happening of such contingency, the estate
of such deceased Beneficiary shall become the Beneficiary as to
such balance.
10.3 Spousal Consent to Beneficiary Designation. In the
event a Participant, Retired Participant, or Terminated
Participant is married, any Beneficiary designation, other than a
designation of his spouse as Beneficiary, shall be effective only
if his spouse consents in writing thereto and such consent
acknowledges the specific designation of Beneficiary and the
effect of such action, and is witnessed by a notary public,
unless a Plan representative finds that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
Treasury regulations issued thereunder.
<PAGE>
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator and Named Fiduciary. The Plan shall
be administered by the Vice President of BP Exploration & Oil
Inc. with responsibility for Human Resources (or the successor to
such office as designated by the Board of Directors) who shall
serve as Plan Administrator within the meaning of ERISA. The
chief financial officer of the Company shall serve as Named
Fiduciary except as otherwise designated by the Board of
Directors.
The Board of Directors may arrange for the delegation by the
Trustee to the Named Fiduciary of any functions normally
performed by trustees (except the custody of assets, the voting
with respect to shares held by the Trustee, and the purchase and
sale or redemption of securities).
11.2 Duties of Plan Administrator and Named Fiduciary. The
Plan Administrator shall have the authority and responsibility
for control of the operation and administration of the Plan. The
Named Fiduciary shall have the responsibility to manage and
control the assets of the Plan, which includes the investment of
Plan assets. The Plan Administrator and the Named Fiduciary may,
from time to time, designate, or revoke the designation of, one
or more persons other than themselves to carry out one or more
specific fiduciary responsibilities. Each such designation
shall:
(a) be in writing signed by the Plan Administrator or Named
Fiduciary, as applicable;
(b) specify one or more fiduciary duties in connection with
the Plan for which such designee shall be responsible; and
(c) be accepted by such designee. The revocation of any
such designation shall be in writing signed by the Plan
Administrator or Named Fiduciary, whichever originally made
such designation, and shall include a statement that such
has been notified of such revocation.
The Plan Administrator and the Named Fiduciary shall also
have such additional responsibilities and authority with respect
to the Plan as are specifically vested in them from time to time
by action of the Board of Directors of the Company. The
authority of the Plan Administrator and the Named Fiduciary to
delegate any of their duties as fiduciaries under the Plan to any
designee may be limited pursuant to action of such Board of
Directors. Each such designated fiduciary may rely upon any such
direction, information, or action of the Plan Administrator,
Named Fiduciary or another designated fiduciary as being proper
under this Plan or the Trust, and is not required under this Plan
or the Trust to inquire into the propriety of any such direction,
information, or action. It is intended under the Plan and the
Trust that each fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another fiduciary.
No designated fiduciary, Plan Administrator, Named Fiduciary nor
the Group guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
No bond or other security shall be required of the Plan
Administrator or the Named Fiduciary or anyone delegated to act
on behalf of either, nor shall they receive additional
compensation for services performed by them in the administration
of this Plan, except as may otherwise be required by law.
No director, officer or Employee of the Group shall be
personally liable for any act or omission to act in connection
with the operation or administration of the Plan, except for his
own willful misconduct or gross negligence, except as may
otherwise be required by law.
The Plan Administrator and the Named Fiduciary and each of
their designees, if any, may serve, subject to the foregoing
provisions of this Section 11.2, in more than one fiduciary
capacity with respect to the Plan and may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
The Plan Administrator shall have the sole and exclusive
discretion and authority to apply, construe and interpret all
provisions and terms of the Plan, to grant and/or deny any and
all claims for benefits, and to determine and decide any and all
issues and factual circumstances relating to eligibility for
benefits. All findings, decisions and determinations of any kind
made by the Plan Administrator shall not be disturbed unless the
Plan Administrator has acted in an arbitrary and capricious
manner. Subject to the requirements of law, the Plan
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and in any determination of
eligibility for a benefit. All decisions of the Plan
Administrator shall be final and binding on all parties. The
Plan Administrator shall exercise his powers in a uniform and
nondiscriminatory manner.
11.3 Rules and Regulations. The Plan Administrator may from
time to time prescribe rules or regulations for the
administration of the Plan. Without limiting the generality of
the foregoing, the Plan Administrator may adopt such rules or
regulations with respect to the signature by an Employee and/or
the spouse of an Employee, any directions or other papers to be
signed by Employees, and similar matters as the Plan
Administrator shall determine to be necessary or advisable in
view of the laws of any state or country.
11.4 Trust Agreement and Trustee. The Named Fiduciary and
the Trustee have entered into a trust agreement pursuant to which
the Trustee is to act as trustee under the Plan. The Named
Fiduciary may, without further reference to, or action by, any
Subsidiary participating in the Plan, from time to time enter
into such further agreements with the Trustee or other parties
and make such amendments to such trust agreement or such further
agreements as it may deem necessary or desirable.
The Named Fiduciary may from time to time designate a
successor Trustee which shall be a bank or trust company with
capital and surplus of not less than $10,000,000, and the Named
Fiduciary may require the Trustee to take such steps and execute
such instruments as the Named Fiduciary may deem necessary or
desirable to make effective the transfer of the Trust assets to
the successor Trustee and to maintain the Plan.
11.5 Determination of Benefits and Claims Review. The Plan
Administrator or his designee shall make all initial
determinations as to the right of any person to a benefit. The
Plan Administrator shall establish and follow a procedure for
review of any such determination consistent with regulations of
the Department of Labor under Section 503 of the Act.
11.6 Agency. The Plan Administrator, the Named Fiduciary,
or the Trustee need not recognize the agency of any party for a
Participant or a Beneficiary unless it shall receive documentary
evidence thereof satisfactory to it and thereafter from time to
time, as the Plan Administrator, the Named Fiduciary, or the
Trustee may determine, additional documentary evidence showing
the continuance of such agency. The Plan Administrator, the
Named Fiduciary, or the Trustee shall be entitled to rely upon
the continuance of such agency and to deal with the agent as if
he or it were the Participant or the Beneficiary.
11.7 Records Conclusive. The records of the Trustee, Plan
Administrator, Named Fiduciary, Employers, and Subsidiaries shall
be conclusive in respect of all matters involved in the
administration of the Plan.
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company.
(b) Taxes, if any, on any assets held by the Trustee or
income therefrom which are payable by the Trustee shall be
charged against the Participant's Separate Accounts as the
Trustee shall determine.
11.9 Qualified Domestic Relations Orders. The Plan
Administrator shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
Anything to the contrary in the Plan notwithstanding, in the
event a qualified domestic relations order provides for a
distribution of a Participant's, Terminated Participant's or
Retired Participant's Separate Accounts, or any portion thereof,
to an alternate payee as defined under Section 414(p)(8) of the
Code, such distribution may include Before-Tax Contributions,
After-Tax Contributions and Service Bonus Contributions, as well
as earnings thereon, without regard to the date as of which such
Participant, Terminated Participant or Retired Participant
separates from service or attains age 59-1/2
<PAGE>
ARTICLE XII
ASSETS HELD BY TRUSTEE
12.1 Assets Held by Trustee. All cash, bonds, stock
certificates, and contracts representing monies on deposit with
insurance companies shall, until disposed of pursuant to the
provisions of this Plan, be held in the possession or name of the
Trustee; provided, however, that transferable securities may be
registered in the name of the Trustee or in the name of its
nominee. All Mutual Fund shares may be held as unissued shares
(not in certificate form), in the name of the Trustee.
Nontransferable securities shall be issued in such name or names
as the Trustee may elect, subject to any applicable laws or
regulations at the time in effect with respect thereto. In the
sole discretion of the Trustee, investments in a particular issue
of stock, security, or a particular issue of bonds made at the
direction of more than one Participant may be represented by a
single certificate, single contract, or single bond, as the case
may be.
12.2 Options, Rights, or Warrants. In the event that any
options, rights, or warrants shall be granted or issued with
respect to shares of stock held by the Trustee under the Plan,
the Trustee shall give to the Participant who directed the
investment in such shares a reasonable opportunity to direct the
Trustee to exercise such options, rights, or warrants for his
Separate Account, and if any cash shall be required in connection
with such exercise, such Participant shall, simultaneously with
his direction to the Trustee, authorize the Trustee to use for
such purpose any uninvested funds held for him and/or make
available to the Trustee any additional necessary funds. Such
additional funds may be made available to the Trustee either by
payment thereof in cash or by written direction to the Trustee on
forms prescribed by the Plan Administrator to sell any security
held for him; provided, however, that any such additional funds
deposited by any Participant with the Trustee for the aforesaid
purpose shall not be deemed a Before-Tax or After-Tax
Contribution under Article Ill. Any securities acquired as the
result of the exercise of any such options, rights, or warrants
shall be added to the Participant's Separate Accounts. If any
Participant shall not, within the time designated by the Trustee,
direct the Trustee to exercise any such option, right, or warrant
and make available to the Trustee any necessary funds, the
Trustee shall sell such option, right, or warrant on any
registered security exchange, if there be any market therefor,
and the cash proceeds from the sale of any such options, rights,
or warrants shall be credited to the Participant's Separate
Accounts. The foregoing provisions notwithstanding, the Trustee
shall reserve the right to determine whether any dividends on
Company Stock held by the Plan shall be paid in cash or in kind
under a share dividend plan.
12.3 Voting Rights. The Trustee shall vote the Company
Stock held in the Company Stock Fund for the respective accounts
of Participants in accordance with such Participants' directions
which may be certified to the Trustee by the Plan Administrator
or any agent designated by the Plan Administrator; provided that
any such shares with respect to which no such direction shall be
received and any fractional shares shall be voted by the Trustee
in the same proportions as shares as to which voting instructions
have been received.
12.4 Cost and Proceeds of Securities Transactions. If the
purchase or sale of securities by the Trustee, whether in
pursuance of standing directions or specific directions, cannot
be completed in a single transaction, but requires multiple
transactions, the price per unit (including prices determined by
the Trustee in cases of matched purchases and sales) at which all
securities of that particular issue are purchased or sold by the
Trustee shall be the weighted average net price per unit at which
all securities of that particular issue are purchased or sold for
the multiple transactions.
12.5 Brokerage Changes. Brokerage commissions, transfer
taxes, and other charges and expenses in connection with the
purchase or sale of securities shall be added to the cost of such
securities or deducted from the proceeds thereof, as the case may
be.
<PAGE>
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendments. Subject to the provisions of Section 13.2,
the Board of Directors is authorized to amend the provisions of
the Plan at any time in its sole discretion. This authority may
be delegated from time to time by resolutions of the Board of
Directors to certain officers of the Group, which delegations
shall constitute part of the Plan.
13.2 Limitation of Amendments. The Company shall make no
amendment to the Plan which shall result in the forfeiture or
reduction of the interest of any Employee, Eligible Employee,
Participant, Terminated Participant, Retired Participant or
person claiming under or through any one or more of them pursuant
to the Plan; provided, however, that nothing herein contained
shall restrict the right to amend the provisions hereof relating
to the administration of the Plan and Trust. Moreover, no
amendment shall be made hereunder which shall permit any part of
the Trust property to revert to any Employer or be used for or be
diverted to purposes other than the exclusive benefit of
Employees, Eligible Employees, Participants, Terminated
Participants, Retired Participants and persons claiming under or
through them pursuant to the Plan.
13.3 Termination. The Company reserves the right, by action
of its Board of Directors, to terminate the Plan as to all
Employers at any time, which termination shall become effective
upon notice in writing to the Trustee (the effective date of such
termination being hereinafter referred to as the "termination
date"). The Plan shall terminate automatically if there is a
complete discontinuance of contributions hereunder by all
Employers. Upon any such termination of the Plan, the Trustee
and the Company shall take the following actions for the benefit
of Participants, Terminated Participants, Retired Participants,
and Beneficiaries:
(a) As of the termination date, the Trustee shall value the
Funds hereunder, and the Plan Administrator shall adjust all
Separate Accounts accordingly. The termination date shall
become a valuation date. In determining the net worth of
the Funds hereunder, the Trustee shall include as a
liability such amounts as in its judgment shall be necessary
to pay all expenses in connection with the termination of
the Trust and the liquidation and distribution of the Trust
property, as well as other expenses, whether or not accrued,
and shall include as an asset all accrued income.
(b) The Trustee, upon instructions from the Plan
Administrator, shall then segregate and, subject to
applicable provisions of the Code relating to distribution
of Before-Tax Contributions, distribute an amount equal to
the entire interest of each Participant, Terminated
Participant, Retired Participant and Beneficiary in the
Funds to or for the benefit of each such Participant or
Beneficiary in accordance with the provisions of Section
9.2.
Notwithstanding anything to the contrary contained herein,
upon any such Plan termination, the interest of any Participant
and Beneficiary shall become fully vested and nonforfeitable;
and, if there is a partial termination of the Plan within the
meaning of the Code, the interest of each Participant and
Beneficiary who is affected by such partial termination shall
become fully vested and nonforfeitable.
13.4 Withdrawal of an Employer. An Employer other than the
Company may, by action of its board of directors, withdraw from
the Plan, such withdrawal to be effective upon notice in writing
to the Company and shall thereupon cease to be an Employer for
all purposes of the Plan. An Employer shall be deemed
automatically to withdraw from the Plan in the event of its
complete discontinuance of contributions or (subject to the
provisions of Section 13.5) in the event it ceases to be a
Subsidiary.
13.5 Corporate Reorganization. The merger, consolidation,
or liquidation of the Company or any Employer with or into the
Company or any other Employer shall not constitute a termination
of the Plan as to the Company or such Employer.
<PAGE>
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Commitment as to Employment. Nothing herein
contained shall be construed as a commitment on the part of any
Employer to continue the employment or rate of compensation of
any Employee hereunder for any period.
14.2 Rights to Trust Assets. Nothing in the Plan shall be
construed to confer any right or claim upon any person other than
the parties hereto, Participants, Terminated Participants,
Retired Participants and Beneficiaries. All payments of benefits
as provided in the Plan shall be made solely out of the assets of
the Trust, and none of the fiduciaries shall be liable therefor
in any manner.
14.3 Precedent. Except as otherwise specifically provided
or required by law, no action taken in accordance with the terms
of the Plan, by an Employer, the Company, or any fiduciary for
the Plan, shall be construed or relied upon as a precedent for
similar action under similar circumstances.
14.4 Duty to Furnish Information. Each of the Employers,
the Company, or the Trustee shall furnish to any of the others
any documents, reports, returns, statements, or other information
that any other reasonably deems necessary to perform its duties
imposed hereunder or otherwise imposed by law.
14.5 Merger, Consolidation, or Transfer of Plan Assets. The
Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another
plan, unless, immediately after such merger, consolidation, or
transfer of assets or liabilities, each Participant, Terminated
Participant, Retired Participant or Beneficiary will receive a
benefit which is at least equal to the benefit he was entitled to
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (if the plan had then terminated).
14.6 Return of Contributions to Employers. If a Before-Tax
Contribution:
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the Contribution under
Section 404 of the Code and such deduction is disallowed, or
(c) is conditioned upon initial qualification of the Plan
under Section 401(a) of the Code and the Plan does not so
qualify,
such a Contribution may be returned to the Employers within one
year after the mistaken payment of the contribution, the
disallowance of the deduction (to the extent disallowed), or the
date of denial of the qualification of the Plan, whichever is
applicable. For this purpose, all Contributions made by the
Employers are expressly declared to be conditioned upon their
deductibility under Section 404 of the Code and the qualification
of the Plan.
14.7 Filing of Notices and Plan Information. Any Plan forms
to be filed with the Plan shall be mailed by first-class mail or
otherwise delivered to the BP America Participant Service Center
at the following address:
BT Services Tennessee, Inc.
Bankers Trust New York Corp.
P. O. box 305049
Nashville, TN 37230-5049
Such forms must be actually received by the applicable due date
under the Plan. Any Plan notices or communications to be filed
with the Plan Administrator or Named Fiduciary shall be mailed by
first-class mail or otherwise delivered to such individual at 200
Public Square, Cleveland, Ohio 44114-2375. Legal notices shall
be directed to the Corporate Secretary, BP America Inc., 200
Public Square, Cleveland, Ohio 44114-2375.
14.8 Governing Law. Except as provided under federal law,
the provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.
14.9 Restriction on Alienation. Except as provided in
Sections 401(a)(13)(B) and 414(p) of the Code relating to
qualified domestic relations orders or as otherwise provided
under Section 401(a)(13) of the Code and related regulations, no
benefit under the Plan at any time shall be subject in any manner
to anticipation, alienation, assignment (either at law or in
equity), encumbrance, garnishment, levy, execution, or other
legal or equitable process. No person shall have power in any
manner to anticipate, transfer, assign (either at law or in
equity), alienate, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void. If by reason of any attempt
by a Participant, Terminated Participant, Retired Participant or
Beneficiary to alienate, sell, transfer, assign, pledge, encumber
or otherwise dispose of any right or interest under the Plan, or
if by reason of bankruptcy or insolvency or because of any
attachment, garnishment or other proceeding or, any order,
finding or judgment of any court, either in law or in equity,
prior to the actual transfer and delivery of such right or
interest to such Participant or Beneficiary, such right or
interest except for this Section would be payable to, or enjoyed
by some person, firm, or corporation other than such Participant
or Beneficiary, then any such right or interest shall cease, and
thereafter the Trustee, upon the direction of the Plan
Administrator, shall from time to time as and when payments would
otherwise (except for this Section) become due and payable to
such Participant or Beneficiary, pay or deliver to or expend for
the use and benefit of such Participant or Beneficiary or to or
for the use of any person dependent upon such Participant for
support from any amount which would have been payable or
distributable to such Participant or Beneficiary, except for this
Section, such sums as the Plan Administrator in its sole
discretion may deem necessary or advisable for his support or for
the support of any one dependent upon him. At the time when,
except for this Section, final payment would be required to be
made to such Participant or Beneficiary, there shall be paid to
such Participant or Beneficiary only so much of the balance
remaining to his credit under the Plan as the Plan Administrator,
in the exercise of its sole discretion, may direct and the
remainder thereof, if any, shall be paid over and delivered to
his spouse, if any, or if none, to his children, if any, in equal
shares. If there is no spouse or children of such Participant or
Beneficiary alive at such time, the Trustee shall pay and deliver
any portion of any such remaining balance which is not paid to
such Participant or Beneficiary to the estate of such Participant
or Beneficiary.
14.10 Adoption by Subsidiaries. Any Subsidiary of the
Company which at the time is not an Employer may, with the
consent of the Board of Directors of the Company, adopt the Plan
and become an Employer hereunder. An appropriate written
instrument evidencing such adoption shall be executed and filed
with the Company.
14.11 Rollovers to Other Plans or IRAs. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
Definitions:
(1) Eligible Rollover Distribution. An Eligible Rollover
Distribution is any distribution of all or any portion
of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not
include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the
Distributee's beneficiary, or for a specified period of
ten years or more;
(b) any distribution to the extent such distribution
is required under Code Section 401(a)(9); and
(c) the portion of any distribution that is not
includable in gross income (determined without regard
to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible Retirement Plan. An Eligible Retirement Plan
is an individual retirement account described in Code
Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the
Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee. A Distributee includes a Participant,
Retired Participant or Terminated Participant. In
addition, the Participant's, Retired Participant's or
Terminated Participant's surviving spouse, or former
spouse who is the alternate payee under a qualified
domestic relations order as defined in Code Section
414(p), are Distributees with regard to the interest of
the spouse or former spouse.
(4) Direct Rollover. A Direct Rollover is a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
14.12 Administrative Corrections. The Plan
Administrator or the Named Fiduciary, as appropriate, may take
reasonable actions, consistent with applicable law, as may be
necessary to correct any omissions, defects, or inconsistencies
in the operation or administration of the Plan.
<PAGE>
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Applicability. Notwithstanding any other provision to
the contrary, in the event the Plan is deemed to be a top-heavy
plan for any Plan Year, the provisions contained in this Article
XV with respect to vesting and Service Bonus Contributions shall
be applicable with respect to such Plan Year. In the event the
Plan is determined to be a top-heavy plan and upon a subsequent
Determination Date is determined to no longer be a top-heavy
plan, the vesting and the Employer contribution provisions in
effect immediately preceding the Plan Year in which the Plan was
determined to be a top-heavy plan shall again become applicable
as of such subsequent Determination Date; provided, however, that
in the event such prior vesting schedule does again become
applicable, the provisions of Section 7.4 and Section 12.2 shall
apply (i) to preserve the nonforfeitable accrued benefit of any
Participant or Beneficiary and (ii) to permit in accordance with
Section 7.4, a Participant to elect to continue to have his
nonforfeitable interest in his Employer contributions determined
in accordance with the vesting schedule applicable while the Plan
was a top-heavy plan.
15.2 Top-Heavy Definitions. For purposes of this Article
XV, the following definitions shall apply:
(a) The term "Determination Date" with respect to any Plan
Year shall mean the last day of the preceding Plan Year.
(b) The term "Determination Period" shall mean the Plan
Year containing the Determination Date or the four preceding
plan years.
(c) The term "Key Employee" shall mean any Employee or
former Employee (and the beneficiaries of such Employee) who
at any time during the Determination Period was an officer
of the Company if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the
Company if such individual's compensation exceeds 100
percent of the dollar limitation under Code Section
415(c)(1)(A), a 5-percent owner of the Company, or a one-
percent owner of the Company who has an annual compensation
of more than $150,000. For purposes of this definition, the
term "compensation" has the meaning given to such term by
Code section 414(q)(7).
(d) The term "Non-Key Employee" shall mean any Participant
who is not a Key Employee.
(e) The term "Permissive Aggregation Group" shall mean
those plans not included in an Employer's Required
Aggregation Group in conjunction with any other plan or
plans of such Employer, so long as the entire group of plans
would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(f) The term "Required Aggregation Group" shall include (i)
all plans of an Employer in which a Key Employee is a
participant and (ii) all other plans of an Employer which
enable a plan described in clause (i) hereof to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(g) A "Super Top-Heavy Group" with respect to a particular
Plan Year shall mean a Required or Permissive Aggregation
Group that, as of the Determination Date, would qualify as a
top-heavy group under the definition in paragraph (h) of
this Section 15.2 with "90 percent" substituted for "60
percent" each place where "60 percent" appears in such
definition.
(h) The term "Super Top-Heavy Plan" with respect to a
particular Plan Year shall mean a plan that, as of the
Determination Date, would qualify as a top-heavy plan under
the definition in paragraph (i) of this Section 15.2 with
"90 percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also a
"Super Top-Heavy Plan" if it is part of a Super Top-Heavy
Group.
(i) The term "top-heavy group" with respect to a particular
Plan Year shall mean a required or a Permissive Aggregation
Group if the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
group and the aggregate of the account balances of Key
Employees under all defined contribution plans included in
such group exceeds 60 percent of a similar sum determined
for all employees covered by the plans included in such
group.
(j) The term "top-heavy plan" with respect to a particular
Plan Year shall mean (i), in the case of a defined
contribution plan, a plan for which, as of the Determination
Date, the aggregate of the accounts (within the meaning of
Section 416(g) of the Code and the regulations thereunder)
of Key Employees exceeds 60 percent of the aggregate of the
accounts of all Participants under the plan, with the
accounts valued as of the relevant Valuation Date, (ii) in
the case of a defined benefit plan, a plan for which, as of
the Determination Date, the present value of the cumulative
accrued benefits payable under the plan (within the meaning
of Section 416(g) of the Code and the regulations
thereunder) to Key Employees exceeds 60 percent of the
present value of the cumulative accrued benefits under the
plan for all employees, with present value of accrued
benefits to be determined in accordance with the actuarial
assumptions specified in such defined benefit plan, and
(iii) a plan that is part of a top-heavy group. For
purposes of this paragraph, a Participant's accrued benefit
in a defined benefit plan will be determined under a uniform
accrual method applied under all defined benefit plans
maintained by the Company or an Affiliate or, where there is
no such method, as if such benefit accrued not more rapidly
than the slowest rate of accrual permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
Notwithstanding the foregoing provisions of this paragraph,
however, a plan shall be deemed not to be a top-heavy plan
if it is part of a required or Permissive Aggregation Group
that is not a top-heavy group.
(k) The term "Valuation Date" shall mean the most recent
valuation date within a twelve-month period ending on the
Determination Date.
15.3 Accelerated Vesting. In the event the Plan is
determined to be a top-heavy plan with respect to any Plan Year,
a Participant who is not vested in his Separate Accounts
attributable to Service Bonus Contributions in accordance with
the provisions of Article VII shall be eligible to receive a
nonforfeitable percentage of Service Bonus Contributions
allocated to his Separate Accounts which shall be determined by
application of the following vesting schedule:
Nonforfeitab
Years of Vesting Service le
Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
An involuntary cash-out shall not be an amount less than the
present value of a Participant's entire employer-derived non-
forfeitable benefit at the time of the distribution.
15.4 Minimum Service Bonus Contribution. In the event the
Plan is determined to be a top-heavy plan with respect to any
Plan Year, the Service Bonus Contributions allocated to the
Separate Accounts of each Non-Key Employee who is a Participant
and who is not separated from service with the Employer as of the
end of such Plan Year shall be no less than the lesser of (a)
three percent of his compensation or (b) the largest percentage
of compensation that is allocated for such Plan Year to the
Separate Accounts of any Key Employee, provided that, in the
event the Plan is part of a Required Aggregation Group, and the
Plan enables a defined benefit plan included in such group to
meet the requirements of Section 401(a)(4) or 410 of the Code,
the minimum allocation of Service Bonus Contributions to the
Separate Accounts of each Non-Key Employee shall be three percent
of the compensation of such Non-Key Employees, and provided
further that, if the highest rate allocated to any Key Employee
is less than three percent, amounts contributed as a result of a
salary reduction agreement must be included in determining
contributions made on behalf of Key Employees. Any minimum
allocation to the Separate Accounts of a Participant required by
this Section 15.4 shall be made without regard to any social
security contribution made by the Employer on behalf of the
Participant and without regard to whether or not a Non-Key
Employee withdraws his Before Tax or After Tax Contributions.
This minimum allocation shall be made for a Non-Key Employee who
has not separated from service at the end of the Plan Year,
regardless of whether the Non-Key Employee has less than 1000
hours for the year. Notwithstanding the minimum top-heavy
allocation requirements of this Section 15.4, in the event that
the Plan is a top-heavy plan, each Non-Key Employee hereunder who
is also covered under a top-heavy defined benefit plan maintained
by an Employer will receive the top-heavy benefits provided for
under such defined benefit plan in lieu of the minimum top-heavy
allocation under the Plan.
15.5 Adjustments to Section 415 Limitations.
Notwithstanding the provisions of Section 4A, in the event that
the Plan is a top-heavy plan and the Employer maintains a defined
benefit plan covering some or all of the employees that are
covered by the Plan, Section 415(e)(2)(B) and 415(e)(3)(B) of the
Code shall be applied to the Plan by substituting "1.0" for
"1.25" and Section 415(e)(6)(B)(i) of the Code shall be applied
to the Plan by substituting "$41,500" for "$51,875", except that
such substitutions shall not be applied to the Plan if (a) the
Plan is not a Super Top-Heavy Plan and (b) each Non-Key Employee
who is a Participant, who also participates in a defined benefit
plan maintained by an Employer, will receive a defined benefit
minimum top-heavy benefit of three percent per year of service
(up to 30%), and (c) each Non-Key Employee who is a Participant
who does not participate in a defined benefit plan maintained by
an Employer will receive a defined contribution minimum
allocation of four percent of compensation.
* * *
This amendment and restatement of the BP America DirectSave Plan
was executed at Cleveland, Ohio, this 19th day of February, 1996
BP AMERICA INC.
By
Felix R. Strater
Vice President, Human
Resources
BP Exploration & Oil Inc.
Plan Administrator
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
January 1, 1994
The following groups have been designated by the Board of
Directors as employment classifications eligible for
participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP Oil Service Station hourly (full-
time and part-time)
I-Station managers
I-Station hourly (full-time and
part-time)
TERMINATED EMPLOYEE GROUPS:
BP Oil Truckstops of America hourly
(full-time and part-time)
West Coast Service Station
hourly (full-time and part-
time)
West Coast I-Station managers
West Coast I-Station hourly
(full-time and part-time)
<PAGE>
APPENDIX B
INVESTMENT FUNDS
January 1, 1996
Company Stock Fund. The assets of the Company Stock Fund
shall be invested solely in Company Stock. Company Stock shall
be purchased on the open market or shall be acquired through the
support of newly issued Ordinary Shares of the Company's ultimate
parent, the British Petroleum Company, p.l.c. ("BP"), in
accordance with any procedures which may be established by the
Named Fiduciary. Any purchase of Company Stock on the open
market shall be made only for fair market value as determined by
the Trustee. No commission shall be charged or paid with respect
to any acquisition or sale of Company Stock, except in the case
of Company Stock purchased or sold on a registered national
securities exchange.
Fixed Income Fund. The Fixed Income Fund shall consist of
assets which are invested or held for investment intended to
provide a fixed rate of return including, but not limited to,
those governmental or corporate obligations, trust and
participation certificates and mortgages, insurance contracts
and/or bank contracts which provide for the repayment of funds
invested plus a fixed rate of interest. The Trustee may also, as
directed by the Named Fiduciary from time to time, purchase third
party bonds, guarantees or other forms of insurance on any and
all investments in the Fixed Income Fund and may purchase or hold
property in a short-term investment fund consisting of, but not
limited to, short term notes, debentures, Treasury bills, savings
bond deposits, commercial paper, and any other property for which
the maturity is fixed for a period of time not in excess of 12
months, or a collective trust comprised of such securities
provided such trust is maintained for trusts which form parts of
a pension or profit-sharing plan qualified under the Code. To
the extent that any such assets are so invested in a collective
trust, the instrument establishing the collective trust and the
trust maintained thereunder shall be a part of the Plan and
Trust.
INVESCO Total Return Fund. The INVESCO Total Return Fund
seeks to achieve a high total return on investment through
capital appreciation and current income by investment in a
combination of equity securities and fixed income securities.
Above all, the fund's objective is to achieve reasonably
consistent total returns over up and down market cycles.
Quantitative Fund. The Quantitative Fund is a mutual fund
which seeks a total return greater than that of the U. S. stock
market as measured by the S&P 500 market index, while maintaining
a risk posture similar to that of the index. It invests in a
broadly diversified group of common stocks having investment
characteristics similar to the stocks represented in the S&P 500
but with emphasis on stocks that the Fund's manager considers to
be undervalued by the market. The Quantitative Fund is part of
the Vanguard Group and is managed by Franklin Portfolio
Associates, Inc.
Fidelity Blue Chip Growth Fund. The Fidelity Blue Chip
Growth Fund seeks to achieve long-term capital appreciation from
a portfolio of equity securities issued by established,
recognized companies that are experiencing growth.
J. P. Morgan Institutional International Equity Fund. The
J. P. Morgan Institutional International Equity Fund seeks to
provide a high total return from a portfolio of equity securities
(stocks) of foreign corporations. The fund assumes a long-term
investment horizon to pursue its objective.
<PAGE>
Exhibit 4(e)
THE BP AMERICA
PARTNERSHIP SAVINGS PLAN
(Amended and Restated Effective as of January 1, 1994)
February 1996 Plan No. 032
<PAGE>
PREAMBLE
The Internal Revenue Service (IRS) issued a favorable
determination letter dated February 5, 1996 with regard to the
Plan, provided that certain proposed amendments reviewed by the
IRS are adopted and made effective as of January 1, 1994 or other
dates as required by law. All such required amendments have been
incorporated into the Plan as amended and restated herein.
<PAGE>
AMENDMENT TO
BP AMERICA PARTNERSHIP SAVINGS PLAN
PLAN 032
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Partnership Savings Plan (the "Plan");
WHEREAS, pursuant to Article XIII of the Plan, the Company has
the authority to amend the Plan, subject to its provisions;
NOW THEREFORE, Section 14.5, Merger, Consolidation or Transfer of
Plan Assets is hereby amended by addition of the following
paragraph:
Effective June 1, 1998, a Participant who no longer
contributes to the Plan, and who has an account under the BP
America Capital Accumulation Plan ("CAP") to which the
Participant is currently eligible to make contributions, or
to which the Participant made contributions immediately
prior to terminating employment or retiring, may voluntarily
elect to irrevocably transfer the balance of his accounts in
the Plan to CAP. This voluntary election will be made
available within sixty days of the Participant becoming
eligible for such transfer or at any time thereafter.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA PARTNERSHIP SAVINGS PLAN
Plan No. 032
WHEREAS, BP America Inc. (the "Company"), desires to amend
the BP America Partnership Savings Plan (the "Plan") to implement
certain changes to the Investment Funds established and
maintained under the terms of the Plan and to clarify certain
terms used in the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Appendix B, Investment Funds, is hereby amended as
follows:
a. Effective July 1, 1997, the following descriptions of
two new investment funds available to Participants are added
to Appendix B:
The Wellesley Income Fund is a mutual fund that seeks
to provide a high level of income, long-term growth of
income and moderate long-term growth of capital. The
fund's assets are divided between bonds and common
stocks. It is offered and managed by the Vanguard
Group.
The Index Trust - Small Capitalization Stock Portfolio
("Small Cap Portfolio") is a mutual fund that holds
stocks of small U. S. companies, seeking to provide the
long-term investment growth of small-sized companies
with results that parallel the performance of the
unmanaged Russell 2000 Small Stock Index. The Small
Cap Portfolio is offered and managed by the Vanguard
Group.
b. Effective July 1, 1997, The Quantitative Fund has been
renamed "The Growth and Income Portfolio."
c. Effective October 1, 1997, The Fixed Income Fund has
been renamed "The Income Fund."
2. In order to clarify the Company's long-standing
practice and intent with regard to calculation of the Matching
Contributions, Section 3.3 is hereby amended to read as follows:
3.3 Matching Contributions. Subject to the provisions
of Section 3.4, as soon as practicable after the last day of
each Plan Year quarter, the Employer shall pay to the
Trustee as a Matching Contribution for investment as soon as
practicable in the Company Stock Fund an amount that is
equal to 50 percent of the sum (limited separately for each
payroll period) of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of,
or by, each Participant during such Plan Year quarter;
provided, however, that no Matching Contributions made with
respect to a year on behalf of a Participant shall exceed
the limitations set forth in Article IV.
3. To clarify the Company's long-standing practice and
intent, the definition of "Employee" in Section 1. I (I 9) is
hereby amended by addition of the following:
Further, the term "Employee" shall not include a person who
is a resident or nonresident alien of the United States and
who performs services under an expatriate or temporary duty
policy of the Company or an Affiliate.
4. To clarify the Company's long-standing practice and
intent with regard to the timing for restoration of account
balances upon reemployment, Section 9.5 is hereby
9.5 Buy-Back and Restoration of Forfeited Amounts: If a
Participant terminates service and is entitled to receive
the value of his vested account balance, any nonvested
portion of the account balance will be treated as a
forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within
seven years of his Severance Date shall have such forfeited
amount restored to his separate Accounts, along with
interest credited at the Income Fund rate of return over the
period of the forfeiture, and invested in accordance with a
new investment election. However, if such a Participant has
received a distribution of part or all of his account, he
must repay, in cash, the full amount of such distribution on
or before his final repayment date and such forfeited amount
shall be restored to his Separate Accounts and invested in
accordance with a new investment election. In this case, no
interest shall be accrued on such forfeited amount from the
time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his
Separate Accounts which results in a forfeiture of Matching
Contributions may repay in cash the amount of such
withdrawal on or before his final repayment date, and it
shall be restored to his Separate Accounts in accordance
with a new investment election. Any restoration of Matching
Contributions shall be made from a special Company
contribution which shall not constitute an Annual Addition
within the meaning of Section 4A. For purposes of repaying
the distribution amount the "final repayment date" shall be
five years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects a
withdrawal, his "final repayment date" shall be five years
after the date of such withdrawal.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 19th day of December,
1997.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
By
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
THE PARTNERSHIP SAVINGS PLAN
THIS AMENDMENT to the Partnership Plan (the "Plan") made by BP
America Inc. (the "Company"), effective April 1, 1996;
WITNESSETH THAT:
Section 11. 8(a) is hereby amended in the entirety to read as
follows:
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company. In
addition to the provisions of Section 9.4, the Company may
determine that such costs and expenses shall be paid from
assets of the Plan, to the extent available; provided,
however, that such payments shall not reduce the amounts
already allocated to the Separate Account of any Participant
or the earnings already accrued on any such Separate
Account.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the day and year first above written.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
AMENDMENT TO THE
BP AMERICA PARTNERSHIP SAVINGS PLAN
THIS AMENDMENT to the BP America Partnership Savings Plan (the
"Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT.
In order to clarify the Company's long-standing practice and
intent, particularly with regard to eligibility under the Plan
and responsibilities of the Plan Administrator, the definition of
"Employee" in Section 1.1(19) is hereby amended by addition of
the following:
The term "Employee" shall not include any individual
retained by the Employer directly or through an agency to
perform services for the Company or an Affiliate (for either
a definite or indefinite duration) in the capacity of a fee-
for-service worker or independent contractor or any similar
capacity including, without limitation, any such individual
who is or has been determined by a government entity, court,
arbitrator or other third party to be an employee of the
Company or an Affiliate for any purpose including tax
withholding, employment tax, employment law or for purposes
of any other employee benefit plan of the Company or an
Affiliate. For this purpose, the term "fee-for-service
worker" is not a specific term but is meant to be
interpreted broadly in a generic sense.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the 20th day of December, 1996.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
TABLE OF CONTENTS
Section Page No.
ARTICLE I
DEFINITIONS
1.1 Definitions 3
1.2 Grammatical References 10
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements 11
2.2 Reemployment 11
2.3 Service in Non-Employee Capacity 12
2.4 Election to Participate 12
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions 14
3.2 After-Tax Contributions 14
3.3 Matching Contributions 15
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions 15
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415 17
4A.1 Code Section 415 Governs 17
4A.2 Definitions 17
4A.3 Limitations on Contributions 19
4A.4 Defined Benefit Plan Coverage 19
4A.5 Elimination of Excess Annual Additions 21
4B. Code Sections 402(g), 401(k) and 401(m) 21
4B.1 Code Section 402(g) Limit 22
4B.2 Nondiscrimination Tests 22
4B.3 Correction of Excesses 25
4B.4 Special Rules 25
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND
ADMINISTRATION OF CONTRIBUTIONS
5.1 Separate Accounts 27
5.2 Account Balances 27
5.3 Notification 27
5.4 Delivery of Contributions 28
5.5 Allocation of Matching Contributions 28
5.6 Crediting of Contributions 29
5.7 Changes in Reduction and Deduction Authorizations 29
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
5.8 Suspension of Contributions 29
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND
INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds 31
6.2 Investment Direction of Contributions 31
6.3 Investment of Contributions 31
6.4 Election of Participants to Transfer Invested Amounts 32
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions 33
7.2 Reemployment 33
7.3 Vesting in Before-Tax and After-Tax Contributions 34
7.4 Election of Former Vesting Schedule 34
ARTICLE VIll
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions 35
8.2 Withdrawal of Company Matching Contributions 35
8.3 Withdrawal of Before-Tax Contributions 36
8.4 Withdrawal on Account of Permanent and Total Disability 37
ARTICLE IX
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
9.1 Eligibility for Distribution 38
9.2 Distributions 38
9.3 Forms of Distributions 41
9.4 Disposition of Forfeited Balances 41
9.5 Buy-Back and Restoration of Forfeited Amounts 42
9.6 Payments to Incompetents or Minors 43
9.7 Limitations on Commencement and Distribution of Benefit
Payments 44
9.8 Reemployment 45
ARTICLE X
BENEFICIARIES
10.1 Designation of Beneficiary 46
10.2 Beneficiary in the Absence of Designated Beneficiary 46
10.3 Spousal Consent to Beneficiary Designation 47
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator and Named Fiduciary 48
11.2 Duties of Plan Administrator and Named Fiduciary 48
11.3 Rules and Regulations 51
11.4 Trust Agreement and Trustee 51
11.5 Determination of Benefits and Claims Review 52
11.6 Agency 52
11.7 Records Conclusive 52
11.8 Expenses 53
11.9 Qualified Domestic Relations Orders 53
ARTICLE XII
ASSETS HELD BY TRUSTEE
12.1 Assets Held by Trustee 55
12.2 Options, Rights, or Warrants 55
12.3 Voting Rights 56
12.4 Cost and Proceeds of Securities Transactions 57
12.5 Brokerage Charges 57
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendments 58
13.2 Limitation of Amendments 58
13.3 Termination 58
13.4 Withdrawal of an Employer 59
13.5 Corporate Reorganization 60
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Commitment as to Employment 61
14.2 Rights to Trust Assets 61
14.3 Precedent 61
14.4 Duty to Furnish Information 61
14.5 Merger, Consolidation, or Transfer of Plan Assets 62
14.6 Return of Contributions to Employers 62
14.7 Filing of Notices and Plan Information 63
14.8 Governing Law 63
14.9 Restriction on Alienation 63
14.10 Adoption by Subsidiaries 65
14.11 Rollovers to Other Plans or IRAs 65
14.12 Administrative Corrections 66
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Applicability 67
15.2 Top-Heavy Definitions 67
15.3 Accelerated Vesting 69
15.4 Minimum Matching Contribution 70
15.5 Adjustments to Section 415 Limitations 71
<PAGE>
The BP America
Partnership Savings Plan
(Amended and Restated Effective as of January 1, 1994)
WHEREAS, the Company and its predecessors adopted and
established a profit-sharing and savings plan (known as the
Service Station Savings Plan A) as of April 1, 1988, for the
exclusive benefit of eligible employees of the Company and
participating Subsidiaries of the Company with the purposes of
encouraging savings by employees and assisting in providing
retirement income; and
WHEREAS, that plan has been amended and restated on several
occasions, most recently as of January 1, 1992, wherein the plan
was renamed the BP America Partnership Savings Plan (hereinafter
referred to as the "Plan"); and
WHEREAS, effective as of January 1, 1992, certain additional
classes of employees became eligible to participate in the Plan
and the accounts of these employees were transferred to the Plan
from the plans in which they previously participated as follows:
Class of Employees Previous Plan
Profit Center Manager - Truckstops of America Savings
Truckstops of America Plan
Assistant Profit Center Manager Truckstops of America Savings
- - Truckstops of America Plan
Procare managers, hourly Service Station Savings Plan B
employees and technicians
Service Station assistant Service Station Savings Plan B
managers
NOW, THEREFORE, the Company hereby amends and restates the
Plan as of January 1, 1994, and, where applicable, effective
retroactively to such other dates as required by law or indicated
herein, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words and phrases used
herein shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(1) The term "Act" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(2) The term "Affiliate" shall mean any member of any
of the following groups if such group includes the Company
(but a member of such a group shall be considered an
"Affiliate" only during the period in which it was or has
been such a member): (a) a controlled group of corporations
within the meaning of Section 414(b) of the Code; (b) a
group of trades or businesses (whether or not incorporated)
that are under common control within the meaning of Section
414(c) of the Code; (c) an affiliated service group within
the meaning of Section 414(m)(2) of the Code; (d) an
affiliated service group within the meaning of Section
414(m)(5) of the Code; or (e) any other group required to be
aggregated with the Company pursuant to regulations under
Section 414(o) of the Code
(3) The term "Affiliated Group" shall mean the group
of entities which are Affiliates
(4) The term "After-Tax Account" shall mean the
Separate Account to which the After-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(5) The term "After-Tax Contributions" shall mean
contributions made by a Participant to the Plan in
accordance with the provisions of Section 3.2.
(6) The term "Base Pay" shall mean the regular salary
or wages paid to an Employee for normally prescribed hours,
including regularly scheduled commissions and bonuses paid
to salaried managers and Procare technicians, payments to
Employees during sick leave (not to exceed twelve
consecutive months), or other leaves of absence, and Before-
Tax Contributions under the Plan, but generally excluding
overtime, premiums, bonuses, and living or other allowances.
The Plan Administrator shall review the pay practices of
various operations covered by the Plan in determining
Compensation, and such determination shall be conclusive.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the
Plan to the contrary, (i) for Plan Years beginning on or
after January 1, 1989, the Base Pay of each employee taken
into account under the Plan shall not exceed an annual
compensation limit of $200,000; and (ii) for Plan Years
beginning on or after January 1, 1994, the Base Pay of each
employee taken into account under the Plan shall not exceed
an annual compensation limit of $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17). The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar
year. If a determination period for the Plan as a whole
consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12. In determining the Base
Pay of an Employee for purposes of this limitation, the
rules of Code Section 414(q)(6) shall apply, except that in
applying such rules, the term family shall include only the
spouse of the Employee and any lineal descendents of the
Employee who have not attained age 19 before the close of
the Plan Year.
(7) The Term "Before-Tax Account" shall mean the
Separate Account to which the Before-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(8) The term "Before-Tax Contributions" shall mean the
contributions made oh behalf of a Participant in accordance
with the provisions of Section 3.1 and of Section 401(k) of
the Code.
(9) The term "Beneficiary " shall mean the person or
persons who, in accordance with the provisions of Article X
hereof, shall be entitled to receive distribution hereunder
in the event a Participant, Terminated Participant or
Retired Participant, dies before his interest under the Plan
shall have been distributed to him in full.
(10) The term "Board of Directors" shall mean the Board
of Directors of the Company, such committee of the Board of
Directors or such officer, officers, or other employees of
the Company duly authorized by the Board of Directors to act
on its behalf with respect to the Plan.
(11) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
(12) The term "Company" shall mean BP America Inc., a
Delaware corporation, its corporate successors, and the
surviving corporation resulting from any merger or
consolidation of BP America Inc. with any other corporation
or corporations.
(13) The term "Company Stock" shall mean American
Depositary Shares (each representing a number of ordinary
shares) of The British Petroleum Company, p.l.c.
(14) The term "Company Stock Fund" shall mean the Fund
established and maintained pursuant to the provisions of
Section 6.1.
(15) The term "Effective Date" shall mean January 1,
1989, or such other dates as required by law or set forth
herein..
(16) The term "Eligibility Date" shall mean the
earliest date on which an Employee becomes an Eligible
Employee in accordance with the provisions of Article 11.
(17) The term "Eligibility Service" shall mean the
period of service with which an Employee is credited in
accordance with the provisions of Section 2.1 for the
purpose of determining his eligibility to participate in the
Plan.
(18) The term "Eligible Employee" shall mean an
Employee of an Employer who is employed on or after the
Effective Date in an employment classification listed in
Appendix A and is eligible to participate in the Plan in
accordance with the provisions of Article II.
(19) The term "Employee" shall mean any common law
employee of the Company or an Affiliate, in an employment
classification listed in Appendix A, excluding any person
who renders service to an Employer solely as a director or
an independent contractor, any casual employee or any person
who is a nonresident alien and who receives no earned income
within the meaning of Code Section 911(d)(2) from an
Employer which constitutes income from sources within the
United States, as defined in Code Section 861(a)(3).
(20) The term "Employer" shall mean the Company or any
Subsidiary which adopts the Plan as herein provided, so long
as the Subsidiary has not withdrawn from the Plan. The term
"Employer" shall also include The British Petroleum Company,
p.l.c., or one of its subsidiaries; provided, however, that
employment with any of these companies is preceded
immediately by employment with the Company or a Subsidiary
as described in the foregoing sentence.
(21) The term "Employment Commencement Date" shall mean
the first date on which an Employee completes an Hour of
Service.
(22) The term "Financial Hardship" shall mean an
immediate and heavy financial need of a Participant which
satisfies the requirements of Section 401(k) of the Code and
regulations issued thereunder.
(23) The term "Fund" shall mean any of the funds
established and maintained in accordance with the provisions
of Article VI.
(24) The term "Highly Compensated Employee" shall
include highly compensated active employees and highly
compensated former employees.
A highly compensated active employee includes any
employee who performs service for an Employer during the
determination year and who, during the look-back year: (i)
received compensation from the employer in excess of $75,000
(as adjusted pursuant to Code Section 415(d)); (ii) received
compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member
of the top-paid group for such year; or (iii) was an officer
of the employer and received compensation during such year
that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). The term Highly
Compensated Employee also includes: (i) employees who are
both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 1 00 employees who
received the most compensation from the employer during the
determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation
requirement of (iii) above during either a determination
year or look-back year, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. For
this purpose, the determination year shall be the plan year.
The look-back year shall be the twelve-month period
immediately preceding the determination year.
A highly compensated former employee includes any
employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no
service for the employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after
the employee's 55th birthday.
If an employee is, during a determination year or
look-back year, a family member of either a 5 percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the
employer during such year, then the family member and the 5
percent owner or top-ten Highly Compensated Employee shall
be aggregated. In such case, the family member and 5
percent owner or top-ten Highly Compensated Employee shall
be treated as a single employee receiving compensation and
plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated
Employee. For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated
Employee, including the determinations of the number and
identity of employees in the top-paid group, the top 100
employees, the number of employees treated as officers and
the compensation that is considered, will be made in
accordance with Code Section 414(q) and the regulations
thereunder.
(25) The term "Hour of Service" shall mean an hour for
which an Employee is paid, or entitled to be paid, with
respect to the performance of duties for an Employer or an
Affiliate either as regular wages, salary, or commissions or
pursuant to an award or agreement requiring an Employer or
an Affiliate to pay back wages. Hours under this paragraph
(25) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which is
incorporated herein by reference.
(26) The term "Leased Worker" shall be a person (other
than a person who is an employee without regard to this
paragraph (26)) engaged in performing services for the
Company or an Affiliate (collectively, the "Recipient")
pursuant to an agreement between the Recipient and any other
person ("Leasing Organization") who meets the following
requirements:
(a) he has performed services for the Recipient (or
for any other "related persons," determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least
one year;
(b) such services are of a type historically performed
in the business field of the Recipient, in the United
States, by employees; and
(c) he is not participating in a "safe harbor plan" of
the Leasing Organization. For this purpose a "safe
harbor plan" is a plan that satisfies the requirements
of Section 414(n)(5) of the Code, which generally will
be a money purchase pension plan providing (i) a
nonintegrated employer contribution of at least 10
percent of compensation (as defined in Section
415(c)(3) of the Code but including amounts contributed
pursuant to a salary reduction agreement that are
excluded from gross income under Code Section 125 or
under a qualified cash or deferred arrangement as
defined in Code section 401(k)(2)), (ii) immediate
participation, and (iii) full and immediate vesting;
provided, however, that this subparagraph (c) shall
only apply if Leased Workers do not constitute more
than 20 percent of the Recipient's non-highly
compensated workforce.
A person who is a Leased Worker shall be considered an
employee of the Company or an Affiliate during such period
(and solely for the purpose of determining length of service
for vesting purposes, shall also be considered to have been
an employee for any earlier period in which he was a Leased
Worker) but shall not be a Participant and shall not
otherwise be eligible to become covered by the Plan during
any period in which he is a Leased Worker. Notwithstanding
the foregoing, the sole purpose of this paragraph (26) is to
define and apply the term "Leased Worker" strictly (and
only) to the extent necessary to satisfy the minimum
requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be
interpreted, applied, and, if and to the extent necessary,
deemed modified without formal amendment of language, so as
to satisfy solely the minimum requirements of Section 414(n)
of the Code
(27) The term "Matched Percentage" shall mean the
percentage of the After-Tax and Before-Tax Contributions
made by, or on behalf of, a Participant which is to be
matched by contributions of the Employers as set forth in
Section 3.3.
(28) The term "Matching Contributions" shall mean the
contributions which the Employers contribute to the Plan in
accordance with the provisions of Section 3.3.
(29) The term "Matching Contributions Account" shall
mean the Separate Account to which Matching Contributions of
a Participant are credited in accordance with the provisions
of Section 5.6.
(30) The term "Named Fiduciary" shall mean the chief
financial officer of the Company or as otherwise specified
by the Board of Directors. If there is no Named Fiduciary
designated by the Board of Directors, the Company shall be
substituted.
(31) The term "Normal Retirement Age" shall mean the
later of the date the Participant attains age 65 or the
fifth anniversary of the date the Participant commenced
participation in the Plan.
(32) The term "Participant" shall mean an Eligible
Employee who elects to participate in the Plan in accordance
with the provisions of Article II. The term "Participant"
shall also include an Employee whose contributions are
suspended or one who has transferred out of a participating
class of Employees but for whom a Separate Account is
maintained.
(33) The term "Plan" shall mean the BP America
Partnership Savings Plan, a profit-sharing plan, as herein
set forth.
(34) The term "Plan Administrator" or "Administrator"
shall mean the Vice President of BP Exploration & Oil Inc.
responsible for Human Resource functions or the successor to
such office as specified by the Board of Directors.
(35) The term "Plan Year" shall mean the 12-month
period beginning each January 1 and terminating each
subsequent December 31.
(36) The term "Reemployment Date" shall mean the first
date on which an Employee completes an Hour of Service by
performing services as an Employee after a Severance Date.
(37) The term "Retired Participant" shall mean any
Participant who retires under the terms of a qualified
pension plan maintained by an Employer or an Affiliate.
(38) The term "Separate Account" shall mean the After-
Tax Account, the Before-Tax Account or the Matching
Contributions Account of a Participant which is established
and maintained in accordance with the provisions of Section
5.1.
(39) The term "Service Date" shall mean the Employment
Commencement Date or Reemployment Date, if applicable, of
any Employee.
(40) The term "Severance Date" shall mean the earlier
of (i) the date on which an Employee retires, dies, or
otherwise terminates employment from an Employer or an
Affiliate, or (ii) the first anniversary of the first date
of a period of absence from service with the Affiliated
Group for any other reason; provided, however, that if an
Employee is absent from employment while on an Employer-
approved leave of absence, he shall not incur a Severance
Date until such leave of absence is terminated; and provided
further that if an Employee is absent from employment while
on active service in the Armed Forces of the United States,
his Severance Date shall be the date on which he terminated
his employment, unless he returns to employment with an
Employer or an Affiliate during the time period prescribed
by federal law; and provided further that no Employee shall
incur a Severance Date until the second anniversary of the
first date on which such Employee is absent from employment
with an Employer or an Affiliate for maternity or paternity
reasons. For purposes of this paragraph (40), an absence
for maternity or paternity reasons means an absence due to
(i) the pregnancy of the employee, (ii) the birth of a child
of the Employee, (iii) the placement of a child with the
Employee in connection with the adoption of such child by
the Employee, or (iv) the caring of such child for a period
beginning immediately following such birth or placement.
Notwithstanding the foregoing, if an Employee retires or
dies, or his employment otherwise is terminated during a
period of absence from employment for any reason other than
retirement or termination, his Severance Date shall be the
date of such retirement, death or other termination of
employment.
(41) The term "Subsidiary" shall mean any wholly owned
subsidiary of the Company including any wholly owned
subsidiary of another Subsidiary of the Company.
(42) The term "Terminated Participant" shall mean a
Participant who has terminated employment with an Employer
or an Affiliate.
(43) The term "Trust" shall mean the trust, maintained
in conjunction with the Plan under a trust agreement entered
into with the Trustee, for the purpose of receiving, holding
and investing amounts contributed under the Plan and from
which Plan benefits are paid.
(44) The term "Trustee" shall mean any trustee which is
designated, legally qualified, and authorized to act as the
trustee of the Trust
(45) The term "Vesting Service" shall mean the period
of service, calculated in accordance with the elapsed time
method of credited service outlined in Treasury regulation
Section 1.410(a)-7, with which a Participant is credited for
the purpose of determining his vested interest in his
Separate Accounts attributable to Matching Contributions
under Section 7.1.
(46) The term "Year of Service" means, for purposes of
determining eligibility to participate under Article II, the
twelvemonth period immediately following an Employee's
Employment Commencement Date, or any Plan Year commencing
after the Employee's Employment Commencement Date in which
the Employee is credited with at least 1000 Hours of
Service.
1.2 Grammatical References. The masculine shall
include the feminine and the singular shall include the
plural except as otherwise required by the context.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements. An Employee shall become
eligible to participate in the Plan as of the first pay date
after he both (i) attains age 21, and (ii) completes a twelve-
month period of employment during which he is credited with at
least 1,000 Hours of Service. The twelve-month period of
employment shall be (a) twelve consecutive months commencing on
the individual's Employment Commencement Date, or (b) any Plan
Year commencing subsequent to that date.
Employees covered under a collective bargaining agreement
are not eligible to participate in the Plan unless such agreement
specifically provides for coverage by the Plan or the collective
bargaining representative agrees to accept plan changes without
the requirement of further collective bargaining.
2.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply to eligibility for participation:
(a) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date within the twelve-month
Period following his original Employment Commencement Date,
for purposes of eligibility to participate, such Employee
shall be treated as if he had never incurred a Severance
Date; provided that he is employed in a classification
listed in Appendix A.
(b) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and has a
Reemployment Date after the twelve-month period following
his original Employment Commencement Date but within seven
years after such Severance Date, such Employee will be
eligible to participate in the Plan as of any pay date
following the Plan Year in which he completes 1,000 Hours of
Service and is age 21; provided that he is employed in a
classification listed in Appendix A.
(c) If an Employee has met the Plan's eligibility
requirements, is not yet vested in his Plan account at the
time he incurs a Severance Date and has a Reemployment Date
within seven years after such Severance Date, such Employee
is eligible to participate in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(d) If an Employee is vested in his Separate Accounts at
the time he incurs a Severance Date, such Employee can
resume participation in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(e) If an Employee is not vested in his Separate Accounts
at the time he incurs a Severance Date and does not incur a
Reemployment Date within seven years after such Severance
Date, such Employee will be subject to the same eligibility
requirements that are applicable to a new Employee.
2.3 Service in Non-Employee Capacity. For purposes of this
Article 11, all common law employment with the Affiliated Group
(in a capacity other than as an Employee). or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall be
treated as if such employment was employment as an Employee for
purposes of this Article II; provided, however, that no person
shall be eligible to participate in the Plan until he has
satisfied the requirements of Section 2.1.
2.4 Election to Participate. Each Eligible Employee shall
become a Participant as of his Eligibility Date or any subsequent
pay date, if he has timely filed with the Company a written
election, in the form prescribed by the Plan Administrator, which
contains:
(a) his authorization for his Employer to reduce his Base
Pay in order to make Before-Tax Contributions on his behalf
in accordance with the provisions of Section 3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of Section
3.2; and
(c) his election as to the investment of all contributions
allocated to him in accordance with the provisions of
Article VI.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions. Any Participant may elect to
have Before-Tax Contributions made to the Plan by his Employer in
an integral percentage of his Base Pay of not less than one
percent nor more than 16 percent; provided, however, that in no
event may the percentage of Before-Tax Contributions made on
behalf of a Participant, when added to the percentage of his
After-Tax Contributions, if any, equal less than one percent or
more than 16 percent of his Base Pay. The Base Pay of such
Participant shall be reduced by the percentage elected under the
compensation reduction authorization in effect for such
Participant provided, however, that no Before-Tax Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.2 After-Tax Contributions. Any Participant may elect to
make After-Tax Contributions by payroll deduction in an integral
percentage of his Base Pay of not less than one percent nor more
than sixteen percent; provided, however, that in no event may the
percentage of the After-Tax Contributions of a Participant, when
added to the percentage of Before-Tax Contributions, if any, made
on his behalf equal less than one percent or more than sixteen
percent of his Base Pay. Any payroll deduction with respect to
After-Tax Contributions shall be made from the Base Pay of a
Participant by his Employer in accordance with the terms of the
payroll deduction authorization in effect for such Participant;
provided, however, that no After-Tax Contributions made with
respect to a year on behalf of a Participant shall exceed the
limitations set forth in Article IV.
3.3 Matching Contributions. Subject to the provisions of
Section 3.4, as of the last day of each Plan Year quarter, the
Employers shall pay to the Trustee as a Matching Contribution for
investment in the Company Stock Fund an amount that is equal to
50 percent of the sum of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of, or
by, each Participant during such Plan Year quarter; provided,
however, that no Matching Contributions made with respect to a
year on behalf of a Participant shall exceed the limitations set
forth in Article IV.
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions. Notwithstanding any other provision of the Plan
to the contrary, Before-Tax and After-Tax Contributions, and
accrued Company Matching Contributions of any Participant as of
any date within the calendar year will be considered in
determining the amount of contributions not exceeding the
limitations of Article IV.
As of any date within the calendar year, if Before-Tax and
After-Tax Contributions and accrued Company Matching
Contributions would exceed 25 percent of the Participant's
Compensation, Before-Tax Contributions will be automatically
converted to After-Tax Contributions to the extent necessary to
satisfy the contribution limitation to 25 percent of the
Participant's Compensation, as described in Section 4A.3. If the
limitation is still not satisfied, After-Tax Contributions will
be automatically reduced and paid to the Participant to the
extent necessary to satisfy the limitations of Section 4A.3.
If the Defined Contribution Dollar Limit as defined in
Section 4A.2(c) is reached as of any date within the calendar
year, subsequent After-Tax and Before-Tax Contributions will be
automatically discontinued. Accrued Company Matching
contributions for the calendar year not in excess of the
limitation may be made on behalf of the Participant at any time
during the calendar year and during the first quarter of the
subsequent calendar year, according to Plan provisions.
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415.
4A.1 Code Section 415 Governs. Notwithstanding anything to
the contrary contained in the Plan, effective January 1, 1987,
the amount of Matching Contributions, Before-Tax Contributions,
and After-Tax Contributions which may be credited to the Separate
Accounts of Participants shall be subject to the provisions
hereinafter set forth. The limitations contained in this Article
4A are intended to comply with the provisions of Section 415 of
the Code. If there is any discrepancy between the provisions of
this Section 4A and the provisions of Section 415 of the Code,
such discrepancy shall be resolved in such a manner so as to give
full effect to the provisions of Section 415 of the Code which
are hereby incorporated by reference.
4A.2 Definitions. For purposes of this Section 4A the
following terms shall have the meanings hereinafter set forth:
(a) "Annual Additions" shall mean the amount credited to a
Participant's Separate Accounts for the Limitation Year that
constitutes:
(i) Employer contributions,
(ii) Employee contributions,
(iii) Forfeitures, and
(iv) Amounts described in Code Section 415(l)(1) or in
Code Section 419A(d)(2), if any.
(b) "Compensation" shall mean (for purposes of Section 4A
of the Plan) wages, salaries and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
an Employer or an Affiliate to the extent that the amounts
are includable in gross income (including, but not limited
to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan, but excluding:
(i) Employer contributions to a plan of deferred
compensation which are not includible in the employee's
gross income for the taxable year in which contributed,
or any distributions from a qualified deferred
compensation plan;
(ii) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which receive special tax benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
(c) "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the Limitation Year; provided,
however, that in the case of a Limitation Year less than 12
months in duration due to an amendment changing the
Limitation Year to a different 12-month period, the Defined
Contribution Dollar Limitation shall be a fraction of the
foregoing amount equal to the number of full months in the
Limitation Year divided by 12.
(d) "Employee Contributions" shall mean After-Tax
Contributions to the Plan made by a Participant during the
Limitation Year.
(e) "Employer Contributions" shall mean Before-Tax
Contributions and Matching Contributions credited by an
Employer to the Plan on behalf of a Participant for the
Limitation Year.
(f) "Limitation Year" shall mean each 12-month period
beginning each January 1 and terminating each subsequent
December 31.
4A.3 Limitations on Contributions.
(a) Maximum Annual Additions. The maximum Annual Additions
that may be contributed or allocated to a Participant's
Separate Accounts under the Plan and/or any other qualified
defined contribution plan maintained by the Company or an
Affiliate for any Limitation Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for
the Limitation Year.
For purposes of implementing this limitation, the Plan
Administrator may estimate the Compensation of the
Participant to be paid during the Limitation Year and
restrict the Before-Tax and/or After-Tax Contribution
elections of Participants.
(b) Special Rules. The compensation limitation referred to
in Section 4A.3(a)(ii) shall not apply to any contribution
for any medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(l)(1) or
Section 419A(d)(2) of the Code.
4A.4 Defined Benefit Plan Coverage. If any Participant in
the Plan is covered by one or more qualified defined benefit
plans (whether or not terminated) maintained by an Employer or an
Affiliate concurrently covered by the Plan, the sum of the
defined benefit plan fraction with respect to such Participant
and the defined contribution plan fraction with respect to such
Participant shall not exceed 1.0. For purposes of this section,
defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) "Defined benefit plan fraction" shall mean a fraction,
the numerator of which is the projected annual benefit of
such Participant under all such defined benefit plans
(determined as of the close of such Limitation Year) and the
denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect under Sections 415(b) and 415(d)
of the Code for such year or (ii) 140 percent of the highest
average compensation, including any adjustment, under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined
benefit plans maintained by an Employer or an Affiliate
which were in existence on May 6, 1986, the denominator of
this fraction will not be less than 125 percent of the sum
of the annual benefits under such plans which the
Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 for all
Limitation Years beginning before January 1, 1987.
(b) "Defined contribution fraction" shall mean a fraction,
the numerator of which is the sum of the annual additions to
the participant's account under all the defined contribution
plans (whether or not terminated) maintained by an Employer
or Affiliate for the current and all prior Limitation Years,
and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether a
defined contribution plan was maintained by the Employer or
Affiliate). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in
effect under Section 415(c)(1)(A) of the Code or 35 percent
of the participant's compensation for such year.
The Plan Administrator may elect to apply the transitional
rules stated in Sections 415(e)(4) and 415(e)(6).
If the defined benefit plan(s) and defined contribution
plans(s) of an Employer or Affiliate in existence on May 6,
1986, satisfied the applicable requirements of Section 415
of the Code as in effect for all Limitation Years beginning
before January 1, 1987, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury, if necessary, so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
under Section 415(e)(1) of the Code does not exceed 1.0 for
such Limitation Year.
The annual additions for years beginning before January 1,
1987 shall not be recomputed to treat all employee
contributions as annual additions.
4A.5 Elimination of Excess Annual Additions. To the extent
that any of the limitations set forth under this Section 4A would
be exceeded due to a reasonable error in estimating a
Participant's annual compensation, the following procedures shall
be followed to prevent such excess(es).
(a) If the Annual Additions to the Separate Accounts of a
Participant in any Limitation Year would exceed the
limitation contained in this Section 4A absent such
limitation, the excess shall be avoided as follows:
(i) The Before-Tax Contributions that would have been
contributed for the Participant's benefit shall be
reduced and automatically converted to After-Tax
Contributions; and
(ii) Next, After-Tax Contributions made during the
Limitation Year shall be returned to the Participant to
the extent necessary to satisfy the limitations on
Annual Additions.
In each case specified above, the amount to be converted or
returned shall be that amount as is necessary to permit the
maximum amount of the Annual Additions to the Participant's
Separate Accounts for such year to be made under the Plan
without violating the restrictions contained herein or in
Section 415 of the Code.
In the event that, notwithstanding the foregoing, the
limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of the allocations of
forfeitures or a reasonable error in estimating the
Participant's annual Compensation, the portion of such
excess attributable to Matching Contributions shall be held
in a suspense account and, if such Participant remains a
Participant after the end of the Limitation Year, shall be
used to reduce Matching Contributions for such Participant
for the succeeding Limitation Years, and, if such
Participant ceases participating in the Plan, shall
thereafter be used to reduce Matching Contributions for all
other Participants in the Limitation Year in which he ceases
to be a Participant and succeeding Limitation Years, as
necessary.
4B. Code Sections 402(g), 401(k) and 401(m).
4B.1 Code Section 402(g) Limit. No Participant shall be
permitted to have Before-tax Contributions made under this Plan
(or any other qualified plan maintained by an Employer or an
Affiliate), during any taxable year, in excess of the dollar
limitation under Code Section 402(g) in effect at the beginning
of such taxable year.
If the amount of Before-Tax Contributions elected by a
Participant under the Plan during a calendar year would cause the
Code Section 402(g) dollar limitation to be exceeded, such amount
will be reduced and automatically converted to After-Tax
Contributions during the calendar year. If any excess deferrals
(as defined in Code Section 402(g)) exist subsequent to the end
of the calendar year, the Plan Administrator may notify the Plan
of such excess deferrals and may direct the Trustee to refund
such excess deferrals to affected Participants (along with any
income allocable to the excess deferrals for the taxable year)
prior to the 15th of April immediately following such calendar
year. If any such excess deferrals are distributed more than two
and one-half (2-1/2) months after the last day of the Plan Year
in which they arose, a ten (10) percent excise tax will be
imposed on the Company with respect to such amounts.
4B.2 Nondiscrimination Tests. This Section 4B.2 is
effective as of January 1, 1987. For purposes of the
nondiscrimination tests of this Section 4B.2, the portion of the
Plan that benefits a unit of employees covered by a collective
bargaining agreement will be treated as comprising a separate
plan from the non-collectively bargained portion of the Plan. To
the extent that there are multiple units of employees covered by
collective bargaining agreements, the Company at its option may
treat two or more collective bargaining units as a single unit,
provided that the combinations of collective bargaining units are
determined on a basis that is reasonable and reasonably
consistent from year to year.
(a) Actual Deferral Percentage ("ADP") Test Notwithstanding
Section 3.1 or any other provision of the Plan, during any
Plan Year the Before-Tax Contributions made on behalf of
Eligible Employees who are Highly Compensated Employees
shall be restricted to the extent necessary to satisfy at
least one of the following tests:
Test No. 1: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ADP of Eligible Employees who are not
Highly Compensated Employees
Test No. 2: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ADP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ADP of Eligible
Employees who are not Highly Compensated Employees.
For these purposes, "ADP" shall mean the ratio
(expressed as a percentage) of Before-Tax Contributions
made on behalf of an Eligible Employee for the Plan
Year to the Eligible Employee's Compensation. as
defined below, for the Plan Year.
(b) Actual Contribution Percentage ("ACP") Test
Notwithstanding Sections 3.2 and 3.3 or any other provision
of the Plan, during any Plan Year the After-Tax
Contributions (including any Before-Tax Contributions
automatically converted to After-Tax Contributions pursuant
to Section 4B.1) and Matching Contributions paid to the Plan
with respect to Eligible Employees who are Highly
Compensated Employees shall be restricted to the extent
necessary to satisfy at least one of the following tests:
Test No 1: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ACP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ACP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ACID of Eligible
Employees who are Not Highly Compensated Employees.
For these purposes, "ACP" shall mean the ratio
(expressed as a percentage) of total After-Tax and
Matching Contributions made by or on behalf of an
Eligible Employee for the Plan Year to the Eligible
Employee's "Compensation," as defined below, for the
Plan Year.
(c) Multiple Use Limitation Test. In addition to the
limitations of paragraphs (a) and (b) above, and
notwithstanding Sections 3.1, 3.2 and 3.3 of the Plan or any
other provision of the Plan, during any Plan Year in which
Test No. 2 of paragraph (a) is used to satisfy the ADP Test
and Test No. 2 of paragraph (b) is used to satisfy the ACP
Test, the Before-Tax Contributions, After-Tax Contributions
and Matching Contributions paid to the Plan with respect to
Participants who are Highly Compensated Employees shall be
restricted to the extent necessary to assure that the sum of
the ADP and ACP of such Highly Compensated Eligible
Employees does not exceed the greater of:
(i) 1.25 times the ADP of Eligible Employees who are
not Highly Compensated Employees, plus the ACP of such
Eligible Employees, plus the lesser of 2 percent or the
ACP of such Eligible Employees, or
(ii) 1.25 times the ACP of Eligible Employees who are
not Highly Compensated Employees, plus the ADP of such
Eligible Employees, plus the lesser of 2 percent or the
ADP of such Eligible Employees
(d) Definition of "Compensation" For purposes of the ADP,
ACP and Multiple Use Tests, "Compensation" means wages,
salaries and fees for professional services and other
amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in
the course of employment with an Employer or an Affiliate to
the extent that the amounts are includable in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan), plus any elective
contributions made by an Employer or an Affiliate that are
not includable in gross income under Section 125 and Section
402(e)(3) of the Code, but excluding:
(i) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iii) Other amounts which receive special tax
benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
4B.3 Correction of Excesses.
(a) In the event that the ADP test set forth in 4B.2 above
is exceeded, an amount of Before-Tax Contributions of Highly
Compensated Employees will be reduced and automatically
converted to After-Tax Contributions. Such amount shall be
determined by reducing the maximum percentage of Before-Tax
Contributions of the Highly Compensated Employees from its
highest limit to such smaller percentage which will result
in the ADP test being passed. Any amounts so converted to
After-Tax contributions shall nevertheless remain non-
forfeitable and remain subject to the distribution
limitations that apply to Before-Tax Contributions to the
extent required by the Code.
(b) In the event that the ACP test or the multiple use test
set forth in 4B.2 above is exceeded, an amount of After-Tax
Contributions for Highly Compensated Employees will be
reduced and automatically returned (along with any income
allocable to such amount during the Plan Year) to the
Participants within the time frame required under the Code.
Such amount shall be determined by reducing the maximum
percentage of After-Tax Contributions of the Highly
Compensated Employees from its highest limit to such smaller
percentage which will result in the ACP test or the multiple
use test being passed.
If any amounts returned to correct the ACP test are
distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which the excess arose, a
ten (10) percent excise tax will be imposed on the Company
with respect to these amounts.
4B.4 Special Rules.
(a) The ADP or ACP for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax, After-Tax or Matching
Contributions allocated to his account under two or more
plans or arrangements described in Code Sections 401(a)
and/or 401(k) that are maintained by an Employer or
Affiliate, shall be determined as if all such Contributions
were made under a single plan or arrangement,
(b) For purposes of determining the ADP or ACP of a
Participant who is a Highly Compensated Employee, the
Contributions and Compensation of such Participant shall
include the Contributions and Compensation of family members
(as described in Code Section 414(q)(6)(B)). The
Contributions and Compensation of such family members shall
be disregarded in determining the ADP or ACP of Participants
who are not such Highly Compensated Employees.
(c) The determination and treatment of a Participant's ADP
or ACP shall satisfy such other requirements as may be
prescribed by law.
<PAGE>
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND
ADMINISTRATION OF CONTRIBUTIONS
5.1 Separate Accounts. Each Participant shall, where
applicable, have established in his name the following Separate
Accounts:
(a) a Before-Tax Account which shall reflect the Before-Tax
Contributions made on behalf of a Participant, as well as
the investment income thereon in the Funds;
(b) an After-Tax Account which shall reflect the After-Tax
Contributions of a Participant, as well as the investment
income thereon in the Funds.
(c) a Matching Contributions Account which shall reflect
the Matching Contributions of a Participant, as well as the
investment income thereon in the Funds.
5.2 Account Balances. For all purposes of the Plan, the
balance of each Separate Account as of any date shall be the
balance of such account after all credits and charges thereto,
for and as of such date, have been made as provided herein. The
determination of the Plan Administrator as to Separate Account
balances shall be final.
5.3 Notification. At least annually the Company shall
notify each Participant, Terminated Participant and Retired
Participant of the balance of his Separate Accounts as of the
last day of such year.
5.4 Delivery of Contributions. Each Employer shall cause
to be delivered to the Trustee all After-Tax, Before-Tax, and
Matching Contributions made in accordance with the provisions of
Article III as soon as reasonably practicable, but no later than
90 days after the contributions are made, and in accordance with
procedures established by the Plan Administrator.
If a Participant is paid in foreign currency, each After-Tax
or Before-Tax Contribution amount shall be based on the United
States dollar equivalent of the Participant's foreign Base Pay.
The conversion to United States dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as elected
by the employee. The resulting amount, after conversion into
United States dollars, will be transferred to the Trustee and
credited on behalf of the Participant to the proper Separate
Account. All statements setting forth a Participant's Separate
Accounts will be expressed in United States dollars.
5.5 Allocation of Matching Contributions. The Matching
Contributions of an Employer for each Plan Year quarter shall be
allocated quarterly among Participants who are Eligible Employees
of such Employer during such quarter and who made, or had made on
their behalf, After-Tax or Before-Tax Contributions for such
quarter. Each such Participant's allocated share of the Matching
Contributions of an Employer for such quarter shall be equal to
the matched percentage of his After-Tax and Before-Tax
Contributions specified pursuant to Section 3.3 with respect to
such quarter.
5.6 Crediting of Contributions. Subject to the provisions
of Sections 4A, 4B and Article VII, contributions shall be
credited to the Separate Accounts of a Participant in the
following manner:
(a) the amount of Before-Tax Contributions made on behalf
of a Participant shall be credited to such Participant's
Before-Tax Account;
(b) the amount of After-Tax Contributions made by a
Participant shall be credited to such Participant's After-
Tax Account;
(c) the amount of Matching Contributions allocated to a
Participant shall be credited to the Participant's Matching
Contributions Account.
Such Before-Tax, After-Tax and Matching Contributions shall
be invested by the Trustee in accordance with the provisions of
Section 6.3 and procedures established by the Plan Administrator.
5.7 Changes in Reduction and Deduction Authorizations. The
percentage of Before-Tax Contributions and After-Tax
Contributions made by, or on behalf of, a Participant may be
changed to satisfy legal requirements in accordance with
procedures established by the Plan Administrator; to an integral
percentage which does not exceed the limitations specified in
Articles III and IV.
5.8 Suspension of Contributions. Any Participant who is
making, or having made on his behalf, Before-Tax and/or After-Tax
Contributions under Sections 3.1 or 3.2 may suspend part or all
of such Contributions at any time by notifying the Company in
accordance with procedures established by the Plan Administrator.
Any such suspension shall remain in effect until such
Contributions are resumed.
<PAGE>
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds. The Company shall
select and establish certain funds (the "Investment Funds" or
"Funds") that it shall cause to be maintained for the purpose of
investing assets held under the Plan which relate to the Separate
Accounts of Plan Participants. One such Fund shall be a Company
Stock Fund which shall invest solely in Company Stock.
Descriptions of the various funds are contained in Appendix B.
6.2 Investment Direction of Contributions. Any Before-Tax,
After-Tax and Matching Contributions of a Participant shall be
invested by the Trustee in accordance with directions received
from the Participant, based upon the investment elections of each
Participant made in accordance with the provisions of Sections
6.3 and 6.4 in the various Investment Funds selected by the
Participant.
6.3 Investment of Contributions. Each Participant, upon
electing to become a Participant under the Plan, shall make
investment elections directing the manner in which his Before-Tax
and After-Tax Contributions shall be invested by the Trustee.
Such election shall be the same for Before-Tax and After-Tax
Contributions. Contributions that are credited to a Separate
Account of such Participant shall be invested in the various
Investment Funds in any combination of integral percentages that
equals 100 percent. In the absence of a valid Participant
election, Before-tax Contributions and After-Tax Contributions
shall be invested by the Trustee in the Fixed Income Fund pending
receipt of a valid investment direction from the Participant.
Investment elections shall be made by a Participant in accordance
with uniform administrative and operational rules established by
the Plan Administrator.
Subject to the provisions of Section 6.4, the investment
options so elected by a Participant shall remain in effect until
he changes his investment elections or ceases to be a Participant
in accordance with the provisions of the Plan.
Matching Contributions shall be invested by the Trustee in
the same manner as Before-Tax and After-Tax Contributions are
invested.
6.4 Election of Participants to Transfer Invested Amounts.
A Participant, Terminated Participant or Retired Participant may
elect at any time to have a portion or all of the balance of the
assets liquidated and transferred from the Investment Funds in
which they are currently invested to one or more of the other
Funds in accordance with uniform administrative and operational
rules established by the Plan Administrator. Such an election
shall become effective, and the Participant may thereafter change
or revoke such election, at such times and in the manner
established by the Plan Administrator.
<PAGE>
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions. A Participant shall
be 100 percent vested in the Matching Contributions credited to
his Matching Contributions Account as well as all earnings
credited to such Account, if:
(a) such Participant is credited with at least five years
of Vesting Service;
(b) such Participant attains age 65;
(c) such Participant is declared mentally incompetent or
becomes permanently and totally disabled;
(d) such Participant dies, or
(e) such Participant's employment is involuntarily
terminated due to an involuntary separation program
sponsored by the Company, or as a result of the sale or
other disposition of a Subsidiary or division or part
thereof of the Company (or an Affiliate of the Company).
7.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply for purposes of vesting under the Plan:
(a) If a Participant incurs a Severance Date and
subsequently has a Reemployment Date within twelve months
following the Severance Date, such Participant's years of
Vesting Service will be calculated as if such Participant
had never incurred a Severance Date.
(b) If a Participant who is vested in his Separate Accounts
incurs a Severance Date and then has a Reemployment Date
more than twelve months after the Severance Date, such
Participant's years of Vesting Service earned prior to the
Severance Date will be restored for purposes of vesting
under the Plan. However, such a Participant will not be
credited with years of Vesting Service for the period of the
Participant's absence.
(c) If a Participant who is not vested in his Separate
Accounts incurs a Severance Date and then has a Reemployment
Date more than twelve months but less than seven years after
the Severance Date, such Participant's years of Vesting
Service earned prior to the Severance Date will be restored
for purposes of vesting under the Plan. However, such a
Participant will not be credited with years of Vesting
Service for the period of the Participant's absence.
7.3 Vesting in Before-Tax and After-Tax Contributions. A
Participant shall always be 100 percent vested in Before-Tax and
After-Tax Contributions credited to his Before-Tax and After-Tax
Accounts, as well as all earnings credited to such Accounts.
7.4 Election of Former Vesting Schedule. In the event of
an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his
Separate Accounts attributable to Matching Contributions, any
Participant who is a Participant on the effective date of such
amendment or who is credited with three or more years of Vesting
Service shall have a right to have his nonforfeitable interest in
such accounts continue to be determined under the vesting
schedule in effect prior to such amendment rather than under the
new vesting schedule, unless the nonforfeitable interest of such
Participant in such accounts under the Plan, as amended, at any
time is not less than such interest determined without regard to
such amendment. Notwithstanding the foregoing provisions of this
Section 7.4, the vested interest of each Participant on the
effective date of such amendment shall not be less than his
vested interest under the Plan as in effect immediately prior to
the effective date of such amendment.
<PAGE>
ARTICLE VIII
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion up to the entire value of his After-
Tax Contributions made to the Plan and all earnings on After-Tax
Contributions less any such amounts previously withdrawn. Such a
withdrawal will be taken first from any After-Tax Contributions
made to the Plan prior to 1987. When pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
proportionately from After-Tax Contributions made to the Plan
after 1986 and earnings on all After-Tax Contributions. After-
Tax Contributions withdrawn will be taken first from those not
subject to Matching Contributions and then from those subject to
Matching Contributions. If the Participant is not yet vested
pursuant to Section 7.1 and any part of the After-Tax
Contributions withdrawn are subject to Matching Contributions,
all Matching Contributions credited to the Participant's After-
Tax Account will be forfeited.
8.2 Withdrawal of Company Matching Contributions. By
applying to the Company in the form and manner prescribed by the
Plan Administrator, a Participant who is vested pursuant to
Section 7.1 may elect to withdraw in Gash or in kind, or both,
any portion up to the entire value of all Matching Contributions
under his Matching Contributions Account and any earnings on such
Contributions less any amounts previously withdrawn; provided
that he first withdraws the value of all his After-Tax
Contributions and earnings thereon pursuant to the provisions of
Sections 8.1; and provided further that a vested Participant who
has not participated in the Plan for at least five years may only
withdraw Matching Contributions that have been in the Plan for at
least two years.
8.3 Withdrawal of Before-Tax Contributions. Subject to the
provisions of this Section 8.3, a Participant may apply to the
Company in the form and manner prescribed by the Plan
Administrator, for a withdrawal in cash from his Separate Account
attributable to Before-Tax Contributions and any earnings accrued
through December 31, 1988, on such Contributions less any such
amounts previously withdrawn; provided that he has first
withdrawn the total value of his After-Tax Account and, if the
Participant is vested, the total value of the Matching
Contributions Account pursuant to Sections 8.1 and 8.2
At any time after a Participant has attained age 59-1/2 or
has become totally and permanently disabled, earnings accrued
after December 31, 1988, on Before-Tax Contributions may also be
withdrawn. The amounts in such Participant's Before-Tax Account
will be aggregated with his After-Tax Account for the purpose of
making withdrawals from the Plan; and such Participant's Before-
Tax Contributions, including any interest, dividends, and
appreciation thereon, less any amounts previously withdrawn, may
be withdrawn in connection with an After-Tax Contribution
withdrawal under Section 8.1
Except for a Participant who has attained age 59-1/2 or has
become totally and permanently disabled, a withdrawal of Before-
Tax Contributions and any earnings thereon, except as indicated
below, shall be permitted only if the Plan Administrator
determines that such withdrawal is needed for a Financial
Hardship and that such withdrawal will not exceed the lesser of
(i) the amount required to meet the need for which the withdrawal
is requested, or (ii) the value of his Before-tax Account.
However, If such Participant has not yet attained age 59-1/2 or
becomes totally and permanently disabled, any earnings accrued
after December 31, 1988, on his Before-Tax Contributions are not
available for withdrawal even in the case of a Financial
Hardship.
8.4 Withdrawal on Account of Permanent and Total
Disability. In the event the Participant becomes permanently and
totally disabled, he shall be eligible to withdraw up to the
entire value of his Separate Accounts under the provisions of
Sections 8.1, 8.2 and 8.3. In this instance, permanent and total
disability shall be defined according to uniform procedures
established by the Plan Administrator.
<PAGE>
ARTICLE IX
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
9.1 Eligibility for Distribution. Each Participant shall
be entitled to receive the vested amount of his Separate Accounts
upon retirement or other termination of employment with the
Affiliated Group for any reason, including death.
9.2 Distributions. The Plan Administrator shall direct the
Trustee to make distribution to, or for the benefit of, a
Participant, who becomes eligible to receive the vested amount of
his Separate Accounts under Section 9.1 in the manner hereinafter
set forth
(a) Distributions to Participants Upon Retirement or Other
Termination of Employment (Other than Death). In the case
of a Participant who retires or terminates employment with
the Affiliated Group (for reasons other than death), if the
combined value of the vested interest of the Participant
under the Plan and all other qualified profit-sharing plans
maintained by the Affiliated Group is (and was at the time
of any prior distribution) $3,500 or less, distribution of
such Participant's vested interest under the Plan shall be
made to him as soon as practicable in a single lump-sum
payment. If the value of the vested interest of such
Participant under the Plan and all other qualified profit-
sharing plans maintained by the Affiliated Group is (or was
at the time of any prior distribution) in excess of $3,500,
distribution of such Participant's vested interest under the
Plan shall be made in one or more of the following methods,
in accordance with rules established by the Plan
Administrator, as the Participant shall select:
(i) in a single lump-sum payment payable at any time
prior to the April 1 of the calendar year following the
calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law; or
(ii) in a series of monthly installments over a period
not in excess of the normal life expectancy of the
Participant or the joint life expectancies of the
Participant and his Beneficiary, such installments to
be equal in amount, except as necessary to adjust for
any net earnings and changes in the market value of his
Separate Accounts, or by any other method reasonably
calculated to provide a more rapid distribution of his
interest. Notwithstanding the foregoing, a Participant
may defer commencing distribution until the April 1 of
the calendar year following the calendar year in which
he attains age 70-1/2 unless otherwise permitted by
law. For purposes of this subparagraph (ii), the life
expectancy of a Participant and such Participant's
Beneficiary may be redetermined, but not more
frequently than annually, and in accordance with such
rules as may be prescribed by Treasury regulations.
Further, life expectancy and joint and last survivor
expectancy shall be computed using the return multiples
of Treasury regulation 1.72-9. A Participant wishing to
have the life expectancy used to calculate his benefit
redetermined annually, must so elect no later than the
commencement of his payments, and such election is
irrevocable. If such an election is not made, the life
expectancy used to calculate his benefit will not
change, and no redetermination of life expectancy may
be elected at a future date.
The dollar amount of an installment payment, the length
of the payment period under an installment payment or
the type of installment payment may be changed once per
year effective with the payment anniversary date;
provided, that any such changes meet the requirements
of Section 9.7 hereof (taking into consideration any
amendment of Section 401(a)(9) of the Code). An
installment payment under this subparagraph (ii) may be
changed to a payout under subparagraph 9.2(a)(i), or
such other form of payout under subparagraphs 9.2(a)(i)
may be changed to an installment payment under this
subparagraph (ii) once after such payment or payout
commences. For purposes of this subparagraph (ii),
"payment anniversary date" shall mean the anniversary
of the date that the installment payments commenced.
Notwithstanding the foregoing provisions of this paragraph
(a), if the life expectancy of a person other than the
Participant or his spouse is utilized in determining the
amount of any benefit payment, the value of the payments to
be made during the life expectancy of such Participant shall
be computed pursuant to the minimum distribution incidental
benefit requirement of Treasury regulations.
(b) Distributions Due to Death. Unless death occurs before
the .required beginning date," (as defined in Section
9.7(c)) distribution of the Participant's vested interest
will be made in accordance with procedures established by
the Plan Administrator, and subject to an applicable
election, as follows:
(i) No Beneficiary designated. The entire account
must be distributed by December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
(ii) Spouse Beneficiary designated. The entire account
must be distributed over a period not exceeding the
Beneficiary's life expectancy. Payments must begin by
the later of (1) December 31 of the year following the
year of the Participant's death, or (2) December 31 of
the year the Participant would have attained age 70-
1/2.
(iii) Non-Spouse Beneficiary Designated. The
entire account must be distributed over a period not
exceeding the Beneficiary's life expectancy. Payments
must begin by December 31 of the year following the
year of the Participant's death, or as soon as
administratively feasible thereafter.
(iv) Distribution Exception. In cases in which a
Beneficiary does not wish to receive a distribution
over his/her life expectancy under (ii) or (iii) above
(as applicable), either the Participant or, following
the Participant's death the Beneficiary, may elect to
have the distribution paid out under (i) above. Such
an election must be made by, and may not be revoked
following, the earlier of (1) December 31 of the year
the distribution is required to commence under (ii) or
(iii) above, or (2) December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
In the absence of any specific election by the Participant
or Beneficiary as to the form of the distribution, the
distribution will be paid out under (ii) or (iii) as
applicable.
If death occurs after the Retired or Terminated
Participant's .required beginning date," distribution of the
remaining portion of a Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed immediately.
(ii) Beneficiary Designated.
(1) Payments made over the Participant's life
expectancy only. If no election to recalculate
life expectancy was made, the remaining account
must be distributed to the Beneficiary at least as
rapidly as under the method of distribution in
effect at the Participant's death. The life
expectancy schedule for a deceased Participant
would continue to be used, with the Beneficiary
having the option to increase the payments. If an
election to recalculate life expectancy was made,
the remaining account must be paid out to the
Beneficiary by December 31 of the year following
the year of the Participant's death.
(2) Payments being made over the joint life
expectancy of the Participant and Beneficiary. If
no election to recalculate life expectancy was
made, the Beneficiary will continue to receive
distributions based on the joint life expectancy
factors already in effect (as if no death had
occurred), with the Beneficiary having the option
to increase the amount of the payments. If an
election is made by the Participant to have his
life expectancy recalculated and either (a) no
election is made to have his designated
Beneficiary's life expectancy recalculated, or (b)
the designated Beneficiary is not the
Participant's spouse, the Beneficiary will receive
the regularly scheduled payment in the year of the
Participant's death, and the remaining account
will be distributed over the Beneficiary's single
life expectancy with no recalculation. The
Beneficiary has the option to increase the amount
of the payments. If an election to recalculate
the Participant's and the spousal Beneficiary's
life expectancies was made, the Beneficiary will
receive the regularly scheduled payment in the
year of the Participant's death, and the remaining
account will be distributed over the Beneficiary's
single life expectancy with recalculation. The
Beneficiary has the option to increase the amount
of the payments
9.3 Forms of Distributions. All distributions under this
Article IX shall be made in the following manner:
(a) Any distributions, other than annuity contracts or
monthly installment payments, may be made in cash or in
kind, or both, in accordance with the election of the
Participant or Beneficiary
(b) Any distributions to a Participant in a monthly
installment form under subparagraph (a)(ii) of Section 9.2
shall be made in cash.
9.4 Disposition of Forfeited Balances. If a termination of
employment results in a forfeiture of Matching Contributions,
such forfeiture may either be used to reduce the Employers'
Matching Contribution obligation or be applied, as directed by
the Plan Administrator or Named Fiduciary, as appropriate, to pay
such administrative expenses of the Plan as are legally permitted
to be paid from the Trust and as are actually paid not later than
the next succeeding Plan Year quarter. If the amount of all such
forfeitures during the quarter exceeds the amount used before the
end of the next succeeding quarter to reduce Matching
Contributions and to pay expenses of the Plan, the excess may be
applied thereafter only to reduce matching contribution
obligations for succeeding quarters until eliminated.
9.5 Buy-Back and Restoration of Forfeited Amounts. A
Participant who terminates employment and incurs a forfeiture of
Matching Contributions and is subsequently reemployed within five
years of his Severance Date shall have such forfeited amount
restored to his Separate Accounts, along with interest credited
at the Fixed Income Fund rate of return over the period of the
forfeiture, and invested in accordance with a new investment
election. If such a Participant receives a distribution of part
or all of his account, he must repay, in cash, the full amount of
such distribution on or before his final repayment date and such
forfeited amount shall be restored to his Separate Accounts and
invested in accordance with a new investment election. In this
case, no interest shall be accrued on such forfeited amount from
the time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his Separate
Accounts which results in a forfeiture of Matching Contributions
may repay in cash the amount of such withdrawal on or before his
final repayment date, and shall be restored to his Separate
Accounts in accordance with a new investment election. Any
restoration of Matching Contributions shall be made from a
special Company contribution which shall not constitute an Annual
Addition within the meaning of Section 4A. For purposes of
repaying the distribution amount, in the case of a Participant
who terminates employment, the "final repayment date" shall be
five years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects a
withdrawal, his "final repayment date" shall be five years after
the date of such withdrawal.
9.6 Payments to Incompetents or Minors. If any individual
to whom an amount is payable hereunder is incapable of attending
to his financial affairs because of any mental or physical
condition, including the infirmities of advanced age, or is a
minor, such amount (unless prior claim therefor shall have been
made by a duly qualified guardian or other legal representative)
may, in the discretion of the Plan Administrator, be paid to a
duly appointed guardian or to another person for the use or
benefit of the individual found to be a minor or incapable of
attending to his financial affairs or in satisfaction of legal
obligations incurred by or on behalf of such individual. The
Trustee shall make such payment only upon receipt of written
instructions to such effect from the Plan Administrator. Any
such payment shall be charged to the Separate Accounts from which
any such payment would otherwise have been paid to the individual
found to be a minor or incapable of attending to his financial
affairs and shall be a complete discharge of any liability
therefor under the Plan.
9.7 Limitations on Commencement and Distribution of Benefit
Payments.
(a) Unless the Participant otherwise elects (or is deemed
to elect otherwise because the combined present value of
such Participant's nonforfeitable accrued benefit under the
Plan and all other qualified profit-sharing plans maintained
by the Affiliated Group does not exceed $3,500), the payment
of benefits under the Plan to such Participant shall begin
not later than the 60th day after the close of the Plan Year
in which the latest of the following events occurs:
(i) The date on which such Participant attains age 65;
(ii) The tenth anniversary of the date on which such
Participant commenced participation in the Plan; and
(iii) The date on which such Participant terminates
service with the Affiliated Group.
(b) Notwithstanding the foregoing, such Participant's
entire interest in his Separate Accounts (including any
distribution of incidental death benefits) must be
distributed, or begun to be distributed, to him not later
than his "required beginning date."
(c) A Participant's "required beginning date" is the April
1st of the calendar year following the year in which the
Participant attains age 70-1/2. For a Participant who
attains age 70-1/2 before January 1, 1988, and is not a 5-
percent owner, the term "required beginning date" means
April 1 of the calendar year following the later of (1) the
calendar year in which the Participant attains age 70-1/2 or
(2) the calendar year in which the employee retires. For a
Participant who attains age 70-1/2 before January 1, 1988,
and is a 5-percent owner, the term "required beginning date"
means April 1 of the calendar year following the later of
(1) the calendar year in which the Participant attains age
70-1/2, or (2) the earlier of (i) the calendar year with or
within which ends the Plan Year in which the Participant
becomes a 5-percent owner, or (ii) the calendar year in
which the Participant retires.
(d) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined under Code Section 416(i) at any time
during the Plan Year ending with or within the calendar year
in which such owner attains age 66-1/2 or any subsequent
year.
(e) Notwithstanding any provision in this Plan to the
contrary, if not made in a lump-sum, the interest of a
Participant in his Separate Accounts under the Plan must be
distributed, in accordance with Treasury regulations
promulgated under Section 401(a)(9) of the Code, over one of
the four following periods:
(i) the life of such Participant;
(ii) the joint lives of such Participant and such
Participant's Beneficiary;
(iii) a period not extending beyond the life
expectancy of such Participant; or
(iv) a period not extending beyond the joint life
expectancies of such Participant and such Participant's
beneficiary.
9.8 Reemployment. In the event a Participant, is
reemployed by an Employer or an Affiliate, and if such Retired
Participant again becomes an active Participant, his Separate
Accounts from his prior participation shall be consolidated with
the Separate Accounts established in his name after such
reemployment.
<PAGE>
ARTICLE X
BENEFICIARIES
10.1 Designation of Beneficiary. A Participant, Retired
Participant, or Terminated Participant may designate a
Beneficiary to whom distribution shall be made hereunder in the
event such Participant dies before his interest is distributed to
him in full. If such Participant has a spouse, his spouse shall
be his Beneficiary and shall receive distribution of his
remaining interest in accordance with the provisions of Section
9.2; provided, however, that a person or persons other than his
spouse may be designated as his Beneficiary if the requirements
of Section 10.3 are met. Any such designation or change of
designation shall be subject to the provisions of Section 10.3,
shall be made in writing in the form prescribed by the Plan
Administrator, and shall become effective only when filed with
the Plan Administrator; provided, however, that any such
designation or change of designation which is received by the
Plan Administrator after the death of the Participant, Retired
Participant or Terminated Participant shall be disregarded.
10.2 Beneficiary in the Absence of Designated Beneficiary.
If (i) a Participant, Retired Participant, or Terminated
Participant who dies does not have a surviving spouse and if no
Beneficiary has been designated pursuant to the provisions of
Section 10.1, or (ii) no Beneficiary survives such Participant,
then the Beneficiary shall be the estate of such Participant. If
any Beneficiary designated pursuant to Section 10.1 dies after
becoming entitled to receive distributions hereunder and before
such distributions are made in full and if no other person or
persons have been designated to receive the balance of such
distributions upon the happening of such contingency, the estate
of such deceased Beneficiary shall become the Beneficiary as to
such balance.
10.3 Spousal Consent to Beneficiary Designation. In the
event a Participant, Retired Participant, or Terminated
Participant is married, any Beneficiary designation, other than a
designation of his spouse as Beneficiary, shall be effective only
if his spouse consents in writing thereto and such consent
acknowledges the specific designation of Beneficiary and the
effect of such action, and is witnessed by a notary public,
unless a Plan representative finds that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
Treasury regulations issued thereunder.
<PAGE>
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator and Named Fiduciary. The Plan shall
be administered by the Vice President of BP Exploration & Oil
Inc. with responsibility for Human Resources (or the successor to
such office as designated by the Board of Directors) who shall
serve as Plan Administrator within the meaning of ERISA. The
chief financial officer of the Company shall serve as Named
Fiduciary except as otherwise designated by the Board of
Directors.
The Board of Directors may arrange for the delegation by the
Trustee to the Named Fiduciary of any functions normally
performed by trustees (except the custody of assets, the voting
with respect to shares held by the Trustee, and the purchase and
sale or redemption of securities.)
11.2 Duties of Plan Administrator and Named Fiduciary. The
Plan Administrator shall have the authority and responsibility
for control of the operation and administration of the Plan. The
Named Fiduciary shall have the responsibility to manage and
control the assets of the Plan, which includes the investment of
Plan assets. The Plan Administrator and the Named Fiduciary may,
from time to time, designate, or revoke the designation of, one
or more persons other than themselves to carry out one or more
specific fiduciary responsibilities. Each such designation
shall:
(a) be in writing signed by the Plan Administrator or Named
Fiduciary, as applicable;
(b) specify one or more fiduciary duties in connection with
the Plan for which such designee shall be responsible; and
(c) be accepted by such designee. The revocation of any
such designation shall be in writing signed by the Plan
Administrator or Named Fiduciary, whichever originally made
such designation, and shall include a statement that such
has been notified of such revocation.
The Plan Administrator and the Named Fiduciary shall also
have such additional responsibilities and authority with respect
to the Plan as are specifically vested in them from time to time
by action of the Board of Directors of the Company. The
authority of the Plan Administrator and the Named Fiduciary to
delegate any of their duties as fiduciaries under the Plan to any
designee may be limited pursuant to action of such Board of
Directors. Each such designated fiduciary may rely upon any such
direction, information, or action of the Plan Administrator,
Named Fiduciary or another designated fiduciary as being proper
under this Plan or the Trust, and is not required under this Plan
or the Trust to inquire into the propriety of any such direction,
information, or action. It is intended under the Plan and the
Trust that each fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another fiduciary.
No designated fiduciary, Plan Administrator, Named Fiduciary nor
the Group guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
No bond or other security shall be required of the Plan
Administrator or the Named Fiduciary or anyone delegated to act
on behalf of either, nor shall they receive additional
compensation for services performed by them in the administration
of this Plan, except as may otherwise be required by law.
No director, officer or Employee of the Group shall be
personally liable for any act or omission to act in connection
with the operation or administration of the Plan, except for his
own willful misconduct or gross negligence, except as may
otherwise be required by law.
The Plan Administrator and the Named Fiduciary and each of
their designees, if any, may serve, subject to the foregoing
provisions of this Section 11.2, in more than one fiduciary
capacity with respect to the Plan and may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
The Plan Administrator shall have the sole and exclusive
discretion and authority to apply, construe and interpret all
provisions and terms of the Plan, to grant and/or deny any and
all claims for benefits, and to determine and decide any and all
issues and factual circumstances relating to eligibility for
benefits. All findings, decisions and determinations of any kind
made by the Plan Administrator shall not be disturbed unless the
Plan Administrator has acted in an arbitrary and capricious
manner. Subject to the requirements of law, the Plan
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and in any determination of
eligibility for a benefit. All decisions of the Plan
Administrator shall be final and binding on all parties. The
Plan Administrator shall exercise his powers in a uniform and
nondiscriminatory manner.
11.3 Rules and Regulations. The Plan Administrator may from
time to time prescribe rules or regulations for the
administration of the Plan. Without limiting the generality of
the foregoing, the Plan Administrator may adopt such rules or
regulations with respect to the signature by an Employee and/or
the spouse of an Employee, any directions or other papers to be
signed by Employees, and similar matters as the Plan
Administrator shall determine to be necessary or advisable in
view of the laws of any state or country.
11.4 Trust Agreement and Trustee. The Named Fiduciary and
the Trustee have entered into a trust agreement pursuant to which
the Trustee is to act as trustee under the Plan. The Named
Fiduciary may, without further reference to, or action by, any
Subsidiary participating in the Plan, from time to time enter
into such further agreements with the Trustee or other parties
and make such amendments to such trust agreement or such further
agreements as it may deem necessary or desirable.
The Named Fiduciary may from time to time designate a
successor Trustee which shall be a bank or trust company with
capital and surplus of not less than $10,000,000, and the Named
Fiduciary may require the Trustee to take such steps and execute
such instruments as the Named Fiduciary may deem necessary or
desirable to make effective the transfer of the Trust assets to
the successor Trustee and to maintain the Plan.
11.5 Determination of Benefits and Claims Review. The Plan
Administrator or his designee shall make all initial
determinations as to the right of any person to a benefit. The
Plan Administrator shall establish and follow a procedure for
review of any such determination consistent with regulations of
the Department of Labor under Section 503 of the Act.
11.6 Agency. The Plan Administrator, the Named Fiduciary,
or the Trustee need not recognize the agency of any party for a
Participant or a Beneficiary unless it shall receive documentary
evidence thereof satisfactory to it and thereafter from time to
time, as the Plan Administrator, the Named Fiduciary, or the
Trustee may determine, additional documentary evidence showing
the continuance of such agency. The Plan Administrator, the
Named Fiduciary, or the Trustee shall be entitled to rely upon
the continuance of such agency and to deal with the agent as if
he or it were the Participant or the Beneficiary.
11.7 Records Conclusive. The records of the Trustee, Plan
Administrator, Named Fiduciary, Employers, and Subsidiaries shall
be conclusive in respect of all matters involved in the
administration of the Plan.
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company
(b) Taxes, if any, on any assets held by the Trustee or
income therefrom which are payable by the Trustee shall be
charged against the Participant's Separate Accounts as the
Trustee shall determine.
11.9 Qualified Domestic Relations Orders. The Plan
Administrator shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
Anything to the contrary in the Plan notwithstanding, in the
event a qualified domestic relations order provides for a
distribution of a Participant's, Terminated Participant's or
Retired Participant's Separate Accounts, or any portion thereof,
to an alternate payee as defined under Section 414(p)(8) of the
Code, such distribution may include Before-Tax Contributions,
After-Tax Contributions and Matching Contributions, as well as
earnings thereon, without regard to the date as of which such
Participant, Terminated Participant or Retired Participant
separates from service or attains age 59-1/2.
<PAGE>
ARTICLE XII
ASSETS HELD BY TRUSTEE
12.1 Assets Held by Trustee. All cash, bonds, stock
certificates, and contracts representing monies on deposit with
insurance companies shall, until disposed of pursuant to the
provisions of this Plan, be held in the possession or name of the
Trustee; provided, however, that transferable securities may be
registered in the name of the Trustee or in the name of its
nominee. All Mutual Fund shares may be held as unissued shares
(not in certificate form), in the name of the Trustee.
Nontransferable securities shall be issued in such name or names
as the Trustee may elect, subject to any applicable laws or
regulations at the time in effect with respect thereto. In the
sole discretion of the Trustee, investments in a particular issue
of stock, security, or a particular issue of bonds made at the
direction of more than one Participant may be represented by a
single certificate, single contract, or single bond, as the case
may be.
12.2 Options, Rights, or Warrants. In the event that any
options, rights, or warrants shall be granted or issued with
respect to shares of stock held by the Trustee under the Plan,
the Trustee shall give to the Participant who directed the
investment in such shares a reasonable opportunity to direct the
Trustee to exercise such options, rights, or warrants for his
Separate Account, and if any cash shall be required in connection
with such exercise, such Participant shall, simultaneously with
his direction to the Trustee, authorize the Trustee to use for
such purpose any uninvested funds held for him and/or make
available to the Trustee any additional necessary funds. Such
additional funds may be made available to the Trustee either by
payment thereof in cash or by written direction to the Trustee on
forms prescribed by the Plan Administrator to sell any security
held for him; provided, however, that any such additional funds
deposited by any Participant with the Trustee for the aforesaid
purpose shall not be deemed a Before-Tax or After-Tax
Contribution under Article Ill. Any securities acquired as the
result of the exercise of any such options, rights, or warrants
shall be added to the Participant's Separate Accounts. If any
Participant shall not, within the time designated by the Trustee,
direct the Trustee to exercise any such option, right, or warrant
and make available to the Trustee any necessary funds, the
Trustee shall sell such option, right, or warrant on any
registered security exchange, if there be any market therefor,
and the cash proceeds from the sale of any such options, rights,
or warrants shall be credited to the Participant's Separate
Accounts. The foregoing provisions notwithstanding, the Trustee
shall reserve the right to determine whether any dividends on
Company Stock held by the Plan shall be paid in cash or in kind
under a share dividend plan.
12.3 Voting Rights. The Trustee shall vote the Company
Stock held in the Company Stock Fund for the respective accounts
of Participants in accordance with such Participants' directions
which may be certified to the Trustee by the Plan Administrator
or any agent designated by the Plan Administrator; provided that
any such shares with respect to which no such direction shall be
received and any fractional shares shall be voted by the Trustee
in the same proportions as shares as to which voting instructions
have been received.
12.4 Cost and Proceeds of Securities Transactions. If the
purchase or sale of securities by the Trustee, whether in
pursuance of standing directions or specific directions, cannot
be completed in a single transaction, but requires multiple
transactions, the price per unit (including prices determined by
the Trustee in cases of matched purchases and sales) at which all
securities of that particular issue are purchased or sold by the
Trustee shall be the weighted average net price per unit at which
all securities of that particular issue are purchased or sold for
the multiple transactions.
12.5 Brokerage Charges. Brokerage commissions, transfer
taxes, and other charges and expenses in connection with the
purchase or sale of securities shall be added to the cost of such
securities or deducted from the proceeds thereof, as the case may
be.
<PAGE>
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendments. Subject to the provisions of Section 13.2,
the Board of Directors is authorized to amend the provisions of
the Plan at any time in its sole discretion. This authority may
be delegated from time to time by resolutions of the Board of
Directors to certain officers of the Group, which delegations
shall constitute part of the Plan.
13.2 Limitation of Amendments. The Company shall make no
amendment to the Plan which shall result in the forfeiture or
reduction of the interest of any Employee, Eligible Employee,
Participant, Terminated Participant, Retired Participant or
person claiming under or through any one or more of them pursuant
to the Plan; provided, however, that nothing herein contained
shall restrict the right to amend the provisions hereof relating
to the administration of the Plan and Trust. Moreover, no
amendment shall be made hereunder which shall permit any part of
the Trust property to revert to any Employer or be used for or be
diverted to purposes other than the exclusive benefit of
Employees, Eligible Employees, Participants, Terminated
Participants, Retired Participants and persons claiming under or
through them pursuant to the Plan.
13.3 Termination. The Company reserves the right, by action
of its Board of Directors, to terminate the Plan as to all
Employers at any time, which termination shall become effective
upon notice in writing to the Trustee (the effective date of such
termination being hereinafter referred to as the "termination
date"). The Plan shall terminate automatically if there is a
complete discontinuance of contributions hereunder by all
Employers. Upon any such termination of the Plan, the Trustee
and the Company shall take the following actions for the benefit
of Participants, Terminated Participants, Retired Participants,
and Beneficiaries:
(a) As of the termination date, the Trustee shall value the
Funds hereunder, and the Plan Administrator shall adjust all
Separate Accounts accordingly. The termination date shall
become a valuation date. In determining the net worth of
the Funds hereunder, the Trustee shall include as a
liability such amounts as in its judgment shall be necessary
to pay all expenses in connection with the termination of
the Trust and the liquidation and distribution of the Trust
property, as well as other expenses, whether or not accrued,
and shall include as an asset all accrued income.
(b) The Trustee, upon instructions from the Plan
Administrator, shall then segregate and, subject to
applicable provisions of the Code relating to distribution
of Before-Tax Contributions, distribute an amount equal to
the entire interest of each Participant, Terminated
Participant, Retired Participant and Beneficiary in the
Funds to or for the benefit of each such Participant or
Beneficiary in accordance with the provisions of Section
9.2.
Notwithstanding anything to the contrary contained herein,
upon any such Plan termination, the interest of any Participant
and Beneficiary shall become fully vested and nonforfeitable;
and, if there is a partial termination of the Plan within the
meaning of the Code, the interest of each Participant and
Beneficiary who is affected by such partial termination shall
become fully vested and nonforfeitable.
13.4 Withdrawal of an Employer. An Employer other than the
Company may, by action of its board of directors, withdraw from
the Plan, such withdrawal to be effective upon notice in writing
to the Company and shall thereupon cease to be an Employer for
all purposes of the Plan. An Employer shall be deemed
automatically to withdraw from the Plan in the event of its
complete discontinuance of contributions or (subject to the
provisions of Section 13.5) in the event it ceases to be a
Subsidiary.
13.5 Corporate Reorganization. The merger, consolidation,
or liquidation of the Company or any Employer with or into the
Company or any other Employer shall not constitute a termination
of the Plan as to the Company or such Employer.
<PAGE>
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Commitment as to Employment. Nothing herein
contained shall be construed as a commitment on the part of any
Employer to continue the employment or rate of compensation of
any Employee hereunder for any period.
14.2 Rights to Trust Assets. Nothing in the Plan shall be
construed to confer any right or claim upon any person other than
the parties hereto, Participants, Terminated Participants,
Retired Participants and Beneficiaries. All payments of benefits
as provided in the Plan shall be made solely out of the assets of
the Trust. and none of the fiduciaries shall be liable therefor
in any manner.
14.3 Precedent. Except as otherwise specifically provided
or required by law, no action taken in accordance with the terms
of the Plan, by an Employer, the Company, or any fiduciary for
the Plan, shall be construed or relied upon as a precedent for
similar action under similar circumstances.
14.4 Duty to Furnish Information. Each of the Employers,
the Company, or the Trustee shall furnish to any of the others
any documents, reports, returns, statements, or other information
that any other reasonably deems necessary to perform its duties
imposed hereunder or otherwise imposed by law.
14.5 Merger, Consolidation, or Transfer of Plan Assets. The
Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another
plan, unless, immediately after such merger, consolidation, or
transfer of assets or liabilities, each Participant, Terminated
Participant, Retired Participant or Beneficiary will receive a
benefit which is at least equal to the benefit he was entitled to
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (if the plan had then terminated).
14.6 Return of Contributions to Employers. If a Before-Tax
Contribution:
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the Contribution under
Section 404 of the Code and such deduction is disallowed, or
(c) is conditioned upon initial qualification of the Plan
under Section 401(a) of the Code and the Plan does not so
qualify,
such a Contribution may be returned to the Employers within one
year after the mistaken payment of the contribution, the
disallowance of the deduction (to the extent disallowed), or the
date of denial of the qualification of the Plan, whichever is
applicable. For this purpose, all Contributions made by the
Employers are expressly declared to be conditioned upon their
deductibility under Section 404 of the Code and the qualification
of the Plan.
14.7 Filing of Notices and Plan Information. Any Plan forms
to be filed with the Plan shall be mailed by first-class mail or
otherwise delivered to the BP America Participant Service Center
at the following address:
BT Services Tennessee, Inc.
Bankers Trust New York Corp.
P. O. box 305049
Nashville, TN 37230-5049
Such forms must be actually received by the applicable due date
under the Plan. Any Plan notices or communications to be filed
with the Plan Administrator or Named Fiduciary shall be mailed by
first-class mail or otherwise delivered to such individual at 200
Public Square, Cleveland, Ohio 44114-2375. Legal notices shall
be directed to the Corporate Secretary, BP America Inc., 200
Public Square, Cleveland, Ohio 44114-2375.
14.8 Governing Law. Except as provided under federal law,
the provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.
14.9 Restriction on Alienation. Except as provided in
Sections 401(a)(13)(B) and 414(p) of the Code relating to
qualified domestic relations orders or as otherwise provided
under Section 401(a)(13) of the Code and related regulations, no
benefit under the Plan at any time shall be subject in any manner
to anticipation, alienation, assignment (either at law or in
equity), encumbrance, garnishment, levy, execution, or other
legal or equitable process. No person shall have power in any
manner to anticipate, transfer, assign (either at law or in
equity), alienate, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void. If by reason of any attempt
by a Participant, Terminated Participant, Retired Participant or
Beneficiary to alienate, sell, transfer, assign, pledge, encumber
or otherwise dispose of any right or interest under the Plan, or
if by reason of bankruptcy or insolvency or because of any
attachment, garnishment or other proceeding or, any order,
finding or judgment of any court, either in law or in equity,
prior to the actual transfer and delivery of such right or
interest to such Participant or Beneficiary, such right or
interest except for this Section would be payable to, or enjoyed
by some person, firm, or corporation other than such Participant
or Beneficiary, then any such right or interest shall cease, and
thereafter the Trustee, upon the direction of the Plan
Administrator, shall from time to time as and when payments would
otherwise (except for this Section) become due and payable to
such Participant or Beneficiary, pay or deliver to or expend for
the use and benefit of such Participant or Beneficiary or to or
for the use of any person dependent upon such Participant for
support from any amount which would have been payable or
distributable to such Participant or Beneficiary, except for this
Section, such sums as the Plan Administrator in its sole
discretion may deem necessary or advisable for his support or for
the support of any one dependent upon him. At the time when,
except for this Section, final payment would be required to be
made to such Participant or Beneficiary, there shall be paid to
such Participant or Beneficiary only so much of the balance
remaining to his credit under the Plan as the Plan Administrator,
in the exercise of its sole discretion, may direct and the
remainder thereof, if any, shall be paid over and delivered to
his spouse, if any, or if none, to his children, if any, in equal
shares. If there is no spouse or children of such Participant or
Beneficiary alive at such time, the Trustee shall pay and deliver
any portion of any such remaining balance which is not paid to
such Participant or Beneficiary to the estate of such Participant
or Beneficiary.
14.10 Adoption by Subsidiaries. Any Subsidiary of the
Company which at the time is not an Employer may, with the
consent of the Board of Directors of the Company, adopt the Plan
and become an Employer hereunder. An appropriate written
instrument evidencing such adoption shall be executed and filed
with the Company.
14.11 Rollovers to Other Plans or IRAs. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
Definitions:
(1) Eligible Rollover Distribution. An Eligible Rollover
Distribution is any distribution of all or any portion
of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not
include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the
Distributee's beneficiary, or for a specified period of
ten years or more;
(b) any distribution to the extent such distribution
is required under Code Section 401(a)(9); and
(c) the portion of any distribution that is not
includable in gross income (determined without regard
to the exclusion for net unrealized appreciation with
respect to employer securities)
(2) Eligible Retirement Plan. An Eligible Retirement Plan
is an individual retirement account described in Code
Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the
Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee. A Distributee includes a Participant,
Retired Participant or Terminated Participant. In
addition, the Participant's, Retired Participant's or
Terminated Participant's surviving spouse, or former
spouse who is the alternate payee under a qualified
domestic relations order as defined in Code Section
414(p), are Distributees with regard to the interest of
the spouse or former spouse.
(4) Direct Rollover. A Direct Rollover is a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
14.12 Administrative Corrections. The Plan
Administrator or the Named Fiduciary, as appropriate, may take
reasonable actions, consistent with applicable law, as may be
necessary to correct any omissions, defects, or inconsistencies
in the operation or administration of the Plan.
<PAGE>
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Applicability. Notwithstanding any other provision to
the contrary, in the event the Plan is deemed to be a top-heavy
plan for any Plan Year, the provisions contained in this Article
XV with respect to vesting and Matching Contributions shall be
applicable with respect to such Plan Year. In the event the Plan
is determined to be a top-heavy plan and upon a subsequent
Determination Date is determined to no longer be a top-heavy
plan, the vesting and the Employer contribution provisions in
effect immediately preceding the Plan Year in which the Plan was
determined to be a top-heavy plan shall again become applicable
as of such subsequent Determination Date; provided, however, that
in the event such prior vesting schedule does again become
applicable, the provisions of Section 7.4 and Section 13.2 shall
apply (i) to preserve the nonforfeitable accrued benefit of any
Participant or Beneficiary and (ii) to permit in accordance with
Section 7.4, a Participant to elect to continue to have his
nonforfeitable interest in his Employer contributions determined
in accordance with the vesting schedule applicable while the Plan
was a top-heavy plan.
15.2 Top-Heavy Definitions. For purposes of this Article
XV, the following definitions shall apply:
(a) The term "Determination Date" with respect to any Plan
Year shall mean the last day of the preceding Plan Year.
(b) The term "Determination Period" shall mean the Plan
Year containing the Determination Date or the four preceding
plan years.
(c) The term "Key Employee" shall mean any Employee or
former Employee (and the beneficiaries of such Employee) who
at any time during the Determination Period was an officer
of the Company if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the
Company if such individual's compensation exceeds 100
percent of the dollar limitation under Code Section
415(c)(1)(A), a 5-percent owner of the Company, or a one-
percent owner of the Company who has an annual compensation
of more than $150,000. For purposes of this definition, the
term "compensation" has the meaning given to such term by
Code section 414(q)(7).
(d) The term "Non-Key Employee" shall mean any Participant
who is not a Key Employee.
(e) The term "Permissive Aggregation Group" shall mean
those plans not included in an Employers Required
Aggregation Group in conjunction with any other plan or
plans of such Employer, so long as the entire group of plans
would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(f) The term "Required Aggregation Group" shall include (i)
all plans of an Employer in which a Key Employee is a
participant and (ii) all other plans of an Employer which
enable a plan described in clause (i) hereof to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(g) A "Super Top-Heavy Group" with respect to a particular
Plan Year shall mean a Required or Permissive Aggregation
Group that, as of the Determination Date, would qualify as a
top-heavy group under the definition in paragraph (h) of
this Section 15.2 with "90 percent" substituted for "60
percent" each place where "60 percent" appears in such
definition.
(h) The term "Super Top-Heavy Plan" with respect to a
particular Plan Year shall mean a plan that, as of the
Determination Date, would qualify as a top-heavy plan under
the definition in paragraph (i) of this Section 15.2 with
"90 percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also a
"Super Top-Heavy Plan" if it is part of a Super Top-Heavy
Group.
(i) The term "top-heavy group" with respect to a particular
Plan Year shall mean a required or a Permissive Aggregation
Group if the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
group and the aggregate of the account balances of Key
Employees under all defined contribution plans included in
such group exceeds 60 percent of a similar sum determined
for all employees covered by the plans included in such
group.
(j) The term "top-heavy plan" with respect to a particular
Plan Year shall mean (i), in the case of a defined
contribution plan, a plan for which, as of the Determination
Date, the aggregate of the accounts (within the meaning of
Section 416(g) of the Code and the regulations thereunder)
of Key Employees exceeds 60 percent of the aggregate of the
accounts of all Participants under the plan, with the
accounts valued as of the relevant Valuation Date, (ii) in
the case of a defined benefit plan, a plan for which, as of
the Determination Date, the present value of the cumulative
accrued benefits payable under the plan (within the meaning
of Section 416(g) of the Code and the regulations
thereunder) to Key Employees exceeds 60 percent of the
present value of the cumulative accrued benefits under the
plan for all employees, with present value of accrued
benefits to be determined in accordance with the actuarial
assumptions specified in such defined benefit plan, and
(iii) a plan that is part of a top-heavy group. For
purposes of this paragraph, a Participant's accrued benefit
in a defined benefit plan will be determined under a uniform
accrual method applied under all defined benefit plans
maintained by the Company or an Affiliate or, where there is
no such method, as if such benefit accrued not more rapidly
than the slowest rate of accrual permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
Notwithstanding the foregoing provisions of this paragraph,
however, a plan shall be deemed not to be a top-heavy plan
if it is part of a required or Permissive Aggregation Group
that is not a top-heavy group.
(k) The term "Valuation Date" shall mean the most recent
valuation date within a twelve-month period ending on the
Determination Date.
15.3 Accelerated Vesting. In the event the Plan is
determined to be a top-heavy plan with respect to any Plan Year,
a Participant who is not vested in his Separate Accounts
attributable to Matching Contributions in accordance with the
provisions of Article VII shall be eligible to receive a
nonforfeitable percentage of Matching Contributions allocated to
his Separate Accounts which shall be determined by application of
the following vesting schedule:
Years of Vesting Service Nonforfeitable Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
An involuntary cash-out shall not be an amount less than the
present value of a Participant's entire employer-derived non-
forfeitable benefit at the time of the distribution.
15.4 Minimum Matching Contribution. In the event the Plan
is determined to be a top-heavy plan with respect to any Plan
Year, the Matching Contributions allocated to the Separate
Accounts of each Non-Key Employee who is a Participant and who is
not separated from service with the Employer as of the end of
such Plan Year shall be no less than the lesser of (a) three
percent of his compensation or (b) the largest percentage of
compensation that is allocated for such Plan Year to the Separate
Accounts of any Key Employee, provided that, in the event the
Plan is part of a Required Aggregation Group, and the Plan
enables a defined benefit plan included in such group to meet the
requirements of Section 401(a)(4) or 410 of the Code, the minimum
allocation of Matching Contributions to the Separate Accounts of
each Non-Key Employee shall be three percent of the compensation
of such Non-Key Employees, and provided further that, if the
highest rate allocated to any Key Employee is less than three
percent, amounts contributed as a result of a salary reduction
agreement must be included in determining contributions made on
behalf of Key Employees. Any minimum allocation to the Separate
Accounts of a Participant required by this Section 15.4 shall be
made without regard to any social security contribution made by
the Employer on behalf of the Participant and without regard to
whether or not a Non-Key Employee withdraws his Before Tax or
After Tax Contributions. This minimum allocation shall be made
for a Non-Key Employee who has not separated from service at the
end of the Plan Year, regardless of whether the Non-Key Employee
has less than 1000 hours for the year. Notwithstanding the
minimum top-heavy allocation requirements of this Section 15.4,
in the event that the Plan is a top-heavy plan, each Non-Key
Employee hereunder who is also covered under a top-heavy defined
benefit plan maintained by an Employer will receive the top-heavy
benefits provided for under such defined benefit plan in lieu of
the minimum top-heavy allocation under the Plan.
15.5 Adjustments to Section 415 Limitations.
Notwithstanding the provisions of Section 4A, in the event that
the Plan is a top-heavy plan and the Employer maintains a defined
benefit plan covering some or all of the employees that are
covered by the Plan, Section 415(e)(2)(B) and 415(e)(3)(B) of the
Code shall be applied to the Plan by substituting "1.0" for
"1.25" and Section 415(e)(6)(B)(i) of the Code shall be applied
to the Plan by substituting $41,500" for $51,875", except that
such substitutions shall not be applied to the Plan if (a) the
Plan is not a Super Top-Heavy Plan and (b) each Non-Key Employee
who is a Participant, who also participates in a defined benefit
plan maintained by an Employer, will receive a defined benefit
minimum top-heavy benefit of three percent per year of service
(up to 30%), and (c) each Non-Key Employee who is a Participant
who does not participate in a defined benefit plan maintained by
an Employer will receive a defined contribution minimum
allocation of four percent of compensation.
* * *
This amendment and restatement of the BP America Partnership
Savings Plan was executed at Cleveland, Ohio, this 19th day of
February, 1996.
BP AMERICA INC.
By
Felix R. Strater
Vice President, Human
Resources
BP Exploration & Oil Inc.
Plan Administrator
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
January 1, 1994
The following groups have been designated by the Board of
Directors as employment classifications eligible for
participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP Oil ProCare managers
ProCare hourly (full-time and part-
time)
Service Station managers and assistant
managers
TERMINATED EMPLOYEE GROUPS:
BP Oil West Coast Service Station managers and
assistant managers.
<PAGE>
APPENDIX B
INVESTMENT FUNDS
January 1, 1996
Company Stock Fund. The assets of the Company Stock Fund
shall be invested solely in Company Stock. Company Stock shall
be purchased on the open market or shall be acquired through the
support of newly issued Ordinary Shares of the Company's ultimate
parent, the British Petroleum Company, p.l.c. ("BP"), in
accordance with any procedures which may be established by the
Named Fiduciary. Any purchase of Company Stock on the open
market shall be made only for fair market value as determined by
the Trustee. No commission shall be charged or paid with respect
to any acquisition or sale of Company Stock, except in the case
of Company Stock purchased or sold on a registered national
securities exchange.
Fixed Income Fund. The Fixed Income Fund shall consist of
assets which are invested or held for investment intended to
provide a fixed rate of return including, but not limited to,
those governmental or corporate obligations, trust and
participation certificates and mortgages, insurance contracts
and/or bank contracts which provide for the repayment of funds
invested plus a fixed rate of interest. The Trustee may also, as
directed by the Named Fiduciary from time to time, purchase third
party bonds, guarantees or other forms of insurance on any and
all investments in the Fixed Income Fund and may purchase or hold
property in a short-term investment fund consisting of, but not
limited to, short term notes, debentures, Treasury bills, savings
bond deposits, commercial paper, and any other property for which
the maturity is fixed for a period of time not in excess of 12
months, or a collective trust comprised of such securities
provided such trust is maintained for trusts which form parts of
a pension or profit-sharing plan qualified under the Code. To
the extent that any such assets are so invested in a collective
trust, the instrument establishing the collective trust and the
trust maintained thereunder shall be a part of the Plan and
Trust.
INVESCO Total Return Fund. The INVESCO Total Return Fund
seeks to achieve a high total return on investment through
capital appreciation and current income by investment in a
combination of equity securities and fixed income securities.
Above all, the fund's objective is to achieve reasonably
consistent total returns over up and down market cycles.
Quantitative Fund. The Quantitative Fund is a mutual fund
which seeks a total return greater than that of the U.S. stock
market as measured by the S&P 500 market index, while maintaining
a risk posture similar to that of the index. It invests in a
broadly diversified group of common stocks having investment
characteristics similar to the stocks represented in the S&P 500
but with emphasis on stocks that the Fund's manager considers to
be undervalued by the market. The Quantitative Fund is part of
the Vanguard Group and is managed by Franklin Portfolio
Associates, Inc.
Fidelity Blue Chip Growth Fund. The Fidelity Blue Chip
Growth Fund seeks to achieve long-term capital appreciation from
a portfolio of equity securities issued by established,
recognized companies that are experiencing growth.
J. P. Morgan Institutional International Equity Fund. The
J. P. Morgan Institutional International Equity Fund seeks to
provide a high total return from a portfolio of equity securities
(stocks) of foreign corporations. The fund assumes a long-term
investment horizon to pursue its objective.
<PAGE>
Exhibit 4(f)
THE BP AMERICA
SAVINGS AND INVESTMENT PLAN
(Amended and Restated Effective as of January 1, 1994)
FEBRUARY 1996 Plan No. 002
<PAGE>
PREAMBLE
The Internal Revenue Service (IRS) issued a favorable
determination letter dated February 5, 1996 with regard to the
Plan, provided that certain proposed amendments reviewed by the
IRS are adopted and made effective as of January 1, 1994 or other
dates as required by law. All such required amendments have been
incorporated into the Plan as amended and restated herein.
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
PLAN 002
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Savings and Investment Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has
authority to amend the Plan, subject to its provisions;
NOW THEREFORE, the Plan is hereby amended, effective as of
December 1, 1998, as follows:
1. Appendix B, Investment Funds, is hereby amended as follows:
Effective December 1, 1998, the U. S. Government Bond Fund
is no longer an investment option under the Plan and is
eliminated completely. Any investments remaining in the U.
S. Government Bond Fund as of December 1, 1998 will be
automatically transferred to the Income Fund. Matured Bonds
will be immediately liquidated and any remaining Bonds will
be immediately liquidated as they mature.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
By: By:
Iain C. Conn William E. Boswell
Senior Vice President, BP Oil Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
PLAN 002
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Savings and Investment Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has
authority to amend the Plan, subject to its provisions;
NOW, THEREFORE, the Plan is hereby amended, effective as of
September 30, 1998, as follows:
Appendix A of the Plan, Description of Classes or Groups of
Eligible Employees, is replaced in its entirety with the
following Attachment.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By:
Iain C. Conn
Senior Vice President, BP Oil
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
September 30,1998
The following groups have been designated as employment
classifications eligible for participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP Oil Toledo Refinery Union Hourly
TERMINATED EMPLOYEE GROUPS:
BP Oil Ferndale Refinery Union Hourly
Lima Refinery Union Hourly
Marcus Hook Refinery Union Hourly
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
PLAN 002
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Savings and Investment Plan (the "Plan");
WHEREAS, pursuant to Article XIV of the Plan, the Company has
authority to amend the Plan, subject to its provisions;
NOW, THEREFORE, the Plan is hereby amended, effective as of
August 10, 1998 (the "Closing Date"), in accordance with the
Agreement for the Purchase and Sale of Lima Oil Refinery between
BP Exploration and Oil Inc. et. al., and Clark Refining and
Marketing Inc. ("Clark"), dated July 1, 1998 (the "Agreement"):
1. The Accounts and related liabilities of those Participants
whose employment transferred on the Closing Date to Clark as
a result of the Agreement (the "Transferred Participants")
(excluding the BDO Employees listed on Attachment A and any
Participants who separate from service with Clark prior to
the date of transfer) shall be spun off from the Plan and
shall be transferred to the Clark Retirement Savings Plan.
2. The Transferred Participants shall be fully vested in their
Accounts as of the Closing Date.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By: By:
Iain C. Conn William E. Boswell
Senior Vice President, BP Oil Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
PLAN 002
ATTACHMENT A
The following BDO Employees' Accounts and related liabilities
remained in the Plan following the Closing Date, i.e., were not
spun off from the Plan and transferred to the Clark Retirement
Savings Plan effective as of the Closing Date:
Name Social Security Number
Baker, C. L. ###-##-####
Berger, B. A. ###-##-####
Reynolds, S. D. ###-##-####
Snyder, D. C. ###-##-####
Sunderhaus, D. E. ###-##-####
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
Plan No. 002
WHEREAS, BP America Inc. (the "Company"), desires to amend
the BP America Savings and Investment Plan (the "Plan") to
implement certain changes to the Investment Funds established and
maintained under the terms of the Plan and to clarify certain
terms used in the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Appendix B, Investment Funds, is hereby amended as
follows:
a. Effective July 1, 1997, The Quantitative Fund has been
renamed "The Growth and Income Portfolio."
b. Effective October 1, 1997, The Fixed Income Fund has
been renamed "The Income Fund."
2. In order to clarify the Company's long-standing
practice and intent with regard to calculation of the Matching
Contributions, Section 3.3 is hereby amended to read as follows:
3.3 Matching Contributions. Subject to the provisions
of Section 3.4, as soon as practicable after the last day of
each Plan Year quarter, the Employers shall pay to the
Trustee as a Matching Contribution an amount that is equal
to 100 percent of the sum (limited separately for each
payroll period) of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of,
or by, each Participant during such Plan Year quarter;
provided, however, that no Matching Contributions made with
respect to a year on behalf of a Participant shall exceed
the limitations set forth in Article IV.
3. To clarify the Company's long-standing practice and
intent, the definition of "Employee" in Section 1.1(19) is hereby
amended by addition of the following:
Further, the term "Employee" shall not include a person who
is a resident or nonresident alien of the United States and
who performs services under an expatriate or temporary duty
policy of the Company or an Affiliate.
4. To clarify the Company's long-standing practice and
intent with regard to the timing for restoration of account
balances upon reemployment, Section 10.5 is hereby amended to
read as follows:
10.5 Buy-Back and Restoration of Forfeited Amounts: If
a Participant terminates service and is entitled to receive
the value of his vested account balance, any nonvested
portion of the account balance will be treated as a
forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within
seven years of his Severance Date shall have such forfeited
amount restored to his Separate Accounts, along with
interest credited at the Income Fund rate of return over the
period of the forfeiture, and invested in accordance with a
new investment election. However, if such a Participant has
received a distribution of part or all of his account, he
must repay, in cash, the full amount of such distribution on
or before his final repayment date and such forfeited amount
shall be restored to his Separate Accounts and invested in
accordance with a new investment election. In this case, no
interest shall be accrued on such forfeited amount from the
time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his
Separate Accounts which results in a forfeiture of Matching
Contributions may repay in cash the amount of such
withdrawal on or before his final repayment date, and it
shall be restored to his Separate Accounts in accordance
with a new investment election. Any restoration of Matching
Contributions shall be made from a special Company
contribution which shall not constitute an Annual Addition
within the meaning of Section 4A. For purposes of repaying
the distribution amount the "final repayment date" shall be
five years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects
withdrawal, his "final repayment date" shall be five years
after the date of such withdrawal.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 19th day of December,
1997.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
By
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
THIS AMENDMENT to the BP America Savings And Investment Plan
(the "Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT:
1. Section 15.5, Merger, Consolidation or Transfer of Plan
Assets is hereby amended by addition of the following paragraph:
Effective September 1, 1997 a Participant who is no longer a
member of a bargaining unit, who no longer contributes to
the Plan, and who has an account under the BP America
Capital Accumulation Plan ("CAP") to which the Participant
is currently eligible to make contributions, or to which the
Participant made contributions immediately prior to
terminating employment or retiring, may voluntarily elect to
irrevocably transfer the balance of his accounts in the Plan
to CAP, provided he does not have more than one loan
outstanding between the Plan and CAP, and provided further
that investments in the U.S. Government Bond Fund are
liquidated in order to make the transfer. This voluntary
election will be made available within sixty days of the
Participant becoming eligible for such transfer or at any
time thereafter.
IN WITNESS WHEREOF, the Company has adopted this amendment
to the Plan as of the 19th day of December, 1997.
William E. Boswell
Plan Administrator
<PAGE>
AMENDMENT TO THE
BP AMERICA SAVINGS AND INVESTMENT PLAN
THIS AMENDMENT to the BP America Savings and Investment Plan
(the "Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT.
In order to clarify the Company's long-standing practice and
intent, particularly with regard to eligibility under the Plan
and responsibilities of the Plan Administrator, the definition of
"Employee" in Section 1.1(19) is hereby amended by addition of
the following:
The term "Employee" shall not include any individual
retained by the Employer directly or through an agency to
perform services for the Company or an Affiliate (for either
a definite or indefinite duration) in the capacity of a fee-
for-service worker or independent contractor or any similar
capacity including, without limitation, any such individual
who is or has been determined by a government entity, court,
arbitrator or other third party to be an employee of the
Company or an Affiliate for any purpose including tax
withholding, employment tax, employment law or for purposes
of any other employee benefit plan of the Company or an
Affiliate. For this purpose, the term "fee-for-service
worker" is not a specific term but is meant to be
interpreted broadly in a generic sense.
IN WITNESS WHEREOF, the Company has adopted this amendment
to the Plan as of the 20th day of December, 1996.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS AND INVESTMENT PLAN
THIS AMENDMENT to the BP America Savings And Investment Plan
(the "Plan") made by BP America Inc. (the "Company"),
WITNESSETH THAT:
1. Effective January 31, 1996, Section 7.1 Vesting in Matching
Contributions shall be amended by addition of the following:
(e) a collective bargaining agreement provides for
immediate vesting when a Participant's employment is
involuntarily terminated as a result of the sale or other
disposition of a subsidiary or division on or after February
1, 1996, affecting Employees represented by OCAW Local No. 8-
234 at the Marcus Hook Refinery, Maintenance & Mechanics
Association at the Revere & Portland Terminals, OCAW Local
No. 8-234 at the Woodbury Pipeline District, OCAW Local 8-
397 at the Tremley Point Terminal, and OCAW Local 8-234 at
the Paulsboro Terminal.
2. Effective January 31, 1996, subsection (c) under Section 9.4
Default is amended to read as follows:
An event of default under the loan shall occur in the
following circumstances:
(c) A Participant terminates employment, including
retirement or death, with an outstanding loan.
However, if, upon the sale or other disposition of a
subsidiary or division or part thereof, a collective
bargaining agreement provides for repayment via coupons
after termination, the loan may be so repaid by a
Participant whose employment is involuntarily
terminated as a result of the sale or other disposition
of a subsidiary or division on or after February 11,
1996, affecting hourly Employees represented by OCAW
Local No. 8-234 at the Marcus Hook Refinery,
Maintenance & Mechanics Association at the Revere &
Portland Terminals, OCAW Local No. 8-234 at the
Woodbury Pipeline District, OCAW Local 8-397 at the
Tremley Point Terminal, and OCAW Local 8234 at the
Paulsboro Terminal.
3. Effective April 1, 1996, Section 12.8(a) is hereby amended
in the entirety to read as follows:
12.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company. In
addition to the provisions of Section 10.4, the Company may
determine that such costs and expenses shall be paid from
assets of the Plan, to the extent available; provided,
however, that such payments shall not reduce the amounts
already allocated to the Separate Account of any Participant
or the earnings already accrued on any such Separate
Account.
4. Effective December 12, 1996, Section 6.4 of the Plan is
hereby amended to read as follows:
6.4 Election of Participants to Transfer Invested
Amounts. A Participant, Retired Participant or Terminated
Participant may elect at any time to have a portion or all
of the balance of the assets liquidated and transferred from
the Investment Funds in which they are currently invested to
one or more of the other Funds in accordance with uniform
administrative and operational rules established by the Plan
Administrator; provided, however, such transfer under this
section 6.4 cannot be elected more than once in any 3-month
period. Such an election shall become effective, and the
Participant may thereafter change or revoke such election,
at such times and in the manner established by the Plan
Administrator
5. Effective December 12, 1996, Section 10.2 is hereby amended
as follows:
(1) Subsection (a) shall read as follows:
(a) Distributions to Participants Upon Retirement or
Termination of Employment for Reasons Other than Death. In
the case of a Participant who retires or who terminates
employment with the Affiliated Group (for reasons other than
death), if the combined value of the vested interest of the
Participant under the Plan and all other qualified profit-
sharing plans maintained by the Affiliated Group is (and was
at the time of any prior distribution) $3,500 or less,
distribution of such Participant's vested interest under the
Plan shall be made to him as soon as practicable in a single
lump-sum payment. If the value of the vested interest of
such Participant under the Plan and all other qualified
profit-sharing plans maintained by the Affiliated Group is
(or was at the time of any prior distribution) in excess of
$3,500, distribution of such Participant's vested interest
under the Plan shall be made in one or more of the following
methods, in accordance with rules established by the Plan
Administrator, as the Participant shall select:
(i) in a single lump-sum payment payable at any time
prior to the April 1 of the calendar year following the
calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law; or
(ii) in the form of an immediate or deferred
nontransferable annuity contract that complies with the
requirements of this Plan and Section 401(a)(9) of the
Code and is purchased on behalf of such Participant in
accordance with procedures established by the Plan
Administrator; or
(iii) in a series of monthly or annual installments
over a period not in excess of the normal life
expectancy of the Participant or the joint life
expectancies of the Participant and his Beneficiary,
such installments to be equal in amount, except as
necessary to adjust for any net earnings and changes in
the market value of his Separate Accounts, or by any
other method reasonably calculated to provide a more
rapid distribution of his interest. Notwithstanding
the foregoing, a Participant may defer commencing
distribution until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law. For purposes of
this subparagraph (iii), the life expectancy of a
Participant and such Participant's Beneficiary may be
redetermined, but not more frequently than annually,
and in accordance with such rules as may be prescribed
by Treasury regulations. Further, life expectancy and
joint and last survivor expectancy shall be computed
using the return multiples of Treasury regulation 1.72-
9. A Participant wishing to have the life expectancy
used to calculate his benefit redetermined annually,
must so elect no later than the commencement of his
payments, and such election is irrevocable. If such an
election is not made, the life expectancy used to
calculate his benefit will not change, and no
redetermination of life expectancy may be elected at a
future date.
The form of the installment payments may be changed
from monthly to annual or from annual to monthly once
subsequent to the initiation of the installment
payments. Such change must become effective with the
payment anniversary date. The dollar amount of an
installment payment, the length of the payment period
under an installment payment or the type of installment
payment may be changed once per year effective with the
payment anniversary date; provided, that any such
changes meet the requirements of Section 10.7 hereof
(taking into consideration any amendment of Section
401(a)(9) of the Code). An installment payment under
this subparagraph (iii) may be changed to another form
of payout under subparagraphs 10.2(a)(i) or(iv), or
such other form of payout under subparagraphs
10.2(a)(i) or (iv) may be changed to an installment
payment under this subparagraph (iii) once after such
payment or payout commences. A Participant receiving
installment payments under this subparagraph (iii) may
effect a non-periodic distribution under subparagraph
10.2(a)(iv) once in a calendar year. For purposes of
this subparagraph (iii), "payment anniversary date"
shall mean the anniversary of the date that the
installment payments commenced.
(iv) in non-periodic distributions, in cash or in kind,
or both, up to twice a year in accordance with the
provisions of Section 10.7; provided however, that the
Participant may defer making or commencing
distributions until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law.
Notwithstanding the foregoing provisions of this paragraph
(a), if the life expectancy of a person other than the
Participant or his spouse is utilized in determining the
amount of any benefit payment, the value of the payments to
be made during the life expectancy of such Participant shall
be computed pursuant to the minimum distribution incidental
benefit requirement of Treasury regulations.
(2) The prior text of subsection (b) is deleted, and
subsection (c) is renamed subsection (b), Distribution Due
to Death.
6. Effective December 12, 1996, the reference to Section
10.2(c) in Section 11.1 Designation of Beneficiary is corrected
to refer to Section 10.2(b).
IN WITNESS WHEREOF, the Company has adopted this amendment
to the Plan as of the 20th day of December, 1996.
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
<PAGE>
AMENDMENT TO
BP AMERICA SAVINGS INVESTMENT PLAN
THIS AMENDMENT to the BP America Savings Investment Plan
(the "Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, effective January 1, 1993, Section 6.4 of the Plan
was amended to permit a Retired Participant to make transfers by
contacting a representative of the Bankers Trust Participant
Service Center or by using the voice response system described in
the Participant Service Center brochure; and,
WHEREAS, the Plan restatement effective January 1, 1994
failed to take notice of the aforementioned amendment and the
Company wishes to correct the omission.
NOW, THEREFORE, Section 6.4 is hereby amended by removal of
the words "or Retired" from the ninth line of the paragraph.
IN WITNESS WHEREOF, the Company has adopted this amendment
to the Plan this 31st day of May, 1996.
Felix R. Strater
Plan Administrator
<PAGE>
TABLE OF CONTENTS
Section Page No.
ARTICLE I DEFINITIONS 3
1.1 Definitions 3
1.2 Grammatical References 11
ARTICLE II ELIGIBILITY AND PARTICIPATION 12
2.1 Eligibility Requirements 12
2.2 Reemployment 12
2.3 Service in Non-Employee Capacity 13
2.4 Election to Participate 13
ARTICLE III CONTRIBUTIONS 14
3.1 Before-Tax Contributions 14
3.2 After-Tax Contributions 14
3.3 Matching Contributions 15
3.4 Coordination of Before-Tax and After-Tax and Matching
Contributions 15
3.5 Rollover Contributions 16
3.6 Effect of Plan Termination 17
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS 18
4A. Code Section 415 18
4A.1 Code Section 415 Governs 18
4A.2 Definitions 18
4A.3 Limitations on Contributions 20
4A.4 Defined Benefit Plan Coverage 20
4A.5 Elimination of Excess Annual Additions 21
4B. Code Sections 402(g), 401(k) and 401(m) 22
4B.1 Code Section 402(g) Limit 22
4B.2 Nondiscrimination Tests 23
ARTICLE V ESTABLISHMENT OF SEPARATE ACCOUNTS AND ADMINISTRATION
OF CONTRIBUTIONS 27
5.1 Separate Accounts 27
5.2 Account Balances 27
5.3 Notification 27
5.4 Delivery of Contributions 28
5.5 Allocation of Matching Contributions 28
5.6 Crediting of Contributions 29
5.7 Changes in Reduction and Deduction Authorizations 29
5.8 Suspension of Contributions 29
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE VI ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF
CONTRIBUTIONS 31
6.1 Establishment of Investment Funds 31
6.2 Investment Direction of Contributions 31
6.3 Investment of Contributions 31
6.4 Election of Participants to Transfer Invested Amounts 32
ARTICLE VII VESTING 34
7.1 Vesting in Matching Contributions 34
7.2 Reemployment 34
7.3 Vesting in Before-Tax and After-Tax Contributions 35
7.4 Election of Former Vesting Schedule 35
ARTICLE VIII WITHDRAWALS WHILE EMPLOYED 36
8.1 Withdrawal of After-Tax Contributions 36
8.2 Withdrawal of Rollover Contributions 37
8.3 Withdrawal of Company Matching Contributions 37
8.4 Withdrawal of Before-Tax Contributions 37
8.5 Withdrawal on Account of Permanent and Total Disability 39
ARTICLE IX LOANS 41
9.1 Approval and Nature of Loans 41
9.2 Terms and Conditions 41
9.3 Repayment of Loans 42
9.4 Default 43
9.5 Default Remedies 43
9.6 Reemployment 43
9.7 Administration of Loans 44
ARTICLE X DISTRIBUTIONS UPON RETIREMENT OR OTHER TERMINATION OF
EMPLOYMENT 45
10.1 Eligibility for Distribution 45
10.2 Distributions 45
10.3 Forms of Distributions 49
10.4 Disposition of Forfeited Balances 52
10.5 Buy-Back and Restoration of Forfeited Amounts 52
10.6 Payments to Incompetents or Minors 53
10.7 Limitations on Commencement and Distribution of Benefit
Payments 54
10.8 Reemployment 55
ARTICLE XI BENEFICIARIES 56
11.1 Designation of Beneficiary 56
11.2 Beneficiary in the Absence of Designated Beneficiary 56
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
11.3 Spousal Consent to Beneficiary Designation 57
ARTICLE XII ADMINISTRATION 58
12.1 Plan Administrator and Named Fiduciary 58
12.2 Duties of Plan Administrator and Named Fiduciary 58
12.3 Rules and Regulations 60
12.4 Trust Agreement and Trustee 61
12.5 Determination of Benefits and Claims Review 61
12.6 Agency 62
12.7 Records Conclusive 62
12.8 Expenses 62
12.9 Qualified Domestic Relations Orders 63
ARTICLE XIII ASSETS HELD BY TRUSTEE 64
13.1 Assets Held by Trustee 64
13.2 Options, Rights, or Warrants 64
13.3 Voting Rights 65
13.4 Cost and Proceeds of Securities Transactions 66
13.5 Brokerage Charges 66
ARTICLE XIV AMENDMENT AND TERMINATION 67
14.1 Amendments 67
14.2 Limitation of Amendments 67
14.3 Termination 67
14.4 Withdrawal of an Employer 68
14.5 Corporate Reorganization 69
ARTICLE XV MISCELLANEOUS PROVISIONS 70
15.1 No Commitment as to Employment 70
15.2 Rights to Trust Assets 70
15.3 Precedent 70
15.4 Duty to Furnish Information 70
15.5 Merger, Consolidation, or Transfer of Plan Assets 71
15.6 Return of Contributions to Employers 71
15.7 Filing of Notices and Plan Information 72
15.8 Governing Law 72
15.9 Restriction on Alienation 72
15.10 Adoption by Subsidiaries 74
15.11 Rollovers to Other Plans or IRAs 74
15.12 Administrative Corrections 75
ARTICLE XVI TOP-HEAVY PROVISIONS 76
16.1 Applicability 76
16.2 Top-Heavy Definitions 76
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page No.
16.3 Accelerated Vesting 78
16.4 Minimum Matching Contribution 79
16.5 Adjustments to Section 415 Limitations 80
Appendix A Covered Employment Classification 82
Appendix B Investment Funds 83
<PAGE>
The BP America
Savings and Investment Plan
(Amended and Restated Effective as of January 1, 1994)
WHEREAS, the Company and its predecessors adopted and
established a profit-sharing and savings plan (known as the Sohio
Employees Investment Plan) as of July 1, 1952, for the exclusive
benefit of eligible employees of the Company and participating
subsidiaries of the Company with the purposes of encouraging
savings by employees and assisting in providing retirement
income; and
WHEREAS, that plan has been amended and restated on several
occasions, most recently as of April 1, 1986, wherein the plan
was renamed the Standard Oil Company Savings and Investment Plan
(and subsequently renamed the BP America Savings and Investment
Plan) (hereinafter referred to as the "Plan"); and
WHEREAS, as a result of the collective bargaining process,
the Company determined that effective January 1, 1992, the Plan
would cover only certain employees whose level of benefits were
subject to collective bargaining; and
WHEREAS, effective as of January 1, 1992, the Company
established, through a mirrored spin-off from the Plan, the BP
America Capital Accumulation Plan for the benefit of those
employees formerly covered by the Plan whose level of benefits
were not subject to collective bargaining.
NOW THEREFORE, the Company hereby amends and restates the
Plan as of January 1, 1994, and where applicable, effective
retroactively to such other dates as required by law or indicated
herein, as follows.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words and phrases used
herein shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(1) The term "Act" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(2) The term "Affiliate" shall mean any member of any
of the following groups if such group includes the Company
(but a member of such a group shall be considered an
"Affiliate" only during the period in which it was or has
been such a member): (a) a controlled group of corporations
within the meaning of Section 414(b) of the Code; (b) a
group of trades or businesses (whether or not incorporated)
that are under common control within the meaning of Section
414(c) of the Code; (c) an affiliated service group within
the meaning of Section 414(m)(2) of the Code; (d) an
affiliated service group within the meaning of Section
414(m)(5) of the Code; or (e) any other group required to be
aggregated with the Company pursuant to regulations under
Section 414(o) of the Code.
(3) The term "Affiliated Group" shall mean the group
of entities which are Affiliates.
(4) The term "After-Tax Account" shall mean the
Separate Account to which the After-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(5) The term "After-Tax Contributions" shall mean
contributions made by a Participant to the Plan in
accordance with the provisions of Section 3.2.
(6) The term "Base Pay " shall mean the regular salary
or wages paid to an Employee for normally prescribed hours,
payments to an Employee during sick leave (not to exceed
twelve consecutive months) or other leaves of absence, and
Before-Tax Contributions made under the Plan, but generally
excluding unscheduled overtime, premiums, bonuses, and
living or other allowances. The Plan Administrator shall
review the pay practices of various operations covered by
the Plan in determining Base Pay, and any such determination
shall be conclusive. In the event a Participant is paid in
foreign currency, each After-Tax or Before-Tax Contribution
amount shall be based on the U. S. Base Pay.
In addition to other applicable limitations set
forth in the Plan, and notwithstanding any other provision
of the Plan to the contrary, (i) for Plan Years beginning on
or after January 1, 1989, the Base Pay of each employee
taken into account under the Plan shall not exceed an annual
compensation limit of $200,000; and (ii) for Plan Years
beginning on or after January 1, 1994, the Base Pay of each
employee taken into account under the Plan shall not exceed
an annual compensation limit of $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17). The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar
year. If a determination period for the Plan as a whole
consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12. In determining the Base
Pay of an Employee for purposes of this limitation, the
rules of Code Section 414(q)(6) shall apply, except that
when applying such rules, the term family shall include only
the spouse of the Employee and any lineal descendants of the
Employee who have not attained age 19 before the close of
the Plan Year.
(7) The Term "Before-Tax Account" shall mean the
Separate Account to which the Before-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(8) The term "Before-Tax Contributions" shall mean the
contributions made on behalf of a Participant in accordance
with the provisions of Section 3.1 and of Section 401(k) of
the Code.
(9) The term "Beneficiary" shall mean the person or
persons who, in accordance with the provisions of Article XI
hereof, shall be entitled to receive distribution hereunder
in the event a Participant, Terminated Participant or
Retired Participant, dies before his interest under the Plan
shall have been distributed to him in full.
(10) The term "Board of Directors" shall mean the Board
of Directors of the Company, such committee of the Board of
Directors or such officer, officers, or other employees of
the Company duly authorized by the Board of Directors to act
on its behalf with respect to the Plan.
(11) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
(12) The term "Company" shall mean BP America Inc., a
Delaware corporation, its corporate successors, and the
surviving corporation resulting from any merger or
consolidation of BP America Inc. with any other corporation
or corporations.
(13) The term "Company Stock" shall mean American
Depositary Shares (each representing a number of ordinary
shares) of The British Petroleum Company, p.l.c.
(14) The term "Company Stock Fund" shall mean the Fund
established and maintained pursuant to the provisions of
Section 6.1.
(15) The term "Effective Date" shall mean January 1,
1989, or such other dates as required by law or set forth
herein.
(16) The term "Eligibility Date" shall mean the
earliest date on which an Employee becomes an Eligible
Employee in accordance with the provisions of Article II.
(17) The term "Eligibility Service" shall mean the
period of service with which an Employee is credited in
accordance with the provisions of Section 2.1 for the
purpose of determining his eligibility to participate in the
Plan.
(18) The term "Eligible Employee" shall mean an
Employee of an Employer who is employed on or after the
Effective Date in an employment classification listed in
Appendix A and is eligible to participate in the Plan in
accordance with the provisions of Article II.
(19) The term "Employee" shall mean any common law
employee of the Company or an Affiliate, in an employment
classification listed in Appendix A, excluding any person
who renders service to an Employer solely as a director or
an independent contractor, any casual employee or any person
who is a nonresident alien and who receives no earned income
within the meaning of Code Section 911(d)(2) from an
Employer which constitutes income from sources within the
United States, as defined in Code Section 861(a)(3).
(20) The term "Employer" shall mean the Company or any
Subsidiary which adopts the Plan as herein provided, so long
as the Subsidiary has not withdrawn from the Plan. The term
"Employer" shall also include The British Petroleum Company,
p.l.c., or one of its subsidiaries; provided, however, that
employment with any of these companies is preceded
immediately by employment with the Company or a Subsidiary
as described in the foregoing sentence.
(21) The term "Employment Commencement Date" shall mean
the first date on which an Employee completes an Hour of
Service.
(22) The term "Financial Hardship" shall mean an
immediate and heavy financial need of a Participant which
satisfies the requirements of Section 401(k) of the Code and
regulations issued thereunder.
(23) The term "Fund" shall mean any of the funds
established and maintained in accordance with the provisions
of Article VI.
(24) The term "Highly Compensated Employee" shall
include highly compensated active employees and highly
compensated former employees.
A highly compensated active employee includes any
employee who performs service for an Employer during the
determination year and who, during the look-back year: (i)
received compensation from the Employer in excess of $75,000
(as adjusted pursuant to Code Section 415(d)); (ii) received
compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member
of the top-paid group for such year; or (iii) was an officer
of the Employer and received compensation during such year
that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). The term Highly
Compensated Employee also includes: (i) employees who are
both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 100 employees who
received the most compensation from the Employer during the
determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation
requirement of (iii) above during either a determination
year or look-back year, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. For
this purpose, the determination year shall be the plan year.
The look-back year shall be the twelve-month period
immediately preceding the determination year.
A highly compensated former employee includes any
employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no
service for the Employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after
the employee's 55th birthday.
If an employee is, during a determination year or
look-back year, a family member of either a 5 percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the
Employer during such year, then the family member and the 5
percent owner or top-ten Highly Compensated Employee shall
be aggregated. In such case, the family member and 5
percent owner or top-ten Highly Compensated Employee shall
be treated as a single employee receiving compensation and
plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated
Employee. For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated
Employee, including the determinations of the number and
identity of employees in the top-paid group, the top 100
employees, the number of employees treated as officers and
the compensation that is considered, will be made in
accordance with Code Section 414(q) and the regulations
thereunder.
(25) The term "Hour of Service" shall mean an hour for
which an Employee is paid, or entitled to be paid, with
respect to the performance of duties for an Employer or an
Affiliate either as regular wages, salary, or commissions or
pursuant to an award or agreement requiring an Employer or
an Affiliate to pay back wages. Hours under this paragraph
(25) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which is
incorporated herein by reference.
(26) The term "Leased Worker" shall be a person (other
than a person who is an employee without regard to this
paragraph (26)) engaged in performing services for the
Company or an Affiliate (collectively, the "Recipient")
pursuant to an agreement between the Recipient and any other
person ("Leasing Organization") who meets the following
requirements:
(a) he has performed services for the Recipient (or
for any other "related persons," determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least
one year;
(b) such services are of a type historically performed
in the business field of the Recipient, in the United
States, by employees; and
(c) he is not participating in a "safe harbor plan" of
the Leasing Organization. For this purpose a "safe
harbor plan" is a plan that satisfies the requirements
of Section 414(n)(5) of the Code, which generally will
be a money purchase pension plan providing (i) a
nonintegrated employer contribution of at least 10
percent of compensation (as defined in Section
415(c)(3) of the Code but including amounts contributed
pursuant to a salary reduction agreement that are
excluded from gross income under Code Section 125 or
under a qualified cash or deferred arrangement as
defined in Code section 401(k)(2)), (ii) immediate
participation, and (iii) full and immediate vesting;
provided, however, that this subparagraph (c) shall
only apply if Leased Workers do not constitute more
than 20 percent of the Recipient's non-highly
compensated workforce.
A person who is a Leased Worker shall be considered an
Employee of the Company or an Affiliate during such period
(and solely for the purpose of determining length of service
for vesting purposes, shall also be considered to have been
an Employee for any earlier period in which he was a Leased
Worker) but shall not be a Participant and shall not
otherwise be eligible to become covered by the Plan during
any period in which he is a Leased Worker. Notwithstanding
the foregoing, the sole purpose of this paragraph (26) is to
define and apply the term "Leased Worker" strictly (and
only) to the extent necessary to satisfy the minimum
requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be
interpreted, applied, and, if and to the extent necessary,
deemed modified without formal amendment of language, so as
to satisfy solely the minimum requirements of Section 414(n)
of the Code.
(27) The term "Matched Percentage" shall mean the
percentage of the After-Tax and Before-Tax Contributions
made by, or on behalf of, a Participant which is to be
matched by contributions of the Employers as set forth in
Section 3.3.
(28) The term "Matching Contributions" shall mean the
contributions which the Employers contribute to the Plan in
accordance with the provisions of Section 3.3.
(29) The term "Matching Contributions Account" shall
mean the Separate Account to which Matching Contributions of
a Participant are credited in accordance with the provisions
of Section 5.6.
(30) The term "Named Fiduciary" shall mean the chief
financial officer of the Company or as otherwise specified
by the Board of Directors. If there is no Named Fiduciary
designated by the Board of Directors, the Company shall be
substituted..
(31) The term "Normal Retirement Age" shall mean the
later of the date the Participant attains age 65 or the
fifth anniversary of the date the Participant commenced
participation in the Plan.
(32) The term "Participant" shall mean an Eligible
Employee who elects to participate in the Plan in accordance
with the provisions of Article 11, The term "Participant"
shall also include an Employee whose contributions are
suspended or one who has transferred out of a participating
class of Employees but for whom a Separate Account is
maintained.
(33) The term "Participation Service" shall mean the
period of service, equal to the years and months after which
a Participant has first contributed to the Plan and during
which he maintains a balance in a Separate Account under the
Plan or a balance in any account held for his benefit under
another qualified defined contribution plan maintained by
the Employer or an Affiliate, with which a Participant is
credited for the purpose of determining his vested interest
in his Separate Accounts attributable to Matching
Contributions under Section 7.1
(34) The term "Plan" shall mean the BP America Savings
and Investment Plan, a profit-sharing plan, as herein set
forth.
(35) The term "Plan Administrator" or "Administrator"
shall mean the Vice President of BP Exploration & Oil Inc.
responsible for Human Resource functions or the successor to
such office as specified by the Board of Directors.
(36) The term "Plan Year" shall mean the 12-month
period beginning each December 31 and terminating each
subsequent December 30.
(37) The term "Reemployment Date" shall mean the first
date on which an Employee completes an Hour of Service by
performing services as an Employee after a Severance Date.
(38) The term "Retired Participant" shall mean any
Participant who retires under the terms of a qualified
pension plan maintained by an Employer or an Affiliate.
(39) The term "Rollover Contributions" shall mean the
contributions made to, or transferred to, the Plan in
accordance with the provisions of Section 3.5.
(40) The term "Rollover Account" shall mean the
Separate Account to which Rollover Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6
(41) The term "Separate Account" shall mean the After-
Tax Account, the Before-Tax Account, the Matching
Contributions Account or the Rollover Account of a
Participant which is established and maintained in
accordance with the provisions of Section 5.1.
(42) The term "Service Date" shall mean the Employment
Commencement Date or Reemployment Date, if applicable, of
any Employee.
(43) The term "Severance Date" shall mean the earlier
of (i) the date on which an Employee retires, dies, or
otherwise terminates employment from an Employer or an
Affiliate, or (ii) the first anniversary of the first date
of a period of absence from service with the Affiliated
Group for any other reason; provided, however, that if an
Employee is absent from employment on a long term disability
leave of absence or is absent from employment while on any
other Employer-approved leave of absence, he shall not incur
a Severance Date until such leave of absence is terminated;
and provided further that if an Employee is absent from
employment while on active service in the Armed Forces of
the United States, his Severance Date shall be the date on
which he terminated his employment, unless he returns to
employment with an Employer or an Affiliate during the time
period prescribed by federal law; and provided further that
no Employee shall incur a Severance Date until the second
anniversary of the first date on which such Employee is
absent from employment with an Employer or an Affiliate for
maternity or paternity reasons. For purposes of this
paragraph (43), an absence for maternity or paternity
reasons means an absence due to (i) the pregnancy of the
employee, (ii) the birth of a child of the Employee, (iii)
the placement of a child with the Employee in connection
with the adoption of such child by the Employee, or (iv) the
caring of such child for a period beginning immediately
following such birth or placement. Notwithstanding the
foregoing, if an Employee retires or dies, or his employment
otherwise is terminated during a period of absence from
employment for any reason other than retirement or
termination, his Severance Date shall be the date of such
retirement, death or other termination of employment.
(44) The term "Subsidiary" shall mean any wholly owned
subsidiary of the Company including any wholly owned
subsidiary of another Subsidiary of the Company.
(45) The term "Terminated Participant" shall mean a
Participant who has terminated employment with an Employer
or an Affiliate.
(46) The term "Trust" shall mean the trust, maintained
in conjunction with the Plan under a trust agreement entered
into with the Trustee, for the purpose of receiving, holding
and investing amounts contributed under the Plan and from
which Plan benefits are paid.
(47) The term "Trustee" shall mean any trustee which is
designated, legally qualified, and authorized to act as the
trustee of the Trust.
(48) The term "Vesting Service" shall mean the period
of service, calculated in accordance with the elapsed time
method of credited service outlined in Treasury regulation
Section 1.410(a)-7, with which a Participant is credited for
the purpose of determining his vested interest in his
Separate Accounts attributable to Matching Contributions
under Section 7.1.
(49) The term "Year of Service" means, for purposes of
determining eligibility to participate under Article II, the
twelve-month period immediately following an Employee's
Employment Commencement Date, or any Plan Year commencing
after the Employee's Employment Commencement Date in which
the Employee is credited with at least 1000 Hours of Service
1.2 Grammatical References. The masculine shall include
the feminine and the singular shall include the plural except as
otherwise required by the context.
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements. An Employee shall become
eligible to participate in the Plan as of the first pay date
after he both (i) is employed in a collective bargaining unit
that has bargained for coverage under the Plan, and (ii) is
credited with six months of Eligibility Service.
Each Employee shall be credited with a month of Eligibility
Service for each full month within the period beginning on his
Service Date and ending on his next following Severance Date and
with a month of eligibility Service for each 30 days within such
period for which Eligibility Service is not otherwise credited
hereunder.
2.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply to eligibility for participation:
(a) If an Employee's Reemployment Date occurs within 12
months after the earlier of his immediately preceding
Severance Date or the first day of a period in which he
remains absent from employment with an Employer or an
Affiliate for any reason, he shall be credited with
Eligibility Service for the period of absence preceding
such Reemployment Date if he otherwise is not credited
with Eligibility Service for such absence under the
Plan.
(b) If an Employee incurs a Severance Date and the
provisions of Section 2.2(a) do not apply, such
Employee shall forfeit his Eligibility Service credited
with respect to the period ending on such Severance
Date. Such forfeited Eligibility Service shall be
reinstated upon his subsequent completion of an Hour of
Service for an Employer or an Affiliate if:
(i) the period between such Severance Date and his
next following reemployment dates is less than five
years, or
(ii) the aggregate number of his previously forfeited
years of Eligibility Service is greater than the period
beginning on his most recent Severance Date and ending
on his next following Reemployment Date, or
(iii) he had a nonforfeitable right to any portion
of his Separate Accounts attributable to Matching
contributions as of such Severance Date.
2.3 Service in Non-Employee Capacity. For purposes of this
Article II, all common law employment with the Affiliated Group
(in a capacity other than as an Employee), or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall be
treated as if such employment was employment as an Employee for
purposes of this Article 2; provided, however, that no person
shall be eligible to participate in the Plan until he has
satisfied the requirements of Section 2.1.
2.4 Election to Participate. Each Eligible Employee shall
become a Participant as of his Eligibility Date or any subsequent
pay date, if he has timely filed with the Company a written
election, in the form prescribed by the Plan Administrator, which
contains:
(a) his authorization for his Employer to reduce his Base
Pay in order to make Before-Tax Contributions on his behalf
in accordance with the provisions of Section 3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of Section
3.2; and
(c) his election as to the investment of all contributions
allocated to him in accordance with the provisions of
Article VI.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions. Any Participant may elect to
have Before-Tax Contributions made to the Plan by his Employer in
an integral percentage of his Base Pay of not less than one
percent nor more than 16 percent; provided, however, that in no
event may the percentage of Before-Tax Contributions made on
behalf of a Participant, when added to the percentage of his
After-Tax Contributions, if any, equal less than two percent or
more than 16 percent of his Base Pay. The Base Pay of such
Participant shall be reduced by the percentage elected under the
compensation reduction authorization in effect for such
Participant provided, however, that no Before-Tax Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.2 After-Tax Contributions. Any Participant may elect to
make After-Tax Contributions by payroll deduction in an integral
percentage of his Base Pay of not less than one percent nor more
than sixteen percent; provided, however, that in no event may the
percentage of the After-Tax Contributions of a Participant, when
added to the percentage of Before-Tax Contributions, if any, made
on his behalf equal less than two percent or more than sixteen
percent of his Base Pay. Any payroll deduction with respect to
After-Tax Contributions shall be made from the Base Pay of a
Participant by his Employer in accordance with the terms of the
payroll deduction authorization in effect for such Participant;
provided, however, that no After-Tax Contributions made with
respect to a year on behalf of a Participant shall exceed the
limitations set forth in Article IV
3.3 Matching Contributions. Subject to the provisions of
Section 3.4, as of the last day of each Plan Year quarter, the
Employers shall pay to the Trustee as a Matching Contribution an
amount that is equal to 100 percent of the sum of After-Tax and
Before-Tax Contributions, not in excess of six percent of Base
Pay, made on behalf of, or by, each Participant during such Plan
Year quarter; provided, however, that no Matching Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.4 Coordination of Before-Tax and After-Tax and Matching
Contributions. Notwithstanding any other provision of the Plan to
the contrary, Before-Tax and After-Tax Contributions, and accrued
Company Matching Contributions of any Participant as of any date
within the calendar year will be considered in determining the
amount of contributions not exceeding the limitations of Article
4.
As of any date within the calendar year, if Before-Tax and
After-Tax Contributions and accrued Company Matching
Contributions would exceed 25 percent of the Participant's
Compensation, Before-Tax Contributions will be automatically
converted to After-Tax Contributions to the extent necessary to
satisfy the contribution limitation to 25 percent of the
Participants Compensation, as described in Section 4A.3. If the
limitation is still not satisfied, After-Tax Contributions will
be automatically reduced and paid to the Participant to the
extent necessary to satisfy the limitations of Section 4A.3.
If the Defined Contribution Dollar Limit as defined in
Section 4A.2(c) is reached as of any date within the calendar
year, subsequent After-Tax and Before-Tax Contributions will be
automatically discontinued. Accrued Company Matching
contributions for the calendar year not in excess of the
limitation may be made on behalf of the Participant at any time
during the calendar year and during the first quarter of the
subsequent calendar year, according to Plan provisions.
3.5 Rollover Contributions. An Employee who becomes an
Employee after the Effective Date and who does not transfer
directly from employment in any capacity with an Employer or an
Affiliate and who is entitled to make a rollover contribution in
accordance with Section 402(c)(1)(B), Section 403(a)(4) or
Section 408(d)(3)(A)(ii) of the Code, may elect to make a
Rollover Contribution to the Plan by delivering, or causing to be
delivered, to the Trustee the assets in cash which constitute
such Rollover Contribution at such time or times and in such
manner as shall be specified by the Plan Administrator. Upon
receipt by the Trustee, such assets shall be deposited in the
Investment Funds described in Article VI, in accordance with the
Participant's investment election with respect to such Rollover
Contributions. The Trustee shall then credit the Rollover
Account of such Participant with the amount of such Rollover
Contribution. Such Rollover Contribution by an Employee pursuant
to this Section 3.5 shall not be deemed to be a contribution of
such Employee for purposes of Section 415 of the Code and shall
be fully vested in the Employee at all times.
3.6 Effect of Plan Termination. Notwithstanding any other
provision of the Plan to the contrary, any termination of the
Plan shall terminate the liability of an Employer to make further
Matching Contributions hereunder.
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415.
4A.1 Code Section 415 Governs. Notwithstanding anything to
the contrary contained in the Plan, effective January 1, 1987,
the amount of Matching Contributions, Before-Tax Contributions,
and After-Tax Contributions which may be credited to the Separate
Accounts of Participants shall be subject to the provisions
hereinafter set forth. The limitations contained in this Article
4A are intended to comply with the provisions of Section 415 of
the Code. If there is any discrepancy between the provisions of
this Section 4A and the provisions of Section 415 of the Code,
such discrepancy shall be resolved in such a manner so as to give
full effect to the provisions of Section 415 of the Code which
are hereby incorporated by reference.
4A.2 Definitions. For purposes of this Section 4A the
following terms shall have the meanings hereinafter set forth:
(a) "Annual Additions" shall mean the amount credited to a
Participant's Separate Accounts for the Limitation Year that
constitutes:
(i) Employer contributions,
(ii) Employee contributions,
(iii) Forfeitures, and
(iv) Amounts described in Code Section 415(l)(1) or in
Code Section 419A(d)(2), if any.
(b) "Compensation" shall mean (for purposes of Section 4A
of the Plan) wages, salaries and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
an Employer or an Affiliate to the extent that the amounts
are includable in gross income (including, but not limited
to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan, but excluding:
(i) Employer contributions to a plan of deferred
compensation which are not includible in the employee's
gross income for the taxable year in which contributed,
or any distributions from a qualified deferred
compensation plan;
(ii) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which receive special tax benefits
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U. S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
(c) "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the Limitation Year; provided,
however, that in the case of a Limitation Year less than 12
months in duration due to an amendment changing the
Limitation Year to a different 12-month period, the Defined
Contribution Dollar Limitation shall be a fraction of the
foregoing amount equal to the number of full months in the
Limitation Year divided by 12.
(d) "Employee Contributions" shall mean After-Tax
Contributions to the Plan made by a Participant during the
Limitation Year.
(e) "Employer Contributions" shall mean Before-Tax
Contributions and Matching Contributions credited by an
Employer to the Plan on behalf of a Participant for the
Limitation Year.
(f) "Limitation Year" shall mean each 12-month period
beginning each January 1 and terminating each subsequent
December 31.
4A.3 Limitations on Contributions.
(a) Maximum Annual Additions. The maximum Annual Additions
that may be contributed or allocated to a Participant's
Separate Accounts under the Plan and/or any other qualified
defined contribution plan maintained by the Company or an
Affiliate for any Limitation Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for
the Limitation Year.
For purposes of implementing this limitation, the Plan
Administrator may estimate the Compensation of the
Participant to be paid during the Limitation Year and
restrict the Before-Tax and/or After-Tax Contribution
elections of Participants.
(b) Special Rules. The compensation limitation referred to
in Section 4A.3(a)(ii) shall not apply to any contribution
for any medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(l)(1) or
Section 419A(d)(2) of the Code.
4A.4 Defined Benefit Plan Coverage. If any Participant in
the Plan is covered by one or more qualified defined benefit
plans (whether or not terminated) maintained by an Employer or an
Affiliate concurrently covered by the Plan, the sum of the
defined benefit plan fraction with respect to such Participant
and the defined contribution plan fraction with respect to such
Participant shall not exceed 1.0. For purposes of this section,
defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) "Defined benefit plan fraction" shall mean a fraction,
the numerator of which is the projected annual benefit of
such Participant under all such defined benefit plans
(determined as of the close of such Limitation Year) and the
denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect under Sections 415(b) and 415(d)
of the Code for such year or (ii) 140 percent of the highest
average compensation, including any adjustment, under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined
benefit plans maintained by an Employer or an Affiliate
which were in existence on May 6, 1986, the denominator of
this fraction will not be less than 125 percent of the sum
of the annual benefits under such plans which the
Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 for all
Limitation Years beginning before January 1, 1987.
(b) "Defined contribution fraction" shall mean a fraction,
the numerator of which is the sum of the annual additions to
the participant's account under all the defined contribution
plans (whether or not terminated) maintained by an Employer
or Affiliate for the current and all prior Limitation Years,
and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether a
defined contribution plan was maintained by the Employer or
Affiliate). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in
effect under Section 415(c)(1)(A) of the Code or 35 percent
of the participant's compensation for such year.
The Plan Administrator may elect to apply the transitional
rules stated in Sections 415(e)(4) and 415(e)(6).
If the defined benefit plan(s) and defined contribution
plans(s) of an Employer or Affiliate in existence on May 6,
1986, satisfied the applicable requirements of Section 415
of the Code as in effect for all Limitation Years beginning
before January 1, 1987, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury, if necessary, so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
under Section 415(e)(1) of the Code does not exceed 1.0 for
such Limitation Year.
The annual additions for years beginning before January 1,
1987 shall not be recomputed to treat all employee
contributions as annual additions.
4A.5 Elimination of Excess Annual Additions. To the extent
that any of the limitations set forth under this Section 4A would
be exceeded, the following procedures shall be followed to
prevent such excess(es):
(a) If the Annual Additions to the Separate Accounts of a
Participant in any Limitation Year would exceed the
limitation contained in this Section 4A absent such
limitation, the excess shall be avoided as follows:
(i) The Before-Tax Contributions that would have been
contributed for the Participant's benefit shall be
reduced and automatically converted to After-Tax
Contributions: and
(ii) Next, After-Tax Contributions made during the
Limitation Year shall be returned to the Participant.
In each case specified above, the amount to be converted or
returned shall be that amount as is necessary to permit the
maximum amount of the Annual Additions to the Participant's
Separate Accounts for such year to be made under the Plan
without violating the restrictions contained herein or in
Section 415 of the Code.
In the event that, notwithstanding the foregoing, the
limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of the allocations of
forfeitures or a reasonable error in estimating the
Participant's annual Compensation, the portion of such
excess attributable to Matching Contributions shall be held
in a suspense account and, if such Participant remains a
Participant after the end of the Limitation Year, shall be
used to reduce Matching Contributions for such Participant
for the succeeding Limitation Years, and, if such
Participant ceases participating in the Plan, shall
thereafter be used to reduce Matching Contributions for all
other Participants in the Limitation Year in which he ceases
to be a Participant and succeeding Limitation Years, as
necessary.
4B. Code Sections 402(g), 401(k) and 401(m).
4B.1 Code Section 402(g) Limit. No Participant shall be
permitted to have Before-tax Contributions made under this Plan
(or any other qualified plan maintained by an Employer or an
Affiliate), during any taxable year, in excess of the dollar
limitation under Code Section 402(g) in effect at the beginning
of such taxable year.
If the amount of Before-Tax Contributions elected by a
Participant under the Plan during a calendar year would cause the
Code Section 402(g) dollar limitation to be exceeded, such amount
will be reduced and automatically converted to After-Tax
Contributions during the calendar year. If any excess deferrals
(as defined in Code Section 402(g)) exist subsequent to the end
of the calendar year, the Plan Administrator may notify the Plan
of such excess deferrals and may direct the Trustee to refund
such excess deferrals to affected Participants (along with any
income allocable to the excess deferrals for the taxable year)
prior to the 15th of April immediately following such calendar
year. If any such excess deferrals are distributed more than two
and one-half (2-1/2) months after the last day of the Plan Year
in which they arose, a ten (10) percent excise tax will be
imposed on the Company with respect to such amounts.
4B.2 Nondiscrimination Tests. This Section 4B.2 is
effective as of January 1, 1987. For purposes of the
nondiscrimination tests of this Section 4B.2, the portion of the
Plan that benefits a unit of employees covered by a collective
bargaining agreement will be treated as comprising a separate
plan from the non-collectively bargained portion of the Plan. To
the extent that there are multiple units of employees covered by
collective bargaining agreements, the Company at its option may
treat two or more collective bargaining units as a single unit,
provided that the combinations of collective bargaining units are
determined on a basis that is reasonable and reasonably
consistent from year to year.
(a) Actual Deferral Percentage ("ADP") Test.
Notwithstanding Section 3.1 or any other provision of the
Plan, during any Plan Year the Before-Tax Contributions made
on behalf of Eligible Employees who are Highly Compensated
Employees shall be restricted to the extent necessary to
satisfy at least one of the following tests:
Test No. 1: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ADP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ADP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ADP of Eligible
Employees who are not Highly Compensated Employees.
For these purposes, "ADP" shall mean the ratio
(expressed as a percentage) of Before-Tax Contributions
made on behalf of an Eligible Employee for the Plan
Year to the Eligible Employee's Compensation, as
defined below, for the Plan Year.
(b) Actual Contribution Percentage ("ACP") Test.
Notwithstanding Sections 3.2 and 3.3 or any other provision
of the Plan, during any Plan Year the After-Tax
Contributions (including any Before-Tax Contributions
automatically converted to After-Tax Contributions pursuant
to Section 413.1) and Matching Contributions paid to the
Plan with respect to Eligible Employees who are Highly
Compensated Employees shall be restricted to the extent
necessary to satisfy at least one of the following tests:
Test No 1: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ACID of Eligible Employees who are
not Highly Compensated Employees.
Test No. 2: The average ACID of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ACP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ACP of Eligible
Employees who are Not Highly Compensated Employees.
For these purposes, "ACP" shall mean the ratio
(expressed as a percentage) of total After-Tax and
Matching Contributions made by or on behalf of an
Eligible Employee for the Plan Year to the Eligible
Employee's "Compensation," as defined below, for the
Plan Year.
(c) Multiple Use Limitation Test. In addition to the
limitations of paragraphs (a) and (b) above, and
notwithstanding Sections 3.1, 3.2 and 3.3 of the Plan or any
other provision of the Plan, during any Plan Year in which
Test No. 2 of paragraph (a) is used to satisfy the ADP Test
and Test No. 2 of paragraph (b) is used to satisfy the ACP
Test, the Before-Tax Contributions, After-Tax Contributions
and Matching Contributions paid to the Plan with respect to
Participants who are Highly Compensated Employees shall be
restricted to the extent necessary to assure that the sum of
the ADP and ACP of such Highly Compensated Eligible
Employees does not exceed the greater of:
(i) 1.25 times the ADP of Eligible Employees who are
not Highly Compensated Employees, plus the ACP of such
Eligible Employees, plus the lesser of 2 percent or the
ACP of such Eligible Employees, or
(ii) 1.25 times the ACP of Eligible Employees who are
not Highly Compensated Employees, plus the ADP of such
Eligible Employees, plus the lesser of 2 percent or the
ADP of such Eligible Employees.
(d) Definition of "Compensation"
For purposes of the ADP, ACP and Multiple Use Tests,
"Compensation" means wages, salaries and fees for
professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of
employment with an Employer or an Affiliate to the extent
that the amounts are includable in gross income (including,
but not limited to, commissions paid salesmen, compensation
for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances
under a nonaccountable plan), plus any elective
contributions made by an Employer or an Affiliate that are
not includable in gross income under Section 125 and Section
402(e)(3) of the Code, but excluding:
(i) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iii) Other amounts which receive special tax
benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U. S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
4B.3 Correction of Excesses.
(a) In the event that the ADP test set forth in 4B.2 above
is exceeded, an amount of Before-Tax Contributions of Highly
Compensated Employees will be reduced and automatically
converted to After-Tax Contributions. Such amount shall be
determined by reducing the maximum percentage of Before-Tax
Contributions of the Highly Compensated Employees from its
highest limit to such smaller percentage which will result
in the ADP test being passed. Any amounts so converted to
After-Tax Contributions shall nevertheless remain non-
forfeitable and remain subject to the distribution
limitations that apply to Before-Tax Contributions to the
extent required by the Code.
(b) In the event that the ACP test or the multiple use test
set forth in 4B.2 above is exceeded, an amount of After-Tax
Contributions for Highly Compensated Employees will be
reduced and automatically returned (along with any income
allocable to such amount during the Plan Year) to the
Participants within the time frame required under the Code.
Such amount shall be determined by reducing the maximum
percentage of After-Tax Contributions of the Highly
Compensated Employees from its highest limit to such smaller
percentage which will result in the ACP test or the multiple
use test being passed.
If any amount returned to correct the ACP test are
distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which the excess arose, a
ten (10) percent excise tax will be imposed on the Company
with respect to these amounts.
4B.4 Special Rules.
(a) The ADP or ACP for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax, After-Tax or Matching
Contributions allocated to his account under two or more
plans or arrangements described in Code Sections 401(a)
and/or 401(k) that are maintained by an Employer or
Affiliate, shall be determined as if all such Contributions
were made under a single plan or arrangement.
(b) For purposes of determining the ADP or ACP of a
Participant who is a Highly Compensated Employee, the
Contributions and Compensation of such Participant shall
include the Contributions and Compensation of family members
(as described in Code Section 414(q)(6)(B)). The
Contributions and Compensation of such family members shall
be disregarded in determining the ADP or ACP of Participants
who are not such Highly Compensated Employees.
(c) The determination and treatment of a Participant's
ADP or ACP shall satisfy such other requirements as may be
prescribed by law.
<PAGE>
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND ADMINISTRATION OF
CONTRIBUTIONS
5.1 Separate Accounts. Each Participant shall, where
applicable, have established in his name the following Separate
Accounts:
(a) a Before-Tax Account which shall reflect the Before-Tax
Contributions made on behalf of a Participant, as well as
the investment income thereon in the Funds;
(b) an After-Tax Account which shall reflect the After-Tax
Contributions of a Participant, as well as the investment
income thereon in the Funds;
(c) a Matching Contributions Account which shall reflect
the Matching Contributions of a Participant, as well as the
investment income thereon in the Funds;
(d) a Rollover Account which shall reflect the Rollover
Contributions of a Participant made after December 31, 1992,
as well as the investment income thereon in the Funds.
5.2 Account Balances. For all purposes of the Plan, the
balance of each Separate Account as of any date shall be the
balance of such account after all credits and charges thereto,
for and as of such date, have been made as provided herein. The
determination of the Plan Administrator as to Separate Account
balances shall be final.
5.3 Notification. At least annually the Company shall
notify each Participant, Terminated Participant and Retired
Participant of the balance of his Separate Accounts as of the
last day of such year.
5.4 Delivery of Contributions. Each Employer shall cause
to be delivered to the Trustee all After-Tax, Before-Tax, and
Matching Contributions made in accordance with the provisions of
Article III as soon as reasonably practicable, but no later than
90 days after the contributions are made, and in accordance with
procedures established by the Plan Administrator.
If a Participant is paid in foreign currency, each After-Tax
or Before- Tax Contribution amount shall be based on the United
States dollar equivalent of the Participant's foreign Base Pay.
The conversion to United States dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as elected
by the employee. The resulting amount, after conversion into
United States dollars, will be transferred to the Trustee and
credited on behalf of the Participant to the proper Separate
Account. All statements setting forth a Participant's Separate
Accounts will be expressed in United States dollars.
5.5 Allocation of Matching Contributions. The Matching
Contributions of an Employer for each Plan Year quarter shall be
allocated quarterly among Participants who are Eligible Employees
of such Employer during such quarter and who made, or had made on
their behalf, After-Tax or Before-Tax Contributions for such
quarter. Each such Participant's allocated share of the Matching
Contributions of an Employer for such quarter shall be equal to
the matched percentage of his After-Tax and Before-Tax
Contributions specified pursuant to Section 3.3 with respect to
such quarter.
5.6 Crediting of Contributions. Subject to the provisions
of Sections 4A, 4B and Article VII, contributions shall be
credited to the Separate Accounts of a Participant in the
following manner:
(a) the amount of Before-Tax Contributions made on behalf
of a Participant shall be credited to such Participant's
Before-Tax Account;
(b) the amount of After-Tax Contributions made by a
Participant shall be credited to such Participant's After-
Tax Account;
(c) the amount of Matching Contributions allocated to a
Participant shall be credited to the Participant's Matching
Contributions Account;
(d) the amount of Rollover Contributions made by a
Participant after December 31, 1992 shall be credited to the
Participant's Rollover Account.
Such Before-Tax, After-Tax, Rollover and Matching
Contributions shall be invested by the Trustee in accordance with
the provisions of Section 6.3 and procedures established by the
Plan Administrator.
5.7 Changes in Reduction and Deduction Authorizations. The
percentage of Before-Tax Contributions and After-Tax
Contributions made by, or on behalf of, a Participant may be
changed to satisfy legal requirements in accordance with
procedures established by the Plan Administrator; to an integral
percentage which does not exceed the limitations specified in
Articles III and IV.
5.8 Suspension of Contributions. Any Participant who is
making, or having made on his behalf, Before-Tax and/or After-Tax
Contributions under Sections 3.1 or 3.2 may suspend part or all
of such Contributions at any time by notifying the Company in
accordance with procedures established by the Plan Administrator.
Any such suspension shall remain in affect until such
Contributions are resumed, provided that contributions to the
Plan may not be resumed for at least 6 months after the effective
date of such suspension if the suspension covers all of such
contributions to the Plan.
<PAGE>
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds. The Company shall
select and establish certain funds (the "Investment Funds" or
"Funds") that it shall cause to be maintained for the purpose of
investing assets held under the Plan which relate to the Separate
Accounts of Plan Participants. One such Fund shall be a Company
Stock Fund which shall invest solely in Company Stock.
Descriptions of the various funds are contained in Appendix B.
6.2 Investment Direction of Contributions. Any Before-Tax,
After-Tax, Matching, and Rollover Contributions of a Participant
shall be invested by the Trustee, in accordance with directions
received from the Participant, based upon the investment
elections of each Participant made in accordance with the
provisions of Sections 6.3 and 6.4 in the various Investment
Funds selected by the Participant.
6.3 Investment of Contributions. Each Participant, upon
electing to become a Participant under the Plan, shall make
investment elections directing the manner in which his Before-Tax
and After-Tax Contributions and, if applicable, his Rollover
Contributions shall be invested by the Trustee. Such election
shall be the same for Before-Tax and After-Tax Contributions.
Contributions that are credited to a Separate Account of such
Participant shall be invested in the various Investment Funds in
any combination of integral percentages that equals 100 percent.
In the absence of a valid Participant election, Before-tax
Contributions and After-Tax Contributions shall be invested by
the Trustee in the Fixed Income Fund pending receipt of a valid
investment direction from the Participant. Investment elections
shall be made by a Participant in accordance with uniform
administrative and operational rules established by the Plan
Administrator.
Subject to the provisions of Section 6.4, the investment
options so elected by a Participant shall remain in effect until
he changes his investment elections or ceases to be a Participant
in accordance with the provisions of the Plan; provided, however,
that such investment election under this Section 6.3 cannot be
changed more than once in any 3-month period.
Matching contributions shall be invested by the Trustee in
the same manner as Before-Tax and After-Tax Contributions are
invested.
6.4 Election of Participants to Transfer Invested Amounts.
A Participant may elect at any time to have a portion or all of
the balance of the assets liquidated and transferred from the
Investment Funds in which they are currently invested to one or
more of the other Funds in accordance with uniform administrative
and operational rules established by the Plan Administrator;
provided, however, that such transfer under this section 6.4
cannot be elected more than once in any 3-month period; and,
provided further that the election to transfer invested amounts
under this Section 6.4 is not available to Terminated or Retired
Participants. Such an election shall become effective, and the
Participant may thereafter change or revoke such election, at
such times and in the manner established by the Plan
Administrator.
<PAGE>
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions. A Participant shall
be 100 percent vested in the Matching Contributions credited to
his Matching Contributions Account as well as all earnings
credited to such Account, if
(a) such Participant is credited with at least five years
of Vesting Service;
(b) such Participant is credited with at least four years
of Participation Service;
(c) such Participant attains age 65 or retires under the
terms of any qualified pension plan maintained by the
Employer or an Affiliate;
(c) such Participant is declared mentally incompetent or
becomes permanently and totally disabled; or
(d) such Participant dies.
7.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply for purposes of vesting under the Plan:
(a) If a Participant incurs a Severance Date and
subsequently has a Reemployment Date within twelve months
following the Severance Date, such Participant's years of
Vesting Service will be calculated as if such Participant
had never incurred a Severance Date.
(b) If a Participant who is vested in his Separate Accounts
incurs a Severance Date and then has a Reemployment Date
more than twelve months after the Severance Date, such
Participant's years of Vesting Service earned prior to the
Severance Date will be restored for purposes of vesting
under the Plan. However, such a Participant will not be
credited with years of Vesting Service for the period of the
Participant's absence.
(c) If a Participant who is not vested in his Separate
Accounts incurs a Severance Date and then has a Reemployment
Date more than twelve months but less than five years after
the Severance Date, such Participant's years of Vesting
Service earned prior to the Severance Date will be restored
for purposes of vesting under the Plan. However, such a
Participant will not be credited with years of Vesting
Service for the period of the Participant's absence.
7.3 Vesting in Before-Tax and After-Tax Contributions. A
Participant shall always be 100 percent vested in Before-Tax and
After-Tax Contributions credited to his Before-Tax and After-Tax
Accounts, and in any Rollover Contributions credited to his
Rollover Account, as well as all earnings credited to such
Accounts.
7.4 Election of Former Vesting Schedule. In the event of
an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his
Separate Accounts attributable to Matching Contributions, any
Participant who is a Participant on the effective date of such
amendment or who is credited with three or more years of Vesting
Service shall have a right to have his nonforfeitable interest in
such accounts continue to be determined under the vesting
schedule in effect prior to such amendment rather than under the
new vesting schedule, unless the nonforfeitable interest of such
Participant in such accounts under the Plan, as amended, at any
time is not less than such interest determined without regard to
such amendment. Notwithstanding the foregoing provisions of this
Section 7.4, the vested interest of each Participant on the
effective date of such amendment shall not be less than his
vested interest under the Plan as in effect immediately prior to
the effective date of such amendment.
<PAGE>
ARTICLE VIII
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion up to the entire value of his After-
Tax Contributions made to the Plan and all earnings on After-Tax
Contributions less any such amounts previously withdrawn. Such a
withdrawal will be taken first from any After-Tax Contributions
made to the Plan prior to 1987. When pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
proportionately from After-Tax Contributions made to the Plan
after 1986 and earnings on all After-Tax Contributions. After-
Tax Contributions withdrawn will be taken first from those not
subject to Matching Contributions and then from those subject to
Matching Contributions. In the event that the withdrawal made
hereunder is not due to Financial Hardship, a suspension of
contributions to the Plan of six months will be imposed; and, if
the Participant is not yet vested pursuant to Section 7.1 and any
part of the After-Tax Contributions withdrawn are subject to
Matching Contributions, all Matching Contributions credited to
the Participant's After-Tax Account will be forfeited. In the
event a withdrawal made hereunder is due to Financial Hardship,
no suspension penalty will be imposed and, if the Participant is
not yet vested, no forfeiture of Matching Contributions will be
imposed.
8.2 Withdrawal of Rollover Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion, up to the entire value of his
Rollover Contributions made to the Plan after 1992 and all
earnings on such Rollover Contributions less any such amounts
previously withdrawn; provided, however, that he has first
withdrawn the total value of his After-Tax Account pursuant to
Section 8.1.
8.3 Withdrawal of Company Matching Contributions. By
applying to the Company in the form and manner prescribed by the
Plan Administrator, a Participant who is vested pursuant to
Section 7.1 may elect to withdraw in cash or in kind, or both,
any portion up to the entire value of all Matching Contributions
under his Matching Contributions Account and any earnings on such
Contributions less any amounts previously withdrawn; provided
that he first withdraws the value of all his After-Tax
Contributions and Rollover Contributions and earnings thereon
pursuant to the provisions of Sections 8.1 and 8.2; and, provided
further that a vested Participant who has not participated in the
Plan for at least five years may only withdraw Matching
Contributions that have been in the Plan for at least two years.
In the event that the withdrawal made hereunder is not due to
Financial Hardship, a suspension of contributions to the Plan of
six months will be imposed. In the event a withdrawal made
hereunder is due to Financial Hardship, no suspension penalty
will be imposed.
8.4 Withdrawal of Before-Tax Contributions. Subject to the
provisions of this Section 8.4, a Participant may apply to the
Company in the form and manner prescribed by the Plan
Administrator, for a withdrawal in cash from his Separate Account
attributable to Before-Tax Contributions and any earnings accrued
through December 31, 1988, on such Contributions less any such
amounts previously withdrawn; provided that he has first
withdrawn the total value of his After-Tax Account, the total
value of his Rollover Account, and, if the Participant is vested,
the total value of the Matching Contributions Account.
At any time after a Participant has attained age 59-1/2 or
has become totally and permanently disabled, earnings accrued
after December 31, 1988, on Before-Tax Contributions may also be
withdrawn. In such case, the amounts in such Participant's
Before-Tax Account will be aggregated with his After-Tax Account
for the purpose of making withdrawals from the Plan; and the
Participant's Before-Tax Contributions, including any interest,
dividends, and appreciation thereon, less any amounts previously
withdrawn, may be withdrawn in connection with an After-Tax
Contribution withdrawal under Section 8.1.
Except for a Participant who has attained age 59-1/2 or
becomes totally and permanently disabled, a withdrawal of Before-
Tax Contributions and any earnings thereon, except as indicated
below, shall be permitted only if the Plan Administrator
determines that such withdrawal is needed for a Financial
Hardship and that such withdrawal will not exceed the following
amount:
(a) If such Participant is vested in the Matching
Contributions credited to his Before-Tax and After-Tax
Accounts pursuant to Section 7.1, the lesser of
(i) the amount required to meet the need for which the
withdrawal is requested, or
(ii) the value of his Separate Accounts.
(b) If such Participant is not vested in the Matching
Contributions credited to his Before-Tax and After-Tax
Accounts pursuant to Section 7.1, the lesser of
(i) the amount required to meet the need for which the
withdrawal is requested, or
(ii) the value of his Separate Accounts minus the
amount of Matching Contributions credited thereto, or
if greater, the lesser of the amount of his Before-Tax
Contributions plus earnings attributable to his Before-
Tax Account not previously withdrawn or the value of
his Before-Tax Account.
(c) If such Participant has not yet attained age 59-1/2 or
become totally and permanently disabled, any earnings on his
Before-Tax Contributions accrued after December 31, 1988,
are not available for withdrawal even in the case of a
Financial Hardship
A withdrawal in the case of a Financial Hardship shall, subject
to the above limitations, be taken first from the Participant's
After-Tax Account, second from the Participant's Rollover
Account, third, if the Participant is vested pursuant to section
7.1, from the Participant's Matching Contribution Account, and
last, from the Participant's Before-Tax Account.
Neither forfeiture nor suspension will result from the withdrawal
of Before-Tax Contributions as a result of a Financial Hardship.
8.5 Withdrawal on Account of Permanent and Total
Disability. In the event the Participant becomes permanently and
totally disabled, he shall be eligible to withdraw up to the
entire value of his Separate Accounts under the provisions of
Sections 8.1, 8.2, 8.3 and 8.4. In this instance, permanent and
total disability shall be defined according to uniform procedures
established by the Plan Administrator.
<PAGE>
ARTICLE IX
LOANS
9.1 Approval and Nature of Loans. Any Participant who is
employed by an Employer or an Affiliate may, in accordance with
written procedures established by the Plan Administrator apply to
the Company (for any reason other than the acquisition of
securities) for a loan pursuant to the provisions of this Article
IX. Any loan granted to a Participant shall be deemed an
earmarked investment made for such Participant's benefit and
shall be charged against his Separate Accounts.
9.2 Terms and Conditions. The Plan Administrator shall
prescribe the terms and conditions of any loan made under this
Article IX, but in any event the following shall apply:
(a) The annual loan interest rate shall equal one percent
plus the prime interest rate as in effect on the fifteenth
calendar day of the month immediately preceding the calendar
year quarter in which such loan is approved, and such
interest rate shall apply for the entire term of the loan.
(b) The term of any loan shall be specified by the
Participant, in half-year increments, but in no event shall
such term be less than one year and no greater than five
years. A loan shall be amortized on a substantially level
basis, and payments shall be made no less frequently than
quarterly.
(c) The principal amount of any such loan shall be in
increments of $100 and shall not be less than $1,000 and
shall not exceed the lesser of:
(i) $50,000 reduced by the excess (if any) of the
highest outstanding loan balance during the one-year
period ending on the day the loan is made, over the
outstanding balance of loans from all qualified plans
sponsored by the Company or an Affiliate on the date
the loan is made, or
(ii) one-half the present value of the vested portion
of the Separate Accounts of the Participant as of the
most recent valuation.
(d) A Participant may have only one loan outstanding under
the Plan at any time, and may only borrow if at least a one-
month period has elapsed since the repayment date of his
most recent loan.
(e) Any loan hereunder shall be made from the Separate
Accounts in the following order: First, from the
Participant's Before-Tax Account (but in no event will
income on Before-Tax Contributions accrued after December
31, 1988, be available for a loan); second, from the
Rollover Account; third from the Matching Contributions
Account; and fourth, from the After-Tax Account. The
amounts will be drawn pro rata from the Investment funds in
a Separate Account; provided that if any assets in the U. S.
Government Bond Fund would have to be liquidated to fund the
loan, that entire Fund must be liquidated prior to the Loan.
9.3 Repayment of Loans. The loan shall be repaid, with
interest, in accordance with its terms. The Trustee shall credit
each payment and allocate such monies among the Separate Accounts
of such Participant charged with such loan; provided that such
allocation shall be made first to the Participant's After-Tax
Account; second, to the Matching Contributions Account; third, to
the Rollover Account; and fourth, to the Before-Tax Account. The
recrediting among the Funds with respect to any Separate Account
shall be made in accordance with the Participants most recent
investment election.
The outstanding balance of the Loan may be prepaid any time
after three monthly payments have been made.
If an amount less than two months' repayment is not paid
when due, the term of the loan shall be extended to cover such
repayments if such extension does not increase the term of the
loan beyond five years.
9.4 Default. An event of default under the loan shall
occur in the following circumstances:
(a) Delinquent payments total two months or more, including
delinquency as a result of bankruptcy.
(b) Delinquent payments total less than two months and the
loan repayment term cannot be extended.
(c) A Participant terminates employment, including
retirement or death, with an outstanding loan.
9.5 Default Remedies.
(a) In the event a Participant incurs a default resulting
from Sections 9.4(a) or 9.4(b), such Participant has 60 days
from the time of default to (i) make up the missed payments,
or (ii) repay the outstanding balance of the loan. If such
Participant chooses to make up the missed payments under
(i), and the missed payments are made within the 60-day time
limit, the default will be cured and the loan continued as
if no default had occurred.
(b) In the event of a default resulting from 9.4(c), the
Terminated Participant or the Retired Participant or such
Participant's estate must pay off the outstanding balance of
the loan by certified check no later than 60 days from the
date of default.
(c) If payment is not received within 60 days from the date
of default, the Terminated Participant or Retired
Participant shall be deemed to have incurred a taxable event
and, at the time permitted by law, to have elected to make a
withdrawal from his Separate Accounts in the amount of the
balance of his outstanding loan, with accrued interest, or
in such lesser amount as is then permitted by law, and to
have elected to have such withdrawn amount applied against
his loan. In the case of a termination of employment, the
Separate Accounts of such Participant shall be charged with
the amount of such loan balance, along with accrued
interest, and such amount shall be deemed, at the time
permitted by law, to be a distribution to such Participant.
(d) An Employee who defaults on a Plan loan will not be
eligible for another loan for a period of one year from the
date of default and will be suspended from contributing to
the Plan for a period of one year.
9.6 Reemployment. If a Participant with an outstanding
loan from the Plan terminates, causing the loan to go into
default, and if the Participant is rehired such that the loan
repayments can be reinstated within 60 days of his termination
and such that the overall length of the loan repayment period
(both pre-termination and post-termination) does not exceed five
years, the default of the loan may be voided and the loan
reinstated upon his reemployment.
9.7 Administration of Loans. The Plan Administrator, or
his designee, is responsible for administering the loan
provisions established under the Plan. Such administration shall
be performed such that:
(a) loans shall be made available to Participants on a
reasonably equivalent basis; and
(b) loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made
available to other Participants.
<PAGE>
ARTICLE X
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
10.1 Eligibility for Distribution. Each Participant shall
be entitled to receive the vested amount of his Separate Accounts
upon retirement or other termination of employment with the
Affiliated Group for any reason, including death.
10.2 Distributions. The Plan Administrator shall direct the
Trustee to make distribution to, or for the benefit of, a
Participant, who becomes eligible to receive the vested amount of
his Separate Accounts under Section 10.1 in the manner
hereinafter set forth.
(a) Distributions to Participants Upon Retirement. In the
case of a Participant who retires, if the combined value of
the vested interest of the Participant under the Plan and
all other qualified profit-sharing plans maintained by the
Affiliated Group is (and was at the time of any prior
distribution) $3,500 or less, distribution of such
Participant's vested interest under the Plan shall be made
to him as soon as practicable in a single lump-sum payment.
If the value of the vested interest of such Participant
under the Plan and all other qualified profit-sharing plans
maintained by the Affiliated Group is (or was at the time of
any prior distribution) in excess of $3,500, distribution of
such Participant's vested interest under the Plan shall be
made in one or more of the following methods, in accordance
with rules established by the Plan Administrator, as the
Participant shall select:
(i) in a single lump-sum payment payable at any time
prior to the April 1 of the calendar year following the
calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law; or
(ii) in the form of an immediate or deferred
nontransferable annuity contract that complies with the
requirements of this Plan and Section 401(a)(9) of the
Code and is purchased on behalf of such Participant in
accordance with procedures established by the Plan
Administrator; or
(iii) in a series of monthly or annual installments
over a period not in excess of the normal life
expectancy of the Participant or the joint life
expectancies of the Participant and his Beneficiary,
such installments to be equal in amount, except as
necessary to adjust for any net earnings and changes in
the market value of his Separate Accounts, or by any
other method reasonably calculated to provide a more
rapid distribution of his interest. Notwithstanding
the foregoing, a Participant may defer commencing
distribution until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law. For purposes of
this subparagraph (iii), the life expectancy of a
Participant and such Participant's Beneficiary may be
redetermined, but not more frequently than annually,
and in accordance with such rules as may be prescribed
by Treasury regulations. Further, life expectancy and
joint and last survivor expectancy shall be computed
using the return multiples of Treasury regulation 1.72-
9. A Participant wishing to have the life expectancy
used to calculate his benefit redetermined annually,
must so elect no later than the commencement of his
payments, and such election is irrevocable. If such an
election is not made, the life expectancy used to
calculate his benefit will not change, and no
redetermination of life expectancy may be elected at a
future date.
The form of the installment payments may be changed
from monthly to annual or from annual to monthly once
subsequent to the initiation of the installment
payments.
Such change must become effective with the payment
anniversary date. The dollar amount of an installment
payment, the length of the payment period under an
installment payment or the type of installment payment
may be changed once per year effective with the payment
anniversary date; provided, that any such changes meet
the requirements of Section 10.7 hereof (taking into
consideration any amendment of Section 401(a)(9) of the
Code). An installment payment under this subparagraph
(iii) may be changed to another form of payout under
subparagraphs 10.2(a)(i) or (iv), or such other form of
payout under subparagraphs 10.2(a)(i) or (iv) may be
changed to an installment payment under this
subparagraph (iii) once after such payment or payout
commences. A Participant receiving installment
payments under this subparagraph (iii) may effect a non-
periodic distribution under subparagraph 10.2(a)(iv)
once in a calendar year. For purposes of this
subparagraph (iii), "payment anniversary date" shall
mean the anniversary of the date that the installment
payments commenced.
(iv) in non-periodic distributions, in cash or in kind,
or both, up to twice a year in accordance with the
provisions of Section 10.7; provided, however, that the
Participant may defer making or commencing
distributions until the April 1 of the calendar year
following the calendar year in which he attains age 70-
1/2 unless otherwise permitted by law.
Notwithstanding the foregoing provisions of this paragraph
(a), if the life expectancy of a person other than the
Participant or his spouse is utilized in determining the
amount of any benefit payment, the value of the payments to
be made during the life expectancy of such Participant shall
be computed pursuant to the minimum distribution incidental
benefit requirement of Treasury regulations.
(b) Distributions to Participants Upon Termination of
Employment (Other Than Retirement or Death). Distribution
of the value of the vested interest of the Separate Accounts
of a Participant who terminates employment with the
Affiliated Group (for reasons other than retirement or
death) shall be made as soon as practicable in a single lump-
sum payment; provided, however, that if the Participant is
not vested pursuant to the provisions of Article VII, and if
the lump-sum payment is less than the amount of such
Participant's Before-Tax and After-Tax Contributions which
are eligible for a match, he will receive the lesser of
(i) the amount of his Before-Tax and After-Tax
Contributions eligible for a match plus earnings
attributable to his Before-Tax and After-Tax Accounts
not previously withdrawn, or
(ii) the value of his Before-Tax and After-Tax
Accounts.
If the value of the vested interest of such Participant
under the Plan and all other qualified profit sharing plans
maintained by the Affiliated Group is more than $3,500, he
may defer distribution of such interest under the Plan until
the April 1 of the calendar year following the calendar year
in which he attains age 70 1/2 unless otherwise permitted by
law. A Participant who defers distribution of his interest
may not elect to make an investment change in accordance
with the provisions of Section 6.4 after his Severance Date.
(c) Distributions Due to Death. Unless a valid election of
an annuity contract under subparagraph (a)(ii) of this
Section 10.2 is effective, and death occurs before the
"required beginning date,' (as defined in Section 10.7(c))
distribution of the Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed by December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
(ii) Spouse Beneficiary designated. The entire account
must be distributed over a period not exceeding the
Beneficiary's life expectancy. Payments must begin by
the later of (1) December 31 of the year following the
year of the Participant's death, or (2) December 31 of
the year the Participant would have attained age 70-
1/2.
(iii) Non-Spouse Beneficiary designated. The
entire account must be distributed over a period not
exceeding the Beneficiary's life expectancy. Payments
must begin by December 31 of the year following the
year of the Participant's death, or as soon as
administratively feasible thereafter.
(iv) Distribution Exception. In cases in which a
Beneficiary does not wish to receive a distribution
over his/her life expectancy under (ii) or (iii) above
(as applicable), either the Participant or, following
the Participant's death the Beneficiary, may elect to
have the distribution paid out under (i) above. Such
an election must be made by, and may not be revoked
following, the earlier of (1) December 31 of the year
the distribution is required to commence under (ii) or
(iii) above, or (2) December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
In the absence of any specific election by the Participant
or Beneficiary as to the form of the distribution, the
distribution will be paid out under (ii) or (iii) as
applicable.
If death occurs after the Retired or Terminated
Participant's "required beginning date," distribution of the
remaining portion of a Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed immediately.
(ii) Beneficiary Designated.
(1) Payments made over the Participant's life
expectancy only. If no election to recalculate
life expectancy was made, the remaining account
must be distributed to the Beneficiary at least as
rapidly as under the method of distribution in
effect at the Participant's death. The life
expectancy schedule for a deceased Participant
would continue to be used, with the Beneficiary
having the option to increase the payments. If an
election to recalculate life expectancy was made,
the remaining account must be paid out to the
Beneficiary by December 31 of the year following
the year of the Participant's death.
(2) Payments being made over the joint life
expectancy of the Participant and Beneficiary. If
no election to recalculate life expectancy was
made, the Beneficiary will continue to receive
distributions based on the joint life expectancy
factors already in effect (as if no death had
occurred), with the Beneficiary having the option
to increase the amount of the payments. If an
election is made by the Participant to have his
life expectancy recalculated and either (a) no
election is made to have his designated
Beneficiary's life expectancy recalculated, or (b)
the designated Beneficiary is not the
Participant's spouse, the Beneficiary will receive
the regularly scheduled payment in the year of the
Participant's death, and the remaining account
will be distributed over the Beneficiary's single
life expectancy with no recalculation. The
Beneficiary has the option to increase the amount
of the payments. If an election to recalculate
the Participant's and the spousal Beneficiary's
life expectancies was made, the Beneficiary will
receive the regularly scheduled payment in the
year of the Participant's death, and the remaining
account will be distributed over the Beneficiary's
single life expectancy with recalculation. The
Beneficiary has the option to increase the amount
of the payments.
10.3 Forms of Distributions. All distributions under this
Article X shall be made in the following manner:
(a) Any distributions, other than annuity contracts or
monthly installment payments, may be made in cash or in
kind, or both, in accordance with the election of the
Participant or Beneficiary.
(b) Any distributions to a Participant in a monthly
installment form under subparagraph (a)(iii) of Section 10.2
shall be made in cash.
(c) If a Participant elects distribution of his entire
vested interest in an annuity form pursuant to 10.2(a)(ii),
such annuity shall provide that if the Participant is not
married on his Annuity Starting Date, his benefit will be
paid as a single life annuity unless he elects otherwise;
and if he is married on his Annuity Starting Date, his
benefit will be paid in the form of a Qualified Joint and
Survivor Annuity with his spouse as the contingent
annuitant, unless prior to the Annuity Starting Date the
Participant elects to receive payment of his interest in a
different annuity form. For married Participants, the
Qualified Joint and Survivor Annuity form of benefit will be
at least as valuable as any other optional form of benefit
available under the Plan at the same time. The Participant
may elect to have such annuity distributed upon attainment
of the Earliest Retirement Age.
If the Participant is married and elects to receive
payment of his interest in a different annuity form or to
designate a contingent annuitant other than his spouse, the
spouse of such Participant must consent in writing thereto
and such consent must acknowledge the effect of such action,
the optional form of payment elected and, if applicable, any
contingent annuitant other than the spouse, and be witnessed
by a notary public, unless a Plan representative finds that
such consent cannot be obtained because the spouse cannot be
located or because of other circumstances set forth in
Section 401(a)(11) of the Code and regulations issued
thereunder. Any election made under this paragraph (c) may
be made at any time during the 90-day period ending on the
Annuity Starting Date.
(d) The annuity described in Section 10.2(a)(ii) and
distributed to Participant shall provide that if the
Participant dies prior to the Annuity Starting Date, is
survived by a spouse, and was married to such spouse during
the one-year period preceding his death, his surviving
spouse shall receive a Preretirement Survivor Annuity,
unless he filed a Qualified Waiver with the Plan
Administrator during the Applicable Election Period. The
Preretirement Survivor Annuity will be calculated as of the
Earliest Retirement Age if the Participant dies before such
time, or at death if the Participant dies after the Earliest
Retirement Age. Reasonable actuarial adjustments will be
made to reflect a payment earlier or later than the Earliest
Retirement Age.
(e) For purposes of this Section 10.3, the following
definitions
apply:
The "Annuity Starting Date" means - (i) the first day
of the first period for which an amount is payable as
an annuity, or (ii) in the case of a benefit not
payable in the form of an annuity, the first day on
which all events have occurred which entitle the
participant to such benefit.
The "Applicable Election Period" is the period
commencing on the first day of the Plan Year in which a
Participant attains age 35 and ending on the date of
the Participant's death. If a Participant separates
from service prior to the first day of the plan year in
which age 35 is attained, with respect to the account
balance as of the date of separation, the election
period shall begin on the date of separation.
The "Earliest Retirement Age" shall be the date on
which the Participant could elect to receive retirement
benefits.
The "Preretirement Survivor Annuity" shall be an
annuity for the life of the surviving spouse of the
Retired or Terminated Participant, payable immediately
upon the Retired or Terminated Participants death, the
actuarial equivalent of which is not less than 50% of
the Participant's vested interest in the Plan as of the
date of death. Any security interest held by the Plan
by reason of a loan outstanding to the Participant
shall be taken into account in determining the amount
of the qualified Preretirement Survivor Annuity.
The "Qualified Joint and Survivor Annuity" shall be an
annuity for the life of the Participant, with a
survivor annuity for the life of the spouse that is not
less than 50 percent (and not greater than 100 percent)
of the amount payable during the joint lives of the
Participant and the spouse.
The "Qualified Waiver" is a waiver of the Preretirement
Survivor Annuity to which the spouse of the Retired or
Terminated Participant consents in writing and such
consent acknowledges the effect of such action and, if
applicable, any optional form of Preretirement Survivor
Annuity or contingent annuitant and is witnessed by a
notary public, unless a Plan representative finds that
such consent cannot be obtained because the spouse
cannot be located or because of other circumstances set
forth in Section 401(a)(11) of the Code and regulations
issued thereunder.
(f) Notice Requirements. In the case of a qualified joint
and survivor annuity, the Plan Administrator shall no less
than 30 days and no more than 90 days prior to the Annuity
Starting Date cause to be provided to each Participant who
elects to receive payment in the form of an annuity a
written explanation of: (i) the terms and conditions of a
qualified joint and survivor annuity; (ii) the Participant's
right to make and the effect of an election to waive the
qualified joint and survivor annuity form of benefit; (iii)
the rights of a Participant's spouse; and (iv) the right to
make, and the effect of, a revocation of a previous election
to waive the qualified joint and survivor annuity.
In the case of a qualified Preretirement Survivor Annuity,
the Plan Administrator shall cause to be provided to each
Participant within the "applicable period" for such
Participant a written explanation of the qualified
Preretirement Survivor Annuity in such terms and in such
manner as would be comparable to the explanation provided
for meeting the requirements outlined above applicable to a
qualified joint and survivor annuity.
The "applicable period" for supplying the explanation of a
qualified preretirement survivor annuity to a participant is
whichever of the following periods ends last: (i) the period
beginning with the first day of the plan year in which the
participant attains age 32 and ending with the close of the
plan year preceding the plan year in which the participant
attains age 35; (ii) a reasonable period ending after the
individual becomes a participant; or, (iii) a reasonable
period ending after Code section 401(a)(11) first applies to
the Participant due to his election of an annuity under this
Plan. Notwithstanding the foregoing, notice must be
provided within a reasonable period ending after separation
from service in the case of a Participant who separates from
service before attaining age 35.
For purposes of applying the preceding paragraph, a
"reasonable period" is the end of the two-year period
beginning one year prior to and ending one year after the
date of the applicable event described in (ii) or (iii).
10.4 Disposition of Forfeited Balances. If a termination of
employment results in a forfeiture of Matching Contributions,
such forfeiture may either be used to reduce the Employers'
Matching Contribution obligation or be applied, as directed by
the Plan Administrator or Named Fiduciary, as appropriate, to pay
such administrative expenses of the Plan as are legally permitted
to be paid from the Trust and as are actually paid not later than
the next succeeding Plan Year quarter. If the amount of all such
forfeitures during the quarter exceeds the amount used before the
end of the next succeeding quarter to reduce Matching
Contributions and to pay expenses of the Plan, the excess may be
applied thereafter only to reduce matching contribution
obligations for succeeding quarters until eliminated.
10.5 Buy-Back and Restoration of Forfeited Amounts. If a
Participant terminates service and receives the value of his
vested account balance, any nonvested portion will be treated as
a forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within five
years of his Severance Date shall have such forfeited amount
restored to his Separate Accounts, along with interest credited
at the Fixed Income Fund rate of return over the period of the
forfeiture, and invested in accordance with a new investment
election. If such a Participant receives a distribution of part
or all of his account, he must repay, in cash, the full amount of
such distribution on or before his final repayment date and such
forfeited amount shall be restored to his Separate Accounts and
invested in accordance with a new investment election. In this
case, no interest shall be accrued on such forfeited amount from
the time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his Separate
Accounts which results in a forfeiture of Matching Contributions
may repay in cash the amount of such withdrawal on or before his
final repayment date, and it shall be restored to his Separate
Accounts in accordance with a new investment election. Any
restoration of Matching Contributions shall be made from a
special Company contribution which shall not constitute an Annual
Addition within the meaning of Section 4A. For purposes of
repaying the distribution amount in the case of a Participant who
terminates employment, the "final repayment date" shall be five
years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects a
withdrawal, his "final repayment date" shall be five years after
the date of such withdrawal.
10.6 Payments to Incompetents or Minors. If any individual
to whom an amount is payable hereunder is incapable of attending
to his financial affairs because of any mental or physical
condition, including the infirmities of advanced age, or is a
minor, such amount (unless prior claim therefor shall have been
made by a duly qualified guardian or other legal representative)
may, in the discretion of the Plan Administrator, be paid to a
duly appointed guardian or to another person for the use or
benefit of the individual found to be a minor or incapable of
attending to his financial affairs or in satisfaction of legal
obligations incurred by or on behalf of such individual. The
Trustee shall make such payment only upon receipt of written
instructions to such effect from the Plan Administrator. Any
such payment shall be charged to the Separate Accounts from which
any such payment would otherwise have been paid to the individual
found to be a minor or incapable of attending to his financial
affairs and shall be a complete discharge of any liability
therefor under the Plan.
10.7 Limitations on Commencement and Distribution of Benefit
Payments.
(a) Unless the Participant otherwise elects (or is deemed
to elect otherwise because the combined present value of
such Participant's nonforfeitable accrued benefit under the
Plan and all other qualified profit-sharing plans maintained
by the Affiliated Group does not exceed $3,500), the payment
of benefits under the Plan to such Participant shall begin
not later than the 60th day after the close of the Plan Year
in which the latest of the following events occurs:
(i) The date on which such Participant attains age 65;
(ii) The tenth anniversary of the date on which such
Participant commenced participation in the Plan; and
(iii) The date on which such Participant terminates
service with the Affiliated Group.
(b) Notwithstanding the foregoing, such Participant's
entire interest in his Separate Accounts (including any
distribution of incidental death benefits) must be
distributed, or begun to be distributed, to him not later
than his "required beginning date."
(c) A Participant's "required beginning date" is the April
1st of the calendar year following the year in which the
Participant attains age 70-1/2. For a Participant who
attains age 70-1/2 before January 1, 1988, and is not a 5-
percent owner, the term "required beginning date" means
April 1 of the calendar year following the later of (1) the
calendar year in which the Participant attains age 70-1/2 or
(2) the calendar year in which the employee retires. For a
Participant who attains age 70-1/2 before January 1, 1988,
and is a 5-percent owner, the term "required beginning date"
means April 1 of the calendar year following the later of
(1) the calendar year in which the Participant attains age
70-1/2, or (2) the earlier of (i) the calendar year with or
within which ends the Plan Year in which the Participant
becomes a 5-percent owner. or (ii) the calendar year in
which the Participant retires.
(d) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined under Code Section 416(i) at any time
during the Plan Year ending with or within the calendar year
in which such owner attains age 66-1/2 or any subsequent
year.
(e) Notwithstanding any provision in this Plan to the
contrary, if not made in a lump-sum, the interest of a
Participant in his Separate Accounts under the Plan must be
distributed, in accordance with Treasury regulations
promulgated under Section 401(a)(9) of the Code, over one of
the four following periods:
(i) the life of such Participant;
(ii) the joint lives of such Participant and such
Participant's Beneficiary;
(iii) a period not extending beyond the life
expectancy of such Participant; or
(iv) a period not extending beyond the joint life
expectancies of such Participant and such Participant's
beneficiary
10.8 Reemployment. In the event a Participant is reemployed
by an Employer or an Affiliate, and if such Retired Participant
again becomes an active Participant, his Separate Accounts from
his prior participation shall be consolidated with the Separate
Accounts established in his name after such reemployment.
<PAGE>
ARTICLE XI
BENEFICIARIES
11.1 Designation of Beneficiary. A Participant, Retired
Participant, or Terminated Participant may designate a
Beneficiary to whom distribution shall be made hereunder in the
event such Participant dies before his interest is distributed to
him in full. If such Participant has a spouse, his spouse shall
be his Beneficiary and shall receive distribution of his
remaining interest in accordance with the provisions of Section
10.2(c); provided, however, that a person or persons other than
his spouse may be designated as his Beneficiary if the
requirements of Section 11.3 are met. Any such designation or
change of designation shall be subject to the provisions of
Section 11.3, shall be made in writing in the form prescribed by
the Plan Administrator, and shall become effective only when
filed with the Plan Administrator; provided, however, that any
such designation or change of designation which is received by
the Plan Administrator after the death of the Participant,
Retired Participant or Terminated Participant shall be
disregarded.
11.2 Beneficiary in the Absence of Designated Beneficiary.
If (i) a Participant, Retired Participant, or Terminated
Participant who dies does not have a surviving spouse and if no
Beneficiary has been designated pursuant to the provisions of
Section 11.1, or (ii) no Beneficiary survives such Participant,
then the Beneficiary shall be the estate of such Participant. If
any Beneficiary designated pursuant to Section 11.1 dies after
becoming entitled to receive distributions hereunder and before
such distributions are made in full and if no other person or
persons have been designated to receive the balance of such
distributions upon the happening of such contingency, the estate
of such deceased Beneficiary shall become the Beneficiary as to
such balance.
11.3 Spousal Consent to Beneficiary Designation. In the
event a Participant, Retired Participant, or Terminated
Participant is married, any Beneficiary designation, other than a
designation of his spouse as Beneficiary, shall be effective only
if his spouse consents in writing thereto and such consent
acknowledges the specific designation of Beneficiary and the
effect of such action, and is witnessed by a notary public,
unless a Plan representative finds that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
Treasury regulations issued thereunder.
<PAGE>
ARTICLE XII
ADMINISTRATION
12.1 Plan Administrator and Named Fiduciary. The Plan shall
be administered by the Vice President of BP Exploration & Oil
Inc. with responsibility for Human Resources (or the successor to
such office as designated by the Board of Directors) who shall
serve as Plan Administrator within the meaning of ERISA. The
chief financial officer of the Company shall serve as Named
Fiduciary except as otherwise designated by the Board of
Directors.
The Board of Directors may arrange for the delegation by the
Trustee to the Plan Administrator and/or the Named Fiduciary of
any functions normally performed by trustees (except the custody
of assets, the voting with respect to shares held by the Trustee,
and the purchase and sale or redemption of securities.)
12.2 Duties of Plan Administrator and Named Fiduciary. The
Plan Administrator shall have the authority and responsibility
for control of the operation and administration of the Plan. The
Named Fiduciary shall have the responsibility to manage and
control the assets of the Plan, which includes the investment of
Plan assets. The Plan Administrator and the Named Fiduciary may,
from time to time, designate, or revoke the designation of, one
or more persons other than themselves to carry out one or more
specific fiduciary responsibilities. Each such designation
shall:
(a) be in writing signed by the Plan Administrator or Named
Fiduciary, as applicable;
(b) specify one or more fiduciary duties in connection with
the Plan for which such designee shall be responsible; and
(c) be accepted by such designee. The revocation of any
such designation shall be in writing signed by the Plan
Administrator or Named Fiduciary, whichever originally made
such designation, and, shall include a statement that such
has been notified of such revocation.
The Plan Administrator and the Named Fiduciary shall also
have such additional responsibilities and authority with respect
to the Plan as are specifically vested in them from time to time
by action of the Board of Directors of the Company. The
authority of the Plan Administrator and the Named Fiduciary to
delegate any of their duties as fiduciaries under the Plan to any
designee may be limited pursuant to action of such Board of
Directors. Each such designated fiduciary may rely upon any such
direction, information, or action of the Plan Administrator,
Named Fiduciary or another designated fiduciary as being proper
under this Plan or the Trust, and is not required under this Plan
or the Trust to inquire into the propriety of any such direction,
information, or action. It is intended under the Plan and the
Trust that each fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another fiduciary.
No designated fiduciary, Plan Administrator, Named Fiduciary nor
the Group guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
No bond or other security shall be required of the Plan
Administrator or the Named Fiduciary or anyone delegated to act
on behalf of either, nor shall they receive additional
compensation for services performed by them in the administration
of this Plan, except as may otherwise be required by law.
The Plan Administrator and the Named Fiduciary and each of
their designees, if any, may serve, subject to the foregoing
provisions of this Section 12.2, in more than one fiduciary
capacity with respect to the Plan and may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
The Plan Administrator shall have the sole and exclusive
discretion and authority to apply, construe and interpret all
provisions and terms of the Plan, to grant and/or deny any and
all claims for benefits, and to determine and decide any and all
issues and factual circumstances relating to eligibility for
benefits. All findings, decisions and determinations of any kind
made by the Plan Administrator shall not be disturbed unless the
Plan Administrator has acted in an arbitrary and capricious
manner. Subject to the requirements of law, the Plan
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and in any determination of
eligibility for a benefit. All decisions of the Plan
Administrator shall be final and binding on all parties. The
Plan Administrator shall exercise his powers in a uniform and
nondiscriminatory manner.
12.3 Rules and Regulations. The Plan Administrator may from
time to time prescribe rules or regulations for the
administration of the Plan. Without limiting the generality of
the foregoing, the Plan Administrator may adopt such rules or
regulations with respect to the signature by an Employee and/or
the spouse of an Employee, any directions or other papers to be
signed by Employees, and similar matters as the Plan
Administrator shall determine to be necessary or advisable in
view of the laws of any state or country.
12.4 Trust Agreement and Trustee. The Named Fiduciary and
the Trustee have entered into a trust agreement pursuant to which
the Trustee is to act as trustee under the Plan. The Named
Fiduciary may, without further reference to, or action by, any
Subsidiary participating in the Plan, from time to time enter
into such further agreements with the Trustee or other parties
and make such amendments to such trust agreement or such further
agreements as it may deem necessary or desirable.
The Named Fiduciary may from time to time designate a
successor Trustee which shall be a bank or trust company with
capital and surplus of not less than $10,000,000, and the Named
Fiduciary may require the Trustee to take such steps and execute
such instruments as the Named Fiduciary may deem necessary or
desirable to make effective the transfer of the Trust assets to
the successor Trustee and to maintain the Plan. The Board of
Directors of the Company shall determine the manner in which the
Company shall take any such action, which determination may be
general or limited to specific instances.
12.5 Determination of Benefits and Claims Review. The Plan
Administrator or his designee shall make all initial
determinations as to the right of any person to a benefit. The
Plan Administrator shall establish and follow a procedure for
review of any such determination consistent with regulations of
the Department of Labor under Section 503 of the Act.
12.6 Agency. The Plan Administrator, the Named Fiduciary,
or the Trustee need not recognize the agency of any party for a
Participant or a Beneficiary unless it shall receive documentary
evidence thereof satisfactory to it and thereafter from time to
time, as the Plan Administrator, the Named Fiduciary, or the
Trustee may determine, additional documentary evidence showing
the continuance of such agency. The Plan Administrator, the
Named Fiduciary, or the Trustee shall be entitled to rely upon
the continuance of such agency and to deal with the agent as if
he or it were the Participant or the Beneficiary.
12.7 Records Conclusive. The records of the Trustee, Plan
Administrator, Named Fiduciary, Employers, and Subsidiaries shall
be conclusive in respect of all matters involved in the
administration of the Plan.
12.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company.
(b) Taxes, if any, on any assets held by the Trustee or
income therefrom which are payable by the Trustee shall be
charged against the Participant's Separate Accounts as the
Trustee shall determine.
12.9 Qualified Domestic Relations Orders. The Plan
Administrator shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
Anything to the contrary in the Plan notwithstanding, in the
event a qualified domestic relations order provides for a
distribution of a Participant's, Terminated Participant's or
Retired Participant's Separate Accounts, or any portion thereof,
to an alternate payee as defined under Section 414(p)(8) of the
Code, such distribution may include Before-Tax Contributions,
After-Tax Contributions, Rollover Contributions and Matching
Contributions, as well as earnings thereon, without regard to the
date as of which such Participant, Terminated Participant or
Retired Participant separates from service or attains age 59-1/2.
<PAGE>
ARTICLE XIII
ASSETS HELD BY TRUSTEE
13.1 Assets Held by Trustee. All cash, bonds, stock
certificates, and contracts representing monies on deposit with
insurance companies shall, until disposed of pursuant to the
provisions of this Plan, be held in the possession or name of the
Trustee; provided, however, that transferable securities may be
registered in the name of the Trustee or in the name of its
nominee. All Mutual Fund shares may be held as unissued shares
(not in certificate form), in the name of the Trustee.
Nontransferable securities shall be issued in such name or names
as the Trustee may elect, subject to any applicable laws or
regulations at the time in effect with respect thereto. In the
sole discretion of the Trustee, investments in a particular issue
of stock, security, or a particular issue of bonds made at the
direction of more than one Participant may be represented by a
single certificate, single contract, or single bond, as the case
may be.
The assets of the Trust will be valued annually at fair
market value as of the last day of the Plan Year. The respective
accounts of Participants shall be adjusted in accordance with the
valuation.
13.2 Options, Rights, or Warrants. In the event that any
options, rights, or warrants shall be granted or issued with
respect to shares of stock held by the Trustee under the Plan,
the Trustee shall give to the Participant who directed the
investment in such shares a reasonable opportunity to direct the
Trustee to exercise such options, rights, or warrants for his
Separate Account, and if any cash shall be required in connection
with such exercise, such Participant shall, simultaneously with
his direction to the Trustee, authorize the Trustee to use for
such purpose any uninvested funds held for him and/or make
available to the Trustee any additional necessary funds. Such
additional funds may be made available to the Trustee either by
payment thereof in cash or by written direction to the Trustee on
forms prescribed by the Plan Administrator to sell any security
held for him; provided, however, that any such additional funds
deposited by any Participant with the Trustee for the aforesaid
purpose shall not be deemed a Before-Tax or After-Tax
Contribution under Article Ill. Any securities acquired as the
result of the exercise of any such options, rights, or warrants
shall be added to the Participant's Separate Accounts. If any
Participant shall not, within the time designated by the Trustee,
direct the Trustee to exercise any such option, right, or warrant
and make available to the Trustee any necessary funds, the
Trustee shall sell such option, right, or warrant on any
registered security exchange, if there be any market therefor,
and the cash proceeds from the sale of any such options, rights,
or warrants shall be credited to the Participant's Separate
Accounts. The foregoing provisions notwithstanding, the Trustee
shall reserve the right to determine whether any dividends on
Company Stock held by the Plan shall be paid in cash or in kind
under a share dividend plan.
13.3 Voting Rights. The Trustee shall vote the Company
Stock held in the Company Stock Fund for the respective accounts
of Participants in accordance with such Participants' directions
which may be certified to the Trustee by the Plan Administrator
or any agent designated by the Plan Administrator; provided that
any such shares with respect to which no such direction shall be
received and any fractional shares shall be voted by the Trustee
in the same proportions as shares as to which voting instructions
have been received.
13.4 Cost and Proceeds of Securities Transactions. If the
purchase or sale of securities by the Trustee, whether in
pursuance of standing directions or specific directions, cannot
be completed in a single transaction, but requires multiple
transactions, the price per unit (including prices determined by
the Trustee in cases of matched purchases and sales) at which all
securities of that particular issue are purchased or sold by the
Trustee shall be the weighted average net price per unit at which
all securities of that particular issue are purchased or sold for
the multiple transactions.
13.5 Brokerage Charges. Brokerage commissions, transfer
taxes, and other charges and expenses in connection with the
purchase or sale of securities shall be added to the cost of such
securities or deducted from the proceeds thereof, as the case may
be.
<PAGE>
ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 Amendments. Subject to the provisions of Section 14.2,
the Board of Directors is authorized to amend the provisions of
the Plan at any time in its sole discretion. This authority may
be delegated from time to time by resolutions of the Board of
Directors to certain officers of the Group, which delegations
shall constitute part of the Plan.
14.2 Limitation of Amendments. The Company shall make no
amendment to the Plan which shall result in the forfeiture or
reduction of the interest of any Employee, Eligible Employee,
Participant, Terminated Participant, Retired Participant or
person claiming under or through any one or more of them pursuant
to the Plan; provided, however, that nothing herein contained
shall restrict the right to amend the provisions hereof relating
to the administration of the Plan and Trust. Moreover, no
amendment shall be made hereunder which shall permit any part of
the Trust property to revert to any Employer or be used for or be
diverted to purposes other than the exclusive benefit of
Employees, Eligible Employees, Participants, Terminated
Participants, Retired Participants and persons claiming under or
through them pursuant to the Plan.
14.3 Termination. The Company reserves the right, by action
of its Board of Directors, to terminate the Plan as to all
Employers at any time, which termination shall become effective
upon notice in writing to the Trustee (the effective date of such
termination being hereinafter referred to as the "termination
date"). The Plan shall terminate automatically if there is a
complete discontinuance of contributions hereunder by all
Employers. Upon any such termination of the Plan, the Trustee
and the Company shall take the following actions for the benefit
of Participants, Terminated Participants, Retired Participants,
and Beneficiaries:
(a) As of the termination date, the Trustee shall value the
Funds hereunder, and the Plan Administrator shall adjust all
Separate Accounts accordingly. The termination date shall
become a valuation date. In determining the net worth of
the Funds hereunder, the Trustee shall include as a
liability such amounts as in its judgment shall be necessary
to pay all expenses in connection with the termination of
the Trust and the liquidation and distribution of the Trust
property, as well as other expenses, whether or not accrued,
and shall include as an asset all accrued income.
(b) The Trustee, upon instructions from the Plan
Administrator, shall then segregate and, subject to
applicable provisions of the Code relating to distribution
of Before-Tax Contributions, distribute an amount equal to
the entire interest of each Participant, Terminated
Participant, Retired Participant and Beneficiary in the
Funds to or for the benefit of each such Participant or
Beneficiary in accordance with the provisions of Section
10.2.
Notwithstanding anything to the contrary contained herein,
upon any such Plan termination, the interest of any Participant
and Beneficiary shall become fully vested and nonforfeitable;
and, if there is a partial termination of the Plan within the
meaning of the Code, the interest of each Participant and
Beneficiary who is affected by such partial termination shall
become fully vested and nonforfeitable.
14.4 Withdrawal of an Employer. An Employer other than the
Company may, by action of its board of directors, withdraw from
the Plan, such withdrawal to be effective upon notice in writing
to the Company and shall thereupon cease to be an Employer for
all purposes of the Plan. An Employer shall be deemed
automatically to withdraw from the Plan in the event of its
complete discontinuance of contributions or (subject to the
Provisions of Section 14.5) in the event it ceases to be a
Subsidiary.
14.5 Corporate Reorganization. The merger, consolidation,
or liquidation of the Company or any Employer with or into the
Company or any other Employer shall not constitute a termination
of the Plan as to the Company or such Employer.
<PAGE>
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 No Commitment as to Employment. Nothing herein
contained shall be construed as a commitment on the part of any
Employer to continue the employment or rate of compensation of
any Employee hereunder for any period.
15.2 Rights to Trust Assets. Nothing in the Plan shall be
construed to confer any right or claim upon any person other than
the parties hereto, Participants, Terminated Participants,
Retired Participants and Beneficiaries. All payments of benefits
as provided in the Plan shall be made solely out of the assets of
the Trust, and none of the fiduciaries shall be liable therefor
in any manner
15.3 Precedent. Except as otherwise specifically provided
or required by law, no action taken in accordance with the terms
of the Plan, by an Employer, the Company, or any fiduciary for
the Plan, shall be construed or relied upon as a precedent for
similar action under similar circumstances.
15.4 Duty to Furnish Information. Each of the Employers,
the Company, or the Trustee shall furnish to any of the others
any documents, reports, returns, statements, or other information
that any other reasonably deems necessary to perform its duties
imposed hereunder or otherwise imposed by law.
15.5 Merger, Consolidation, or Transfer of Plan Assets. The
Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another
plan, unless, immediately after such merger, consolidation, or
transfer of assets or liabilities, each Participant, Terminated
Participant, Retired Participant or Beneficiary will receive a
benefit which is at least equal to the benefit he was entitled to
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (if the plan had then terminated).
15.6 Return of Contributions to Employers. If a Before-Tax
Contribution or a Matching Contribution
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the Contribution under
Section 404 of the Code and such deduction is disallowed, or
(c) is conditioned upon initial qualification of the Plan
under Section 401(a) of the Code and the Plan does not so
qualify,
such a Contribution may be returned to the Employers within one
year after the mistaken payment of the contribution, the
disallowance of the deduction (to the extent disallowed), or the
date of denial of the qualification of the Plan, whichever is
applicable. For this purpose, all Contributions made by the
Employers are expressly declared to be conditioned upon their
deductibility under Section 404 of the Code and the qualification
of the Plan.
15.7 Filing of Notices and Plan Information. Any Plan forms
to be filed with the Plan shall be mailed by first-class mail or
otherwise delivered to the BP America Participant Service Center
at the following address:
BT Services Tennessee, Inc.
Bankers Trust New York Corp.
P. O. box 305049
Nashville, TN 37230-5049
Such forms must be actually received by the applicable due date
under the Plan. Any Plan notices or communications to be filed
with the Plan Administrator or Named Fiduciary shall be mailed by
first-class mail or otherwise delivered to such individual at 200
Public Square, Cleveland. Ohio 44114-2375. Legal notices shall
be directed to the Corporate Secretary, BP America Inc., 200
Public Square, Cleveland, Ohio 44114-2375.
15.8 Governing Law. Except as provided under federal law,
the provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.
15.9 Restriction on Alienation. Except as provided in
Sections 401(a)(13)(B) and 414(p) of the Code relating to
qualified domestic relations orders or as otherwise provided
under Section 401(a)(13) of the Code and related regulations, no
benefit under the Plan at any time shall be subject in any manner
to anticipation, alienation, assignment (either at law or in
equity), encumbrance, garnishment, levy, execution, or other
legal or equitable process. No person shall have power in any
manner to anticipate, transfer, assign (either at law or in
equity), alienate, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void. If by reason of any attempt
by a Participant, Terminated Participant, Retired Participant or
Beneficiary to alienate, sell, transfer, assign, pledge, encumber
or otherwise dispose of any right or interest under the Plan, or
if by reason of bankruptcy or insolvency or because of any
attachment, garnishment or other proceeding or, any order,
finding or judgment of any court, either in law or in equity,
prior to the actual transfer and delivery of such right or
interest to such Participant or Beneficiary, such right or
interest except for this Section would be payable to, or enjoyed
by some person, firm, or corporation other than such Participant
or Beneficiary, then any such right or interest shall cease, and
thereafter the Trustee, upon the direction of the Plan
Administrator, shall from time to time as and when payments would
otherwise (except for this Section) become due and payable to
such Participant or Beneficiary, pay or deliver to or expend for
the use and benefit of such Participant or Beneficiary or to or
for the use of any person dependent upon such Participant for
support from any amount which would have been payable or
distributable to such Participant or Beneficiary, except for this
Section, such sums as the Plan Administrator in its sole
discretion may deem necessary or advisable for his support or for
the support of any one dependent upon him. At the time when,
except for this Section, final payment would be required to be
made to such Participant or Beneficiary, there shall be paid to
such Participant or Beneficiary only so much of the balance
remaining to his credit under the Plan as the Plan Administrator,
in the exercise of its sole discretion, may direct and the
remainder thereof, if any, shall be paid over and delivered to
his spouse, if any, or if none, to his children, if any, in equal
shares. If there is no spouse or children of such Participant or
Beneficiary alive at such time, the Trustee shall pay and deliver
any portion of any such remaining balance which is not paid to
such Participant or Beneficiary to the estate of such Participant
or Beneficiary.
15.10 Adoption by Subsidiaries. Any Subsidiary of the
Company which at the time is not an Employer may, with the
consent of the Board of Directors of the Company, adopt the Plan
and become an Employer hereunder. An appropriate written
instrument evidencing such adoption shall be executed and filed
with the Company.
15.11 Rollovers to Other Plans or IRAs. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
Definitions:
(1) Eligible Rollover Distribution. An Eligible
Rollover Distribution is any distribution of all
or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover
Distribution does not include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the Distributee or the joint
lives (or joint life expectancies) of the
Distributee and the Distributee's beneficiary, or
for a specified period of ten years or more;
(b) any distribution to the extent such
distribution is required under Code Section
401(a)(9); and
(c) the portion of any distribution that is not
includable in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(2) Eligible Retirement Plan. An Eligible Retirement
Plan is an individual retirement account described
in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a), or
a qualified trust described in Code Section 401(a)
that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible
Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual
retirement account or individual retirement
annuity.
(3) Distributee. A Distributee includes a
Participant, Retired Participant or Terminated
Participant. In addition, the Participant's,
Retired Participant's or Terminated Participant's
surviving spouse, or former spouse who is the
alternate payee under a qualified domestic
relations order as defined in Code Section 414(p),
are Distributees with regard to the interest of
the spouse or former spouse.
(4) Direct Rollover. A Direct Rollover is a payment
by the Plan to the Eligible Retirement Plan
specified by the Distributee.
15.12 Administrative Corrections. The Plan
Administrator or the Named Fiduciary, as appropriate, may take
reasonable actions, consistent with applicable law, as may be
necessary to correct any omissions, defects, or inconsistencies
in the operation or administration of the Plan
<PAGE>
ARTICLE XVI
TOP-HEAVY PROVISIONS
16.1 Applicability. Notwithstanding any other provision to
the contrary, in the event the Plan is deemed to be a top-heavy
plan for any Plan Year, the provisions contained in this Article
XVI with respect to vesting and Matching Contributions shall be
applicable with respect to such Plan Year. In the event the Plan
is determined to be a top-heavy plan and upon a subsequent
Determination Date is determined to no longer be a top-heavy
plan, the vesting and the Employer contribution provisions in
effect immediately preceding the Plan Year in which the Plan was
determined to be a top-heavy plan shall again become applicable
as of such subsequent Determination Date; provided, however, that
in the event such prior vesting schedule does again become
applicable, the provisions of Section 7.4 and Section 14.2 shall
apply (i) to preserve the nonforfeitable accrued benefit of any
Participant or Beneficiary and (ii) to permit in accordance with
Section 7.4, a Participant to elect to continue to have his
nonforfeitable interest in his Employer contributions determined
in accordance with the vesting schedule applicable while the Plan
was a top-heavy plan.
16.2 Top-Heavy Definitions. For purposes of this Article
XVI, the following definitions shall apply:
(a) The term "Determination Date" with respect to any Plan
Year shall mean the last day of the preceding Plan Year.
(b) The term "Determination Period" shall mean the Plan
Year containing the Determination Date or the four preceding
plan years.
(c) The term "Key Employee" shall mean any Employee or
former Employee (and the beneficiaries of such Employee) who
at any time during the Determination Period was an officer
of the Company if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the
Company if such individual's compensation exceeds 100
percent of the dollar limitation under Code Section
415(c)(1)(A), a 5-percent owner of the Company, or a one-
percent owner of the Company who has an annual compensation
of more than $150,000. For purposes of this definition, the
term "compensation" has the meaning given to such term by
Code section 414(q)(7).
(d) The term "Non-Key Employee" shall mean any Participant
who is not a Key Employee.
(e) The term "Permissive Aggregation Group" shall mean
those plans not included in an Employer's Required
Aggregation Group in conjunction with any other plan or
plans of such Employer, so long as the entire group of plans
would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(f) The term "Required Aggregation Group" shall include (i)
all plans of an Employer in which a Key Employee is a
participant and (ii) all other plans of an Employer which
enable a plan described in clause (i) hereof to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(g) A "Super Top-Heavy Group" with respect to a particular
Plan Year shall mean a Required or Permissive Aggregation
Group that, as of the Determination Date, would qualify as a
top-heavy group under the definition in paragraph (h) of
this Section 16.2 with "90 percent" substituted for "60
percent" each place where "60 percent" appears in such
definition.
(h) The term "Super Top-Heavy Plan" with respect to a
particular Plan Year shall mean a plan that, as of the
Determination Date, would qualify as a top-heavy plan under
the definition in paragraph (i) of this Section 16.2 with
"90 percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also a
"Super Top-Heavy Plan" if it is part of a Super Top-Heavy
Group.
(i) The term "top-heavy group" with respect to a particular
Plan Year shall mean a required or a Permissive Aggregation
Group if the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
group and the aggregate of the account balances of Key
Employees under all defined contribution plans included in
such group exceeds 60 percent of a similar sum determined
for all employees covered by the plans included in such
group.
(j) The term "top-heavy plan" with respect to a particular
Plan Year shall mean (i), in the case of a defined
contribution plan, a plan for which, as of the Determination
Date, the aggregate of the accounts (within the meaning of
Section 416(g) of the Code and the regulations thereunder)
of Key Employees exceeds 60 percent of the aggregate of the
accounts of all Participants under the plan, with the
accounts valued as of the relevant Valuation Date, (ii) in
the case of a defined benefit plan, a plan for which, as of
the Determination Date, the present value of the cumulative
accrued benefits payable under the plan (within the meaning
of Section 416(g) of the Code and the regulations
thereunder) to Key Employees exceeds 60 percent of the
present value of the cumulative accrued benefits under the
plan for all employees, with present value of accrued
benefits to be determined in accordance with the actuarial
assumptions specified in such defined benefit plan, and
(iii) a plan that is part of a top-heavy group. For
purposes of this paragraph, a Participant's accrued benefit
in a defined benefit plan will be determined under a uniform
accrual method applied under all defined benefit plans
maintained by the Company or an Affiliate or, where there is
no such method, as if such benefit accrued not more rapidly
than the slowest rate of accrual permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
Notwithstanding the foregoing provisions of this paragraph,
however, a plan shall be deemed not to be a top-heavy plan
if it is part of a required or Permissive Aggregation Group
that is not a top-heavy group.
(k) The term "Valuation Date" shall mean the most recent
valuation date within a twelve-month period ending on the
Determination Date.
16.3 Accelerated Vesting. In the event the Plan is
determined to be a top-heavy plan with respect to any Plan Year,
a Participant who is not vested in his Separate Accounts
attributable to Matching Contributions in accordance with the
provisions of Article VII shall be eligible to receive a
nonforfeitable percentage of Matching Contributions allocated to
his Separate Accounts which shall be determined by application of
the following vesting schedule:
Years of Vesting Service Nonforfeitable Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
An involuntary cash-out shall not be an amount less than the
present value of a Participant's entire employer-derived non-
forfeitable benefit at the time of the distribution.
16.4 Minimum Matching Contribution. In the event the Plan
is determined to be a top-heavy plan with respect to any Plan
Year, the Matching Contributions allocated to the Separate
Accounts of each Non-Key Employee who is a Participant and who is
not separated from service with the Employer as of the end of
such Plan Year shall be no less than the lesser of (a) three
percent of his compensation or (b) the largest percentage of
compensation that is allocated for such Plan Year to the Separate
Accounts of any Key Employee, provided that, in the event the
Plan is part of a Required Aggregation Group, and the Plan
enables a defined benefit plan included in such group to meet the
requirements of Section 401(a)(4) or 410 of the Code, the minimum
allocation of Matching Contributions to the Separate Accounts of
each Non-Key Employee shall be three percent of the compensation
of such Non-Key Employees, and provided further that, if the
highest rate allocated to any Key Employee is less than three
percent, amounts contributed as a result of a salary reduction
agreement must be included in determining contributions made on
behalf of Key Employees. Any minimum allocation to the Separate
Accounts of a Participant required by this Section 16.4 shall be
made without regard to any social security contribution made by
the Employer on behalf of the Participant and without regard to
whether or not a Non-Key Employee withdraws his Before Tax or
After Tax Contributions. This minimum allocation shall be made
for a Non-Key Employee who has not separated from service at the
end of the Plan Year, regardless of whether the Non-Key Employee
has less than 1000 hours for the year. Notwithstanding the
minimum top-heavy allocation requirements of this Section 16.4,
in the event that the Plan is a top-heavy plan, each Non-Key
Employee hereunder who is also covered under a top-heavy defined
benefit plan maintained by an Employer will receive the top-heavy
benefits provided for under such defined benefit plan in lieu of
the minimum top-heavy allocation under the Plan.
16.5 Adjustments to Section 415 Limitations.
Notwithstanding the provisions of Section 4A, in the event that
the Plan is a top-heavy plan and the Employer maintains a defined
benefit plan covering some or all of the employees that are
covered by the Plan, Section 415(e)(2)(B) and 415(e)(3)(B) of the
Code shall be applied to the Plan by substituting "1.0" for
"1.25" and Section 415(e)(6)(B)(i) of the Code shall be applied
to the Plan by substituting "$41,500" for "$51,875", except that
such substitutions shall not be applied to the Plan if (a) the
Plan is not a Super Top-Heavy Plan and (b) each Non-Key Employee
who is a Participant, who also participates in a defined benefit
plan maintained by an Employer, will receive a defined benefit
minimum top-heavy benefit of three percent per year of service
(up to 30%), and (c) each Non-Key Employee who is a Participant
who does not participate in a defined benefit plan maintained by
an Employer will receive a defined contribution minimum
allocation of four percent of compensation.
* * *
This amendment and restatement of the BP America Savings and
Investment Plan was executed at Cleveland, Ohio, this 19th day of
February, 1996.
BP AMERICA INC.
By
Felix R. Strater
Vice President, Human
Resources
BP Exploration & Oil Inc.
Plan Administrator
<PAGE>
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
January 1, 1994
The following groups have been designated by the Board of
Directors as employment classifications eligible for
participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP Oil Lima Refinery Union Hourly
Marcus Hook Refinery Union Hourly
Toledo Refinery Union Hourly
TERMINATED EMPLOYEE GROUPS:
BP Oil Ferndale Refinery Union Hourly
<PAGE>
APPENDIX B
INVESTMENT FUNDS
January 1, 1994
Company Stock Fund. The assets of the Company Stock Fund
shall be invested solely in Company Stock. Company Stock shall
be purchased on the open market or shall be acquired through the
support of newly issued Ordinary Shares of the Company's ultimate
parent, the British Petroleum Company, p.l.c. ("BP"), in
accordance with any procedures which may be established by the
Named Fiduciary. Any purchase of Company Stock on the open
market shall be made only for fair market value as determined by
the Trustee. No commission shall be charged or paid with respect
to any acquisition or sale of Company Stock, except in the case
of Company Stock purchased or sold on a registered national
securities exchange
Fixed Income Fund. The Fixed Income Fund shall consist of
assets which are invested or held for investment intended to
provide a fixed rate of return including, but not limited to,
those governmental or corporate obligations, trust and
participation certificates and mortgages, insurance contracts
and/or bank contracts which provide for the repayment of funds
invested plus a fixed rate of interest. The Trustee may also, as
directed by the Named Fiduciary from time to time, purchase third
party bonds, guarantees or other forms of insurance on any and
all investments in the Fixed Income Fund and may purchase or hold
property in a short-term investment fund consisting of, but not
limited to, short term notes, debentures, Treasury bills, savings
bond deposits, commercial paper, and any other property for which
the maturity is fixed for a period of time not in excess of 12
months, or a collective trust comprised of such securities
provided such trust is maintained for trusts which form parts of
a pension or profit-sharing plan qualified under the Code. To
the extent that any such assets are so invested in a collective
trust, the instrument establishing the collective trust and the
trust maintained thereunder shall be a part of the Plan and
Trust.
The Windsor Fund. The Windsor Fund is a mutual fund which
seeks long-term growth of capital and income. As a secondary
objective, it seeks a reasonable level of current income. The
Windsor Fund is a value-oriented growth fund seeking investment
opportunities in stocks that are out of favor or undervalued.
The Fund's manager attempts to identify securities with good
return potential based on earnings power and growth potential,
but which are also available at low prices relative to current
earnings. G69
The Windsor Fund is part of the Vanguard Group and is
managed by Wellington Management Company.
The Quantitative Fund. The Quantitative Fund is a mutual
fund which seeks a total return greater than that of the U. S.
stock market as measured by the S&P 500 market index, while
maintaining a risk posture similar to that of the index. It
invests in a broadly diversified group of common stocks having
investment characteristics similar to the stocks represented in
the S&P 500 but with emphasis on stocks that the Fund's manager
considers to be undervalued by the market. The Quantitative Fund
is part of the Vanguard Group and is managed by Franklin
Portfolio Associates, Inc.
U.S. Government Bond Fund. The assets of the U.S.
Government Bond Fund shall be invested by the Trustee in Series E
or Series EE Savings Bonds. The right of a Participant to direct
investment of assets to such Fund shall be limited to
Participants regularly employed in the United States and by such
regulations as may be prescribed from time to time by the Federal
Reserve Bank.
<PAGE>
Exhibit 4(g)
Appendix A
RULES
OF
THE BP AMOCO
SHARE OPTION PLAN
Share Holders' Approval: 25 November 1998
Director's Adoption: 25 November 1998
Expiry Date: 24 November 2008
b
One Silk Street
London EC2Y 8HQ
Tel: (+44)171 456 2000
Ref: ENP
<PAGE>
RULES OF THE BP AMOCO SHARE OPTION PLAN
1 Meanings Of Words Used
In these Rules:
"ADS" means an American depository share, or part thereof,
representing six ordinary shares of the Company;
"Business Day" means a day on which the London Stock Exchange
or as the context requires the NYSE are open for the
transaction of business;
"Control" has the meaning in Section 840 of the Income and
Corporation Taxes Act 1988;
"Company" means BP AMOCO p.l.c.;
"Date of Grant" means the date on which the Directors resolve
to grant an Option;
"Directors" means the board of directors of the Company or a
duly authorised committee of it;
"Eligible Employee" means any person who is an employee of a
Participating Company.
"Exercise Condition" means a condition or conditions imposed
under Rule 2.3;
"the London Stock Exchange" means The International Stock
Exchange Limited;
"Member of the Group" means:
(a) the Company; and
(b) its Subsidiaries from time to time; and
(c) any other company which is associated with the
Company and is designated by the Directors as a
Member of the Group;
"Model Code" means the London Stock Exchange Model Code for
transactions in securities by directors, certain employees
and persons connected with them;
"NYSE" means the New York Stock Exchange Inc.;
"Option" means a right to acquire Shares granted under the
Plan;
"Optionholder" means a person holding an Option or his
personal representatives;
"Option Period" means a period starting on the Date of Grant
of an Option and ending at the end of the day before the 10th
anniversary of the Date of Grant or such shorter period as
may be specified on the Date of Grant;
"Option Price" means the amount payable for each Share on the
exercise of an Option calculated as described in Rule 3;
"Participating Companies" means:
(i) the Company; and
(ii) any Subsidiary and any other company which is
designated by the Directors as a Participating
Company.
"Plan" means this plan known as "The BP AMOCO Share Option
Plan" constituted by this document as may be amended from
time to time;
"Rules" means the rules of the Plan as changed from time to
time;
"Shares" means fully paid ordinary shares or securities
representing ordinary shares in the Company or, as the
context may require, ADSs;
"Subsidiary" means a company which is a subsidiary of the
Company within the meaning given by Section 736 of the
Companies Act 1985.
2 Grant Of Options
2.1 Grant of Options:
The Directors may grant to any Eligible Employee an
Option to acquire such number of Shares or ADSs as they
may determine.
2.2 Time when Options may be granted:
2.2.1 Options may only be granted within 42 days starting
on any of the following:
(i) the adoption of the Plan;
(ii)the day after the announcement of the
Company's results to the London Stock Exchange
for any period;
(iii) any day on which the Directors resolve
that exceptional circumstances exist which
justify the grant of Options; or
(iv)any day on which changes to the legislation or
regulations affecting share option schemes are
announced, effected or made.
2.2.2 The Directors may only grant Options between the
adoption of the Plan and the 10th anniversary of
that date.
2.2.3 The Directors may not grant Options at any time
which would cause the Option Price to be calculated
by reference to any days on or before the
announcement of results.
2.2.4 If the Directors cannot grant any Options due to
restrictions imposed by statute, order, regulation
or government directive, or by any code adopted by
the Company based on the Model Code, the Directors
may grant Options within 42 days after the lifting
of such restrictions.
2.3 Exercise Condition:
When granting an Option, the Directors may make its
exercise conditional on the satisfaction of Exercise
Conditions. The Exercise Conditions must be objective,
and specified at the Date of Grant. The Directors may
waive or change the Exercise Conditions if anything
happens which causes the Directors to consider that:
2.3.1 changed Exercise Conditions would be a fairer
measure of performance, and would be no less
difficult to satisfy; or
2.3.2 the Exercise Conditions should be waived.
2.4 Evidence of Option:
An Option shall be evidenced by deed in such form as the
Directors determine.
2.5 No Payment:
Optionholders are not required to pay for the grant of
any Option.
2.6 Disclaimer of Option:
Any Optionholder may disclaim all or part of his Option
by notice in writing to the Secretary of the Company, or
any other person nominated by the Directors for this
purpose, within 30 days after the Date of Grant. If this
happens the Option will be deemed never to have been
granted under the Plan. No consideration is payable for
the disclaimer.
2.7 Disposal restrictions:
Except for the transmission of an Option on the death of
an Optionholder to his personal representatives, neither
an Option nor any rights in respect of it may be
transferred, assigned or otherwise disposed of by an
Optionholder to any other person.
2.8 Administrative errors:
If the Directors try to grant an Option which is
inconsistent with the Plan, the Option will be limited
and will take effect from the Date of Grant on a basis
consistent with the Plan.
2.9 Options over ADSs:
The Directors may determine, in their absolute
discretion, to grant Options in the form of an Option to
acquire ADSs and references in these Rules to Share,
Option, Option Price etc. shall be construed
accordingly. Upon the exercise of any Option to acquire
ADSs the Company will:
(v) deliver or cause to be delivered to the ADS
depositary the requisite number of Shares
representing the relevant ADSs and shall
instruct the depositary to issue the
corresponding American depositary receipts
evidencing such ADSs to the exercising
Optionholder; or
(vi)make other arrangements for the Optionholder
to acquire ADSs.
3 Option Price
3.1 Setting the Price:
The Directors will set the Option Price. The Option
Price, which may be expressed in sterling or in US
dollars, will be:
3.1.1 not less than the market value of a Share on the
Date of Grant; and
3.1.2 if the Shares are to be subscribed, not less than
the nominal value of a Share.
3.2 Market value:
3.2.1 "Market value" for the purpose of Rule 3.1 on any
particular day means:
3.2.2 the middle market quotation (as derived from the
Daily Official List of the London Stock Exchange)
on the immediately preceding Business Day; or
3.2.3 if the Directors so decide, the average of the
middle market quotations on the 3 immediately
preceding Business Days; or
3.2.4 where the Option Price to acquire ADSs is expressed
in US dollars, the average of the reported highest
and lowest trading prices of an ADS as derived from
the NYSE on the immediately preceding Business Day
or the average of such prices for the 3 immediately
preceding Business Days.
4 Scheme Limits
4.1 10 per cent. 10 year limit (all schemes):
The number of Shares which may be allocated under the
Plan on any day will not exceed 10 per cent. of the
ordinary share capital of the Company in issue
immediately before that day, when added to the total
number of Shares which have been allocated in the
previous 10 years under the Plan and any other employee
share scheme operated by the Company.
4.2 5 per cent. 10 year limit (discretionary schemes):
The number of Shares which may be allocated under the
Plan on any day will not exceed 5 per cent. of the
ordinary share capital of the Company in issue
immediately before that day, when added to the total
number of Shares which have been allocated in the
previous 10 years under the Plan and any other
discretionary share scheme adopted by the Company.;
4.3 5 per cent. limit 5 year limit (all schemes):
The number of Shares which may be allocated under the
Plan on any day will not exceed 5 per cent. of the
ordinary share capital of the Company in issue
immediately before that day, when added to the total
number of Shares which have been allocated in the
previous 5 years under the Plan and any other employee
share scheme adopted by the Company.
4.4 3 per cent. 3 year limit (discretionary schemes):
The number of Shares which may be allocated under the
Plan on any day will not exceed 3 per cent. of the
ordinary share capital of the Company in issue
immediately before that day, when added to the total
number of Shares allocated during the previous 3 years
under the Plan and any other discretionary share scheme
adopted by the Company.
4.5 Exclusions:
Where the right to acquire such Shares was released or
lapsed without being exercised, the Shares concerned
will be ignored when calculating the limits in this
Rule.
4.6 Meaning of Allocate:
"Allocate" means, in relation to any share option
scheme, placing unissued Shares under option and, in
relation to other types of employee share scheme, the
issue and allotment of Shares.
5 Variations In Share Capital
5.1 Adjustment of Options:
If there is a variation in the equity share capital of
the Company, including a capitalisation or rights issue,
sub-division, consolidation or reduction of share
capital, a demerger (in whatever form) or if the Company
makes a special distribution including a distribution in
specie:
5.1.1 number or nominal amount of Shares comprised in
each Option; and/or
5.1.2 the Option Price;
may be adjusted in any way (including retrospective
adjustments) which the Directors consider appropriate.
5.2 Nominal Value:
The Option Price of an Option to acquire existing Shares
may be adjusted to a price which is less than the
nominal value. The Option Price of an Option to
subscribe for new Shares may only be adjusted to a price
less than the nominal value if the Directors resolve to
capitalise the reserves of the Company in an amount
equal to the difference between the adjusted Option
Price and the nominal value of the Shares on the date of
allotment.
5.3 Notice:
The Directors may notify Optionholders of any adjustment
made under this Rule 5.
6 Exercise And Lapse - General Rules
6.1 Exercise:
Except where exercise is allowed as described in Rule 7
and unless specified otherwise by the Directors on the
Date of Grant, an Option can only be exercised:
6.1.1 on or after the third anniversary of its Date of
Grant;
6.1.2 if any Exercise Condition is satisfied or waived;
and
6.1.3 so long as the Optionholder is a director or
employee of a Member of the Group.
6.2 Lapse:
An Option will lapse on the earliest of:
6.2.1 the date the Optionholder ceases to be a director
or employee of a Member of the Group, unless any of
the provisions in Rule 7 apply;
6.2.2 any date specified in any Exercise Condition; or
6.2.3 the expiry of the Option Period.
For the purposes of Rule 6.2.1 above:
(vii) a woman who leaves employment due to
pregnancy will be regarded as having left
employment on the date on which she indicates
that she does not intend to return to work. If
there is no such indication she will be
regarded as having left employment on the last
day on which she is entitled to return to work
under the legislation which applies to the
Optionholder or, if later, any other date
specified in her terms of employment;
(viii) an Optionholder will not be treated as
ceasing to be a director or employee of a
Member of the Group if on that date he is
employed by another Member of the Group.
7 Exercise And Lapse - Exceptions to the General Rules
7.1 Cessation of Employment:
7.1.1 If an Optionholder ceases to be a director or an
employee of any Member of the Group for any of the
reasons set out below then, unless specified
otherwise by the Directors on the Date of Grant,
his Options will not lapse but may be exercised
during the period of six months from the date of
cessation even though any Exercise Conditions have
not been satisfied. The Directors may at any time
extend the period during which an Option may be
exercised under this Rule 7.1. However, an Option
may not be exercised after the expiry of the Option
Period. The reasons are:
(ix)ill-health, injury, disability or redundancy
(company induced severance);
(x) retirement;
(xi)early retirement by agreement with the
Optionholder's employer;
(xii) his employing company ceasing to be under
the control of the Company, or as a result of
a transfer of the undertaking in which the
Optionholder works to a person who is neither
under the control of the Company nor a Member
of the Group;
(xiii) any other reason specified by the
Directors in their absolute discretion.
7.2 Death:
If an Optionholder dies, his Options may be exercised by
his personal representatives within one year of his
death, irrespective of the satisfaction of any Exercise
Condition. To the extent that any Option exercisable
under this Rule 7.2 is not so exercised, it will lapse
at the end of the one year period. This Rule does not
extend the Option Period.
7.3 Takeovers:
If a person (or a group of persons acting in concert)
obtains Control of the Company as a result of making an
offer to acquire shares which is either unconditional or
is made on a condition such that if it is satisfied the
person making the offer will have Control of the
Company, Options may be exercised, irrespective of the
satisfaction of any Exercise Condition, within the 6
month period after the person making the offer has
obtained Control of the Company and any condition
subject to which the offer is made has been satisfied.
The Options will lapse at the end of the 6 month period,
unless the Directors give reasonable notice to the
Optionholders before the end of the 6 month period that
the Options will not lapse.
If someone becomes bound or entitled to acquire Shares
under Section 428 to 430F of the Companies Act 1985,
Options may be exercised, irrespective of the
satisfaction of any Exercise Condition, at any time when
that person remains so bound or entitled and then will
lapse. If more than one period is relevant the Options
will lapse at the end of the later period, unless the
Directors give notice to the Optionholders before the
expiry of the relevant period that the Options will not
lapse.
7.4 Company Reconstructions:
If under Section 425 of the Companies Act 1985 a court
directs that a meeting of the holders of Shares be
convened to consider a scheme of arrangement involving
the reconstruction of the Company or its amalgamation
with any other company or companies:
7.4.1 Optionholders may conditionally exercise their
Options, irrespective of the satisfaction of any
Exercise Condition, at any time between the date of
the court's direction and 12 noon on the day before
the day of the shareholders' meeting. Any Option
not exercised by the end of that period will become
unexercisable and will lapse; and
7.4.2 the Directors will try to arrange for the proposals
relating to the holders of the Shares to apply to
each Optionholder who conditionally exercises his
Options as described above.
7.5 Demergers and other significant distributions:
If the Directors become aware that the Company is or is
expected to be affected by any demerger, dividend in
specie, super dividend or other transaction which, in
the opinion of the Directors, would affect the current
or future value of any Option, the Directors, may,
acting fairly, reasonably and objectively, in their
discretion, allow some or all Options to be exercised.
The Directors will specify the period of exercise of
such Options, whether the Options will lapse at the end
of the period, and whether exercise is subject to
satisfaction of any Exercise Condition. In exercising
their discretion, the Directors may take into account
considerations relating to the Company and other Members
of the Group, and other employees and Optionholders. The
Directors will notify any Optionholder who is affected
by this Rule.
7.6 Winding-Up:
If notice is duly given to members of the Company of a
resolution for the voluntary winding-up of the Company,
Options may be exercised, irrespective of the
satisfaction of any Exercise Condition, until the start
of the winding-up within the meaning of the Insolvency
Act 1986 (but the exercise of any Option in these
circumstances will be of no effect if the resolution is
not passed). All Options will lapse on a winding-up of
the Company unless exercised before the winding-up
starts.
If the Company is wound-up by the court, Options may be
exercised, irrespective of the satisfaction of any
Exercise Condition, within 2 months after the date of
the winding-up order. However, the liquidator or the
court (if appropriate) must authorise the issue of
Shares after such exercise, and the Optionholder must
apply for this authority and pay his application costs.
Any Options not exercised during the 2 month period will
lapse at the end of the period.
7.7 Administration:
If an administration order is made in relation to the
Company, Optionholders may exercise their Options,
irrespective of the satisfaction of any Exercise
Condition, within 6 weeks after the date of the
administration order. However, the administrator or the
court must authorise the issue of Shares after such
exercise.
7.8 Voluntary Arrangement:
If a voluntary arrangement is proposed in relation to
the Company under Part I of the Insolvency Act 1986,
Optionholders may exercise their Options, irrespective
of the satisfaction of any Exercise Condition, within 14
days after the date of sending of any notices of meeting
called under Section 3 of the Insolvency Act 1986 in
relation to such proposal.
7.9 Exchange of Options where Rule 8 does not apply
7.9.1 Application:
This Rule applies if a company (the "Acquiring
Company"):
(xiv) obtains Control of the Company as a
result of making a general offer to acquire:
the whole of the issued ordinary share capital
of the Company (other than that which is
already owned by it and its subsidiary or
holding company) made on a condition such
that, if satisfied, the Acquiring Company will
have Control of the Company; or
all the Shares (or those Shares not already
owned by the Acquiring Company or its
subsidiary or holding company); or
(xv)obtains Control of the Company under a
compromise or arrangement sanctioned by the
court under Section 425 of the Companies Act
1985; or
(xvi) becomes bound or entitled to acquire
Shares under Sections 428 to 430F of the
Companies Act 1985
and no determination is made by the Directors under
Rule 8.
7.9.2 Exchange:
If any of the events described in Rule 7.9.1
happens, an Optionholder may, during the period
referred to in Rule 7.9.3, agree with the Acquiring
Company to release his Option in consideration of
the grant to him of a new option. The new option
must be equivalent to the released option.
7.9.3 Period for Substitution:
The period referred to in Rule 7.9.2 is:
(xvii) in a case falling within Rule 7.9.1.(i),
6 months starting with the time when the
Acquiring Company obtains Control of the
Company and any condition subject to which the
offer is made is satisfied;
(xviii) in a case falling within Rule 7.9.1(ii),
6 months starting with the time when the court
sanctions the compromise or arrangement; and
(xix) in a case falling within Rule 7.9.1(iii)
the period during which the Acquiring Company
remains so bound or entitled.
7.9.4 Consequences of Exchange:
Where an Optionholder is granted a new option for
release of his old option as described in this Rule
7, then:
(xx)the new option will be treated as having been
acquired at the same time as the old Option
and be exercisable in the same manner and at
the same time as the old Option;
(xxi) the new option will be subject to the
provisions of the Scheme as it had effect in
relation to the old option immediately before
the release but 11.1.2 will not apply. In
addition, in relation to any Inland Revenue
approved options, the Inland Revenue may agree
other changes;
(xxii) with effect from the release and grant,
the Rules will where relevant be construed, in
relation to the new option as if references to
the Company and Shares were references to the
Acquiring Company and shares for which the new
option is granted.
7.10 Loss of ownership:
Where the Optionholder is deprived of the legal or
beneficial ownership of the Option by operation of law,
or does anything or omits to do anything which causes
him to be so deprived or becomes bankrupt, all his
Options will lapse.
7.11 Transfers:
If an Optionholder is transferred to work in another
country, but still continues to hold an office or
employment with a Member of the Group and, as a result
of that transfer, the Optionholder may either:
7.11.1 suffer a tax disadvantage in relation to his
Options which was not anticipated on grant (this
being shown to the satisfaction of the Directors);
or
7.11.2 become subject to restrictions on his ability
to exercise his Options or to hold or deal in the
Shares or the proceeds of the sale of the Shares
acquired on exercise because of the security laws
or exchange control laws of the country to which he
is transferred;
the Optionholder may exercise the Option, irrespective
of the satisfaction of any Exercise Condition, during
the period starting 3 months before and ending 3 months
after the transfer takes place. If he does not exercise
his Options, following this Rule, the usual exercise
Rules will apply to them at the appropriate times.
7.12 Priority:
If there is any conflict between any of the provisions
of Rules 6 and 7, the provision which results in the
shortest exercise period or the earliest lapse of the
Option, or both, will prevail.
8 Exchange Of Options
8.1 Application:
This Rule applies if Options would become exercisable
under Rules 7.3, 7.4, 7.5 or 7.6 but the Directors
determine that the Options shall not be exercised but
that this Rule 8 shall apply.
8.2 Exchange:
Where the Directors have made a determination under Rule
8.1 Optionholders will be granted an option ("New
Option") to replace their Option ("Old Option").
8.3 Consequences of Exchange:
Where Optionholders are granted a New Option to replace
their Old Option, then:
8.3.1 the New Option will be in respect of shares in any
body corporate determined by the Directors;
8.3.2 the New Option will be equivalent to the Old
Option;
8.3.3 the New Option will be treated as having been
acquired at the same time as the Old Option and be
exercisable in the same manner and at the same time
as the Old Option;
8.3.4 the New Option will be subject to the provisions of
the Plan as it had effect in relation to the Old
Option immediately before the replacement;
8.3.5 with effect from the replacement the Plan will be
construed, in relation to the New Option as if
references to Shares were references to the shares
for which the New Option is granted and references
to the Company were references to a company
determined by the Directors at the time of
replacement.
9 Exercise Of Options
9.1 Exercise:
An Optionholder can exercise his Option validly only in
the way described in, and subject to, this Rule 9.
9.2 Manner of Exercise:
Options must be exercised by notice in writing delivered
to the Secretary of the Company or other duly appointed
person. The notice of exercise of the Option must be
completed, signed by the Optionholder or by his
appointed agent, and must be accompanied by:
9.2.1 the relevant option certificate or a copy; and
9.2.2 correct payment in full of the Option Price for the
number of Shares being acquired.
9.3 Option Exercise Date:
9.3.1 Subject to Rule 9.3.2 the Option Exercise Date will
be the later of:-
(xxiii) the date of receipt by the Secretary of
the Company or other authorised person of the
documents and payment referred to in Rule 9.2;
and
(xxiv) the date on which the Directors either
decide that the Exercise Condition to which
the Option is subject has been satisfied, or
waive the Exercise Condition. The Directors
must decide about the satisfaction or waiver
of the Exercise Condition within 14 days of
receiving the documents in Rule 9.2 and
payment.
9.3.2 If any statute, regulation or code adopted by the
Company (based on the Model Code), prohibits the
exercise of Options, or the Company Secretary
reasonably believes it so prohibits, the date of
exercise will be either the date described in Rule
9.3.1, or, if later, the date when the Optionholder
is permitted or the Company Secretary believes the
Optionholder is permitted to exercise an Option.
However, this Rule does not extend any period in
which an Option is exercisable.
9.4 Part Exercise:
An Option may be exercised in part.
9.5 Issue or Transfer:
Subject to Rule 9.7 (consents):
9.5.1 Shares to be issued following the exercise of an
Option will be issued within 30 days of the Option
Exercise Date.
9.5.2 The Directors will procure the transfer of Shares
to be transferred following the exercise of an
Option within 30 days of the Option Exercise Date.
9.6 Rights:
Shares issued on the exercise of an Option will rank
equally in all respects with the Shares in issue on the
date of allotment. They will not rank for any rights
attaching to Shares by reference to a record date
preceding the date of allotment.
Where Shares are to be transferred on the exercise of an
Option, Optionholders will be entitled to all rights
attaching to the Shares by reference to a record date on
or after the transfer date. They will not be entitled to
rights before that date.
9.7 Consents:
All allotments, issues and transfers of Shares will be
subject to any necessary consents under any relevant
enactments or regulations for the time being in force in
the United Kingdom or elsewhere and the provisions of
the deposit agreement between the Company and the
depositary. The Optionholder will be responsible for
complying with any requirements to be fulfilled in order
to obtain or avoid the necessity for any such consent.
9.8 Articles of Association:
Any Shares acquired on the exercise of Options will be
subject to the Articles of Association of the Company
from time to time in force. Any ADSs acquired upon the
exercise of any Option shall, in addition, be subject to
the terms of the deposit agreement between the Company
and the depositary.
9.9 Listing:
If and so long as the Shares are listed on the Official
List of the London Stock Exchange, the Company will
where relevant apply for listing of any Shares issued
under the Plan as soon as practicable after their
allotment.
9.10 Cash alternative:
The Directors may in their discretion determine not to
procure the transfer or issue of Shares to an
Optionholder who exercises his Option, but instead to
pay to him (subject to Rule 10.10) a cash amount equal
to the amount by which the market value (calculated in
accordance with Rule 3.2 on the Option Exercise Date) of
the Shares in respect of which the Option is exercised
exceeds the Option Price, or to procure the transfer to
him of Shares to the value of that cash amount or apply
that amount in the issue of Shares. If the Directors so
determine, the Option Price shall not be payable, and if
already paid, shall be repaid to the Optionholder
forthwith.
If an Optionholder so requests, the Directors may
determine to satisfy the exercise of any Option with the
appropriate number of ADSs. Any payment of taxes in
respect of satisfying an Option in this way will be met
by the Optionholder.
10 General
10.1 Notices:
Any notice or other document given to any Eligible
Employee as Optionholder pursuant to the Plan may be
delivered to him or sent by post to him at his home
address according to the records of his employing
company or such other address which the Company
considers appropriate. Notices or other documents sent
by post shall be deemed to have been given 5 days
following the date of posting.
10.2 Documents sent to Shareholders:
The Company may send to Optionholders copies of any
documents or notices normally sent to the holders of its
Shares (including such notices or documents required to
be sent to Optionholders resident in the United States
in accordance with the rules and regulations under the
US Securities Act of 1934 as amended).
10.3 Availability of Shares:
The Company will keep available for allotment sufficient
unissued Shares for all Options under which Shares may
be subscribed or will procure that sufficient Shares are
available for transfer for all Options under which
Shares may be acquired.
10.4 Directors' Decisions final and binding:
The decision of the Directors on the interpretation of
the Rules or in any dispute relating to an Option or
matter relating to the Plan will be final and
conclusive.
10.5 Costs:
The Company will pay the costs of introducing and
administering the Plan.
10.6 Regulations:
The Directors have the power from time to time to make
or vary regulations for the administration and operation
of the Plan but these must be consistent with the Rules.
10.7 Terms of Employment
Nothing in this Plan will in any way be construed as
imposing on a Participating Company a contractual
obligation as between the Participating Company and an
Eligible Employee to offer participation in this Plan.
Any person who ceases to be an employee of any Member of
the Group because of dismissal or termination of
employment (however caused) or who is under notice of
termination of employment will in no circumstances be
entitled to claim any compensation in respect of the
operation of the Plan including but not limited to the
application of tax laws or the application of tax
policies maintained by any Group Company. If necessary
that person's terms of employment will be varied
accordingly.
10.8 Replacement Option certificates:
If any option certificate is worn out, defaced or lost,
the Directors may replace it on such conditions as they
wish to set. If an Option is exercised in part, and the
balance remains exercisable, the Directors may on the
surrender or cancellation of the relevant certificate
provide the Optionholder with a balance certificate.
10.9 Employee Trust
The Company and any Subsidiary of the Company may
provide money to the trustee of any trust or any other
person to enable them or him to acquire shares to be
held for the purposes of the Plan, or enter into any
guarantee or indemnity for those purposes, to the extent
permitted by Section 153 of the Companies Act 1985.
10.10 Withholding
The Company, any employing company or the trustees of
any employee benefit trust may withhold any amount and
make any such arrangements, including but not limited to
the sale or reduction in number of any Shares on behalf
of an Optionholder as it considers necessary to meet any
liability to taxation or social security contributions
in respect of Options granted to the Optionholder
pursuant to this Plan.
11 Changing the Plan and Termination
11.1 Shareholder approval
11.1.1 Except as described in Rule 11.1.2, the
shareholders in general meeting must approve in
advance by ordinary resolution any proposed change
to the advantage of present or future
Optionholders, which relates to the following:
(xxv) the persons to or for whom Shares may be
provided under the Plan;
(xxvi) the limitations on the number of Shares
which may be issued under the Plan;
(xxvii) the determination of the Option Price;
(xxviii) any rights attaching to the Options and
the Shares;
(xxix) the rights of Optionholders in the event
of a capitalisation issue, rights issue, sub-
division or consolidation of shares or
reduction or any other variation of capital of
the Company;
(xxx) the terms of this Rule 11.1.1.
11.1.2 The Directors can change the plan and need not
obtain the approval of the shareholder in general
meeting for any minor changes including:
(xxxi) to benefit the administration of the
Plan;
(xxxii) to comply with or take account of the
provisions of any proposed or existing
legislation;
(xxxiii) to take account of any changes to the
legislation; or
(xxxiv) to obtain or maintain favourable tax,
exchange control or regulatory treatment of
the Company, any Subsidiary or any present or
future Optionholder.
11.2 National Rules
Notwithstanding any other provision of the Plan, but
subject always to Rule 11.1 the Directors may amend or
add to the provisions of the Plan and the terms of
Options as they consider necessary or desirable to take
account of, or to mitigate, or to comply with relevant
overseas laws including but not limited to taxation,
securities or exchange control laws which apply to
Eligible Employees provided that the terms of Options
granted to such Eligible Employees are not more
favourable overall than the terms of Options granted to
other Eligible Employees.
11.3 Notice
As soon as possible after making any change, the
Directors will give written notice to any Optionholder
affected by the change.
11.4 Termination of the Plan
The Directors may terminate the Plan at any time. If
this is not done, the Plan will terminate on the tenth
anniversary of its adoption by the shareholders in
general meeting, but Options granted before such
termination will continue to be valid and exercisable as
described in these Rules.
12 Governing Law
English law governs the Plan and all Options and their
construction except as provided under Rule 11.2.
<PAGE>
BP Amoco Share Option Plan
Inland Revenue Approved Schedule
The rules of the BP AMOCO Share Option Plan shall apply to
Options granted under this Schedule, subject to the following
alterations:
13 Definitions
"Control" has the meaning given to it by Section 840 of the
Taxes Act;
"Eligible Employee" does not include anyone who is excluded
from participation because of paragraph 8 of Schedule 9 to
the Taxes Act (material interests provisions). Any director
is only eligible if required to devote to his duties not less
than 25 hours per week (excluding meal breaks);
"Shares" must satisfy paragraphs 10 to 14 of the Taxes Act
1988;
"Subsidiary" means a company which is:
(iii)a subsidiary of the Company within the meaning
given to it by Section 736 of the Companies Act
1985, and
(iv) under the Control of the Company; and
"Taxes Act" means the Income and Corporation Taxes Act 1988.
14 Revenue Approval
If the approved status of the Plan is to be maintained, no
change to the Plan made after it has been approved under
Parts I, II and IV of Schedule 9 to the Taxes Act will have
effect unless such change is approved by the Inland Revenue.
In respect of the first operation of the Scheme no Options
shall be granted until it has been approved by the Inland
Revenue.
15 Cash Alternative
Rule 9.10 shall not apply.
16 Exercise Condition
Any Exercise Condition must be set out in documentation which
is approved in advance by the Inland Revenue.
17 Revenue limit
The Directors must not grant an Option to an Eligible
Employee which would cause the market value of the Shares
subject to the Option to exceed the amount permitted under
paragraph 28(1) of Schedule 9 to the Taxes Act (currently
pound sterling 30,000). When considering whether this amount
has been reached the Directors must take into account the market
value of Shares subject to the Option which they intend to grant
him, as well as the market value of shares which he may
acquire on exercising his Options under the Plan or any other
Inland Revenue approved scheme established by the Company or
by any of its associated companies (as defined in Section 187
of the Taxes Act).
18 Adjustment of Options
No adjustment of Options may be made under Rule 5 without and
to the extent of the prior approval of the Inland Revenue.
19 Exchange of Options
The following rule shall replace Rule 8.
19.1 This Rule applies if Options would become exercisable
under Rule 7.3, 7.4, 7.5 or 7.6 but the Directors
determine that Options shall not be exercised but this
Rule shall apply.
19.2 Where the Directors have made a determination under this
Rule, optionholders will be granted an option ("New
Option") to replace their option ("Old Option"). The New
Option will be granted within the appropriate period
within the meaning of paragraphs 15(2) and Schedule 9 to
the Taxes Act. ^The New Option must be equivalent to the
Old Option within the meaning of Paragraph 15(3) of
Schedule 9 to the Taxes Act. It will be over shares in a
company falling within Paragraph 10 of Schedule 9 to the
Taxes Act.
19.3 ^Where an Optionholder is granted a New Option in
substitution of his Old Option as described in this
Rule, then:
19.3.1 the New Option will be treated as having been
acquired at the same time as the Old Option and be
exercisable in the same manner and at the same
time as the Old Option;
19.3.2 the New Option will be subject to the
provisions of the Plan as it had effect in
relation to the Old Option immediately before the
release. In addition, the Inland Revenue may agree
other changes;
19.3.3 with effect from the replacement the Plan
will be construed, in relation to the New Option
as if references to Shares were references to the
shares for which the New Option is granted and
references to the Company were references to a
company determined by the Directors at the time of
replacement.
<PAGE>
BP Amoco Share Option Plan
Schedule Governing Operation of the BP Amoco Share Option Plan
in the United States
This United States ("US") Schedule has been adopted by the
Directors pursuant to Rule 11.2 of the Plan and shall vary
the terms of the Plan (and any other related documents)
accordingly.
Loss of Ownership
Rule 7.10 shall not apply.
Rule 10.10 and the heading thereof shall be amended by adding
the following:
Rule 10.10 Withholding/Right of Offset
Amounts withheld and/or collected as taxes shall also include
hypothetical taxes owed under an expatriate tax policy (as
currently in effect or as amended from time to time) ("Tax
Policy") of any Member of the Group. The Company or any
employing company may deduct from the exercise of Options any
debt, obligation, liability, or other amount owing by the
Optionholder to a Member of the Group, including but not
limited to amounts owed under a Tax Policy, as determined in
the sole discretion of the Company. In accepting an Option
grant, an Optionholder waives any right to notice and written
consent under state law in connection with any such offset.
<PAGE>
Exhibit 5(a)
[LOGO] P.B.P. Bevan
Group General Counsel
BP Amoco Legal
BP Amoco p.l.c.
Britannic House
1 Finsbury Circus
London EC2M 7BA
Switchboard: 0171-496 4000
Central Fax: 0171-496 4630
Telex: 888811
The Directors Direct Line: 0171-496 4013
BP Amoco p.l.c. Direct Fax: 0171-496 4592
Britannic House Reference:
1 Finsbury Circus
London EC2M 7BA
May 26, 1999
Dear Sirs:
RE: Registration Statement on Form S-8 (the "Registration
Statement")
1. This Opinion is given in connection with the registration
under the United States Securities Act of 1933, as amended
(the "Act") of 50 million Ordinary Shares of $.50 each
("Ordinary Shares") of BP Amoco p.l.c., an English public
limited company (the "Company") to be issued in connection
with The BP Amoco Share Option Plan, The BP America Capital
Accumulation Plan, The DirectSave Plan, The BP America
Partnership Savings Plan, and The BP America Savings and
Investment Plan (collectively, the "Plans").
2. This Opinion is limited to English law as applied by the
English courts and is given on the basis that it will be
governed by and be construed in accordance with English law.
3. I have examined and relied on copies of such corporate
records and other documents, including the Registration
Statement, and reviewed such matters of law as I have deemed
necessary or appropriate for the purpose of this Opinion.
4. In rendering this Opinion I have assumed that a meeting of
the board of directors or a duly authorized and constituted
committee of the board of directors of the Company will be
duly convened and shall duly resolve to allot and issue the
Ordinary Shares and such resolution(s) shall not be
subsequently amended or revoked prior to the allotment and
issuance of such Ordinary Shares.
5. On the basis of, and subject to, the foregoing and having
regard to such consideration of English law in force at the
date of this letter as I consider relevant, I am of the
opinion that (i) the Company has been duly organized and is
an existing corporation in good standing under the laws of
England, and (ii) any Ordinary Shares to be issued by the
Company pursuant to and in accordance with the Plans will,
when so issued, be legally and validly issued, fully paid
and non-assessable (i.e., no further contributions in
respect thereof will be required to be made to the Company
by the holders thereof, by reason only of their being such
holders).
I consent to the filing of this Opinion as an exhibit to the
Registration Statement on Form S-8 relating to such Ordinary
Shares. In giving such consent, I do not thereby admit that I am
within the category of persons whose consent is required under
Section 7 of the Act.
Yours faithfully,
/s/ Peter B. P. Bevan
P. B. P. BEVAN
Group General Counsel
<PAGE>
Exhibit 5(b)
May 26, 1999
The Directors
BP Amoco p.l.c.
Britannic House
1 Finsbury Circus
London EC2M 7BA
Gentlemen:
Reference is made to the proposed offering of interests
("Interests") in The BP America Capital Accumulation Plan, The
DirectSave Plan, The BP America Partnership Savings Plan and The
BP America Savings and Investment Plan (collectively, the
"Plans"), and to the offering through the Plans of ordinary
shares of BP Amoco p.l.c., an English public limited company (the
"Company") either directly or in the form of American Depositary
Shares to employees of certain participating companies that have
adopted the Plans, and certain other participants in the Plans.
I am familiar with the Form S-8 Registration Statement (the
"Registration Statement") that the Company is filing with the
Securities and Exchange Commission to register, among other
things, Interests in the Plans.
I have examined such documents and made such other investigation
as I have deemed necessary for the purpose of giving the opinion
herein stated.
I am of the opinion that the Plans and the Interests therein have
been duly authorized and approved and, when issued pursuant to
the terms and conditions of the Plans, such Interests will be the
valid and binding obligations of BP America Inc., a Delaware
corporation and a wholly owned subsidiary of the Company.
The foregoing opinion is limited to the Federal laws of the
United States and the Delaware General Corporation Law, and I am
not expressing any opinion as to the effect of the laws of any
other jurisdiction. I hereby consent to the use of the foregoing
opinion as an exhibit to the Registration Statement and to the
use of my name in the Registration Statement. In giving such
consent I do not hereby admit I am in the category of person
whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Robert D. Agdern
Robert D. Agdern
Vice President and General Counsel
of BP America Inc.
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 and related Prospectuses of our report
dated February 17, 1999, with respect to the consolidated
financial statements and schedule of BP Amoco p.l.c. included in
its Annual Report on Form 20-F for the year ended December 31,
1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
Ernst & Young
London, England
May 25, 1999
<PAGE>
Exhibit 23 (b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 and related Prospectuses of our reports
dated June 17, 1998 with respect to the financial statements on
Form 11-K of The BP America Capital Accumulation Plan and The BP
America Savings and Investment Plan for the year ended December
30, 1997, and The DirectSave Plan and The BP America Partnership
Savings Plan for the year ended December 31, 1997, filed with the
Securities and Exchange Commission
/s/ Ernst & Young LLP
Ernst & Young LLP
Cleveland, Ohio
May 25, 1999
<PAGE>
Exhibit 23(c)
BP AMOCO p.l.c.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of BP Amoco p.l.c. of our
report dated February 24, 1998, relating to the financial
statements and financial statement schedules of Amoco Corporation
for the years ended December 31, 1997 and 1996 which appears in
Item 19 of BP Amoco p.l.c.'s Annual Report on Form 20-F for the
year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Chicago, IL
May 27, 1999
