<PAGE>
As filed with the Securities and Exchange Commission on April 10, 2000
Registration No. 333-79399
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____
Post-Effective Amendment No. 1
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 No.)
incorporation or organization)
Britannic House
1 Finsbury Circus
London EC2M 7BA, England
(Address of principal executive offices)
BP Amoco DirectSave Plan
(formerly The DirectSave Plan)
BP Amoco Partnership Savings Plan
(formerly The BP America Partnership Savings Plan)
The BP America Savings and Investment Plan
The BP Amoco Share Option Plan
--------
Daniel B. Pinkert
Corporate Secretary
BP Amoco Corporation
200 E. Randolph Drive
Chicago, Illinois
(312)856-6111
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<PAGE>
EXPLANATORY STATEMENT
BP Amoco p.l.c. ("BP Amoco") hereby amends its registration
statement on Form S-8 (Registration No. 333-79399) by filing this
Post Effective Amendment No. 1 thereto to reflect the merger of one
plan and the amendment and restatement of two of the plans covered by this
registration statement.
Effective April 7, 2000, the BP America Capital Accumulation
Plan is being merged into the BP Amoco Employee Savings Plan.
Effective April 7, 2000 The DirectSave Plan is renamed the
BP Amoco DirectSave Plan. The amended and restated plan text is
filed herewith as Exhibit 4.1. Effective April 7, 2000, The BP
America Partnership Savings Plan is renamed the BP Amoco
Partnership Savings Plan. The amended and restated plan text is
filed herewith as Exhibit 4.2. The new Trust Agreement for the
BP Amoco DirectSave Plan, the BP Amoco Partnership Savings Plan
and The BP America Savings and Investment Plan is filed herewith
as Exhibit 4.3.
<PAGE>
SIGNATURES 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, or amendment
thereto, to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of London, England, on the 7th day
of April, 2000.
BP AMOCO p.l.c.
By /s/ Sir John Browne
Sir John Browne, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement, or amendment thereto, has been
signed by the following persons in the indicated capacities on
the 7th day of April, 2000.
Name Title
/s/ Sir John Browne *Managing Director and Chief
Executive Officer (Principal
Executive Officer)
Sir John Browne
* Managing Director
(Principal Financial and Accounting Officer)
Dr. J.G.S. Buchanan
*
Co-Chairman
P.D. Sutherland
*
Executive Director
Rodney F. Chase
*
Executive Director
Dr. Christopher S. Gibson-Smith
*
Executive Director
Richard L. Olver
*
Executive Director
Bryan K. Sanderson
*
Non-Executive Director
Charles F. Knight
*
Non-Executive Director
H. Michael P. Miles
*
Non-Executive Director
Sir Robin Nicholson
*
Non-Executive Director
Sir Ian Prosser
*
Non-Executive Director
Sir Robert Wilson
*
Non-Executive Director
The Lord Wright of Richmond
*
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
*
Non-Executive Director
Floris A. Maljers
*
Non-Executive Director
Dr. Walter E. Massey
*
Non-Executive Director
Michael H. Wilson
* By: /s/ Daniel B. Pinkert Attorney-in-fact
Daniel B. Pinkert
<PAGE>
SIGNATURE OF BP AMOCO DIRECTSAVE PLAN
Pursuant to the requirements of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on April 7, 2000.
By: /s/ John F. Campbell
Title: Senior Vice-President of Human
Resources - BP Amoco Corporation
<PAGE>
SIGNATURE OF BP AMOCO PARTNERSHIP SAVINGS PLAN
Pursuant to the requirements of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on April 7, 2000.
By: /s/ John F. Campbell
Title: Senior Vice President of
Human Resources - BP Amoco Corporation
<PAGE>
SIGNATURE OF THE BP AMERICA SAVINGS AND INVESTMENT PLAN
Pursuant to the requirements of the Securities Act of 1933,
the plan administrator has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois, on April 7, 2000.
By: /s/ John F. Campbell
Title: Senior Vice-President of
Human Resources - BP Amoco Corporation
<PAGE>
EXHIBIT INDEX
Exhibit Description
4.1 BP Amoco DirectSave Plan effective
April 7, 2000.
4.2 BP Amoco Partnership Savings Plan
effective April 7, 2000
4.3 BP Amoco Master Trust for Employee
Savings Plans effective April 6, 2000.
23.1 Consent of Ernst & Young, chartered
accountants, independent auditors,
London, England.
23.2 Consent of Ernst & Young LLP,
independent auditors, Chicago, Illinois
23.3 Consent of PricewaterhouseCoopers LLP,
independent accountants, Chicago, Illinois
24 Powers of Attorney - included in
signature page of Registration
Statement No. 333-79399 (incorporated
by reference)
<PAGE>
<PAGE>
EXHIBIT 4.1
BP AMOCO
DIRECTSAVE PLAN
<PAGE>
BP AMOCO DIRECTSAVE PLAN
BP Amoco Corporation (the "Company") maintains, effective April
7, 2000, the BP Amoco DirectSave Plan (the "Plan") for the
benefit of eligible employees of the Company and its
participating affiliates. The Plan is intended to constitute a
qualified profit sharing plan, as described in Section 401(a) of
the Code, which includes a qualified cash or deferred
arrangement, as described in Section 401(k) of the Code.
The Plan constitutes an amendment and restatement of the BP
America DirectSave Plan (the "Prior Plan"), and reflects the
transfer of certain liabilities and assets (i) from the Amoco
Employee Savings Plan ("AESP") to the Plan and (ii) from the BP
Amoco Partnership Savings Plan to the Plan, on or after April 7,
2000, as more fully described in Appendix 16.3.
The benefits, rights and features of an individual who
participated in the Plan before April 7, 2000, but who does not
have an account balance under the Plan on such date, will be
determined under the applicable instruments in effect for the
Plan, on the earlier of: (1) the day on which such individual's
account was reduced to zero; or (2) the day on which such
individual's employment terminated. The terms of this Plan apply
to any accounts created for such individual hereunder on or after
April 7, 2000.
ARTICLE I
DEFINITIONS
The following sections of this Article I provide basic
definitions of terms used throughout the Plan, and whenever used
herein in a capitalized form, except as otherwise expressly
provided, the terms will be deemed to have the following
meanings:
I.1 "Accounting Period" means a period, not to exceed 1
year in duration, designated by the Administrator with respect to
each Investment Option.
I.2 "Accounts" mean the record of a Participant's interest
in the Plan's assets represented by his:
(a) "After-Tax Account" which is composed of After-Tax
Contributions allocated to the Participant under the Plan, plus
all income and gains credited to, and minus all losses, expenses
and withdrawals charged to, such Account.
(b) "Before-Tax Account" which is composed of Before-
Tax Contributions allocated to the Participant under the Plan,
plus all income and gains credited to, and minus all losses,
expenses and withdrawals charged to, such Account.
(c) "Match Account" which is composed of Match
Contributions allocated to the Participant under the Plan, plus
all income and gains credited to, and minus all losses, expenses
and withdrawals charged to, such Account. There are two types of
Match Accounts to which Match Contributions are allocated: a
Heritage Amoco Match Account for Heritage Amoco Participants and
a BP Amoco Match Account for all other Participants.
(d) "Rollover Account" which is composed of Rollover
Contributions made by or allocated to the Participant under the
Plan, plus all income and gains credited to, and minus all
losses, expenses and withdrawals charged to, such Account.
With respect to an Alternate Payee or Beneficiary, references to
Accounts will be deemed to be references to all or that portion
of a Participant's After-Tax Account, Before-Tax Account, Match
Account and Rollover Account which, under the terms of the Plan,
has been allocated to an Account maintained for such Alternate
Payee or Beneficiary, plus all income and gains credited to, and
minus all losses, expenses and withdrawals charged to, such
Account. References herein to Accounts will also be deemed to
include each of a Participant's Accounts and references herein to
an Account will be deemed to include any or each of the
Participant's Accounts.
I.3 "Accrued Benefit" means the shares, units or other
Trust Fund assets allocated and posted to Accounts as of the
Valuation Time in accordance with the terms of this Plan,
including any applicable Administrative Services Agreement.
I.4 "Active Participant" means a Participant who: (a) is
an Employee; or (b) solely with respect to his Before-Tax Account
(unless the context clearly requires otherwise), is a former
Employee who has not incurred a separation from service under
Section 401(k) of the Code for which a distribution of his Before-
Tax Account may be made.
I.5 "Administrative Named Fiduciary" means a person or
entity who: (a) has the authority to control and manage the
operation and administration of the Plan or the Trust within the
meaning of Section 402(a)(1) of ERISA; (b) has the discretionary
authority or discretionary responsibility to administer the Plan
or the Trust within the meaning of Section 3(21)(A)(ii) of ERISA;
or (c) exercises discretionary authority or discretionary control
respecting management of the Plan or the Trust within the meaning
of Section 3(21)(A)(i) of ERISA (other than trustee
responsibilities within the meaning of Section 405(c)(3) of
ERISA), and includes the Administrator and any other person
(i) named in the Plan or the Trust; or (ii) identified by a
Designated Officer to be an Administrative Named Fiduciary.
I.6 "Administrative Services Agreement" means an agreement
with a service provider to provide administrative services to the
Plan.
I.7 "Administrator" means the Senior Vice President, or if
an Applicable Named Fiduciary has been identified with respect to
the authority involved in the provision of this Plan under
consideration, then reference to the Administrator in that
context refers to such Applicable Named Fiduciary. References in
this Plan to the Administrator will be deemed to be a reference
to any person (other than a Fiduciary) to whom ministerial
responsibilities involved in the provisions of this Plan have
been delegated by the Administrator, including under an
Administrative Services Agreement.
I.8 "AESP" means the Amoco Employee Savings Plan in effect
on the date prior to the Effective Date.
I.9 "Alternate Payee" means an individual who is entitled
to all or a portion of a Participant's Account pursuant to a
QDRO.
I.10 "American Depositary Share" means a security issued to
allow easier holding and trading of interests in foreign
corporations in the United States.
I.11 "Appendix" means a written supplement attached to this
Plan and made a part hereof.
I.12 "Applicable Named Fiduciary" means, with respect to
any authority, control or discretion in the operation,
administration or management of the Plan or Trust, the
Administrative Named Fiduciary who is charged with, or who
exercises responsibility for, such matter.
I.13 "Authorized Absence" means an absence from active
employment, with or without Compensation, authorized or
recognized by a Commonly Controlled Entity under its standard
personnel practices applicable to the Employee, including any
period of time during which such person is considered to be on a
leave of absence while covered by a disability plan of his
Employer. The date that an Employee's Authorized Absence ends
will be determined in accordance with the personnel policies of
such Commonly Controlled Entity, which ending date will be no
earlier than the date that the Authorized Absence is scheduled to
end, unless the Employee communicates to such Commonly Controlled
Entity that he is to have a Severance from Service as of an
earlier date or such Commonly Controlled Entity causes the
Employee to have a Severance from Service as of an earlier date.
I.14 "Beneficiary" means an individual entitled to receive
any benefits payable on the death of a Participant in accordance
with Sections 12.2 and 12.5.
I.15 "Board of Directors" means the board of directors of
the Company as constituted from time to time.
I.16 "BP CAP" means the BP America Capital Accumulation
Plan in effect on the date prior to the Effective Date.
I.17 "Break in Service" means the period following a
Severance from Service and preceding a Reemployment Date.
I.18 "Business Day" means any day on which the New York
Stock Exchange and the Trustee are open for business.
I.19 "Claims Administrator" means the Administrator for
purposes of the initial review of any claim relating to a
person's eligibility to participate in the Plan. For purposes of
the initial review of any claim relating to the amount of a
person's benefit under the Plan, the Administrator acts as the
Claims Administrator unless another Applicable Named Fiduciary
has been identified by a Designated Officer for this purpose, in
which case such other person or entity will be the Claims
Administrator for this purpose and will have the authority of the
Administrator with respect to such claim determination. The
Administrator, in his sole discretion, determines whether a claim
relates to eligibility to participate in the Plan or relates to
the amount of benefit payable under the Plan. For purposes of
the appeal of all claims, whether relating to eligibility or
amount of benefits, the Administrator is the Claims Administrator
unless another Applicable Named Fiduciary has been identified by
a Designated Officer for this purpose, in which case such other
person or entity will be the Claims Administrator for this
purpose.
I.20 "Code" means the Internal Revenue Code of 1986, as
amended. References to any specific Section will include any
valid regulation promulgated thereunder, and any statutory
provision amending, supplementing or superseding such Section.
I.21 "Commonly Administered Plan" means a qualified plan
described in Section 401(a) of the Code which: (a) is sponsored
or maintained by a Commonly Controlled Entity; (b) has the same
recordkeeper as this Plan; and (c) has the same type of accounts
as the Accounts in this Plan.
I.22 "Commonly Controlled Entity" means: (a) an Employer
and any corporation, trade or business, but only for so long as
it and the Employer are members of a controlled group of
corporations as defined in Section 414(b) of the Code or under
common control as defined in Section 414(c) of the Code;
provided, however, that solely for purposes of the limitations of
Section 415 of the Code, the standard of control under Sections
414(b) and 414(c) of the Code will be deemed to be "more than
50%" rather than "at least 80%"; (b) an Employer and an
organization, but only for so long as it and the Employer are
members of an affiliated service group as defined in Section
414(m) of the Code; (c) an Employer and an organization, but only
for so long as the employees of it and the Employer are required
to be aggregated under Section 414(o) of the Code; or (d) any
other organization designated as such by a Designated Officer.
An entity will not be considered a Commonly Controlled Entity
before it becomes a Commonly Controlled Entity pursuant to the
preceding sentence.
I.23 "Company" means BP Amoco Corporation, an Indiana
corporation, or any successor corporation by merger,
consolidation, purchase, or otherwise, which elects to adopt the
Plan. Notwithstanding the foregoing, in the context of any Plan
provision where Company refers to the issuer of Company Stock,
"Company" will mean BP Amoco p.l.c., or any successor thereto.
I.24 "Company Stock" means ordinary shares of BP Amoco
p.l.c. in the form of American Depositary Shares.
I.25 "Company Stock Fund" means the BP Amoco Stock Fund
Investment Option.
I.26 "Compensation"
(a) Except to the extent otherwise provided in
subsection (b), below, "Compensation" means amounts that are paid
directly by an Employer for personal services and that:
(1) are paid to an Eligible Employee (except to
the extent otherwise provided in subsection (a)(2)(G), below);
and
(2) fall in one of the following categories:
(A) basic salary or wages, including forms
of base pay delivered in alternative forms such as piecework,
payment by mileage for drivers, overtime, and shift and rate
differentials;
(B) pay in lieu of vacation;
(C) commissions;
(D) bonus payments made under an annual
incentive plan at the business unit or stream level;
(E) lump-sum performance awards awarded in
connection with annual salary administration;
(F) Alaska worksite pay premiums, including
any North Slope bonus; or
(G) amounts that: (i) are contributed, at
the election of an Eligible Employee, on behalf of the Eligible
Employee to a cafeteria plan or a cash or deferred arrangement
and not included in the Eligible Employee's gross income for
federal income tax purposes by reason of Sections125 or 402(e)(3)
of the Code and (ii) would, were it not for the Eligible
Employee's election, (I) meet the requirement imposed by
subsection (a)(1), above, and (II) fall in one of the categories
listed in subparagraphs (A) through (F) of this subsection
(a)(2); and
(3) do not fall in any of the following
categories:
(A) sign-on, retention, or ratification
payments;
(B) severance or separation payments;
(C) spot awards, reward and recognition
payments or any other comparable payments;
(D) remuneration received attributable to
moving or educational expenses;
(E) expense allowances, or premium pay based
on an Employee's worksite except for any Alaska worksite premium
payment (including the North Slope bonus);
(F) tax reimbursements;
(G) payments made pursuant to an employment
contract or bonus plan under which such payments are not intended
to be Compensation hereunder;
(H) payments in excess of amounts paid
pursuant to subsection (a)(2)(A) above, made to compensate an
Employee for having to work during all or part of the 60-day
period following notice in connection with a severance or
separation program; or
(I) awards under the 1998 Share Option Plan
(or any other income under any equity-based plan);
(J) awards under the BP Amoco Long Term
Performance Plan; and
(K) any other remuneration not described in
subparagraphs (A) through (G) of subsection (a)(2), above.
(b) For purposes of the definition of "Compensation"
hereunder:
(1) an amount included in an individual's final
paycheck for employment as an Eligible Employee will be treated
as if it were paid to an Eligible Employee, if it paid during a
Plan Year in which the individual is an Eligible Employee, even
though, on the date he receives the paycheck, the individual no
longer is an Eligible Employee;
(2) an amount that should have been paid in a
manner that met the requirements imposed by this Section 1.26 (as
modified by subsection (b)(1), above), but that was mistakenly
paid in a different manner, will be treated as meeting the
requirements imposed by this Section 1.26;
(3) all amounts paid in settlement (including,
but not limited to, amounts paid for front and back pay and
emotional distress) to an Eligible Employee will be excluded from
the definition of "Compensation" hereunder unless otherwise
ordered pursuant to the final decision of the presiding court,
arbitrator, or administrative agency after all available appeals
have been exhausted; and
(4) if it is not entirely clear whether an item
of remuneration meets the requirements of subsection (a)(2) or
(a)(3), above, the Administrator, in his sole discretion, will
determine whether the item meets the requirements of such
subsection (a)(2) or (a)(3), above.
(c) In addition to other applicable limitations that
may be set forth in the Plan, and notwithstanding any other
contrary provision of the Plan, annual Compensation taken into
account under the Plan for the purpose of calculating the
Contributions to the Plan by or in respect of a Participant for
any Plan Year will not exceed the applicable compensation limit
under Section 401(a)(17) of the Code, as adjusted.
I.27 "Contractor Firm" mean a person or entity which is not
a Commonly Controlled Entity.
I.28 "Contribution" means an amount contributed to the Plan
on behalf of a Participant, in one or more of the following
types:
(a) "After-Tax" which means an amount contributed by
the Employer on an after-tax basis in conjunction with a
Contribution Election, as described in Section 3.2.
(b) "Before-Tax" which means an amount contributed by
the Employer on a before-tax basis under Section 402(g) of the
Code in conjunction with a Contribution Election, as described in
Section 3.1.
(c) "Match" which means an amount contributed by the
Employer based upon the amount contributed by the Participant, as
described in Section 3.3.
(d) "Rollover" which means an amount contributed by a
Participant that constitutes all or part of an "eligible rollover
distribution" (within the meaning of Section 402(f)(2)(A) of the
Code), as described in Section 3.4.
I.29 "Contribution Dollar Limit" means the annual limit
imposed on each Participant pursuant to Section 402(g) of the
Code (as indexed pursuant to Sections 402(g)(5) and 415(d) of the
Code, provided that no such adjustment will be taken into account
hereunder before the Plan Year in which it becomes effective).
I.30 "Contribution Election" or "Election" means the
election made by an Active Participant who is an Eligible
Employee to reduce the Compensation to be paid to him by an
amount equal to the product of his Contribution Percentage and
such Compensation subject to the Contribution Election. Subject
to Section 3.1(b), such Contribution Election will specify the
portion of the Contribution that is a Before-Tax Contribution and
the portion that is an After-Tax Contribution.
I.31 "Contribution Percentage" means the percentage of an
Eligible Employee's Compensation which is to be contributed to
the Plan by his Employer as a Contribution, or where the context
requires, as a Before-Tax Contribution or an After-Tax
Contribution.
I.32 "Designated Officer" means the Senior Vice President
and any other officer of the Company, the Group Vice President,
Human Resources of BP Amoco p.l.c. and any other officer of BP
Amoco p.l.c., to whom (but only to the extent specifically
provided), authority to act on behalf of the Company has been
granted by the Board of Directors or one of its committees.
I.33 "Direct Rollover" means a payment by the Plan to an
Eligible Retirement Plan specified by a Distributee.
I.34 "Disability" or "Disabled" means the Participant is
declared mentally incompetent or becomes permanently and totally
disabled.
I.35 "Distributee" means a Participant, or a Participant's
surviving Spouse; or, and only with regard to the interest of an
Alternate Payee, a Participant's Spouse or former Spouse who is
the Alternate Payee.
I.36 "Effective Date" means April 7, 2000, the date upon
which the provisions of this amended and restated document take
effect.
I.37 "Eligible Employee" means an Employee of an Employer
who is an at site hourly Employee who is associated with Employer-
operated (direct operations) retail locations and whose
Compensation is paid in U.S. currency, except that an Eligible
Employee does not include:
(a) an Employee who is represented by a union unless
the union and the Employer have entered into a collective
bargaining or other agreement that provides that the Employee may
participate in the Plan;
(b) an Employee who is a "nonresident alien" (within
the meaning of Section 7701(b)(1)(B) of the Code) and who
receives no "earned income" (within the meaning of
Section 911(d)(2) of the Code) from the Employer that constitutes
income from sources within the United States (within the meaning
of Section 861(a)(3) of the Code);
(c) an individual employed pursuant to an agreement
providing that the individual is not eligible to participate in
the Plan;
(d) an individual who is not contemporaneously
classified as an Employee for purposes of the Employer's payroll
system. In the event any such individual is reclassified as an
Employee for any purpose, including, without limitation, as a
common law or statutory employee, by any action of any third
party, including, without limitation, any government agency, or
as a result of any private lawsuit, action, or administrative
proceeding, such individual will, notwithstanding such
reclassification, remain ineligible for participation hereunder
and will not be considered an Eligible Employee. In addition to
and not in derogation of the foregoing, the exclusive means for
an individual who is not contemporaneously classified as an
Employee of the Employer on the Employer's payroll system to
become eligible to participate in this Plan is through an
amendment to this Plan which specifically renders such individual
eligible for participation hereunder;
(e) an Employee whose basic compensation for services
on behalf of an Employer is not paid directly by an Employer;
(f) an at site manager Employer who is associated with
Employer-operated (direct operations) retail locations;
(g) an Employee who is making contributions to or
receiving an employer contribution under any other tax-qualified
defined contribution pension plan that is sponsored by any
Commonly Controlled Entity and that provides for before-tax or
after-tax contributions;
(h) an Employee of Solarex; or
(i) an Employee covered by a classification which is
scheduled in an Appendix.
I.38 "Eligible Retirement Plan" means an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code which
accepts a Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to a surviving
Spouse, an Eligible Retirement Plan is an individual retirement
account or an individual retirement annuity.
I.39 "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the credit
of a Distributee, except that an Eligible Rollover Distribution
does not include any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated Beneficiary, or
for a specified period of 10 years or more; any distribution to
the extent such distribution is required under Section 401(a)(9)
of the Code; 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); or, any "hardship withdrawal" described in
Treasury Regulation 1.401(k)-1(d)(2)(ii) that may not be
distributed to the Distributee without regard to hardship under
Section 401(k)(2)(B) of the Code.
I.40 "Employee" means any person who either: (a) renders
services as a common law employee to a Commonly Controlled Entity
and is on the payroll of such Commonly Controlled Entity; or (b)
is on an Authorized Absence from employment with a Commonly
Controlled Entity. Notwithstanding the foregoing, the term
"Employee" does not include any individual retained by a Commonly
Controlled Entity directly or through an agency or other party to
perform services for a Commonly Controlled Entity (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 employed by
temporary help firms, technical help firms, staffing firms,
employee leasing firms, professional employer organizations or
other staffing firms, whether or not deemed to be "common law"
employees or "leased employees" within the meaning of
Section 414(n) of the Code.
I.41 "Employer" means the Company and each Commonly
Controlled Entity that maintained the Plan immediately prior to
the Effective Date, and any Commonly Controlled Entity that
adopts the Plan in accordance with Article XV; provided, that an
entity will cease to be an Employer when it ceases to be a
Commonly Controlled Entity or it withdraws from the Plan.
I.42 "Employment Date" means the day an Employee first
earns an Hour of Service.
I.43 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended. Reference to any specific Section
includes any valid regulation promulgated thereunder, and any
statutory provision amending, supplementing or superseding such
Section.
I.44 "Exchange Election" means an election by a Participant
to change the investment of all or some specified portion of such
Participant's Accounts, as described in Section 6.2.
I.45 "Fiduciary" means: (a) any individual or entity which
a Designated Officer identifies to be an Administrative Named
Fiduciary with respect to such individual's or entity's authority
to control and manage the operation and administration of the
Plan; (b) any individual or entity which an Administrative Named
Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary; or (c) any other individual or entity who performs a
fiduciary function under the Plan as defined in Section 3(21) of
ERISA.
I.46 "Heritage Amoco Participant" means: (a) a participant
with an account balance in AESP on the day prior to the Effective
Date; (b) an "Eligible Employee" (as such term is defined in the
BP Amoco Employee Savings Plan as in effect on the Effective
Date) on the payroll of the Plan Sponsor or a participating
employer in AESP on the day prior to the Effective Date; or (c) a
rehired former participant in AESP who either (I) is credited
with at least 2 years of Service under AESP prior to the
Effective Date, (II) who as of his rehire date has not incurred a
Break in Service of 7 consecutive years, or (III) .
I.47 "Heritage BP Participant" means a participant or
former participant in BP CAP (and, for purposes of
Sections 9.7(f) and 10.3(b) only, the Plan) prior to the
Effective Date.
I.48 "Highly Compensated Eligible Employee" or "HCE" means
an Eligible Employee who is a "highly compensated employee"
within the meaning of Section 414(q) of the Code (determined as
if the election described in Section 414(q)(1)(B)(ii) of the Code
has not been made), the provisions of which are incorporated
herein by reference.
I.49 "Hour of Service" means an hour for which an Employee
is paid or entitled to be paid, with respect to the performance
of duties for any Commonly Controlled Entity either as regular
wages, salary, or commissions or pursuant to an award or
agreement requiring a Commonly Controlled Entity to pay back
wages. The crediting of an Hour of Service will be made in
accordance with Department of Labor Regulation 2530.200b-2 and
3.
I.50 "Income Fund" means the Investment Option designated
as the Income Fund Investment Option by the Administrator, or if
none, the Money Market Fund.
I.51 "Inactive Participant" means a Participant who is not
an Active Participant.
I.52 "Investment Committee" means the Investment Committee
designated by the Company for the Trust, or if none, the Chief
Financial Officer of the Company.
I.53 "Investment Election" means an election by which a
Participant directs the investment of his Contributions or
amounts allocated to his Account, as described in Section 6.1.
I.54 "Investment Option" means each of the Investment
Options available under the Plan as listed in Appendix 1.54.
I.55 "Member" means a Participant, Alternate Payee or
Beneficiary.
I.56 "Money Market Fund" means the Investment Option
designated as the Money Market Fund Investment Option by the
Administrator.
I.57 "Non-Highly Compensated Employee" or "NHCE" means an
Eligible Employee who is not an HCE.
I.58 "Normal Retirement Date" means the date on which a
Participant attains age 65.
I.59 "Participant" means an individual who is participating
in the Plan after completing the Plan's requirements for
participation, but only for so long as such individual is
considered a Participant in accordance with Section 2.4.
I.60 "Payment Date" means the date on or after the
Settlement Date on which an individual's Accrued Benefit is
withdrawn (or commences to be withdrawn), which date will be at
least the minimum number of days required by law, if any, after
the date the individual has received such notice as is required
by law, if any, before a withdrawal can be made (or commenced to
be made) as determined by the Administrator.
I.61 "Plan" means the BP Amoco DirectSave Plan, as set
forth herein and as hereafter may be amended.
I.62 "Plan Sponsor" means BP Amoco Corporation.
I.63 "Plan Year" means each calendar year.
I.64 "Predecessor Company" means an entity or predecessor
thereof, prior, in either case, to its becoming a Commonly
Controlled Entity, or to its assets being acquired by a Commonly
Controlled Entity, as determined by the Company.
I.65 "Prior Plan" means the BP America DirectSave Plan in
effect on the date prior to the Effective Date.
I.66 "QDRO" means a domestic relations order which the
Administrator has determined to be a qualified domestic relations
order within the meaning of Section 414(p) of the Code.
I.67 "QJSA" means the qualified joint and survivor annuity
described in Article X.
I.68 "Reemployment Date" means the first date on which an
Employee completes an Hour of Service by performing services as
an Employee after a Break in Service.
I.69 "Senior Vice President" means the Senior Vice
President - Human Resources of the Company or, upon the
resignation or removal of such Senior Vice President, any
successor officer to the Senior Vice President who performs
substantially similar duties with respect to administration of
employee benefits (whether assigned a different title by the
Company or not), or, in the absence of such a successor, the
General Counsel of the Company.
I.70 "Service" means a Participant's service with any
Commonly Controlled Entity, measured in accordance with Article
II.
I.71 "Settlement Date" means the date as of which a
financial transaction from a corresponding Trade Date is settled
in cash or in kind.
I.72 "Sever from Service" means to incur a Severance from
Service.
I.73 "Severance from Service" means the earlier of: (a) the
date an Employee terminates employment with any Commonly
Controlled Entity by reason of a resignation, discharge,
retirement, or death; or (b) the first anniversary of the date
the Employee is first absent (but not on an Authorized Absence)
from employment by any Commonly Controlled Entity for any other
reason. An Employee who fails to return to employment with any
Commonly Controlled Entity at the expiration of an Authorized
Absence will be deemed to have Severed from Service on the first
to occur of the expiration of his Authorized Absence or the first
anniversary of the first day of his Authorized Absence. An
Employee who transfers employment between Commonly Controlled
Entities will not be deemed to have Severed from Service.
I.74 "Shareholder Rights" means any right to vote (or
refrain from voting) either in person or by general or limited
proxy with respect to Company Stock.
I.75 "Spousal Consent" means the irrevocable written
consent given by a Spouse to a Participant's election (or waiver)
of a specified form of benefit or Beneficiary designation. The
Spouse's consent must acknowledge the effect on the Spouse of the
Participant's election, waiver or designation and be duly
witnessed by a Plan representative or notary public. Spousal
Consent will be valid only with respect to the Spouse who signs
the Spousal Consent and only for the particular choice made by
the Participant which requires Spousal Consent. A Participant
may revoke (without Spousal Consent) a prior election, waiver or
designation that required Spousal Consent at any time before the
Sweep Time associated with the Settlement Date upon which
payments will begin. Spousal Consent will not be necessary to
the extent that there is a determination by the Administrator
that there is no Spouse, the Spouse cannot be located or such
other circumstances as may be established by applicable law.
I.76 "Spouse" means a person who, as of the relevant time,
is married to the Participant under the laws of the State of the
Participant's residence as evidenced by a valid marriage
certificate or other proof acceptable to the Administrator.
I.77 "Sweep Time" means the cutoff time established by the
Administrator to receive notification of a financial transaction
in order to process the transaction with respect to a Trade Date
designated by the Administrator.
I.78 "Trade Date" means the Business Day as of which a
financial transaction is effected.
I.79 "Trust" means the legal entity resulting from the
Trust Agreement, in which some or all of the assets of this Plan
will be received, held, invested and distributed to or for the
benefit of Participants and Beneficiaries.
I.80 "Trust Agreement" means the agreement between the
Company and the Trustee establishing the Trust, and any
amendments thereto.
I.81 "Trust Fund" means any property, real or personal,
received by and held by the Trustee, plus all income and gains
and minus all losses, expenses, withdrawals and distributions
chargeable thereto.
I.82 "Trustee" means any corporation, individual or
individuals designated in the Trust Agreement accepting the
appointment as Trustee to execute the duties of the Trustee as
set forth in the Trust Agreement.
I.83 "Unit Value" means the value of a unit in an
applicable Investment Option, as determined in good faith by the
Trustee or the custodian of the Trust Fund, or, in the case of a
mutual fund shares, by the issuer of such mutual fund shares.
I.84 "Valuation Time" means 4 p.m. (Eastern Time) or, if
earlier, the close of business of the New York Stock Exchange, or
as otherwise determined by the Administrator.
I.85 "Year of Participation" means each year of Service to
the extent earned during the period beginning on the date a
Participant begins making Before-Tax or After-Tax Contributions
to the Plan, and continuing for so long as the person remains a
Participant.
ARTICLE II
PARTICIPATION AND SERVICE
II.1 Eligibility.
(a) Participant on Effective Date. Each person who
was a participant with an accrued benefit in the Plan immediately
before the Effective Date will continue as a Participant as of
the Effective Date, except as provided in Supplement A and B of
Appendix 16.3.
(b) Other Eligible Employee. Except to the extent
provided in Section 2.1(c), each person who is an Eligible
Employee will be eligible to become a Participant upon both (i)
attaining age 21 and (ii) the completing 1 year of Service, if he
is then an Eligible Employee.
(c) Reemployment. Notwithstanding anything herein to
the contrary, for purposes of eligibility to participate
hereunder, the following special rules apply if an Eligible
Employee incurs a Severance from Service and subsequently has a
Reemployment Date:
(i) If the Eligible Employee had not yet
satisfied the Plan's eligibility requirements, and the
Reemployment Date occurs within the 12-month period following his
Severance from Service, such Eligible Employee will be treated as
if he had not incurred such Severance from Service;
(ii) If the Eligible Employee had not yet
satisfied the Plan's eligibility requirements, and the
Reemployment Date occurs after the 12-month period following his
Employment Date, but before the Eligible Employee incurs a Break
in Service of at least 3 consecutive 12-month periods, such
Eligible Employee's Service will include Service prior to such
Severance from Service (except to the extent disregarded due to a
prior Break in Service); and
(iii) If an Eligible Employee incurs a Break
in Service of at least 3 consecutive 12-month periods, the
Employee will not be eligible to become a Participant (or resume
participation in the Plan) until the completion of 1 year of
Service after his Reemployment Date, and then only if he has
attained age 21 and is then an Eligible Employee.
II.2 Participation upon Change of Job Status. An Employee
who has satisfied the Plan's eligibility requirements, but is not
an Eligible Employee will be eligible to become a Participant on
the date he becomes an Eligible Employee. If the status of a
Participant changes from Eligible Employee to Employee, such
Participant will cease to be eligible to make or to have
Contributions made on his behalf to the Plan, until such time as
such Participant is reemployed by an Employer as an Eligible
Employee.
II.3 Enrollment. An Eligible Employee who is eligible to
become a Participant may become a Participant by enrolling in the
Plan.
II.4 Duration. A person will cease to be a Participant on
the date that his entire nonforfeitable Accrued Benefit under the
Plan has been withdrawn, or upon his death, whichever occurs
first.
II.5 Service.
(a) Except as otherwise provided in this Article II
and in Article XI, an Employee's Service will be the sum of the
Employee's years and fractions of a year (expressed in days) as
an Employee until he Severs from Service. For periods prior to
the Effective Date, the determination of a Participant's Service
will be made pursuant to the records of the Plan immediately
prior to the Effective Date.
(b) Solely for purposes of this Section 2.5, if an
Employee completes an Hour of Service before the first
anniversary of his Severance from Service, the Severance from
Service will be deemed not to have occurred for purposes of this
Section 2.5.
II.6 Other Service-Crediting Provisions.
(a) To the extent determined by a resolution of a
Designated Officer, a Participant's Service will include his
service as an employee of a Predecessor Company if the
Participant was an employee of the Predecessor Company when it
became a Commonly Controlled Entity.
(b) Employment with a Commonly Controlled Entity
before the Effective Date will be disregarded in determining an
Employee's Service if such employment would have been disregarded
under the rules of the Plan with regard to breaks in service as
such rules were in effect under the Plan from time to time before
the Effective Date.
(c) Service as a "leased employee" within the meaning
of Section 414(n) or (o) of the Code will be credited for any
period during which Section 414 of the Code requires the person
to earn Service as a "leased employee."
II.7 Authorized Absences.
(a) The period of an Authorized Absence will be
included in determining an Employee's Service according to the
rules prescribed by this Section 2.7, except to the extent
additional Service is required to be granted by applicable law.
Solely for purposes of determining the amount of Service that
will be credited in accordance with this Section 2.7, the period
of an Employee's Authorized Absence will be deemed to end no
later than the date on which the Employee's employment is
terminated.
(b) If an Employee is absent from employment on
account of a family leave of absence approved by his Employer, he
will receive Service for the period of his absence from
employment up to a maximum period of 12 months.
(c) If an Employee is absent from employment for
military service with the armed forces of the United States and
returns to employment within the period required by the Uniformed
Services Employment and Reemployment Rights Act of 1994, or any
successor statute, he will receive Service for the period of his
absence from employment. Notwithstanding any provision of the
Plan to the contrary, contributions, benefits and service credit
with respect to qualified military service will be provided in
accordance with Section 414(u) of the Code. The Administrator may
reasonably request that a Participant demonstrate that he has
engaged in qualified military service within the meaning of
Section 414(u) of the Code.
(d) If an Employee is absent from employment on
account of any Authorized Absence (other than a leave described
in subsections (b) or (c), above) approved by his Employer, he
will receive Service for the period of his absence from
employment up to a maximum period of 12 months, provided that he
performs at least 1 Hour of Service immediately following
termination of the Authorized Absence.
II.8 Non-duplication. Notwithstanding anything to the
contrary in this Article II, a Participant will not receive
credit under the Plan for a single period of service more than
once for computing Service.
II.9 Transfer of Accounts Upon Change of Job Status.
(a) If, upon a change of job status, an Employee who
is a participant in a Commonly Administered Plan (other than the
BP America Savings and Investment Plan) becomes an Eligible
Employee:
(i) such Eligible Employee will become a
Participant in the Plan as of the transfer date;
(ii) his contribution elections and investment
election made under the Commonly Administered Plan will
automatically be treated as his Contribution Election and
Investment Election under this Plan; and
(iii) he can elect to have his accounts under
such Commonly Administered Plan transferred to the corresponding
Accounts to be established on his behalf under this Plan.
(b) Notwithstanding the foregoing election, the prior
investment election of such Participant will not continue in
effect in this Plan if Investment Options in this Plan and the
Commonly Administered Plan are different. In that case, the
Investment Election will be deemed to be (until changed) the
Money Market Fund, and all amounts transferred to this Plan will
be invested initially in the Money Market Fund and then
reinvested pursuant to an Exchange Election made by the
Participant, or as otherwise directed by the Administrator.
(c) If the status of a Participant changes from
Eligible Employee to Employee and such Participant becomes
eligible to participate in a different Commonly Administered Plan
(other than the BP America Savings and Investment Plan), at his
election his Accounts (and the Investment Options in which those
Accounts are invested) under this Plan will be transferred to the
corresponding accounts (and investment options) to be established
on his behalf under such Commonly Administered Plan, subject to
the terms of such Commonly Administered Plan.
II.10 Transfer of Accounts Upon Outsourcing. If a
Participant ceases to be an Eligible Employee because his job
function has been outsourced to a Contractor Firm, the
Administrator may provide for, or cause, the Accounts of such
Eligible Employee to be transferred to a plan of the Contractor
Firm that is intended to be qualified under Section 401(a) of the
Code in a transfer that complies with the requirements of
Sections 411(d)(6) and 414(l) of the Code.
ARTICLE III
CONTRIBUTIONS
III.1 Before-Tax Contributions.
(a) Any Participant who is an Eligible Employee may
elect to have Before-Tax Contributions made to the Plan by his
Employer in an integral percentage of his Compensation of not
less than 1 percent nor more than 18 percent. The Compensation
of such Participant will be reduced by the percentage elected
under the Contribution Election in effect for such Participant;
provided, however, that no Before-Tax Contributions made with
respect to a year on behalf of a Participant will exceed the
limitations set forth in Article IV. With respect to each
applicable payroll period, the Employer will contribute as soon
as reasonably possible, an amount to the Trust equal to the
Participant's Before-Tax Contributions for such payroll period
and the Administrator will cause such amount to be allocated and
posted to the Participant's Before-Tax Account.
(b) If the Contribution Dollar Limit prevents the
Employer from making Before-Tax Contributions on behalf of a
Participant, the Participant will be deemed to have elected to
make an After-Tax Contribution pursuant to Section 3.2 with
respect to Before-Tax Contributions the Employer was prevented
from making; provided, however, that no such After-Tax
Contributions made with respect to a year on behalf of a
Participant may exceed the limitations set forth in Article IV.
III.2 After-Tax Contributions. Any Participant who is
an Eligible Employee may elect to make After-Tax Contributions to
the Plan by payroll deduction in an integral percentage of his
Compensation of not less than 1 percent nor more than 18 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 1 percent or more than 18 percent of his
Compensation. Any payroll deduction with respect to After-Tax
Contributions will be made from the Compensation of a Participant
by his Employer in accordance with the terms of the Contribution
Election in effect for such Participant; provided, however, that
no After-Tax Contributions made with respect to a year on behalf
of a Participant may exceed the limitations set forth in Article
IV. With respect to each applicable payroll period, the Employer
will contribute as soon as reasonably possible, an amount to the
Trust equal to the Participant's After-Tax Contributions for such
payroll period and the Administrator will cause such amount to be
allocated and posted to the Participant's After-Tax Account.
III.3 Match Contributions. No Match Contributions will
be made under the Plan.
III.4 Rollover Contributions.
(a) Any Eligible Employee may elect to make a Rollover
Contribution to the Plan by delivering, or causing to be
delivered, to the Plan the assets in cash which constitute such
Rollover Contribution, provided that such Rollover Contribution
meets such conditions as the Administrator may establish. Upon
receipt by the Trustee, such assets will be invested in the
Investment Options described in Article VI, in accordance with
the Participant's Investment Election with respect to such
Rollover Contributions. The Trustee will then allocate and post
to the Rollover Account of such Participant the amount of such
Rollover Contribution. No Rollover Contribution by an Eligible
Employee pursuant to this Section 3.4 will be deemed to be a
contribution of such Eligible Employee for purposes of Article
IV.
(b) If it is later determined that an amount
transferred pursuant to subsection (a), above, did not in fact
qualify as a Rollover Contribution, the balance allocated to the
Employee's Rollover Account will immediately be: (i) segregated
from all other Plan assets; (ii) treated as a non-qualified trust
established by and for the benefit of the Employee; and (iii)
distributed to the Employee, as adjusted for earnings and losses.
Any such nonqualifying rollover will be deemed never to have been
a part of the Plan.
(c) A Participant who is entitled to receive a lump
sum distribution from a qualified plan described in
Section 401(a) of the Code maintained by an Employer as the
result of separation of employment or retirement from a Commonly
Controlled Entity may elect to have such lump sum distribution
deposited into his Rollover Account under the Plan. Such
Rollover Contribution must be made in accordance with procedures
that may be specified by the Administrator.
III.5 Election Procedures.
(a) A Participant's election to make Before-Tax
Contributions and After-Tax Contributions will continue in effect
(with automatic adjustment for any change in his Compensation)
until changed or terminated pursuant to procedures established by
the Administrator, suspended under the terms of this Plan, or
until the Participant ceases to be paid as an Eligible Employee.
(b) In the event of a mistake by either the Employer
or the Administrator regarding the amount of a Participant's
Before-Tax Contributions or After-Tax Contributions during a Plan
Year, the Employer may permit, in its sole discretion,
contributions in excess of the 18 percent limit set forth in
Sections 3.1 and 3.2 to be made for 1 or more payroll periods
during such Plan Year, but only to the extent required for such
contributions for the Plan Year to equal what they would have
been in the absence of the mistake.
ARTICLE IV
LIMITATION ON CONTRIBUTIONS
IV.1 Limit on Before-Tax Contributions. The aggregate
elective deferrals (as defined in Section 402(g)(3) of the Code)
made on behalf of each Participant under the Plan for any Plan
Year will not exceed:
(a) the Contribution Dollar Limit, reduced by:
(b) the sum of any of the following amounts that were
contributed on behalf of the Participant for the Plan Year under
a plan, contract, or arrangement other than this Plan, including
BP CAP:
(1) any employer contribution under a qualified
cash or deferred arrangement (as defined in Section 401(k) of the
Code) to the extent not includable in the Participant's gross
income for the taxable year under Section 402(e)(3) of the Code
(determined without regard to Section 402(g) of the Code);
(2) any employer contribution to the extent not
includable in the Participant's gross income for the taxable year
under Section 402(h)(1)(B) of the Code (determined without regard
to Section 402(g) of the Code);
(3) any employer contribution to purchase an
annuity contract under Section 403(b) of the Code under a salary
reduction agreement (within the meaning of Section 3121(a)(5)(D)
of the Code); and
(4) any elective employer contribution under
Section 408(p)(2)(A)(i) of the Code;
provided that no contribution described in this subsection (b)
will be taken into account for the purpose of reducing the dollar
limit in subsection (a), above, if the plan, contract, or
arrangement is not maintained by a Commonly Controlled Entity
unless the Participant has filed a notice with the Administrator
not later than March 15 of the next Plan Year regarding such
contribution.
IV.2 Actual Deferral Percentage Test.
(a) The Plan will satisfy the actual deferral
percentage test set forth in Section 401(k)(3) of the Code and
Treasury Regulation 1.401(k)-1(b), the provisions of which (and
any subsequent Internal Revenue Service guidance issued
thereunder) are incorporated herein by reference, each as
modified by subsection (b), below. In accordance with
Section 401(k)(3) of the Code and Treasury Regulation 1.401(k)-
1(b), as modified by subsection (b), below, the actual deferral
percentage for HCEs for any Plan Year will not exceed the greater
of:
(1) the actual deferral percentage for NHCEs for
the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual deferral
percentage for NHCEs for the current Plan Year multiplied by 2
and (ii) the actual deferral percentage for NHCEs for the current
Plan Year plus 2%.
(b) In performing the actual deferral percentage test
described in subsection (a), above, the following special rules
will apply:
(1) the deferral percentages of Participants who
are covered by an agreement that the Secretary of Labor finds to
be a collective bargaining agreement between employee
representatives and an Employer will be disaggregated from the
deferral percentages of other Participants and the provisions of
this Section 4.2 will be applied separately with respect to each
group.
(2) Employees who have not become eligible to
become Participants will be disregarded in applying this
Section 4.2.
(3) The Administrator may permissively aggregate
the Plan with other plans to the extent permitted under Treasury
Regulation 1.401(k)-1.
IV.3 Actual Contribution Percentage Test.
(a) The Plan will satisfy the actual contribution
percentage test set forth in Section 401(m)(2) of the Code and
Treasury Regulation 1.401(m)-1(b), the provisions of which (and
any subsequent Internal Revenue Service guidance issued
thereunder) are incorporated herein by reference, each as
modified by subsection (b), below. In accordance with
Section 401(m)(2) of the Code and Treasury Regulation 1.401(m)-
1(b), as modified by subsection (b), below, the actual
contribution percentage for HCEs for any Plan Year will not
exceed the greater of:
(1) the actual contribution percentage for NHCEs
for the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual contribution
percentage for NHCEs for the current Plan Year multiplied by 2
and (ii) the actual contribution percentage for NHCEs for the
current Plan Year plus 2%.
(b) In performing the actual contribution percentage
test described in subsection (a), above, the following special
rules will apply:
(1) the limit imposed by the actual contribution
percentage test will apply only to HCEs and NHCEs who are not
covered by an agreement that the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives
and an Employer;
(2) Employees who have not become eligible to
become Participants will be disregarded in applying this
Section 4.3.
(3) The Administrator may permissively aggregate
the Plan with other plans to the extent permitted under Treasury
Regulation 1.401(m)-1.
IV.4 Prohibition on Multiple Use. The Plan will not violate
the prohibition against multiple use of the alternative methods
of compliance with Sections 401(k) and (m) of the Code. The
prohibition is set forth in Section 401(m)(9) of the Code and
Treasury Regulation 1.401(m)-2, the provisions of which (and any
subsequent Internal Revenue Service guidance issued thereunder)
are incorporated herein by reference, and will be applied using
the current year testing method; provided that:
(a) the limit imposed by the multiple use test will
apply only to HCEs and NHCEs who are not covered by an agreement
that the Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and an Employer;
(b) the multiple use test will be applied after taking
into account the modifications to the actual deferral percentage
test and the actual contribution percentage tests made by
Sections 4.2(b) and 4.3(b); and
(c) Employees who have not become eligible to become
Participants will be disregarded in applying this Section 4.4.
IV.5 Maximum Contributions.
(a) In addition to any other limitation set forth in
the Plan and notwithstanding any other provision of the Plan, in
no event will the annual additions allocated to a Participant's
Account under the Plan, together with the aggregate annual
additions allocated to the Participant's accounts under all other
defined contribution plans required to be aggregated with the
Plan under the provisions of Section 415 of the Code, exceed the
maximum amount permitted under Section 415 of the Code, the
provisions of which are incorporated herein by reference.
(b) If the limitations imposed by this Section 4.5
apply to a Participant who is entitled to annual additions under
one or more tax-qualified plans with which the Plan is aggregated
for purposes of Section 415 of the Code, the annual additions
under the Plan and such other plan or plans will be reduced in
the following order, to the extent necessary to prevent the
Participant's benefits and/or annual additions from exceeding the
limitations imposed by this Section:
(1) All other defined contribution plans in which
the Participant participated and with which the Plan is
aggregated for purposes of Section 415 of the Code, in an order
based on the reverse chronology of the annual additions to the
plans, beginning with the last annual addition and ending with
the first annual addition; and
(2) the Plan.
IV.6 Imposition of Limitations. Notwithstanding anything
contained in the Plan to the contrary, the Administrator may, in
his sole discretion, limit the amount of a Participant's Before-
Tax Contributions and After-Tax Contributions during a Plan Year
to the extent that he determines that the imposition of such a
limit is necessary or appropriate to ensure that the Plan will
satisfy the requirements of this Article. Any such limitation
may be imposed on a Participant at any time and without advance
notice to the Participant, and regardless of whether the
Participant is covered by a collective bargaining agreement
between employee representatives and an Employer. The
Administrator can impose limitations beyond those that are
absolutely necessary to satisfy the requirements of this Article
and may, in his sole discretion, impose more restrictive
limitations that are designed to enable the Plan to satisfy those
requirements by a reasonable margin. Notwithstanding anything
contained in the Plan to the contrary, in the event that the
Contributions to be allocated to a Participant for a particular
payroll period would cause the limitations of Section 4.5 to be
exceeded with respect to a Participant, the Match Contributions
which otherwise would be made with respect to such Participant
for such period will be first reduced or eliminated so that the
limitations of Section 4.5 are not exceeded.
IV.7 Return of Excess Annual Additions, Deferrals, and
Contributions.
(a) If a Participant's Before-Tax Contributions or
After-Tax Contributions cause the annual additions allocated to a
Participant's Account to exceed the limit imposed by Section 4.5,
such excess contributions (plus or minus any gains or losses
thereon) will be returned to the Participant in the following
order: (i) After-Tax Contributions for which no Match
Contributions were made; (ii) Before-Tax Contributions for which
no Match Contributions were made; (iii) After-Tax Contributions
for which Match Contributions were made; and (iv) Before-Tax
Contributions for which Match Contributions were made.
Contributions returned pursuant to this subsection (a) will be
disregarded in applying the limits imposed by Sections 4.1
through 4.4.
(b) After any excess annual additions (plus or minus
any gains or losses thereon) with respect to a Plan Year have
been distributed as provided in subsection (a), above, if a
Participant's aggregate elective deferrals (as defined in
Section 402(g)(3) of the Code) with respect to a Plan Year exceed
the Contribution Dollar Limit, the following rules will apply to
such excess (the Participant's "excess deferrals"):
(1) Not later than the first January 31 following
the close of the Plan Year, the Participant may allocate to the
Plan all or any portion of the Participant's excess deferrals for
the Plan Year (provided that the amount of the excess deferrals
allocated to the Plan will not exceed the amount of the
Participant's Before-Tax Contributions to the Plan for the Plan
Year that have not been withdrawn or distributed) and will notify
the Administrator of any amount allocated to the Plan.
(2) If excess deferrals have been made to the
Plan on behalf of a Participant for a Plan Year, the Participant
will be deemed to have allocated such excess deferrals to the
Plan pursuant to subsection (b)(1), above, and the Plan will
distribute such excess deferrals pursuant to subsection (b)(3),
below.
(3) As soon as practicable, but in no event later
than the first April 15th following the close of the Plan Year,
the Plan will distribute to the Participant the amount allocated
or deemed allocated to the Plan under subsection (b)(1) or
(b)(2), above (plus or minus any gains or losses thereon). The
distribution described in this subsection (b)(3) will be made
notwithstanding any other provision of the Plan.
(c) After any excess annual additions (plus or minus
any gains or losses thereon) with respect to a Plan Year have
been distributed as provided in subsection (a), above, after any
excess deferrals (plus or minus any gains or losses thereon) with
respect to a Plan Year have been distributed as provided in
subsection (b), above, and after any action pursuant to Section
4.6 with respect to the Plan Year has been taken, if the actual
deferral percentage for the Plan Year of HCEs exceeds the limit
imposed by Section 4.2, the following rules apply:
(1) (A) The amount of the excess contributions
(determined in accordance with Section 401(k)(8)(B) of the Code
and subparagraph (3), below), plus or minus any gains or losses
thereon (including, in the discretion of the Administrator, gains
or losses attributable to the "gap period" within the meaning of
Treasury Regulation 1.401(k)-1(f)(4)), will be distributed to
HCEs, beginning with the HCE with the highest dollar amount of
Before-Tax Contributions for the Plan Year in an amount required
to cause that HCE's Before-Tax Contributions to equal the dollar
amount of the Before-Tax Contributions of the HCE with the next
highest dollar amount of Before-Tax Contributions (or in such
lesser amount that is equal to the total amount of excess
contributions). The process described in the preceding sentence
will continue until the reduction equals the total excess
contributions made to the Plan.
(B) The distribution described in
subparagraph (A), above, will be made as soon as practicable, but
in no event later than the close of the Plan Year following the
close of the Plan Year with respect to which the excess
contributions were made.
(C) The gains or losses on excess
contributions will be determined by multiplying the total annual
earnings (positive or negative) for the Plan Year in the
Participant's Before-Tax Account by the following fraction:
(i) The numerator of the fraction will
be the amount of the excess contributions.
(ii) The denominator of the fraction
will be the value of the Participant's Before-Tax Account as of
the last day of the Plan Year (or at the end of the gap period,
if elected by the Company), reduced by any positive earnings (or
increased by any negative earnings) credited to the Participant's
Before-Tax Account for the Plan Year (and for the gap period, if
elected by the Company).
Notwithstanding the preceding provisions of this subparagraph
(C), in the discretion of the Administrator, the gains and losses
on excess contributions will be determined in accordance with any
method permitted under the Code and the applicable Treasury
Regulations.
(2) In accordance with Treasury Regulations, the
Administrator may elect, in his sole discretion, to treat as an
After-Tax Contribution the amount of the excess contributions
attributable to a Participant who is an HCE, except to the extent
that such After-Tax Contribution would cause the Plan to exceed
(or to continue to exceed) the contribution percentage limit
imposed by Section 4.3 or to violate (or to continue to violate)
the prohibition against multiple use imposed by Section 4.4.
(3) The excess contributions to the Plan will be
determined in accordance with Section 401(k)(8)(B) of the Code by
performing the hypothetical calculation described in this
subparagraph (3). The actual deferral percentage of the HCE with
the highest individual actual deferral percentage will be reduced
to the extent necessary to cause his actual deferral percentage
to equal the actual deferral percentage of the HCE with the
second highest individual actual deferral percentage (or, if it
would result in a lesser reduction, to the extent necessary to
cause the Plan to satisfy the actual deferral percentage test
under Section 4.2). The excess contribution to the Plan is the
amount by which the Before-Tax Contributions of the HCE with the
highest individual actual deferral percentage would have been
reduced after the hypothetical reduction in actual deferral
percentage described in the preceding sentence. This process will
continue until no excess contributions remain.
The distribution described in subparagraph (1), above, will be
made notwithstanding any other provision of the Plan. The amount
distributed pursuant to subparagraph (1), above, or
recharacterized pursuant to subparagraph (2), above, for a Plan
Year with respect to a Participant will be reduced by any excess
deferral previously distributed from the Plan to such Participant
for the Participant's taxable year ending with or within such
Plan Year.
(d) If a Participant's Before-Tax Contributions or
After-Tax Contributions (plus or minus any gains or losses
thereon) are returned to him pursuant to the provisions of this
Section 4.7, any Match Contributions (plus or minus any gains or
losses thereon) with respect to such returned Before-Tax
Contributions or After-Tax Contributions will be immediately
forfeited. Any such forfeitures will be applied to reduce the
Company's obligation to make Match Contributions pursuant to
Article III.
(e) After any excess deferrals (plus or minus any
gains or losses thereon), and any excess contributions (plus or
minus any gains or losses thereon), with respect to a Plan Year
have been distributed and/or re-characterized, in accordance with
subsections (a), (b), (c), and (d), above, and after any action
pursuant to Section 4.6 with respect to the Plan Year has been
taken, if the contribution percentage for the Plan Year of HCEs
exceeds the actual contribution percentage limit imposed by
Section 4.3, the following rules will apply:
(1) (A) The amount of the excess aggregate
contributions for the Plan Year (determined in accordance with
Section 401(m)(6)(B) of the Code and subparagraph (3), below),
plus or minus any gains or losses thereon (including, in the
discretion of the Company, gains or losses attributable to the
"gap period" within the meaning of Treasury Regulation 1.401(m)-
1(e)(3)), will be distributed (or, if forfeitable, will be
forfeited) as soon as practicable and in any event before the
close of the Plan Year following the close of the Plan Year with
respect to which the excess aggregate contributions were made.
(B) The gains or losses on excess aggregate
contributions will be determined by multiplying the total annual
earnings (positive or negative) for the Plan Year in the
Participant's After-Tax and Match Accounts by the following
fraction:
(i) The numerator of the fraction will
be the amount of the excess aggregate contributions.
(ii) The denominator of the fraction
will be the value of the Participant's After-Tax and Match
Accounts as of the last day of the Plan Year (or at the end of
the gap period, if elected by the Company), reduced by any
positive earnings (or increased by any negative earnings)
credited to the Participant's After-Tax and Match Accounts for
the Plan Year (and for the gap period, if elected by the
Company).
Notwithstanding the preceding provisions of this subparagraph
(B), in the discretion of the Administrator, the gains and losses
on excess contributions will be determined in accordance with any
method permitted under the Code and the applicable Treasury
Regulations.
(2) Any distribution in accordance with
subparagraph (1), above, will be made to HCEs, beginning with the
HCE with the highest dollar amount of After-Tax Contributions and
Match Contributions for the Plan Year in an amount required to
cause that HCE's After-Tax Contributions and Match Contributions
to equal the dollar amount of the After-Tax Contributions and
Match Contributions of the HCE with the next highest dollar
amount of After-Tax Contributions and Match Contributions (or in
such lesser amount that is equal to the total amount of excess
aggregate contributions). This process will continue until the
reduction equals the total excess aggregate contributions made to
the Plan. Such distributions will be made notwithstanding any
other provision of the Plan.
(3) The excess aggregate contributions to the
Plan will be determined in accordance with Section 401(m)(6)(B)
of the Code by performing the hypothetical calculation described
in this subparagraph (3). The actual contribution percentage of
the HCE with the highest individual actual contribution
percentage will be reduced to the extent necessary to cause his
actual contribution percentage to equal the actual contribution
percentage of the HCE with the second highest individual actual
contribution percentage (or, if it would result in a lesser
reduction, to the extent necessary to cause the Plan to satisfy
the actual contribution percentage under Section 4.3). The excess
aggregate contribution to the Plan is the amount by which the
After-Tax Contributions and Match Contributions on behalf of the
HCE with the highest individual actual contribution percentage
would have been reduced after the hypothetical reduction in
actual contribution percentage described in the preceding
sentence. This process will continue until no excess aggregate
contributions remain.
The determination of the excess aggregate contributions under
this subsection (e) for any Plan Year will be made after taking
the measures called for by the preceding subsections of this
Section 4.7.
(f) If, after all the actions required or permitted by
Section 4.6 and the preceding provisions of this Section 4.7 have
been taken, the Before-Tax Contributions, After-Tax
Contributions, and Match Contributions of HCEs cause the Plan to
violate the prohibition against multiple use imposed by Section
4.4, the contribution percentage of such HCEs will be reduced to
the extent necessary to cause the Plan to comply with that
prohibition, and the excess aggregate contributions will be
distributed (or, if forfeitable, will be forfeited) in the manner
described in subsection (e), above.
IV.8 Incorporation by Reference. Each incorporation by
reference in this Article IV of the provisions of
Sections 401(k)(3), (m)(2), (m)(9) and 415, and the specific
underlying regulations thereunder, includes this incorporation by
reference to any subsequent Internal Revenue Service guidance
issued thereunder.
ARTICLE V
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT OPTIONS
V.1 Individual Participant Accounting.
(a) Account Maintenance. The Administrator will cause
the Accounts for each Participant to reflect transactions
involving Contributions and other allocations thereto, loans,
earnings, losses, withdrawals, distributions and expenses to be
allocated and posted to the Accounts in accordance with the terms
of this Plan. Financial transactions during or with respect to
an Accounting Period will be accounted for at the individual
Account level by allocating and posting each transaction to the
Account as of a Trade Date. At any point in time, the value of a
Participant's Accrued Benefit will be equal to the sum of the
aggregate of the following amounts determined under (1), (2) and
(3) with regard to each Investment Option:
(1) the (A) Unit Values for the portion of his
Accounts invested in each Investment Options under 5.2(a)
multiplied by (B) the number of full and fractional units for
each such Investment Option posted to his Accounts.
(2) the (A) fair market value for the shares for
the portion of his Accounts invested in each Investment Option
under 5.2(b) multiplied by (B) the number of full and fractional
shares for each such Investment Option posted to his Accounts,
and
(3) the fair market value of any other assets of
the Trust Fund (exclusive of assets described in (1) and (2)) in
which a portion of his Accounts is invested or held.
(b) Trade Date Accounting and Investment Cycle. For
any transaction to be processed as of a Trade Date, the
Administrator must receive instructions by the Sweep Time and
such instructions will apply only to amounts held in and posted
to the Accounts as of the Trade Date. Except as otherwise
provided herein, all transactions will be effected on the Trade
Date relating to the Sweep Time (or as soon thereafter as is
administratively possible).
(c) Suspension of Transactions. Whenever the
Administrator considers such action to be in the best interest of
the Participants, the Administrator in its discretion may suspend
from time to time the Trade Date or reset the Sweep Time.
(d) How Fees and Expenses are Charged to Accounts.
Account maintenance fees will be charged to Accounts (to the
extent such fees are not paid by the Employer), provided that no
fee will reduce an Account balance below zero. Transaction type
fees (such as loan set-up fees, etc.) will be charged to the
Accounts involved in the transaction as determined pursuant to
procedures adopted by the Administrator. Fees and expenses
incurred for the management and maintenance of Investment Options
will be charged at the Investment Option level and reflected in
the net gain or loss of each Investment Option to the extent not
paid by the Employer.
(e) Error Correction. The Administrator may correct
any errors or omissions in the administration of the Plan by
crediting or charging any Account with the amount that would have
been allocated, credited or charged to the Account had no error
or omission been made. Funds necessary for any such crediting
will be provided through payment made by the Administrator, or,
if the Administrator was not responsible for such error or
omission, through payment by the Employer.
V.2 Accounting for Investment Options.
(a) Unit Accounting. The investments in each
Investment Option designated by the Administrator as subject to
unit accounting will be maintained in full and fractional units.
The Administrator is responsible for determining the number of
full and fractional units of each such Investment Option.
(b) Share Accounting. The investments in each
Investment Option designated by the Administrator as subject to
share accounting will be maintained in full and fractional
shares. The Administrator is responsible for determining the
number of full and fractional shares of each such Investment
Option.
V.3 Accounts for Alternate Payees. A separate Account will
be established for an Alternate Payee as of the date and in
accordance with the directions specified in the QDRO. Such
Account will be valued and accounted for in the same manner as
any other Account. An Alternate Payee will be treated as a
Participant to the extent provided as follows:
(a) Exchange Election. An Alternate Payee may direct
or exchange the investment of such Account in the same manner as
a Participant.
(b) Withdrawals and Forms of Payment. An Alternate
Payee will receive payment of the amount specified in the QDRO as
soon as administratively possible, regardless of whether the
Participant is an Employee, unless the QDRO specifically provides
that payment be delayed, including at the election of the
Alternate Payee. Payment may be made in the same forms as are
available to the Participant with respect to whom the QDRO has
been obtained, to the extent provided in the QDRO.
(c) Participant Loans. An Alternate Payee will not be
entitled to borrow from his Account. If a QDRO specifies that
the Alternate Payee is entitled to any portion of the Account of
a Participant who has an outstanding loan balance, all
outstanding loans will continue to be held in the Participant's
Account and will not be divided between the Participant's and
Alternate Payee's Accounts.
(d) Beneficiary. An Alternate Payee may designate a
Beneficiary in the same manner as a Participant, to the extent
provided for in the QDRO.
V.4 Transition Rules. The Administrator may adopt such
procedures, including imposing "transition" periods, as are
necessary to accommodate any plan mergers, Investment Option or
accounting changes or events, or similar events as it determines
are necessary for the proper administration of the Plan.
ARTICLE VI
INVESTMENT OPTIONS AND ELECTIONS
VI.1 Investment of Contributions.
(a) Investment Election. Each Participant may direct
the Administrator, by submission to the Administrator of an
Investment Election, to invest Contributions (and loan
repayments) posted to his Accounts and other amounts allocated
and posted to the Participant's Account in one or more Investment
Options; provided, however, that a separate Investment Election
is required for Rollover Contributions. Notwithstanding the
above, Match Contributions will be invested directly in the
Company Stock Fund. In the absence of an Investment Election,
Before-Tax Contributions, After-Tax Contributions and Rollover
Contributions (and loan repayments) will be invested in the Money
Market Fund.
(b) Effective Date of Investment Election; Change of
Investment Election. A Participant's initial Investment Election
will be effective with respect to an Investment Option on the
Trade Date which relates to the Sweep Time on which or prior to
which the Investment Election is received and not revoked
pursuant to procedures specified by the Administrator. A
Participant's Investment Election will continue in effect,
notwithstanding any change in his Compensation or his
Contribution Percentage, until the earliest of: (1) the effective
date of a new Investment Election; or (2) the date he ceases to
be a Participant. A change in Investment Election will be
effective with respect to an Investment Option as soon as
administratively possible after the date the Administrator
receives the Participant's new Investment Election.
VI.2 Investment of Accounts.
(a) Exchange Election. Notwithstanding a
Participant's Investment Election, a Participant may direct the
Administrator, by submission of an Exchange Election to the
Administrator, to change the investment of his Accounts between 2
or more Investment Options, on a pro rata basis with respect to
each of the Participant's Accounts (exclusive of the
Participant's loans).
(b) Effective Date of Exchange Election. An Exchange
Election to change a Participant's investment of his Accounts in
one Investment Option to another Investment Option will be
effective with respect to such Investment Options on the Trade
Date(s) which relates to the Sweep Time on which or prior to
which the Exchange Election is received and not revoked pursuant
to procedures specified by the Administrator. Notwithstanding
the foregoing, and except as provided in Section 12.1 below, an
Exchange Election made with respect to the Account balance of a
Participant who dies on or after the Effective Date will not be
valid if it is made after such time that is established by the
Administrator following the date the Administrator is notified of
such Participant's death.
(c) Delayed Effective Date. Notwithstanding any
provision of this Section 6.2 to the contrary, if the sell
portion of an Exchange Election can not be processed due to a
problem in the market, a liquidity shortage in an Investment
Option or disruption of other sell or buy orders in another
Investment Option, the buy portion of the Exchange Election will
not be processed on a Trade Date until the sell transaction can
be processed.
VI.3 Investment Options. The Plan's Investment Options are
indicated in Appendix 1.54. In addition, a Designated Officer
may, from time to time, as directed by the Investment Committee:
(a) limit or freeze investments in, or transfers from,
an Investment Option;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise reorganize an
existing Investment Option; or
(d) add new Investment Options to, or delete
Investment Options from, Appendix 1.54.
VI.4 Transition Rules. Effective as of the date designated
by the Designated Officer on which any Investment Option is
addressed under Section 6.3, each Participant will have the
opportunity to make new Investment Elections and Exchange
Elections to the Administrator no later than the applicable Sweep
Time. The Administrator may take such action as the
Administrator deems appropriate, including, but not limited to:
(a) using any reasonable accounting methods in
performing his duties during the period of transition;
(b) designating into which Investment Option a
Participant's Accounts or Contributions will be invested;
(c) establishing the method for allocating net
investment gains or losses and the extent, if any, to which
amounts received by and distributions paid from the Trust during
this period share in such allocation;
(d) investing all or a portion of the Trust's assets
in a short-term, interest-bearing Investment Option during such
transition period;
(e) delaying any Trade Date during a designated
transition period or changing any Sweep Time or Valuation Time
during such transition period; or
(f) designating how and to what extent a Participant's
Investment Election Exchange Election will apply to Investment
Options.
VI.5 Restricted Investment Options. Notwithstanding
anything contained herein to the contrary: (a) a Participant may
not direct investment of future Contributions or loan repayments
in, or direct transfer of any portion of his Account balance
into, the U.S. Savings Bond Investment Option or the Income Fund;
(b) purchases and sales in the Company Stock Fund will be
restricted for Participants subject to applicable statutory,
stock exchange or Company trading restrictions; and (c) amounts
invested hereunder will be subject to such restrictions as may be
imposed by (i) the issuer of securities to an Investment Option,
or (ii) the investment manager or advisor of such Investment
Option.
VI.6 Risk of Loss. Neither the Plan nor the Company
guarantees that the fair market value of the Investment Options,
or of any particular Investment Option, will be equal to or
greater than the amounts invested therein. Neither the Plan nor
the Company guarantees that the value of the Accounts will be
equal to or greater than the Contributions allocated thereto.
Except as required pursuant to ERISA, each Participant will have
sole responsibility for the investment of his Accounts and for
transfers among the available Investment Options, and no
fiduciary, or other person will have any liability for any loss
or diminution in value resulting from any Participants' exercise
of, or failure to exercise, such investment responsibility.
Each Member assumes all risk of any decrease in the value of the
Investment Options and the Accounts. The Plan is intended to
constitute a plan described in Section 404(c) of ERISA.
VI.7 Interests in the Investment Options. No Member will
have any claim, right, title, or interest in or to any specific
assets of any Investment Option until distribution of such assets
is made to such Member. No Member will have any claim, right,
title, or interest in or to the Investment Option, except as and
to the extent expressly provided herein.
VI.8 Sole Source of Benefits. Members may only seek payment
of benefits under the Plan from the Trust, and except as
otherwise required by law, the Employer assumes no responsibility
or liability therefor.
VI.9 Alternate Payees. See Section 5.3 for the treatment of
Alternate Payees as Participants for purposes of this Article VI.
ARTICLE VII
VESTING AND FORFEITURES
VII.1 Vesting in Match Account. Except as provided in
Section 7.2, an Active Participant will be 100 percent vested in
his Match Account if:
(a) he is credited with at least 5 years of Service;
(b) he attains age 65;
(c) he becomes Disabled;
(d) he dies;
(e) his employment with each Commonly Controlled
Entity is terminated:
(1) and such termination is involuntary and
results from the sale or other disposition of all or part of an
Employer to a person or entity which is not a Commonly Controlled
Entity;
(2) under the terms of (A) a written voluntary or
involuntary severance plan of general application is duly adopted
by the Company or (B) a separation agreement between the
Participant and an Employer; or
(3) and the Participant's job function has been
outsourced to a Contractor Firm pursuant to a contract between
the Contractor Firm and an Employer; or
(f) in the case of a Heritage BP Participant who was
hired prior to July 1, 1991, such Participant is credited with at
least 4 Years of Participation.
VII.2 Vesting in Heritage Amoco Match Account.
(a) A Participant with a Heritage Amoco Match Account
who does not have a nonforfeitable interest in such Account in
accordance with Section 7.1, above, will have a nonforfeitable
interest in a portion of such Account as determined in accordance
with the following schedule:
Years of Service Nonforfeitable Percentage
Less than 2 0%
2 but less than 3 25%
3 but less than 4 50%
4 but less than 5 75%
5 or more 100%
; provided that if a Participant has not made a withdrawal from
his Heritage Amoco Match Account, such Participant's
nonforfeitable interest in such Account will not be less than:
(i) the amount in such Account, minus
(ii) the sum of all of the Match Contributions credited
to such Account, multiplied by;
(iii) the applicable percentage determined in
accordance with the following schedule:
Years of Service Applicable Percentage
Less than 2 100%
2 but less than 3 75%
3 but less than 4 50%
4 but less than 5 25%
5 or more 0%
(b) If a withdrawal from a Participant's Heritage
Amoco Match Account has been made to him at a time when he is
less than 100 percent vested in such Account balance, the first
vesting schedule in Section 7.2(a) will thereafter apply as
follows: At any relevant time prior to a forfeiture of any
portion thereof under Section 7.4, a Participant's vested
interest in his Heritage Amoco Match Account will be equal to
P(AB+W)-W, where P is the Participant's nonforfeitable percentage
at the relevant time; AB is the Heritage Amoco Match Account
balance; and W is the sum of all prior withdrawals.
VII.3 Vesting in Before-Tax, After-Tax, and Rollover
Accounts. A Participant is always 100 percent vested in his
Before-Tax, After-Tax and Rollover Accounts.
VII.4 Forfeitures.
(a) If any portion of an Inactive Participant's Match
Account is not vested after the Effective Date, such portion will
be forfeited as follows:
(i) If the Inactive Participant receives a
withdrawal of his entire vested interest in his Account, the non-
vested portion of such Account will be forfeited upon the
complete withdrawal of such vested interest, subject to the
possibility of reinstatement as provided in Section 11.2. For
purposes of this subsection, if the value of the Inactive
Participant's vested interest in such Account balance is zero,
the Inactive Participant will be deemed to have received a
withdrawal of his vested interest immediately following his
Severance from Service.
(ii) The non-vested portion of an Inactive
Participant's Match Account will be forfeited after the
Participant has incurred a Break in Service of 7 consecutive 12-
month periods. The remaining vested portion of the Participant's
Match Account will be nonforfeitable and segregated from the
Participant's Match Account for so long as the Match Account is
not fully vested and such aggregated, vested portion of the Match
Account will no longer be subject to this Article if the Inactive
Participant subsequently becomes an Active Participant.
(b) Notwithstanding any provisions of this Article VII
to the contrary, Match Contributions (plus or minus any gains or
losses thereon) may be forfeited pursuant to the provisions of
Article IV.
(c) Forfeitures may be applied to reduce the
Employer's obligation to make Contributions hereunder or to pay
reasonable Plan expenses.
VII.5 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
Match Account, any Participant who is a Participant on the
effective date of such amendment or who is credited with 3 or
more years of Service will have a right to irrevocably elect to
have his nonforfeitable interest in such Match Account 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 Match
Account under the Plan, as amended, at any time is not less than
such interest determined without regard to such amendment. Such
election will be made during the period beginning on the date the
amendment is adopted and ending no later than the date which is
60 days after the latest of the following dates: (a) the date
the amendment is adopted; (b) the date the amendment becomes
effective; or (c) the date on which the Participant is issued
written notice of the amendment by the Administrator.
Notwithstanding the foregoing provisions of this Section 7.5, the
vested interest of each Participant on the effective date of such
amendment will not be less than his vested interest under the
Plan as in effect immediately prior to the effective date of such
amendment.
ARTICLE VIII
PARTICIPANT LOANS
VIII.1 Participant Loans Not Permitted. A Participant in
the Plan will not be eligible to apply for a loan from the Plan.
An Eligible Employee who becomes Participant in the Plan upon a
change of job status may have an outstanding loan or loans
transferred to this Plan from a Commonly Administered Plan
pursuant to Section 2.9.
VIII.2 Repayment Hierarchy. Loan principal repayments
will be allocated and posted to the Participant's Contribution
Accounts in the order that was used to fund the loan. Loan
interest will be allocated and posted to the Contribution
Accounts in direct proportion to the principal repayment. Loan
payments will be invested in Investment Options based upon the
Participant's current Investment Election for that Account except
that the current Investment Election in effect for Before-Tax and
After-Tax Contributions will also be applied for amounts posted
to the Participant's Match and Rollover Accounts.
VIII.3 Loan Note and Security. Any outstanding loan
transferred to this Plan pursuant to Section 2.9 will continue to
be governed by the promissory note and security agreement, which
will run in favor of this Plan. The Plan will have a lien on the
portion of a Participant's Account which originally secures the
loan, to the extent of any outstanding loan balance. Each such
note will constitute an asset of each of the Accounts from which
the source of the loan originated. Likewise, each security
agreement will represent a liability of each of the Accounts, but
only to the extent that the note constitutes an asset of such
Account.
VIII.4 Default.
(a) A Participant will default on a loan if any of the
following events occurs:
(1) the Participant's death;
(2) The Participant's failure to make the
equivalent of one month's payment of principal and interest on
the loan;
(3) the Participant misses less than one month's
repayment but the loan's term cannot be extended to recover these
repayments without extending its term beyond 5 years;
(4) the Participant's failure to perform or
observe any covenant, duty, or agreement under the promissory
note evidencing the loan;
(5) receipt by the Plan of an opinion of counsel
to the effect that (A) the Plan will, or could, lose its status
as a tax-qualified Plan unless the loan is repaid or (B) the loan
violates, or might violate, any provision of ERISA;
(6) any portion of the Participant's Account that
secures the loan becomes payable to the Participant, his
surviving Spouse or Beneficiary, an Alternate Payee, or any other
person; or
(7) the termination of the Plan.
VIII.5 Foreclosure.
(a) If a default on a loan occurs, the Participant,
the Participant's estate, or any other person will have 90 days
from the date of the default to pay the entire outstanding
balance of the loan to the Plan or may elect to make one partial
payment to the Plan to reduce the outstanding balance of the
loan. Upon the death of the Participant, payment may only be
made by certified check or such other means acceptable to the
Administrator.
(b) If full repayment does not happen under Section
8.4(a), the Participant's nonforfeitable interest in his Account
securing the loan will be applied immediately, to the extent
lawful, when and to the extent the Participant's Account is then
available for withdrawal in accordance with the applicable
provisions of the Plan, to pay the entire outstanding balance of
the loan (together with accrued and unpaid interest).
(c) Notwithstanding the foregoing, no portion of the
Participant's Before-Tax Account, or other Accounts which are not
available to be withdrawn, will be withdrawn or applied to pay an
outstanding loan before the date on which it is otherwise
withdrawable under the Plan. In the event of a default and
failure to repay under Section 8.4(a), the Administrator will
direct the Trustee to report the unpaid balance of the loan (less
amounts withdrawn under Section 8.4(b)) as a taxable
distribution. To the extent that the Participant's
nonforfeitable interest in his Account securing the loan has not
been applied under Section 8.4(b) to pay the entire outstanding
balance of the loan (together with accrued and unpaid interest),
(i) the loan may be repaid, (ii) no interest will accrue on such
loan, and (iii) any repayment will be allocated and posted to the
Participant's After-Tax Account and treated as an After-Tax
Contribution (other than for purposes of Article IV).
(d) Any failure by the Administrator to enforce the
Plan's rights with respect to a default on a loan will not
constitute a waiver of such rights either with respect to that
default or any other default.
ARTICLE IX
WITHDRAWALS
IX.1 Withdrawal from After-Tax Account. By applying to the
Administrator in the form and manner prescribed by the
Administrator, an Active Participant may elect to withdraw any
portion up to the entire value of his After-Tax Account. The
withdrawal will be taken first from any After-Tax Contributions
made prior to 1987. After pre-1987 After-Tax Contributions are
exhausted, such withdrawal will be taken from the balance of the
After-Tax Account with a portion of each withdrawal representing
a return of After-Tax Contributions in an amount equal to the
product of (a) the total withdrawal multiplied by (b) a fraction,
the numerator of which is the Participant's total After-Tax
Contributions remaining in the After-Tax Account prior to the
withdrawal and the denominator of which is the value of the
balance of the After-Tax Account.
IX.2 Withdrawal from Rollover Account. By applying to the
Administrator in the form and manner prescribed by the
Administrator, an Active Participant may elect to withdraw any
portion, up to the entire value of his Rollover Account.
IX.3 Withdrawal from Match Account.
(a) By applying to the Administrator in the form and
manner prescribed by the Administrator, an Active Participant who
is fully vested pursuant to Section 7.1 may elect to withdraw any
portion, up to the entire value of his Match Account; provided
that a fully vested Active Participant who has not participated
in the Plan for at least 5 Years of Participation may only
withdraw Match Contributions that have been in the Plan for at
least 2 years. For purposes of determining Years of
Participation in the Plan and the amount of time that Match
Contributions have been in the Plan, periods of participation and
accumulation under another plan may be considered, pursuant to
procedures established by the Administrator, in the case of a
transfer of assets and liabilities from such plan to the Plan.
(b) By applying to the Administrator in the form and
manner prescribed by the Administrator, an Active Participant may
elect to withdraw any portion, up to the value of his Heritage
Amoco Match Account, minus the greater of:
(i) the sum of all Match Contributions made with
respect to the Participant during the 24-month period preceding
the date of the withdrawal, or
(ii) the sum of all Match Contributions made with
respect to the Participant in which the Participant would not
have a nonforfeitable interest under Article VII if the
Participant Severed from Service on the date of the withdrawal.
IX.4 Withdrawal from Before-Tax Account for Hardship.
(a) Subject to the provisions of this Section 9.4, an
Active Participant may apply to the Administrator in the form and
manner prescribed by the Administrator, for a withdrawal from his
Before-Tax Account excluding any earnings posted to his Before-
Tax Account after December 31, 1988; provided that he has first
withdrawn the total value of his After-Tax Account, the total
value of his Rollover Account, and, to the extent the Participant
is vested, the total value of his Match Account pursuant to
Sections 9.1, 9.2 and 9.3.
(b) A withdrawal under this Section 9.4 will be
permitted only if the Administrator determines that such
withdrawal is (1) on account of a Participant's "Deemed Financial
Need" and (2) "Deemed Necessary" to satisfy the financial need.
A "Deemed Financial Need" will be limited to financial
commitments relating to:
(i) costs directly related to the purchase or
construction (excluding mortgage payments or balloon payments) of
a Participant's principal residence;
(ii) the payment of expenses for medical care
described in Section 213(d) of the Code previously incurred by
the Participant, the Participant's Spouse, or any dependents of
the Participant (as defined in Section 152 of the Code) or
necessary for those persons to obtain medical care described in
Section 213(d) of the Code;
(iii) payment of tuition and related
educational fees and room and board expenses for the next 12
months of post-secondary education for the Participant, his
Spouse, children or dependents (as defined in Section 152 of the
Code);
(iv) necessary payments to prevent the eviction of
the Participant from his principal residence or the foreclosure
on the mortgage of the Participant's principal residence; or
(v) the payment of funeral or burial expenses for
the Participant's Spouse or any dependents of the Participant (as
defined in Section 152 of the Code).
A withdrawal is "Deemed Necessary" to satisfy the financial need
only if all of these conditions are met:
(i) the withdrawal may not exceed the dollar
amount needed to satisfy the Participant's documented financial
hardship, plus an amount necessary to pay federal, state, or
local income taxes or penalties reasonably anticipated to result
from such withdrawal;
(ii) the Participant must have obtained all
distributions, other than financial hardship distributions, and
all nontaxable loans under all plans maintained by any Commonly
Controlled Entity;
(iii) the Participant will be suspended from
making Before-Tax Contributions and After-Tax Contributions (or
similar contributions under any other qualified or nonqualified
plan of deferred compensation maintained by a Commonly Controlled
Entity) for at least 12 months from the date the withdrawal is
received; and
(iv) the Contribution Dollar Limit for the taxable
year immediately following the taxable year in which the
financial hardship withdrawal is received will be reduced by the
Before-Tax Contributions for the taxable year in which the
financial hardship withdrawal is received.
IX.5 Withdrawals from Before-Tax Account for Other Reasons.
By applying to the Administrator in the form and manner
prescribed by the Administrator, an Active Participant who (a)
has attained age 59-1/2, or (b) becomes Disabled, may elect to
withdraw any portion, up to the entire value of his Before-Tax
Account.
IX.6 Partial Withdrawals. By applying to the Administrator
in the form and manner prescribed by the Administrator, an
Inactive Participant may make a pro rata withdrawal from all
Accounts of any amount up to the entire vested portion of the
value of those Accounts.
IX.7 Withdrawal Processing Rules.
(a) Minimum Amount. There is no minimum amount for
any type of withdrawal.
(b) Permitted Frequency. There is no maximum number
of withdrawals permitted in any Plan Year.
(c) Application by Participant. A Participant must
submit a withdrawal request in accordance with procedures
established by the Administrator. A Participant who is not an
Employee may make a withdrawal request, even if the Participant
is receiving amounts pursuant to a systematic withdrawal plan
under Article X.
(d) Approval by Administrator. The Administrator is
responsible for determining that a withdrawal request conforms to
the requirements described in this Section.
(e) Time of Processing. Except as otherwise provided
herein, the Administrator will process all withdrawal requests
which it receives by the Sweep Time that relates to the Payment
Date, based on the value as of the Trade Date to which it
relates, and fund them on the next Settlement Date. The
Administrator will then make payment to the Participant as soon
thereafter as is administratively possible.
(f) Medium and Form of Payment. The medium of payment
for withdrawals is all cash; provided however, a withdrawal may
be paid, as directed by the Participant, all in kind to the
extent the withdrawal is funded from the Company Stock Fund.
Notwithstanding the foregoing, a Heritage BP Participant may
direct payment all in kind to the extent the withdrawal is funded
from the following Investment Options:
INVESCO Total Return Fund
Fidelity Blue Chip Growth Fund
Vanguard Wellesley Income Fund
Vanguard Growth and Income Portfolio
Vanguard Windsor Fund
The form of payment for all withdrawals will be a single
installment.
(g) Investment Option Sources. Within each Account
used for funding a withdrawal, amounts will be taken by
Investment Option in direct proportion to the market value of the
Participant's interest in each Investment Option (which excludes
the Participant's loans) as of the Trade Date on which the
withdrawal is made, unless the Participant elects a withdrawal
from specific Investment Option(s).
(h) Direct Rollover. With respect to any cash payment
hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment
paid to an Eligible Retirement Plan.
(i) Outstanding Loan. Notwithstanding any other
provision of this Article IX, the portion of a Participant's
Account that secures a loan to such Participant under Article
VIII may not be taken as a withdrawal.
(j) Spousal Consent. Spousal Consent will not be
required for any withdrawal except with respect to a Heritage BP
Participant who has elected an annuity form of distribution
pursuant to Section 10.10.
(k) Required Withdrawals. Notwithstanding any
provision of the Plan to the contrary, the Payment Date of the
Accrued Benefit of a Participant who is a 5-percent owner (as
defined in Section 416 of the Code), will not be later than
April 1 following the calendar year in which the Participant
attains age 70-1/2 (with required withdrawals to be made by each
December 31 thereafter) and will comply with the requirements of
Section 401(a)(9) of the Code and the Treasury Regulations
promulgated thereunder.
(l) Hierarchy. Except in the case of a withdrawal
from a specific Account pursuant to and only to the extent
permitted by Sections 9.1, 9.2, 9.3 or 9.4, the funds used to
finance a withdrawal described in Section 9.5 or 9.6 will be
derived from the Participant's Accounts (exclusive of the
Participant's loans) in the following order (to the extent
necessary to finance the withdrawal):
After-Tax Account
Rollover Account
Match Account (to the extent vested)
Before-Tax Account (but only for a withdrawal under Section 9.5
or for an Inactive Participant making a withdrawal under
Section 9.6)
IX.8 Alternate Payees. See Section 5.3 for the application
of the provisions of this Article IX to Alternate Payees.
ARTICLE X
ADDITIONAL OPTIONAL FORMS OF BENEFIT
FOR AN INACTIVE PARTICIPANT
X.1 Request for Withdrawal of Benefits.
(a) Request for Withdrawal. Subject to the other
requirements of this Article, an Inactive Participant may elect
to have all of his vested Accrued Benefit paid to him beginning
upon any Settlement Date following his Severance from Service
(and prior to a Reemployment Date) in a form of payment allowed
hereunder.
(b) Failure to Request Withdrawal. If an Inactive
Participant fails to submit a withdrawal request in accordance
with procedures established by the Administrator by the last
Payment Date permitted under this Article, his vested Accrued
Benefit will be valued as of the Valuation Date which immediately
precedes such latest date of withdrawal (the "Default Valuation
Date") and a notice of such withdrawal will be issued to his last
known address as soon as administratively possible. If the
Participant does not respond to the notice or cannot be located,
his vested Accrued Benefit determined on the Default Valuation
Date will be treated as a forfeiture. If the Participant
subsequently files a claim, the amount forfeited (unadjusted for
gains and losses) will be reinstated to his Accounts and
distributed as soon as administratively possible, and such
payment will be accounted for by charging it against the
forfeiture account or, to the extent the forfeiture account is
insufficient, by a contribution from the Employer of the affected
Inactive Participant.
X.2 Deadline for Withdrawal.
(a) Required Commencement at Retirement. A
Participant must make a request for payment before payment must
commence under this Section 10.2(a). In addition to any other
Plan requirements and unless the Inactive Participant elects
otherwise, or cannot be located, but subject to the preceding
sentence, the Payment Date of an Inactive Participant's vested
Accrued Benefit will be not later than 60 days after the latest
of the close of the Plan Year in which: (i) the Participant
attains the earlier of age 65 or his Normal Retirement Date; (ii)
occurs the tenth anniversary of the Plan Year in which the
Inactive Participant commenced participation in the Plan; or
(iii) the Participant had a Severance from Service. However, if
the amount of the payment or the location of the Inactive
Participant (after a reasonable search) cannot be ascertained by
that deadline, payment will be made no later than 60 days after
the earliest date on which such amount or location is
ascertained.
(b) Minimum Required Distributions. In any case, the
Payment Date of the Accrued Benefit of a Participant (i) who is
not an Employee, or (ii) who is an Employee and who is a 5-
percent owner (as defined in Section 416 of the Code), will not
be later than April 1 following the calendar year in which the
Participant attains age 70-1/2 (with required distributions to be
made by each December 31 thereafter) and will comply with the
requirements of Section 401(a)(9) of the Code and the Treasury
Regulations promulgated thereunder.
X.3 Payment Form and Medium.
(a) General. An Inactive Participant's vested Accrued
Benefit may be paid:
(1) in the form of a single sum, or
(2) under a systematic withdrawal plan (installments)
permitted under the Plan.
Within each Account used for funding a withdrawal, amounts will
be taken by Investment Option in direct proportion to the market
value of the Participant's interest in each Investment Option at
the Trade Date for which the distribution is made, unless the
Participant elects a withdrawal from specific Investment
Option(s).
(b) Medium of Payment. Payments will be made in cash;
alternatively, to the extent the withdrawal is funded from the
Company Stock Fund, the Inactive Participant can elect to receive
payment in whole shares of Company Stock or a combination of
whole shares and cash. A Heritage BP Participant who is an
Inactive Participant and who elects a single sum withdrawal may
also elect to receive a payment in kind to the extent the
withdrawal is funded from the following funds:
INVESCO Total Return Fund
Fidelity Blue Chip Growth Fund
Vanguard Wellesley Income Fund
Vanguard Growth and Income Portfolio
Vanguard Windsor Fund
(c) All withdrawals pursuant to Section 10.3(a)(2)
will be made exclusively in cash in accordance with the following
rules:
(1) The funds used to finance the withdrawal will
be derived from the Inactive Participant's Account (exclusive of
the Participant's loans) in the following order (to the extent
necessary to obtain the amount necessary to finance the
distribution):
After-Tax Account (unmatched first)
Rollover Account
Match Account (to the extent vested)
Before-Tax Account (unmatched first)
(2) Within each Account used for funding a
withdrawal, amounts will be taken in direct proportion to the
market value of the Participant's interest in each Investment
Option at the Trade Date on which the withdrawal is made.
(d) An Inactive Participant who is receiving
withdrawals pursuant to Section 10.3(a)(2) may elect to
accelerate payments, receive a lump-sum distribution of the
remainder of his Accounts or to receive a withdrawal under
Article IX.
(e) If an Inactive Participant who elects to receive
installment payments pursuant to this Section 10.3 dies after his
initial Payment Date but before his nonforfeitable interest in
his Account has been fully distributed, the Inactive
Participant's Beneficiary will receive the remainder of the
Participant's nonforfeitable interest in his Account (determined
as of the Trade Date on which the distribution is made) in a lump-
sum payment as of a Valuation Time that occurs as soon as
practicable following the Inactive Participant's death and the
Administrator's receipt of all information and documentation that
it requires before making the distribution.
X.4 Small Amounts Paid Immediately. If an Inactive
Participant's vested Accrued Benefit is $5,000 or less (or such
larger amount as may be specified in Section 411(a)(11) of the
Code) at any time, including after withdrawals have commenced,
the Inactive Participant's Accrued Benefit will be paid as a
single sum as soon as administratively possible, pursuant to such
procedures as may be established by the Administrator.
X.5 Payment Within Life Expectancy. An Inactive
Participant's payment election must be consistent with the
requirement of Section 401(a)(9) of the Code that all payments
are to be completed within a period not to exceed the lives or
the joint and last survivor life expectancy of the Inactive
Participant and his Beneficiary. The life expectancies of an
Inactive Participant and his Beneficiary may be recalculated
annually. If the Inactive Participant does not properly notify
the Administrator regarding whether life expectancies will be
recalculated annually, they will not be. A single life
expectancy will be used if the Inactive Participant does not
properly notify the Administrator regarding the period to be
used. The elections regarding the life expectancy or
expectancies to be used with respect to an Inactive Participant's
payment election and the extent to which recalculation will apply
will be irrevocable.
X.6 Incidental Benefit Rule. The Participant's payment
election must be consistent with the requirement that, if the
Participant's Spouse is not his sole primary Beneficiary, the
minimum annual distribution for each calendar year, beginning
with the year in which he attains age 70-1/2, will not be less
than the quotient obtained by dividing (a) the Inactive
Participant's vested Accrued Benefit as of the last Trade Date of
the preceding year by (b) the applicable divisor as determined
under the incidental benefit requirements of Section 401(a)(9) of
the Code.
X.7 Continued Payment of Amounts in Payment Status on
Effective Date. Any person who became an Inactive Participant on
the Effective Date only because he had an Accrued Benefit and who
had commenced to receive payments prior to the Effective Date
will continue to receive such payments in the same form and
payment schedule under this Plan.
X.8 Direct Rollover. With respect to any cash payment
hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment
paid to an Eligible Retirement Plan.
X.9 Delay. Notwithstanding any other provision of the
Plan, a payment will not be considered to be made after the
applicable Payment Date merely because actual payment is
reasonably delayed for the calculation and/or distribution of the
benefit amount, or to ascertain the location of the payee, if all
payments due are actually made.
X.10 Grandfather Provisions. If Section 10.4 is not
applicable, a Heritage BP Participant who is an Inactive
Participant may elect to receive the value of his Accounts 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 the
Participant in accordance with procedures established by the
Administrator. The following information and election rules will
apply to any Heritage BP Participant who elects an annuity option
under this Section 10.10 or under BP CAP:
(a) "QJSA". A qualified joint and survivor annuity,
meaning a form of benefit payment which is the actuarial
equivalent of the Participant's vested Accrued Benefit at the
Payment Date, payable to the Participant in monthly payments for
life and providing that, if the Participant's Spouse survives
him, monthly payments equal to not less than 50 percent (and not
greater than 100 percent) of the amount payable to the
Participant during his lifetime will be paid to the Spouse for
the remainder of his lifetime.
(b) "QPSA". A qualified pre-retirement survivor
annuity, meaning that upon the death of a Participant before the
Payment Date of his vested Accrued Benefit, such benefit will
become payable to the surviving Spouse as an annuity, unless
Spousal Consent has been given to a different Beneficiary or the
surviving Spouse chooses a different form of payment.
(c) QJSA Information to a Participant. No more than
90 days before the Payment Date, each Participant who has a
Spouse and requests an annuity form of payment will be given a
written explanation of (1) the terms and conditions of the QJSA;
(2) the right to make an election to waive this form of payment
and choose an optional form of payment and the effect of this
election; (3) the right to revoke this election and the effect of
this revocation; (4) the need for Spousal Consent; and (5) the
right of the Participant to consider, for at least 30 days,
whether to waive the QJSA.
(d) QJSA Election. A Participant may elect (and such
election will include Spousal Consent if married), at any time
within the 90 day period ending on the Payment Date, to (1) waive
the right to receive the QJSA and elect an optional form of
payment; or (2) revoke or change any such election.
(e) QJSA Spousal Consent to Participant Loans.
Spousal Consent must be obtained for any Participant loan which
is funded from any amount to which the election in paragraph (d)
above applies within the 90 day period ending on the date such
loan is secured.
(f) QJSA Spousal Consent to Withdrawals. Spousal
Consent must be obtained for any Participant withdrawal which is
funded from any portion of an Account to which the election in
paragraph (d) above applies within the 90 day period ending on
the date of such withdrawal.
(g) QPSA Beneficiary Information to Participant. Each
married Participant who has requested an annuity form of payment
will be given written information stating that (1) his death
benefit is payable to his surviving Spouse; (2) his ability to
choose that the benefit be paid to a different Beneficiary;
(3) the right to revoke or change a prior designation and the
effects of such revocation or change; and (4) the need for
Spousal Consent. Such information will be provided during
whichever of the following periods ends later:
(i) the period that begins 1 year before the date
on which the Participant requests an annuity form of payment and
that ends 1 year after such date; and
(ii) the period that begins with the first day of
the Plan Year in which the Participant attains age 32 and that
ends with the close of the Plan Year in which the Participant
attains age 35.
Notwithstanding the foregoing, if the Participant incurs a
Severance from Service after requesting an annuity form of
payment, but before attaining age 35, the information described
in the first sentence of this subsection will be provided during
the period that begins 1 year before the date of the
Participant's Severance from Service and that ends 1 year after
such date.
(h) QPSA Beneficiary Designation by Participant. A
married Participant may designate (with Spousal Consent) a
non-spouse Beneficiary at any time after the Participant has been
given the information described in paragraph (g) above and upon
the earlier of (1) the date the Participant incurs a Severance
from Service, or (2) the beginning of the Plan Year in which that
Participant attains age 35.
X.11 Alternate Payees. See Section 5.3 for the application
of the provisions of this Article X to Alternate Payees.
ARTICLE XI
REEMPLOYMENT
XI.1 Break in Service Rules.
(a) Subject to subsection (b), a Participant who is at
least partially vested in his Match Account will always have all
periods of Service recognized under the Plan for vesting
purposes, regardless of the length of any Break in Service.
(b) (1) If an Inactive Participant returns to
employment as an Employee at a time after he has incurred a Break
in Service of at least 7 consecutive 12-month periods, upon his
Reemployment Date with any Commonly Controlled Entity, his
Service earned after such Break in Service will be disregarded
for purposes of determining the Participant's vested interest in
his Match Account attributable to employment before such Break in
Service.
(2) If a Heritage Amoco Participant who Severed
from Service while under AESP prior to the Effective Date and has
a Break in Service of at least 5 consecutive years prior to the
Effective Date (determined under the terms of AESP as in effect
immediately prior to the Effective Date), upon his Reemployment
Date with any Commonly Controlled Entity, his Service earned
after such Break in Service will be disregarded for purposes of
determining the Participant's vested interest in his Match
Account attributable to employment before such Break in Service.
(c) If an Inactive Participant who is not at least
partially vested in his Match Account returns to employment as an
Employee at a time after he has incurred a Break in Service of at
least one 12-month period, but less than 7 consecutive 12-month
periods, the period of such Break in Service will be excluded in
determining such Employee's Service for vesting purposes.
(d) If an Inactive Participant who is not at least
partially vested in his Match Account returns to employment as an
Employee at a time after he has incurred a Break in Service of at
least 7 consecutive 12-month periods, upon his Reemployment Date
his Service earned prior to such Break in Service will be
disregarded for all purposes.
XI.2 Restoration of Forfeited Amounts.
(a) If a Participant forfeits any portion of his
Account under Section 7.4(a) because of the withdrawal of his
complete vested interest in his Accounts after the Effective
Date, but again becomes an Employee before the date he incurs a
Break in Service of at least 7 consecutive 12-month periods, then
the amount so forfeited, without any adjustment for the earnings,
expenses, losses, or gains of the assets credited to his Accounts
since the date forfeited, will be recredited to his Accounts,
The amount to be recredited pursuant to this paragraph will be
accounted for by charging it against the forfeiture account or,
to the extent the forfeiture account is insufficient, by a
contribution from the Employer of the affected Participant.
(b) A Heritage BP Participant who Severed from Service
while under BP CAP prior to the Effective Date and who
subsequently has a Reemployment Date after the Effective Date
within 7 years of such Severance from Service will have any
forfeited amount restored to his Match Account, adjusted as
though such amounts had been invested in the Income Fund since
the date forfeited and invested in accordance with the
Participant's new Investment Election for Before-Tax and After-
Tax Contributions. However, if such a Participant had received a
distribution of part or all of his Accounts, he must repay, in
cash, the full amount of such distribution on or before his final
repayment date before any such forfeited amount will be restored
to his Accounts and invested in accordance with the Participant's
Investment Election for Before-Tax and After-Tax Contributions.
In this case, no interest will be accrued on such forfeited
amount from the time of the distribution until the time the
distribution is repaid. For purposes of repaying the
distribution amounts the "final repayment date" will be 5 years
after his Reemployment Date. Amounts previously forfeited after
a Break in Service of at least 7 consecutive 12-month periods
will not be restored.
(c) A Heritage Amoco Participant who Severed from
Service while under AESP prior to the Effective Date and
subsequently has a Reemployment Date after the Effective Date
within 7 years of such Severance from Service will have any
forfeited amount, without any adjustment for the earnings,
expenses, losses, or gains of the assets allocated to his
Accounts since the date forfeited, restored to his Match Account
and invested in accordance with the Participant's new Investment
Election for Before-Tax and After-Tax Contributions. Amounts
previously forfeited after a Break in Service of at least 7
consecutive 12-month periods will not be restored.
(d) Notwithstanding the foregoing paragraph (c), a
Heritage Amoco participant who Severed from Service while under
AESP prior to the Effective Date and had a Break in Service of at
least 5 consecutive years prior to the Effective Date (determined
under the terms of AESP as in effect immediately prior to the
Effective Date) will not have any forfeited amount restored to
his Match Account.
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
XII.1 Payment to Beneficiary. On the death of a
Participant, his vested Accrued Benefit will be invested in the
Money Market Fund and will be paid to the Beneficiary or
Beneficiaries designated by the Participant in a single sum as
soon as practicable following the Participant's death, in
accordance with procedures established by the Administrator. The
Administrator may establish procedures to allow for such
Beneficiary or Beneficiaries to elect: (a) to accelerate the
time at which the Accrued Benefit is to be invested in the Money
Market Fund following the Participant's death, and (b) that all
or a portion of the Accrued Benefit invested in the Company Stock
Fund be distributed in kind.
XII.2 Beneficiary Designation.
(a) Each Participant may designate the Beneficiary who
is to receive the Participant's remaining Plan interest at his
death. The Participant may change his designation of Beneficiary
by filing a new designation with the Administrator.
Notwithstanding any designation to the contrary, the
Participant's Beneficiary will be the Participant's surviving
Spouse, unless such designation includes Spousal Consent. In the
absence of Spousal Consent, a Participant will be deemed to have
designated his surviving Spouse as his Beneficiary unless and to
the extent that such designation is inconsistent with a QDRO. If
the Participant dies leaving no Spouse and either (1) the
Participant failed to file a valid Beneficiary designation, or
(2) all persons designated as Beneficiary have predeceased the
Participant, the Administrator will have the Trustee distribute
such Participant's Accrued Benefit in a single sum to his estate
as soon as practicable following the Participant's death.
(b) Subject to the provisions of this Section, a
Participant may designate a Beneficiary under the Plan at any
time by making the designation in the form and manner and at the
time determined by the Administrator. No such designation will
be effective until and unless it is received by the
Administrator.
(c) Subject to the provisions of this Section, a
Participant may revoke a prior designation of a Beneficiary at
any time by making the revocation in the form and manner and at
the time determined by the Administrator. No such revocation
will be effective until and unless it is received by the
Administrator.
(d) Subject to the provisions of this Section, if a
Participant designates his Spouse as his Beneficiary, except to
the extent required by applicable law, that designation will not
be revoked or otherwise altered or affected by any:
(i) change in the marital status of the
Participant and such Spouse,
(ii) agreement between the Participant and such
Spouse.
(e) If a Participant designates his Spouse as his
Beneficiary, and the Administrator receives a QDRO with respect
to the marriage, separation or divorce of the Participant and
such Spouse, such Spouse will cease to be the Participant's
Beneficiary unless and until the Participant again designates his
Spouse as his Beneficiary in accordance with the provisions of
this Section, except to the extent otherwise provided in the
QDRO.
(f) Except as provided in Section 12.4, after a
Participant's death, the Participant's Beneficiary will not have
the rights and options otherwise available under the Plan to
Participants. For example, a Beneficiary will not have the right
to exchange an Account among the Investment Options. The
Beneficiary's sole right under the Plan will be to receive a
distribution in accordance with Section 12.1. Payment will be
made prior to such time as is required under Section 401(a)(9) of
the Code and the regulations thereunder.
(g) A Participant's Beneficiary may not be changed
following the Participant's death, including, but not limited to,
by a disclaimer otherwise valid under applicable law.
XII.3 Direct Rollover. With respect to any cash payment
hereunder which constitutes an Eligible Rollover Distribution, a
Distributee may direct the Administrator to have such payment
paid to an Eligible Retirement Plan.
XII.4 Grandfather Provisions. In the case of a
Participant's death prior to the Effective Date, the vested
portion of the Participant's Accounts will be distributed in
accordance with the terms of the Prior Plan.
XII.5 Alternate Payees. See Section 5.3 for the
application of the provisions of this Article XII to Alternate
Payees.
ARTICLE XIII
TRUST ARRANGEMENT
XIII.1 Trust Agreement. A Designated Officer may enter
into one or more Trust Agreements to provide for the holding,
investment and payment of Plan assets. All Trust Agreements, as
from time to time amended, will continue in force and will be
deemed to form a part of the Plan. Subject to the requirements
of the Code and ERISA, the Administrator may cause assets of the
Plan which are securities to be held in the name of a nominee or
in street name provided such securities are held on behalf of the
Plan by:
(a) a bank or trust company that is subject to
supervision by the United States or a State, or a nominee of such
bank or trust company;
(b) a broker or dealer registered under the Securities
Exchange Act of 1934, or a nominee of such broker or dealer; or
(c) a "clearing agency" as defined in Section 3(a)(23)
of the Securities Exchange Act of 1934, or its nominee.
XIII.2 Separate Entity. The Trust Fund under this Plan
from its inception will be a separate entity aside and apart from
the Employers or their assets, and the corpus and income thereof
will in no event and in no manner whatsoever be subject to the
rights or claims of any creditor of any Employer.
XIII.3 Plan Asset Valuation. As of the Valuation Time
each Business Day, the value of the Plan's assets held or posted
to an Investment Option will be determined.
XIII.4 Right of Employers to Plan Assets. The Employers
will have no right or claim of any nature in or to the assets of
the Plan except the right to require the Trustee to hold, use,
apply, and pay such assets in its possession in accordance with
the Plan for the exclusive benefit of the Participants or their
Beneficiaries and for defraying the reasonable expenses of
administering the Plan; provided, that:
(a) if the Plan receives an adverse determination with
respect to its initial qualification under Sections 401(a),
401(k) and 401(m) of the Code, Contributions conditioned upon the
qualification of the Plan will be returned to the appropriate
Employer within 1 year of such denial of qualification; provided,
that the application for determination of initial qualification
is made by the time prescribed by law for filing the respective
Employer's return for the taxable year in which the Plan is
adopted, or by such later date as is prescribed by the Secretary
of the Treasury under Section 403(c)(2)(B) of ERISA;
(b) if, and to the extent that, deduction for a
Contribution under Section 404 of the Code is disallowed,
Contributions conditioned upon deductibility will be returned to
the appropriate Employer within 1 year after the disallowance of
the deduction;
(c) if, and to the extent that, a Contribution is made
through mistake of fact, such Contribution will be returned to
the appropriate Employer within 1 year of the payment of the
Contribution; and
(d) any amounts held suspended pursuant to the
limitations of Section 415 of the Code will be returned to the
Employers upon termination of the Plan.
All Contributions made hereunder are hereby expressly conditioned
upon the Plan being qualified under Sections 401(a), 401(k) and
401(m) of the Code and a deduction being allowed for such
contributions under Section 404 of the Code. Before-Tax
Contributions returned to an Employer pursuant to this Section
will be paid to the Participant for whom contributed as soon as
administratively convenient. If these provisions result in the
return of Contributions after such amounts have been allocated to
Accounts, such Accounts will be reduced by the amount of the
allocation attributable to such amount, adjusted for any losses
or expenses.
ARTICLE XIV
ADMINISTRATION
XIV.1 General.
(a) Designated Officer and Administrator. The
Company, through its by-laws and the authority vested in the
Board of Directors, hereby:
(1) enables a Designated Officer to have the
power and authority to act, to the extent provided herein, on
behalf of the Company, with respect to matters which relate to
the Plan, but not on behalf of the Plan; and
(2) establishes the Administrator and enables the
Administrator to have the power and authority to act, to the
extent provided herein, on behalf of the Plan, but not on behalf
of an Employer or the Company.
(b) Designated Officer Acting on Behalf of the
Company. Each Designated Officer will have the following
authority and control, and such other authority and control as
will be granted to it, from time to time, by the Board of
Directors or one of its committees, to act on behalf of the
Company but subject to any limitations imposed on such authority
and control by the Board of Directors or one of its committees:
(1) to identify (and remove) any person as an
Administrative Named Fiduciary with respect to certain authority
to control and manage the administration and operation of the
Plan, in the manner provided herein;
(2) to consult with legal counsel, independent
consulting or evaluation firms, accountants, actuaries, or other
advisors, as necessary, to perform its functions;
(3) to determine what expenses, if any, related
to the operation and administration of the Plan will be paid from
Employer assets, subject to applicable law;
(4) to establish such policies and, through the
use of such method of taking action as will be selected by a
Designated Officer, to make such delegations or designations as
may be necessary or incidental to a Designated Officer's
authority and control over the Plan to such officers or
executives as have functional responsibility in the respective
areas;
(5) to amend, in part or completely, the Plan
document;
(6) to add a corporation or business entity as a
participating Employer or to remove such corporation or entity as
a participating Employer on such terms and in such manner as a
Designated Officer, in its discretion, will determine; and
(7) to take all other actions allocated to a
Designated Officer in this Plan or which a Designated Officer
determines in good faith to be necessary or desirable to fulfill
its duties and obligations under the Plan.
(c) Administrator as an Applicable Named Fiduciary.
The Administrator, acting on behalf of the Plan and subject to
the last sentence of this Section 14.1(c), will be an Applicable
Named Fiduciary with respect to the authority to manage and
control the administration and operation of the Plan, including
without limitation, the following:
(1) to appoint and compensate from the Trust Fund
such specialists (including attorneys, actuaries, consultants and
accountants) to aid it in the operation and administration of the
Plan, and arrange for such other services, as the Administrator
considers necessary or appropriate in carrying out the provisions
of the Plan;
(2) to appoint and compensate from the Trust Fund
an independent outside accountant to conduct such audits of the
financial statements of the Plan as the Administrator considers
necessary or appropriate;
(3) to execute on behalf of the Plan, or to cause
the Trustee to execute on behalf of the Plan, Administrative
Services Agreements or other contracts which are legally
enforceable and binding on the Plan, subject to ERISA;
(4) to authorize a person who may, but need not,
be an officer or Employee of an Employer to be this Plan's agent
for service of legal process and to execute documents on behalf
of the Administrator, including any instructions to the Trustee;
(5) to authorize a settlement or compromise any
litigation resulting in a final liability to the Plan and Trust;
and
(6) to delegate its authority and control over
management and operation of the Plan to a Fiduciary pursuant to
the procedures herein or to empower certain entities to act as
its agent with respect to such authority and control;
(7) to make a claim determination, based upon (i)
the information known to the Administrator, (ii) determinations
made by an Employer, (iii) such other information presented to
the Administrator in a manner consistent with its rules and
procedures for presenting evidence, and (iv) such final
determinations as may be made by each other Applicable Named
Fiduciary within the scope of its authority and control, all as
are determined to be relevant by the Administrator, as to any
matter or issue presented to him through the Plan's appeals
procedure;
(8) maintain participant records;
(9) administer QDROs; and
(10) to determine eligibility for participation
and benefits under this Plan, including, without limitation, the
determination of those individuals who are deemed to be an
Employee of any Commonly Controlled Entity.
A Designated Officer will not be an Applicable Named Fiduciary
whenever it acts on behalf of the Company rather than as, for
example, Administrator and, notwithstanding any other term or
provision of the Plan, the Administrator will cease to be an
Applicable Named Fiduciary with respect to any specified portion
of the operation and administration of the Plan, to the extent
that another Applicable Named Fiduciary is designated pursuant to
the procedure in the Plan to severally have authority to manage
and control such portion of the operation and administration of
the Plan.
(d) Procedures for Identification of an Administrative
Named Fiduciary. A Designated Officer, acting on behalf of the
Company, may from time to time, identify (or revoke such
identification of) a person to be an Administrative Named
Fiduciary with respect to some portion of the authority to manage
and control operation and administration of the Plan. Such
identification will either (i) involve the designation of the
person by name or title in the Plan or Trust document and
specification in the Plan or Trust document of the management and
control authority with respect to which the person will be an
Administrative Named Fiduciary; or (ii) refer to an
Administrative Services Agreement with such person to provide
services to or on behalf of the Plan or Trust and use such
Administrative Services Agreement as a means for specifying the
management and control authority with respect to which such
person will be an Administrative Named Fiduciary. A Designated
Officer may make such identification by use of such method of
taking action as such Designated Officer may select. The Board
of Directors, by resolution, may also identify (or revoke such
identification of) a person to be an Administrative Named
Fiduciary with respect to some portion of the authority to manage
and control the operation and administration of the Plan. No
person who is identified as an Administrative Named Fiduciary
hereunder must consent to such identification nor will it be
necessary for a Designated Officer to seek such person's
acquiescence; however, where such person has not signed an
Administrative Services Agreement, he must be given notification
of the services to be performed and perform such services. The
authority to manage and control, which any person who is
identified to be an Administrative Named Fiduciary hereunder may
have, will be several and not joint with the Administrator and
will result in the Administrator no longer being an
Administrative Named Fiduciary with respect to, nor having any
longer, such authority to manage and control. On and after the
designation of a person as an Administrative Named Fiduciary, the
Company, the Employer, each Designated Officer, the
Administrator, and any other Administrative Named Fiduciary with
respect to the Plan, will have no liability for the acts (or
failure to act) of any such Administrative Named Fiduciary except
to the extent of its co-fiduciary duty under ERISA.
(e) Discretionary Authority of Administrative Named
Fiduciary. Each Administrative Named Fiduciary on behalf of the
Plan will enforce the Plan in accordance with its terms. Each
Administrative Named Fiduciary will have full and complete
authority to control and manage that portion of the
administration and operation of the Plan allocated to such
Administrative Named Fiduciary, including, but not limited to,
the authority and discretion to:
(1) Formulate, adopt, issue and apply procedures
and rules and change, alter or amend such procedures and rules in
accordance with law and as may be consistent with the terms of
the Plan;
(2) Exercise such discretion as may be required
to construe and apply the provisions of the Plan, subject only to
the terms and conditions of the Plan; and
(3) To take all other actions already described
in this Plan or which the Administrative Named Fiduciary
determines in good faith to be necessary or desirable to fulfill
its duties and obligations under the Plan.
(f) Allocations and Delegations of Responsibility.
(1) Delegations. Each Administrative Named
Fiduciary may designate persons (other than an Administrative
Named Fiduciary) to carry out Fiduciary responsibilities it may
have with respect to the Plan and make a change of delegated
responsibilities; provided, however, trustee responsibilities may
only be delegated to an investment manager as described in ERISA.
Such delegation will either: (A) specify the delegated person by
name or position and specify the discretionary authority with
respect to which the person will be a Fiduciary; or (B) refer to
an Administrative Services Agreement with such person to provide
services to the Plan on behalf of the delegating Administrative
Named Fiduciary as a means of specifying the discretionary
authority with respect to which such person will be a Fiduciary.
The Administrative Named Fiduciary may make such delegations by
use of such method of taking action which it may select. No
person (other than an investment manager (as defined in
Section 3(38) of ERISA)) to whom Fiduciary responsibility has
been delegated must consent to being a Fiduciary nor will it be
necessary for the delegating Administrative Named Fiduciary to
seek such person's acquiescence; however, where such person has
not signed an Administrative Services Agreement, he must be given
notification of the services to be performed and perform such
services. The discretionary authority any person who is
delegated Fiduciary responsibilities hereunder may have will be
several and not joint with the delegating Administrative Named
Fiduciary. A delegation of Fiduciary responsibility to a person
which is not implemented in the manner set forth herein will not
be void; however, whether the delegating Administrative Named
Fiduciary will have joint liability for acts of such person will
be determined by applicable law.
(2) Allocations. A Designated Officer, acting on
behalf of the Company, may allocate Fiduciary responsibilities
(other than trustee responsibilities described in
Section 405(c)(3) of ERISA) among named fiduciaries when it
identifies an Administrative Named Fiduciary in the manner
described in paragraph (d) hereof, or may reallocate Fiduciary
responsibilities among existing named fiduciaries by action of a
Designated Officer in accordance with paragraph (d) hereof. An
allocation of Fiduciary responsibility to a person which is not
implemented in the manner set forth herein will not be void,
however, such person may not be an Administrative Named Fiduciary
with respect to the Plan.
(3) Limit on Liability. Fiduciary duties and
responsibilities which have been allocated or delegated pursuant
to the terms of the Plan are intended to limit the liability, if
any, of the Company, an Employer and the members of the Board of
Directors, the Administrator, each Designated Officer and each
Administrative Named Fiduciary, as appropriate, in accordance
with the provisions of Section 405(c) of ERISA.
(g) Fiduciary Capacity. Any person or group of
persons may serve in more than one Fiduciary capacity with
respect to the Plan. The Administrator's status as an employee
of the Company will not disqualify such individual from taking
any action hereunder or render such individual accountable for
any distribution or other material advantage such individual may
receive under the Plan.
(h) Applicable Named Fiduciary Decisions Final.
The decision of the Administrator or another Applicable Named
Fiduciary in matters within its jurisdiction will be final,
binding, and conclusive upon Company, the Employer, the Trustee,
each Employee, Participant, Spouse and Beneficiary, and every
other person or party interested or concerned.
(i) No Agency. Each Administrative Named
Fiduciary will perform (or fail to perform) its responsibilities
and duties or discretionary authority with respect to the Plan as
an independent contractor and not as an agent of the Plan, the
Company, any Employer, or the Administrator. No agency is
intended to be created nor is any Designated Officer empowered to
create an agency relationship with an Administrative Named
Fiduciary.
(j) Employer's Agent. The Company and each
Designated Officer will act as agent for each Employer when
acting hereunder.
XIV.2 Claims Procedure.
(a) Initial Review of Claim. If any individual
believes that he has improperly been excluded from participation
in the Plan, or if a Member believes he is entitled to benefits
in an amount greater than those which he is receiving or has
received, he may file a claim with the Claims Administrator.
Such a claim will be in writing and state the nature of the
claim, the facts supporting the claim, the amount claimed, and
the address of the claimant. The Claims Administrator will
review the claim and, unless special circumstances require an
extension of time, within 90 days after receipt of the claim,
mail written notice by registered or certified mail to the
claimant of the decision with respect to the claim. If special
circumstances require an extension of time, the claimant will be
so advised in writing mailed within the initial 90-day period and
in no event will such an extension exceed 90 days. The notice of
the decision with respect to the claim will be written in a
manner calculated to be understood by the claimant and, if the
claim is wholly or partially denied, set forth the specific
reasons for the denial, specific references to the pertinent Plan
provisions on which the denial is based, a description of any
additional material or information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary, and an explanation of the claim review
procedure under the Plan, including a notice that (i) the
claimant or his duly authorized representative may request a
review of the denial in accordance with the procedures set forth
in subsection (b) of this Section, (ii) the claimant may have
reasonable access to pertinent documents, and (iii) the claimant
may submit comments in writing to the Claims Administrator.
(b) Appeal of Claim. Within 60 days after notice
of the denial has been received by the claimant, the claimant or
his duly authorized representative may request a review of the
denial by the Claims Administrator by filing with the Claims
Administrator, a written request for such review. If a request
is so filed, review of the denial will be made by the Claims
Administrator within 60 days after receipt of such request,
unless special circumstances require an extension of time, and
the claimant will be given written notice of the resulting final
decision. If special circumstances require an extension of time,
the claimant will be so advised in writing mailed within the
initial 60-day period and in no event will an extension exceed 60
days. The notice of the Claims Administrator's final decision
will include specific reasons for the decision and specific
references to the pertinent Plan provisions on which the decision
is based and will be written in a manner calculated to be
understood by the claimant.
XIV.3 Notices to Participants, Etc. Any notice, report
or statement given, made, delivered or transmitted to a
Participant or any other person entitled to or claiming benefits
under the Plan will be deemed to have been duly given, made or
transmitted when sent via messenger, delivery service, facsimile
or mailed by first class mail with postage prepaid and addressed
to the Participant or such person at the address last appearing
on the records of the Administrator or the Applicable Named
Fiduciary, whichever is applicable. A Participant or other
person may record any change of his address from time to time by
following the procedures established by the Administrator.
XIV.4 Notices to Claims Administrator. Any written
direction, notice or other communication from Participants or any
other person entitled to or claiming benefits under the Plan to
the Claims Administrator will be deemed to have been duly given,
made or transmitted either when delivered to such location as
will be specified upon the forms prescribed by the Claims
Administrator for the giving of such direction, notice or other
communication or when otherwise received by the Claims
Administrator.
XIV.5 Actions by the Company. Whenever the Company or
an Employer have the authority to take action under this Plan,
the following person or persons will have the authority to act on
behalf of the Company or Employer:
(a) action(s) may be taken by resolution of the Board
of Directors;
(b) the Designated Officer, unless such authority has
been expressly limited by the terms of this Plan or the enabling
resolutions of the Board of Directors or one of its committees.
ARTICLE XV
ADOPTION AND WITHDRAWAL FROM PLAN
XV.1 Adoption by Other Employers.
(a) With the consent of a Designated Officer, any
Commonly Controlled Entity may adopt this Plan and participate
herein (for purposes of this Article XVI, a "Participating
Employer"), effective as of the date specified in such adoption,
by filing with the Designated Officer a certified copy of a
resolution of its board of directors or other governing authority
to that effect, and such other instruments as the Designated
Officer may require, and, if the resolution involves a change in
the Trust Agreement, the Designated Officer's filing with the
Trustee a copy of such resolution, together with a certified copy
of the consent of the Designated Officer approving such adoption.
(b) The adoption resolution may contain such specific
changes and variations in the terms of the Plan or Trust
Agreement that apply to such Participating Employer and its
Employees as may be acceptable to the Designated Officer and if
the resolution involves a change in the Trust Agreement, the
Trustee. However, the sole, exclusive right to amend the Plan or
the Trust Agreement in any other respect is reserved in
accordance with Section 16.1, and any such amendment will be
binding upon the Participating Employer; provided that no
amendment without the consent of a Participating Employer may
alter specific changes and variations in the Plan or Trust
Agreement terms adopted by the Participating Employer in its
adoption resolution. The adoption resolution will become, as to
such Participating Employer and its Employees, a part of this
Plan and the Trust Agreement. It will not be necessary for the
Participating Employer to sign or execute the Plan, the Trust
Agreement, or any amendment thereof. The coverage date of the
Plan for any Participating Employer will be the date stated in
the adoption resolution, and from and after such effective date,
such Participating Employer will assume all the rights,
obligations and liabilities of an individual Employer entity
under the Plan and the Trust Agreement. The administrative
powers and control of the Company and any Designated Officer, as
provided in the Plan and the Trust Agreement, including the
exclusive right to amend the Plan and the Trust Agreement, and
the administrative powers of the Company to appoint and remove
the Trustee, and its successors, will not be diminished by reason
of the participation of any Participating Employer in the Plan.
XV.2 Withdrawal from the Plan. With the consent of a
Designated Officer, a Participating Employer may discontinue or
revoke its participation in the Plan on at least 90 days' notice
by filing a properly executed document with the Designated
Officer. Notwithstanding the foregoing, a Participating Employer
will be deemed to have terminated its participation in the Plan
when it ceases to be a Commonly Controlled Entity.
XV.3 Employee Transfers Within Participating Group. It is
anticipated that an Employee may be transferred between
Participating Employers. No such transfer will be deemed a
Severance from Service.
XV.4 Designation of Agent. Each Participating Employer will
be deemed a part of the Company; provided that, with respect to
its relations with the Trustee and the Administrator in
connection with the Plan, each Participating Employer will be
deemed to have irrevocably designated the Company and each
Designated Officer as its agent.
XV.5 Designated Officers. Only the Senior Vice President or
the Group Vice President of BP Amoco p.l.c. can act as a
Designated Officer under this Article XV unless the Board of
Directors has specifically granted authority outside of this Plan
to another Designated Officer to act under this Article XV, and
then only to the extent so granted.
ARTICLE XVI
AMENDMENT, TERMINATION AND MERGER
XVI.1 Amendments.
(a) Power to Amend. The Company may at any time and
from time to time amend, suspend or modify the Plan, in whole or
in part, by written instrument duly adopted by: (i) the Board of
Directors; or (ii) any Designated Officer, if the Board of
Directors has delegated to such Designated Officer the authority
to execute such amendments. Any such amendment, suspension or
modification will become effective on such date as the Board of
Directors or such Designated Officer, as the case may be, will
determine, and may apply retroactively or prospectively to
Members at the time thereof, as well as to future Members;
provided, however, that no amendment will:
(1) increase the duties or liabilities of the
Trustee or the Administrator without its written consent;
(2) have the effect of vesting in any Employer
any interest in any funds, securities or other property, subject
to the terms of this Plan and the Trust Agreement;
(3) authorize or permit at any time any part of
the corpus or income of the Plan's assets to be used or diverted
to purposes other than for the exclusive benefit of Members;
(4) except to the extent permissible under ERISA
and the Code, make it possible for any portion of the Trust
assets to revert to an Employer to be used for, or diverted to,
any purpose other than for the exclusive benefit of Members
entitled to Plan benefits and to defray reasonable expenses of
administering the Plan;
(5) permit an Employee to be paid the balance of
his Before-Tax Account unless the payment would otherwise be
permitted under Section 401(k) of the Code; and
(6) have any retroactive effect as to deprive any
such person of any benefit already accrued, except that no
amendment made in order to conform the Plan as a plan described
in Section 401(a) of the Code of which amendments are permitted
by the Code or are required or permitted by any other statute
relating to employees' trusts, or any official regulations or
ruling issued pursuant thereto, will be considered prejudicial to
the rights of any such person.
(b) Restriction on Amendment. No amendment to the
Plan will deprive a Participant of his nonforfeitable rights to
benefits accrued to the date of the amendment. In addition to
the foregoing, the Plan will not be amended so as to eliminate an
optional form of payment of an Accrued Benefit attributable to
employment prior to the date of the amendment. The foregoing
limitations do not apply to benefit accruals occurring after the
date of the amendment.
(c) A Designated Officer. The Senior Vice President
or the Group Vice President of BP Amoco p.l.c. acting as a
Designated Officer on behalf of the Company, may amend, modify,
change or revise the Plan or any Appendix, in whole or in part,
or with respect to all persons or a designated group of persons
unless the Board of Directors has specifically granted authority
outside of this Plan to another Designated Officer to act under
this Article XVI, and then only to the extent so granted;
provided however (1) no such action may be taken if it could not
have been adopted under this Section by the Board of Directors;
and (2) no such action may amend Articles XIV and XVI.
XVI.2 Plan Termination. It is the expectation of the
Company that it will continue the Plan and the payment of
Contributions hereunder indefinitely, but the continuation of the
Plan and the payment of Contributions hereunder is not assumed as
a contractual obligation of the Company or any other Employer.
The Company reserves the right, at any time, to terminate the
Plan, or to reduce, suspend or discontinue its or any other
Employer's Contributions hereunder, provided, however, that the
Contributions for any Plan Year accrued or determined prior to
the end of such year will not after the end of such year be
retroactively reduced, suspended or discontinued except as may be
permitted by law. Upon termination of the Plan or complete
discontinuance of Contributions hereunder (other than for the
reason that the Employer has had no net profits or accumulated
net profits), each Participant's Accrued Benefit will be fully
vested. Upon termination of the Plan or a complete
discontinuance of Contributions, unclaimed amounts will be
applied as forfeitures and any unallocated amounts will be
allocated to Participants who are Eligible Employees as of the
date of such termination or discontinuance on the basis of
Compensation for the Plan Year (or short Plan Year). Upon a
partial termination of the Plan, the Accrued Benefit of each
affected Participant will be fully vested. In the event of
termination of the Plan, the Administrator will direct the
Trustee to distribute to each Participant the entire amount of
his Accrued Benefit as soon as administratively possible, but not
earlier than would be permitted in order to retain the Plan's
qualified status under Sections 401(a), (k) and (m) of the Code,
as if all Participants who are Employees had incurred a Severance
from Service on the Plan's termination date. Should a
Participant or a Beneficiary not elect immediate payment of a
nonforfeitable Accrued Benefit in excess of $5,000, the
Administrator will direct the Trustee to continue the Plan and
Trust Agreement for the sole purpose of paying to such
Participant his Accrued Benefit or death benefit, respectively,
unless in the opinion of the Administrator, to make immediate
single sum payments to such Participant or Beneficiary would not
adversely affect the tax qualified status of the Plan upon
termination and would not impose additional liability upon any
Employer or the Trustee.
XVI.3 Plan Merger and Spinoff.
(a) General. The Plan will not merge or consolidate
with, or transfer any assets or liabilities to any other plan,
unless each person entitled to benefits would receive a benefit
immediately after the merger, consolidation or transfer (if the
Plan were then terminated) which is equal to or greater than the
benefit he would have been entitled to immediately before the
merger, consolidation or transfer (if the Plan were then
terminated). The Designated Officer will amend or take such
other action as is necessary to amend the Plan in order to
satisfy the requirements applicable to any merger, consolidation
or transfer of assets and liabilities.
(b) Appendix. Appendix 16.3 sets forth special
provisions which reflect the transfer of certain liabilities and
assets (i) from AESP to the Plan to this Plan and (ii) from the
BP Amoco Partnership Savings Plan to this Plan, effective as of
the Effective Date, and may set forth such special provisions as
may apply to any subsequent merger, consolidation or transfer of
assets and liabilities.
XVI.4 Design Decisions. Decisions regarding the design
of the Plan (including any decision to amend or terminate, or to
not amend or terminate the Plan) will be made in a settlor
capacity and will not be governed by the fiduciary responsibility
provisions of ERISA.
ARTICLE XVII
SPECIAL TOP-HEAVY RULES
XVII.1 Application of Article XVII. This Article XVII
will apply only if the Plan is Top-Heavy, as defined below. If,
as of any Top-Heavy Determination Date, as defined below, the
Plan is Top-Heavy, the provisions of Section 17.04 will take
effect as of the first day of the Plan Year next following the
Top-Heavy Determination Date and will continue to be in effect
until the first day of any subsequent Plan Year following a Top-
Heavy Determination Date as of which it is determined that the
Plan is no longer Top-Heavy.
XVII.2 Definitions Concerning Top-Heavy Status. In
addition to the definitions set forth in Article I, the following
definitions will apply for purposes of this Article XVII, and
will be interpreted in accordance with the provisions of Section
416 of the Code:
(a) Aggregation Group - a group of Company Plans
consisting of each Company Plan in the Required Aggregation Group
and each other Company Plan selected by the Company for inclusion
in the Aggregation Group that would not, by its inclusion,
prevent the group of Company Plans included in the Aggregation
Group from continuing to meet the requirements of Section
401(a)(4) and 410 of the Code.
(b) Annual Compensation - compensation for a calendar
year within the meaning of Treasury Regulation 1.415-
2(d)(11)(ii) to the extent that such compensation does not exceed
the annual compensation limit in effect for the calendar year
under Section 401(a)(17) of the Code.
(c) Company Plan - any plan of any Commonly Controlled
Entity that is, or that has been determined by the Internal
Revenue Service to be, qualified under Section 401(a) or 403(a)
of the Code.
(d) Key Employee - any employee of any Commonly
Controlled Entity who satisfies the criteria set forth in
Section 416(i)(1) of the Code.
(e) Required Aggregation Group - one or more Company
Plans comprising each Company Plan in which a Key Employee is a
participant and each Company Plan that enables any Company Plan
in which a Key Employee is a participant to meet the requirements
of Section 401 (a)(4) or 410 of the Code.
(f) Top-Heavy - the Plan is included in an Aggregation
Group under which, as of the Top-Heavy Determination Date, the
sum of the actuarial present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans in the
Aggregation Group and the aggregate of the accounts of Key
Employees under all defined contribution plans in the Aggregation
Group exceeds 60 percent of the analogous sum determined for all
employees. The determination of whether the Plan is Top-Heavy
will be made in accordance with Section 416(g)(2)(B) of the Code.
(g) Top-Heavy Determination Date - the December 31
immediately preceding the Plan Year for which the determination
is made.
(h) Top-Heavy Ratio - the percentage calculated in
accordance with subparagraph (f), above, and Section 416(g)(2) of
the Code.
(i) Top-Heavy Year - a Plan Year for which the Plan is
Top-Heavy.
XVII.3 Calculation of Top-Heavy Ratio. The Top-Heavy
Ratio with respect to any Plan Year will be determined in
accordance with the following rules:
(a) Determination of Accrued Benefits: The accrued
benefit of any current Participant will be calculated, as of the
most recent valuation date that is within a 12-month period
ending on the Top-Heavy Determination Date, as if the Participant
had voluntarily terminated employment as of such valuation date.
Such valuation date will be the same valuation date used for
computing plan costs for purposes of the minimum funding
provisions of Section 412 of the Code. Unless, as of the
valuation date, the Plan provides for a nonproportional subsidy,
the actuarial present value of the accrued benefit will reflect a
retirement income commencing at age 65 (or attained age, if
later). If, as of the valuation date, the Plan provides for a
nonproportional subsidy, the benefit will be assumed to commence
at the age at which the benefit is most valuable.
(b) Aggregation. The Plan will be aggregated with all
Company Plans included in the Aggregation Group.
XVII.4 Effect of Top-Heavy Status.
(a) Minimum Contribution. Notwithstanding Article
III, as of the last day of each Top-Heavy Year, the Employer will
make, for each Participant, (i) the contributions it otherwise
would have made under the Plan for such Top-Heavy Year, or if
greater, (ii) contributions for such Top-Heavy Year that, when
added to the contributions made by the Employer for such
Participant (and any forfeitures allocated to his Accounts) for
such Top-Heavy Year under all other defined contribution plans of
any Commonly Controlled Entity, aggregate three percent of his
Annual Compensation; provided that the Plan will meet the
requirements of this subsection (a) without taking into account
Before-Tax Contributions or other employer contributions
attributable to a salary reduction or similar arrangement.
(b) Inapplicability to Union Employees. The preceding
provisions of this Section 17.4 will not apply with respect to
any employee included in a unit of employees covered by an
agreement that the Secretary of Labor finds to be a collective
bargaining agreement between employee representatives and the
Employer, if there is evidence that retirement benefits were the
subject of good faith bargaining between such employee
representatives and the Employer.
XVII.5 Effect of Discontinuance of Top-Heavy Status. If,
for any Plan Year after a Top-Heavy Year, the Plan is no longer
Top-Heavy, the provisions of Section 17.4 will not apply with
respect to such Plan Year.
XVII.6 Intent of Article XVII. This Article XVII is
intended to satisfy the requirements imposed by Section 416 of
the Code and will be construed in a manner that will effectuate
this intent. This Article XVII will not be construed in a manner
that would impose requirements on the Plan that are more
stringent than those imposed by Section 416 of the Code.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
XVIII.1 Assignment and Alienation. As provided by
Section 401(a)(13) of the Code and to the extent not otherwise
required by law, no benefit provided by the Plan may be
anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any
benefit with respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as
security for a loan from the Plan which is permitted pursuant to
Section 4975 of the Code.
XVIII.2 Protected Benefits. All benefits which are
protected by the terms of Section 411(d)(6) of the Code and
Section 204(g) of ERISA, which cannot be eliminated without
adversely affecting the qualified status of the Plan on and after
the Effective Date, will be provided under this Plan to
Participants for whom such benefits are protected. The
Administrator will cause such benefits to be determined and the
terms and provisions of the Prior Plan, are incorporated herein
by reference and made a part hereof, but only to the extent such
terms and provisions are so protected. Otherwise, they will
operate within the terms and provisions of this Plan, as
determined by the Administrator.
XVIII.3 Plan Does Not Affect Employment Rights. The Plan
does not provide any employment rights to any Employee. The
Employer expressly reserves the right to discharge an Employee at
any time, with or without cause, without regard to the effect
such discharge would have upon the Employee's interest in the
Plan.
XVIII.4 Deduction of Taxes from Amounts Payable. The
Trustee will deduct from the amount to be distributed such amount
as the Administrator, in his sole discretion, deems proper to
protect the Trustee and the Plan's assets held under the Trust
Agreement against liability for the payment of death, succession,
inheritance, income, or other taxes, and out of money so
deducted, the Trustee may discharge any such liability and pay
the amount remaining to the Participant, the Beneficiary or the
deceased Participant's estate, as the case may be.
XVIII.5 Facility of Payment. If a Member is declared an
incompetent or is a minor and a conservator, guardian, or other
person legally charged with his care has been appointed, any
benefits to which such Member is entitled will be payable to such
conservator, guardian, or other person legally charged with his
care. The decision of the Administrator in such matters will be
final, binding, and conclusive upon the Employer and the Trustee
and upon each Member, and every other person or party interested
or concerned. An Employer, the Trustee and the Administrator
will not be under any duty to see to the proper application of
such payments.
XVIII.6 Source of Benefits. All benefits payable under
the Plan will be paid or provided for solely from the Plan's
assets held under the Trust Agreement and the Employers assume no
liability or responsibility therefor.
XVIII.7 Reduction for Overpayment. The Administrator
will, whenever it determines that a person has received benefit
payments under this Plan in excess of the amount to which the
person is entitled under the terms of the Plan, make a reasonable
attempt to collect such overpayment from the person. The amount
of any overpayment may be set off against further amounts payable
to or on account of the person who received the overpayment.
XVIII.8 Company Merger. In the event any successor
corporation to the Company, by merger, consolidation, purchase or
otherwise, will elect to adopt the Plan, such successor
corporation will be substituted hereunder for the Company upon
filing in writing with the Trustee its election so to do.
XVIII.9 Employees' Trust. The Plan and Trust Agreement
are created for the exclusive purpose of providing benefits to
the Members of the Plan and defraying reasonable expenses of
administering the Plan. The Plan and Trust Agreement will be
interpreted and operated in a manner consistent with their being,
respectively, a Plan described in Sections 401(a), 401(k) and
401(m) of the Code and Trust Agreements exempt under
Section 501(a) of the Code. The Designated Officer and the
Administrator are authorized to the fullest extent allowed by
law, to take whatever action may be required to correct any such
interpretational or operational violation which would result in
the Plan being a Plan described in Sections 401(a), 401(k) and
401(m) of the Code and Trust Agreements exempt under
Section 401(a) of the Code. At no time will the assets of the
Plan be diverted from the above purpose.
XVIII.10 Construction. Unless the contrary is plainly
required by the context, wherever any words are used herein in
the masculine gender, they will be construed as though they were
also used in the feminine gender, and vice versa; wherever any
words are used herein in the singular form, they will be
construed as though they were also used in the plural form, and
vice versa; and wherever the words "herein," "hereof,"
"hereunder," and words of similar import are used, they will be
construed to refer to the Plan in its entirety and not only to
the portion of the Plan in which they appear. Any election,
direction, notice or designation (or similar action) to be made
by a Member hereunder will be made in such manner as is provided
for by, and acceptable to, the Administrator. No such election,
direction, notice or designation (or similar action) will be
deemed to have been given to the Administrator unless it is
properly completed and delivered to the Administrator in
accordance with the procedures established by such Administrator
for such purpose, and will take effect at such time as is
established by the Administrator, which in any event shall not be
earlier than is administratively possible.
XVIII.11 Invalidity of Certain Provisions. If any
provision of this Plan will be held invalid or unenforceable,
such invalidity or unenforceability will not affect any other
provisions hereof and the Plan will be construed and enforced as
if such provisions, to the extent invalid or unenforceable, had
not been included.
XVIII.12 Headings. The headings or articles are included
solely for convenience of reference, and if there is any conflict
between such headings and the text of this Plan, the text will
control.
XVIII.13 Governing Law. The Plan will be construed,
administered and regulated in accordance with the provisions of
ERISA and, to the extent not preempted thereby, in accordance
with the laws of the State of Illinois, determined without regard
to its choice of law rules.
XVIII.14 Notice and Information Requirements. Except as
otherwise provided in this Plan or in the Trust Agreement, the
Employer will have no duty or obligation to affirmatively
disclose to any Member, nor will any Member have any right to be
advised of, any material information regarding the Employer, at
any time prior to, upon or in connection with the Employer's
purchase, or any other distribution or transfer (or decision to
defer any such distribution) of any Company Stock or any other
stock held under the Plan.
XVIII.15 Reliance on Information Provided to Plan.
Notwithstanding anything contained herein to the contrary, if an
individual is provided a statement in confirmation of any
election or information provided to the Plan by such individual
hereunder, the election or information reflected on such
confirmation statement will be deemed to be accurate and may be
conclusively relied upon for all purposes hereunder unless the
individual timely demonstrates to the Administrator, in the form
and manner established by the Administrator, that the election or
information reflected on the confirmation statement is not what
the individual had originally delivered to the Administrator.
Executed this ____ day of ___________________, 2000.
BP AMOCO CORPORATION
By:________________________________
Title:_______________________________
<PAGE>
APPENDIX 16.3
TO
BP AMOCO DIRECTSAVE PLAN
SUPPLEMENT A
16.3(a) Purpose. The purpose of this Supplement A is to
set forth the special provisions (not otherwise set forth in the
Plan) which apply to Eligible Employees who were participants in
AESP as of the day prior to the Effective Date, and including
Alternate Payees with respect to such persons, collectively, (the
"AESP Participants"), notwithstanding any other provisions of the
Plan to the contrary.
(b) Accounts. As of the Effective Date, the assets and
liabilities of the AESP Participants under AESP will be
transferred, (in cash or in kind as determined by the Company) to
or for the benefit of the Plan. Each AESP Participant will have
allocated and posted to their Accounts under the Plan the amounts
credited to such Participants' accounts under AESP as of the day
prior to the Effective Date.
SUPPLEMENT B
16.3(a) Purpose. The purpose of this Supplement B is to
set forth the special provisions (not otherwise set forth in the
Plan) which apply to Eligible Employees who are participants in
BP Amoco Partnership Savings Plan as of the day prior to the
Effective Date, and including Alternate Payees with respect to
such persons, collectively (the "BP Amoco Partnership Savings
Plan Participants"), notwithstanding any other provisions of the
Plan to the contrary.
(b) Accounts. As of the Effective Date, the assets and
liabilities of the BP Amoco Partnership Savings Plan Participants
under the BP Amoco Partnership Savings Plan will be transferred
(in cash or in kind as determined by the Company), to or for the
benefit of the Plan. Each BP Amoco Partnership Savings Plan
Participant will have allocated and posted to the Accounts under
the Plan the amounts credited to such Participants' accounts
under BP Amoco Partnership Savings Plan as of the day prior to
the Effective Date.
<PAGE>
<PAGE>
EXHIBIT 4.2
BP AMOCO
PARTNERSHIP SAVINGS PLAN
<PAGE>
BP AMOCO PARTNERSHIP SAVINGS PLAN
BP Amoco Corporation (the "Company") maintains, effective
April 7, 2000, the BP Amoco Partnership Savings Plan (the
"Plan") for the benefit of eligible employees of the Company
and its participating affiliates. The Plan is intended to
constitute a qualified profit sharing plan, as described in
Section 401(a) of the Code, which includes a qualified cash
or deferred arrangement, as described in Section 401(k) of
the Code.
The Plan constitutes an amendment and restatement of the BP
America Partnership Savings Plan (the "Prior Plan"), and
reflects the transfer of certain liabilities and assets (1)
from the Amoco Employee Savings Plan ("AESP") to the Plan
and (2) the transfer from the Plan to the BP Amoco
DirectSave Plan, on or after April 7, 2000, as more fully
described in Appendix 16.3.
The benefits, rights and features of an individual who
participated in the Plan before April 7, 2000, but who does
not have an account balance under the Plan on such date,
will be determined under the applicable instruments in
effect for the Plan, on the earlier of: (1) the day on
which such individual's account was reduced to zero; or
(2) the day on which such individual's employment
terminated. The terms of this Plan apply to any accounts
created for such individual hereunder on or after April 7,
2000.
<PAGE>
ARTICLE I
DEFINITIONS
The following sections of this Article I provide basic
definitions of terms used throughout the Plan, and whenever
used herein in a capitalized form, except as otherwise
expressly provided, the terms will be deemed to have the
following meanings:
I.1 "Accounting Period" means a period, not to exceed
1 year in duration, designated by the Administrator with
respect to each Investment Option.
I.2 "Accounts" mean the record of a Participant's
interest in the Plan's assets represented by his:
(a) "After-Tax Account" which is composed of
After-Tax Contributions allocated to the Participant under
the Plan, plus all income and gains credited to, and minus
all losses, expenses and withdrawals charged to, such
Account.
(b) "Before-Tax Account" which is composed of
Before-Tax Contributions allocated to the Participant under
the Plan, plus all income and gains credited to, and minus
all losses, expenses and withdrawals charged to, such
Account.
(c) "Match Account" which is composed of Match
Contributions allocated to the Participant under the Plan,
plus all income and gains credited to, and minus all losses,
expenses and withdrawals charged to, such Account. There
are two types of Match Accounts to which Match Contributions
are allocated: a Heritage Amoco Match Account for Heritage
Amoco Participants and a BP Amoco Match Account for all
other Participants.
(d) "Rollover Account" which is composed of
Rollover Contributions made by or allocated to the
Participant under the Plan, plus all income and gains
credited to, and minus all losses, expenses and withdrawals
charged to, such Account.
With respect to an Alternate Payee or Beneficiary,
references to Accounts will be deemed to be references to
all or that portion of a Participant's After-Tax Account,
Before-Tax Account, Match Account and Rollover Account
which, under the terms of the Plan, has been allocated to an
Account maintained for such Alternate Payee or Beneficiary,
plus all income and gains credited to, and minus all losses,
expenses and withdrawals charged to, such Account.
References herein to Accounts will also be deemed to include
each of a Participant's Accounts and references herein to an
Account will be deemed to include any or each of the
Participant's Accounts.
I.3 "Accrued Benefit" means the shares, units or other
Trust Fund assets allocated and posted to Accounts as of the
Valuation Time in accordance with the terms of this Plan,
including any applicable Administrative Services Agreement.
I.4 "Active Participant" means a Participant who: (a)
is an Employee; or (b) solely with respect to his Before-Tax
Account (unless the context clearly requires otherwise), is
a former Employee who has not incurred a separation from
service under Section 401(k) of the Code for which a
distribution of his Before-Tax Account may be made.
I.5 "Administrative Named Fiduciary" means a person or
entity who: (a) has the authority to control and manage the
operation and administration of the Plan or the Trust within
the meaning of Section 402(a)(1) of ERISA; (b) has the
discretionary authority or discretionary responsibility to
administer the Plan or the Trust within the meaning of
Section 3(21)(A)(ii) of ERISA; or (c) exercises
discretionary authority or discretionary control respecting
management of the Plan or the Trust within the meaning of
Section 3(21)(A)(i) of ERISA (other than trustee
responsibilities within the meaning of Section 405(c)(3) of
ERISA), and includes the Administrator and any other person
(i) named in the Plan or the Trust; or (ii) identified by a
Designated Officer to be an Administrative Named Fiduciary.
I.6 "Administrative Services Agreement" means an
agreement with a service provider to provide administrative
services to the Plan.
I.7 "Administrator" means the Senior Vice President,
or if an Applicable Named Fiduciary has been identified with
respect to the authority involved in the provision of this
Plan under consideration, then reference to the
Administrator in that context refers to such Applicable
Named Fiduciary. References in this Plan to the
Administrator will be deemed to be a reference to any person
(other than a Fiduciary) to whom ministerial
responsibilities involved in the provisions of this Plan
have been delegated by the Administrator, including under an
Administrative Services Agreement.
I.8 "AESP" means the Amoco Employee Savings Plan in
effect on the date prior to the Effective Date.
I.9 "Alternate Payee" means an individual who is
entitled to all or a portion of a Participant's Account
pursuant to a QDRO.
I.10 "American Depositary Share" means a security
issued to allow easier holding and trading of interests in
foreign corporations in the United States.
I.11 "Appendix" means a written supplement attached to
this Plan and made a part hereof.
I.12 "Applicable Named Fiduciary" means, with respect
to any authority, control or discretion in the operation,
administration or management of the Plan or Trust, the
Administrative Named Fiduciary who is charged with, or who
exercises responsibility for, such matter.
I.13 "Authorized Absence" means an absence from active
employment, with or without Compensation, authorized or
recognized by a Commonly Controlled Entity under its
standard personnel practices applicable to the Employee,
including any period of time during which such person is
considered to be on a leave of absence while covered by a
disability plan of his Employer. The date that an
Employee's Authorized Absence ends will be determined in
accordance with the personnel policies of such Commonly
Controlled Entity, which ending date will be no earlier than
the date that the Authorized Absence is scheduled to end,
unless the Employee communicates to such Commonly Controlled
Entity that he is to have a Severance from Service as of an
earlier date or such Commonly Controlled Entity causes the
Employee to have a Severance from Service as of an earlier
date.
I.14 "Beneficiary" means an individual entitled to
receive any benefits payable on the death of a Participant
in accordance with Sections 12.2 and 12.5.
I.15 "Board of Directors" means the board of directors
of the Company as constituted from time to time.
I.16 "BP CAP" means the BP America Capital Accumulation
Plan in effect on the date prior to the Effective Date.
I.17 "Break in Service" means the period following a
Severance from Service and preceding a Reemployment Date.
I.18 "Business Day" means any day on which the New York
Stock Exchange and the Trustee are open for business.
I.19 "Claims Administrator" means the Administrator for
purposes of the initial review of any claim relating to a
person's eligibility to participate in the Plan. For
purposes of the initial review of any claim relating to the
amount of a person's benefit under the Plan, the
Administrator acts as the Claims Administrator unless
another Applicable Named Fiduciary has been identified by a
Designated Officer for this purpose, in which case such
other person or entity will be the Claims Administrator for
this purpose and will have the authority of the
Administrator with respect to such claim determination. The
Administrator, in his sole discretion, determines whether a
claim relates to eligibility to participate in the Plan or
relates to the amount of benefit payable under the Plan.
For purposes of the appeal of all claims, whether relating
to eligibility or amount of benefits, the Administrator is
the Claims Administrator unless another Applicable Named
Fiduciary has been identified by a Designated Officer for
this purpose, in which case such other person or entity will
be the Claims Administrator for this purpose.
I.20 "Code" means the Internal Revenue Code of 1986, as
amended. References to any specific Section will include
any valid regulation promulgated thereunder, and any
statutory provision amending, supplementing or superseding
such Section.
I.21 "Commonly Administered Plan" means a qualified plan
described in Section 401(a) of the Code which: (a) is
sponsored or maintained by a Commonly Controlled Entity; (b)
has the same recordkeeper as this Plan; and (c) has the same
type of accounts as the Accounts in this Plan.
I.22 "Commonly Controlled Entity" means: (a) an
Employer and any corporation, trade or business, but only
for so long as it and the Employer are members of a
controlled group of corporations as defined in Section
414(b) of the Code or under common control as defined in
Section 414(c) of the Code; provided, however, that solely
for purposes of the limitations of Section 415 of the Code,
the standard of control under Sections 414(b) and 414(c) of
the Code will be deemed to be "more than 50%" rather than
"at least 80%"; (b) an Employer and an organization, but
only for so long as it and the Employer are members of an
affiliated service group as defined in Section 414(m) of the
Code; (c) an Employer and an organization, but only for so
long as the employees of it and the Employer are required to
be aggregated under Section 414(o) of the Code; or (d) any
other organization designated as such by a Designated
Officer. An entity will not be considered a Commonly
Controlled Entity before it becomes a Commonly Controlled
Entity pursuant to the preceding sentence.
I.23 "Company" means BP Amoco Corporation, an Indiana
corporation, or any successor corporation by merger,
consolidation, purchase, or otherwise, which elects to adopt
the Plan. Notwithstanding the foregoing, in the context of
any Plan provision where Company refers to the issuer of
Company Stock, "Company" will mean BP Amoco p.l.c., or any
successor thereto.
I.24 "Company Stock" means ordinary shares of BP Amoco
p.l.c. in the form of American Depositary Shares.
I.25 "Company Stock Fund" means the BP Amoco Stock Fund
Investment Option.
I.26 "Compensation"
(a) Except to the extent otherwise provided in
subsection (b), below, "Compensation" means amounts that are
paid directly by an Employer for personal services and that:
(1) are paid to an Eligible Employee (except
to the extent otherwise provided in subsection (a)(2)(G),
below); and
(2) fall in one of the following categories:
(A) basic salary or wages, including
forms of base pay delivered in alternative forms such as
piecework, payment by mileage for drivers, overtime, and
shift and rate differentials;
(B) pay in lieu of vacation;
(C) commissions;
(D) bonus payments made under an annual
incentive plan at the business unit or stream level;
(E) lump-sum performance awards awarded
in connection with annual salary administration;
(F) Alaska worksite pay premiums,
including any North Slope bonus; or
(G) amounts that: (i) are contributed,
at the election of an Eligible Employee, on behalf of the
Eligible Employee to a cafeteria plan or a cash or deferred
arrangement and not included in the Eligible Employee's
gross income for federal income tax purposes by reason of
Sections125 or 402(e)(3) of the Code and (ii) would, were it
not for the Eligible Employee's election, (I) meet the
requirement imposed by subsection (a)(1), above, and (II)
fall in one of the categories listed in subparagraphs (A)
through (F) of this subsection (a)(2); and
(3) do not fall in any of the following
categories:
(A) sign-on, retention, or ratification
payments;
(B) severance or separation payments;
(C) spot awards, reward and recognition
payments or any other comparable payments;
(D) remuneration received attributable
to moving or educational expenses;
(E) expense allowances, or premium pay
based on an Employee's worksite except for any Alaska
worksite premium payment (including the North Slope bonus);
(F) tax reimbursements;
(G) payments made pursuant to an
employment contract or bonus plan under which such payments
are not intended to be Compensation hereunder;
(H) payments in excess of amounts paid
pursuant to subsection (a)(2)(A) above, made to compensate
an Employee for having to work during all or part of the 60-
day period following notice in connection with a severance
or separation program; or
(I) awards under the 1998 Share Option
Plan (or any other income under any equity-based plan);
(J) awards under the BP Amoco Long Term
Performance Plan; and
(K) any other remuneration not
described in subparagraphs (A) through (G) of subsection
(a)(2), above.
(b) For purposes of the definition of
"Compensation" hereunder:
(1) an amount included in an individual's
final paycheck for employment as an Eligible Employee will
be treated as if it were paid to an Eligible Employee, if it
paid during a Plan Year in which the individual is an
Eligible Employee, even though, on the date he receives the
paycheck, the individual no longer is an Eligible Employee;
(2) an amount that should have been paid in a
manner that met the requirements imposed by this
Section 1.26 (as modified by subsection (b)(1), above), but
that was mistakenly paid in a different manner, will be
treated as meeting the requirements imposed by this Section
1.26;
(3) all amounts paid in settlement (including,
but not limited to, amounts paid for front and back pay and
emotional distress) to an Eligible Employee will be excluded
from the definition of "Compensation" hereunder unless
otherwise ordered pursuant to the final decision of the
presiding court, arbitrator, or administrative agency after
all available appeals have been exhausted; and
(4) if it is not entirely clear whether an item
of remuneration meets the requirements of subsection (a)(2)
or (a)(3), above, the Administrator, in his sole discretion,
will determine whether the item meets the requirements of
such subsection (a)(2) or (a)(3), above.
(c) In addition to other applicable limitations
that may be set forth in the Plan, and notwithstanding any
other contrary provision of the Plan, annual Compensation
taken into account under the Plan for the purpose of
calculating the Contributions to the Plan by or in respect
of a Participant for any Plan Year will not exceed the
applicable compensation limit under Section 401(a)(17) of
the Code, as adjusted.
I.27 "Contractor Firm" mean a person or entity which is
not a Commonly Controlled Entity.
I.28 "Contribution" means an amount contributed to the
Plan on behalf of a Participant, in one or more of the
following types:
(a) "After-Tax" which means an amount contributed
by the Employer on an after-tax basis in conjunction with a
Contribution Election, as described in Section 3.2.
(b) "Before-Tax" which means an amount
contributed by the Employer on a before-tax basis under
Section 402(g) of the Code in conjunction with a
Contribution Election, as described in Section 3.1.
(c) "Match" which means an amount contributed by
the Employer based upon the amount contributed by the
Participant, as described in Section 3.3.
(d) "Rollover" which means an amount contributed
by a Participant that constitutes all or part of an
"eligible rollover distribution" (within the meaning of
Section 402(f)(2)(A) of the Code), as described in
Section 3.4.
I.29 "Contribution Dollar Limit" means the annual limit
imposed on each Participant pursuant to Section 402(g) of
the Code (as indexed pursuant to Sections 402(g)(5) and
415(d) of the Code, provided that no such adjustment will be
taken into account hereunder before the Plan Year in which
it becomes effective).
I.30 "Contribution Election" or "Election" means the
election made by an Active Participant who is an Eligible
Employee to reduce the Compensation to be paid to him by an
amount equal to the product of his Contribution Percentage
and such Compensation subject to the Contribution Election.
Subject to Section 3.1(b), such Contribution Election will
specify the portion of the Contribution that is a Before-Tax
Contribution and the portion that is an After-Tax
Contribution.
I.31 "Contribution Percentage" means the percentage of
an Eligible Employee's Compensation which is to be
contributed to the Plan by his Employer as a Contribution,
or where the context requires, as a Before-Tax Contribution
or an After-Tax Contribution.
I.32 "Designated Officer" means the Senior Vice
President and any other officer of the Company, the Group
Vice President, Human Resources of BP Amoco p.l.c. and any
other officer of BP Amoco p.l.c., to whom (but only to the
extent specifically provided), authority to act on behalf of
the Company has been granted by the Board of Directors or
one of its committees.
I.33 "Direct Rollover" means a payment by the Plan to
an Eligible Retirement Plan specified by a Distributee.
I.34 "Disability" or "Disabled" means the Participant
is declared mentally incompetent or becomes permanently and
totally disabled.
I.35 "Distributee" means a Participant, or a
Participant's surviving Spouse; or, and only with regard to
the interest of an Alternate Payee, a Participant's Spouse
or former Spouse who is the Alternate Payee.
I.36 "Effective Date" means April 7, 2000, the date
upon which the provisions of this amended and restated
document take effect.
I.37 "Eligible Employee" means an Employee of an
Employer who is an at site manager Employee who is
associated with Employer-operated (direct operations) retail
locations and whose Compensation is paid in U.S. currency,
except that an Eligible Employee does not include:
(a) an Employee who is represented by a union
unless the union and the Employer have entered into a
collective bargaining or other agreement that provides that
the Employee may participate in the Plan;
(b) an Employee who is a "nonresident alien"
(within the meaning of Section 7701(b)(1)(B) of the Code)
and who receives no "earned income" (within the meaning of
Section 911(d)(2) of the Code) from the Employer that
constitutes income from sources within the United States
(within the meaning of Section 861(a)(3) of the Code);
(c) an individual employed pursuant to an
agreement providing that the individual is not eligible to
participate in the Plan;
(d) an individual who is not contemporaneously
classified as an Employee for purposes of the Employer's
payroll system. In the event any such individual is
reclassified as an Employee for any purpose, including,
without limitation, as a common law or statutory employee,
by any action of any third party, including, without
limitation, any government agency, or as a result of any
private lawsuit, action, or administrative proceeding, such
individual will, notwithstanding such reclassification,
remain ineligible for participation hereunder and will not
be considered an Eligible Employee. In addition to and not
in derogation of the foregoing, the exclusive means for an
individual who is not contemporaneously classified as an
Employee of the Employer on the Employer's payroll system to
become eligible to participate in this Plan is through an
amendment to this Plan which specifically renders such
individual eligible for participation hereunder;
(e) an Employee whose basic compensation for
services on behalf of an Employer is not paid directly by an
Employer;
(f) an at site hourly Employee who is associated
with Employer-operated (direct operations) retail locations;
(g) an Employee who is making contributions to or
receiving an employer contribution under any other tax-
qualified defined contribution pension plan that is
sponsored by any Commonly Controlled Entity and that
provides for before-tax or after-tax contributions;
(h) an Employee of Solarex; or
(i) an Employee covered by a classification which
is scheduled in an Appendix.
I.38 "Eligible Retirement Plan" means an individual
retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b)
of the Code, an annuity plan described in Section 403(a) of
the Code, or a qualified trust described in Section 401(a)
of the Code which accepts a Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to a surviving Spouse, an Eligible Retirement
Plan is an individual retirement account or an individual
retirement annuity.
I.39 "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the
credit of a Distributee, except that an Eligible Rollover
Distribution does not include any distribution that is one
of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of 10
years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code; 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); or, any "hardship withdrawal" described in
Treasury Regulation 1.401(k)-1(d)(2)(ii) that may not be
distributed to the Distributee without regard to hardship
under Section 401(k)(2)(B) of the Code.
I.40 "Employee" means any person who either: (a)
renders services as a common law employee to a Commonly
Controlled Entity and is on the payroll of such Commonly
Controlled Entity; or (b) is on an Authorized Absence from
employment with a Commonly Controlled Entity.
Notwithstanding the foregoing, the term "Employee" does not
include any individual retained by a Commonly Controlled
Entity directly or through an agency or other party to
perform services for a Commonly Controlled Entity (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 employed by temporary help firms, technical help
firms, staffing firms, employee leasing firms, professional
employer organizations or other staffing firms, whether or
not deemed to be "common law" employees or "leased
employees" within the meaning of Section 414(n) of the Code.
I.41 "Employer" means the Company and each Commonly
Controlled Entity that maintained the Plan immediately prior
to the Effective Date, and any Commonly Controlled Entity
that adopts the Plan in accordance with Article XV;
provided, that an entity will cease to be an Employer when
it ceases to be a Commonly Controlled Entity or it withdraws
from the Plan.
I.42 "Employment Date" means the day an Employee first
earns an Hour of Service.
I.43 "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended. Reference to any specific
Section includes any valid regulation promulgated
thereunder, and any statutory provision amending,
supplementing or superseding such Section.
I.44 "Exchange Election" means an election by a
Participant to change the investment of all or some
specified portion of such Participant's Accounts, as
described in Section 6.2.
I.45 "Fiduciary" means: (a) any individual or entity
which a Designated Officer identifies to be an
Administrative Named Fiduciary with respect to such
individual's or entity's authority to control and manage the
operation and administration of the Plan; (b) any individual
or entity which an Administrative Named Fiduciary, acting on
behalf of the Plan, designates to be a Fiduciary; or (c) any
other individual or entity who performs a fiduciary function
under the Plan as defined in Section 3(21) of ERISA.
I.46 "Heritage Amoco Participant" means: (a) a
participant with an account balance in AESP on the day prior
to the Effective Date; (b) an "Eligible Employee" (as such
term is defined in the BP Amoco Employee Savings Plan as in
effect on the Effective Date) on the payroll of the Plan
Sponsor or a participating employer in AESP on the day prior
to the Effective Date; or (c) a rehired former participant
in AESP who either (I) is credited with at least 2 years of
Service under AESP prior to the Effective Date, (II) who as
of his rehire date has not incurred a Break in Service of 7
consecutive years, or (III) .
I.47 "Heritage BP Beneficiary" means the Beneficiary of
a Heritage BP Participant who died prior to the Effective
Date.
I.48 "Heritage BP Participant" means a participant or
former participant in BP CAP (and, for purposes of
Sections 9.7(f), 10.3(b), 11.2(b) and 12.4 only, the Plan)
prior to the Effective Date.
I.49 "Highly Compensated Eligible Employee" or "HCE"
means an Eligible Employee who is a "highly compensated
employee" within the meaning of Section 414(q) of the Code
(determined as if the election described in
Section 414(q)(1)(B)(ii) of the Code has not been made), the
provisions of which are incorporated herein by reference.
I.50 "Hour of Service" means an hour for which an
Employee is paid or entitled to be paid, with respect to the
performance of duties for any Commonly Controlled Entity
either as regular wages, salary, or commissions or pursuant
to an award or agreement requiring a Commonly Controlled
Entity to pay back wages. The crediting of an Hour of
Service will be made in accordance with Department of Labor
Regulation 2530.200b-2 and 3.
I.51 "Income Fund" means the Investment Option
designated as the Income Fund Investment Option by the
Administrator, or if none, the Money Market Fund.
I.52 "Inactive Participant" means a Participant who is
not an Active Participant.
I.53 "Investment Committee" means the Investment
Committee designated by the Company for the Trust, or if
none, the Chief Financial Officer of the Company.
I.54 "Investment Election" means an election by which a
Participant directs the investment of his Contributions or
amounts allocated to his Account, as described in
Section 6.1.
I.55 "Investment Option" means each of the Investment
Options available under the Plan as listed in Appendix 1.55.
I.56 "Member" means a Participant, Alternate Payee or
Beneficiary.
I.57 "Money Market Fund" means the Investment Option
designated as the Money Market Fund Investment Option by the
Administrator.
I.58 "Non-Highly Compensated Employee" or "NHCE" means
an Eligible Employee who is not an HCE.
I.59 "Normal Retirement Date" means the date on which a
Participant attains age 65.
I.60 "Participant" means an individual who is
participating in the Plan after completing the Plan's
requirements for participation, but only for so long as such
individual is considered a Participant in accordance with
Section 2.4.
I.61 "Payment Date" means the date on or after the
Settlement Date on which an individual's Accrued Benefit is
withdrawn (or commences to be withdrawn), which date will be
at least the minimum number of days required by law, if any,
after the date the individual has received such notice as is
required by law, if any, before a withdrawal can be made (or
commenced to be made) as determined by the Administrator.
I.62 "Plan" means the BP Amoco Partnership Savings
Plan, as set forth herein and as hereafter may be amended.
I.63 "Plan Sponsor" means BP Amoco Corporation.
I.64 "Plan Year" means each calendar year.
I.65 "Predecessor Company" means an entity or
predecessor thereof, prior, in either case, to its becoming
a Commonly Controlled Entity, or to its assets being
acquired by a Commonly Controlled Entity, as determined by
the Company.
I.66 "Prior Plan" means the BP America Partnership
Savings Plan in effect on the date prior to the Effective
Date.
I.67 "QDRO" means a domestic relations order which the
Administrator has determined to be a qualified domestic
relations order within the meaning of Section 414(p) of the
Code.
I.68 "QJSA" means the qualified joint and survivor
annuity described in Article X.
I.69 "Reemployment Date" means the first date on which
an Employee completes an Hour of Service by performing
services as an Employee after a Break in Service.
I.70 "Senior Vice President" means the Senior Vice
President - Human Resources of the Company or, upon the
resignation or removal of such Senior Vice President, any
successor officer to the Senior Vice President who performs
substantially similar duties with respect to administration
of employee benefits (whether assigned a different title by
the Company or not), or, in the absence of such a successor,
the General Counsel of the Company.
I.71 "Service" means a Participant's service with any
Commonly Controlled Entity, measured in accordance with
Article II.
I.72 "Settlement Date" means the date as of which a
financial transaction from a corresponding Trade Date is
settled in cash or in kind.
I.73 "Sever from Service" means to incur a Severance
from Service.
I.74 "Severance from Service" means the earlier of: (a)
the date an Employee terminates employment with any Commonly
Controlled Entity by reason of a resignation, discharge,
retirement, or death; or (b) the first anniversary of the
date the Employee is first absent (but not on an Authorized
Absence) from employment by any Commonly Controlled Entity
for any other reason. An Employee who fails to return to
employment with any Commonly Controlled Entity at the
expiration of an Authorized Absence will be deemed to have
Severed from Service on the first to occur of the expiration
of his Authorized Absence or the first anniversary of the
first day of his Authorized Absence. An Employee who
transfers employment between Commonly Controlled Entities
will not be deemed to have Severed from Service.
I.75 "Shareholder Rights" means any right to vote (or
refrain from voting) either in person or by general or
limited proxy with respect to Company Stock.
I.76 "Spousal Consent" means the irrevocable written
consent given by a Spouse to a Participant's election (or
waiver) of a specified form of benefit or Beneficiary
designation. The Spouse's consent must acknowledge the
effect on the Spouse of the Participant's election, waiver
or designation and be duly witnessed by a Plan
representative or notary public. Spousal Consent will be
valid only with respect to the Spouse who signs the Spousal
Consent and only for the particular choice made by the
Participant which requires Spousal Consent. A Participant
may revoke (without Spousal Consent) a prior election,
waiver or designation that required Spousal Consent at any
time before the Sweep Time associated with the Settlement
Date upon which payments will begin. Spousal Consent will
not be necessary to the extent that there is a determination
by the Administrator that there is no Spouse, the Spouse
cannot be located or such other circumstances as may be
established by applicable law.
I.77 "Spouse" means a person who, as of the relevant
time, is married to the Participant under the laws of the
State of the Participant's residence as evidenced by a valid
marriage certificate or other proof acceptable to the
Administrator.
I.78 "Sweep Time" means the cutoff time established by
the Administrator to receive notification of a financial
transaction in order to process the transaction with respect
to a Trade Date designated by the Administrator.
I.79 "Trade Date" means the Business Day as of which a
financial transaction is effected.
I.80 "Trust" means the legal entity resulting from the
Trust Agreement, in which some or all of the assets of this
Plan will be received, held, invested and distributed to or
for the benefit of Participants and Beneficiaries.
I.81 "Trust Agreement" means the agreement between the
Company and the Trustee establishing the Trust, and any
amendments thereto.
I.82 "Trust Fund" means any property, real or personal,
received by and held by the Trustee, plus all income and
gains and minus all losses, expenses, withdrawals and
distributions chargeable thereto.
I.83 "Trustee" means any corporation, individual or
individuals designated in the Trust Agreement accepting the
appointment as Trustee to execute the duties of the Trustee
as set forth in the Trust Agreement.
I.84 "Unit Value" means the value of a unit in an
applicable Investment Option, as determined in good faith by
the Trustee or the custodian of the Trust Fund, or, in the
case of a mutual fund shares, by the issuer of such mutual
fund shares.
I.85 "Valuation Time" means 4 p.m. (Eastern Time) or,
if earlier, the close of business of the New York Stock
Exchange, or as otherwise determined by the Administrator.
I.86 "Year of Participation" means each year of Service
to the extent earned during the period beginning on the date
a Participant begins making Before-Tax or After-Tax
Contributions to the Plan, and continuing for so long as the
person remains a Participant.
ARTICLE II
PARTICIPATION AND SERVICE
II.1 Eligibility.
(a) Participant on Effective Date. Each person
who was a participant with an accrued benefit in the Plan
immediately before the Effective Date will continue as a
Participant as of the Effective Date except as provided in
Supplement A and B of Appendix 16.3.
(b) Other Eligible Employee. Except to the
extent provided in Section 2.1(c), each person who is an
Eligible Employee will be eligible to become a Participant
upon both (i) attaining age 21 and (ii) the completing 1
year of Service, if he is then an Eligible Employee.
(c) Reemployment. Notwithstanding anything
herein to the contrary, for purposes of eligibility to
participate hereunder, the following special rules apply if
an Eligible Employee incurs a Severance from Service and
subsequently has a Reemployment Date:
(i) If the Eligible Employee had not yet
satisfied the Plan's eligibility requirements, and the
Reemployment Date occurs within the 12-month period
following his Severance from Service, such Eligible Employee
will be treated as if he had not incurred such Severance
from Service;
(ii) If the Eligible Employee had not yet
satisfied the Plan's eligibility requirements, and the
Reemployment Date occurs after the 12-month period following
his Employment Date, but before the Eligible Employee incurs
a Break in Service of at least 3 consecutive 12-month
periods, such Eligible Employee's Service will include
Service prior to such Severance from Service (except to the
extent disregarded due to a prior Break in Service); and
(iii) If an Eligible Employee incurs a
Break in Service of at least 3 consecutive 12-month periods,
the Employee will not be eligible to become a Participant
(or resume participation in the Plan) until the completion
of 1 year of Service after his Reemployment Date, and then
only if he has attained age 21 and is then an Eligible
Employee.
II.2 Participation upon Change of Job Status. An
Employee who has satisfied the Plan's eligibility
requirements, but is not an Eligible Employee will be
eligible to become a Participant on the date he becomes an
Eligible Employee. If the status of a Participant changes
from Eligible Employee to Employee, such Participant will
cease to be eligible to make or to have Contributions made
on his behalf to the Plan, until such time as such
Participant is reemployed by an Employer as an Eligible
Employee.
II.3 Enrollment. An Eligible Employee who is eligible
to become a Participant may become a Participant by
enrolling in the Plan.
II.4 Duration. A person will cease to be a Participant
on the date that his entire nonforfeitable Accrued Benefit
under the Plan has been withdrawn, or upon his death,
whichever occurs first.
II.5 Service.
(a) Except as otherwise provided in this Article
II and in Article XI, an Employee's Service will be the sum
of the Employee's years and fractions of a year (expressed
in days) as an Employee until he Severs from Service. For
periods prior to the Effective Date, the determination of a
Participant's Service will be made pursuant to the records
of the Plan immediately prior to the Effective Date.
(b) Solely for purposes of this Section 2.5, if
an Employee completes an Hour of Service before the first
anniversary of his Severance from Service, the Severance
from Service will be deemed not to have occurred for
purposes of this Section 2.5.
II.6 Other Service-Crediting Provisions.
(a) To the extent determined by a resolution of a
Designated Officer, a Participant's Service will include his
service as an employee of a Predecessor Company if the
Participant was an employee of the Predecessor Company when
it became a Commonly Controlled Entity.
(b) Employment with a Commonly Controlled Entity
before the Effective Date will be disregarded in determining
an Employee's Service if such employment would have been
disregarded under the rules of the Plan with regard to
breaks in service as such rules were in effect under the
Plan from time to time before the Effective Date.
(c) Service as a "leased employee" within the
meaning of Section 414(n) or (o) of the Code will be
credited for any period during which Section 414 of the Code
requires the person to earn Service as a "leased employee."
II.7 Authorized Absences.
(a) The period of an Authorized Absence will be
included in determining an Employee's Service according to
the rules prescribed by this Section 2.7, except to the
extent additional Service is required to be granted by
applicable law. Solely for purposes of determining the
amount of Service that will be credited in accordance with
this Section 2.7, the period of an Employee's Authorized
Absence will be deemed to end no later than the date on
which the Employee's employment is terminated.
(b) If an Employee is absent from employment on
account of a family leave of absence approved by his
Employer, he will receive Service for the period of his
absence from employment up to a maximum period of 12 months.
(c) If an Employee is absent from employment for
military service with the armed forces of the United States
and returns to employment within the period required by the
Uniformed Services Employment and Reemployment Rights Act of
1994, or any successor statute, he will receive Service for
the period of his absence from employment. Notwithstanding
any provision of the Plan to the contrary, contributions,
benefits and service credit with respect to qualified
military service will be provided in accordance with Section
414(u) of the Code. The Administrator may reasonably request
that a Participant demonstrate that he has engaged in
qualified military service within the meaning of Section
414(u) of the Code.
(d) If an Employee is absent from employment on account of
any Authorized Absence (other than a leave described in
subsections (b) or (c), above) approved by his Employer, he
will receive Service for the period of his absence from
employment up to a maximum period of 12 months, provided
that he performs at least 1 Hour of Service immediately
following termination of the Authorized Absence.
II.8 Non-duplication. Notwithstanding anything to the
contrary in this Article II, a Participant will not receive
credit under the Plan for a single period of service more
than once for computing Service.
II.9 Transfer of Accounts Upon Change of Job Status.
(a) If, upon a change of job status, an Employee who is a
participant in a Commonly Administered Plan (other than the
BP America Savings and Investment Plan) becomes an Eligible
Employee:
(i) such Eligible Employee will become a
Participant in the Plan as of the transfer date;
(ii) his contribution elections and
investment election made under the Commonly Administered
Plan will automatically be treated as his Contribution
Election and Investment Election under this Plan; and
(iii) he can elect to have his accounts
under such Commonly Administered Plan transferred to the
corresponding Accounts to be established on his behalf under
this Plan.
(b) Notwithstanding the foregoing election, the
prior investment election of such Participant will not
continue in effect in this Plan if Investment Options in
this Plan and the Commonly Administered Plan are different.
In that case, the Investment Election will be deemed to be
(until changed) the Money Market Fund, and all amounts
transferred to this Plan will be invested initially in the
Money Market Fund and then reinvested pursuant to an
Exchange Election made by the Participant, or as otherwise
directed by the Administrator.
(c) If the status of a Participant changes from
Eligible Employee to Employee and such Participant becomes
eligible to participate in a different Commonly Administered
Plan (other than the BP America Savings and Investment
Plan), at his election his Accounts (and the Investment
Options in which those Accounts are invested) under this
Plan will be transferred to the corresponding accounts (and
investment options) to be established on his behalf under
such Commonly Administered Plan, subject to the terms of
such Commonly Administered Plan.
II.10 Transfer of Accounts Upon Outsourcing. If a
Participant ceases to be an Eligible Employee because his
job function has been outsourced to a Contractor Firm, the
Administrator may provide for, or cause, the Accounts of
such Eligible Employee to be transferred to a plan of the
Contractor Firm that is intended to be qualified under
Section 401(a) of the Code in a transfer that complies with
the requirements of Sections 411(d)(6) and 414(l) of the
Code.
ARTICLE III
CONTRIBUTIONS
III.1 Before-Tax Contributions.
(a) Any Participant who is an Eligible Employee
may elect to have Before-Tax Contributions made to the Plan
by his Employer in an integral percentage of his
Compensation of not less than 1 percent nor more than 18
percent. The Compensation of such Participant will be
reduced by the percentage elected under the Contribution
Election in effect for such Participant; provided, however,
that no Before-Tax Contributions made with respect to a year
on behalf of a Participant will exceed the limitations set
forth in Article IV. With respect to each applicable
payroll period, the Employer will contribute as soon as
reasonably possible, an amount to the Trust equal to the
Participant's Before-Tax Contributions for such payroll
period and the Administrator will cause such amount to be
allocated and posted to the Participant's Before-Tax
Account.
(b) If the Contribution Dollar Limit prevents the
Employer from making Before-Tax Contributions on behalf of a
Participant, the Participant will be deemed to have elected
to make an After-Tax Contribution pursuant to Section 3.2
with respect to Before-Tax Contributions the Employer was
prevented from making; provided, however, that no such After-
Tax Contributions made with respect to a year on behalf of a
Participant may exceed the limitations set forth in Article
IV.
III.2 After-Tax Contributions. Any Participant who
is an Eligible Employee may elect to make After-Tax
Contributions to the Plan by payroll deduction in an
integral percentage of his Compensation of not less than 1
percent nor more than 18 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 1
percent or more than 18 percent of his Compensation. Any
payroll deduction with respect to After-Tax Contributions
will be made from the Compensation of a Participant by his
Employer in accordance with the terms of the Contribution
Election in effect for such Participant; provided, however,
that no After-Tax Contributions made with respect to a year
on behalf of a Participant may exceed the limitations set
forth in Article IV. With respect to each applicable
payroll period, the Employer will contribute as soon as
reasonably possible, an amount to the Trust equal to the
Participant's After-Tax Contributions for such payroll
period and the Administrator will cause such amount to be
allocated and posted to the Participant's After-Tax Account.
III.3 Match Contributions. With respect to each
applicable payroll period, the Employer will contribute as
soon as reasonably possible to the Trust as a Match
Contribution for investment in the Company Stock Fund an
amount that is equal to 100 percent of the sum of the After-
Tax and Before-Tax Contributions, not in excess of 3 percent
of Compensation, made on behalf of, or by, each Participant
during such payroll period; provided, however, that no Match
Contributions made with respect to a year on behalf of a
Participant may exceed the limitations set forth in Article
IV. Match Contributions made on behalf of a Heritage Amoco
Participant will be allocated and posted to such
Participant's Heritage Amoco Match Account and Match
Contributions made on behalf of any other Participant will
be allocated and posted to such Participant's BP Amoco Match
Account. Company Match Contributions will be made in the
sole discretion of the Company in the form of cash or
Company Stock.
III.4 Rollover Contributions.
(a) Any Eligible Employee may elect to make a
Rollover Contribution to the Plan by delivering, or causing
to be delivered, to the Plan the assets in cash which
constitute such Rollover Contribution, provided that such
Rollover Contribution meets such conditions as the
Administrator may establish. Upon receipt by the Trustee,
such assets will be invested in the Investment Options
described in Article VI, in accordance with the
Participant's Investment Election with respect to such
Rollover Contributions. The Trustee will then allocate and
post to the Rollover Account of such Participant the amount
of such Rollover Contribution. No Rollover Contribution by
an Eligible Employee pursuant to this Section 3.4 will be
deemed to be a contribution of such Eligible Employee for
purposes of Article IV.
(b) If it is later determined that an amount
transferred pursuant to subsection (a), above, did not in
fact qualify as a Rollover Contribution, the balance
allocated to the Employee's Rollover Account will
immediately be: (i) segregated from all other Plan assets;
(ii) treated as a non-qualified trust established by and for
the benefit of the Employee; and (iii) distributed to the
Employee, as adjusted for earnings and losses. Any such
nonqualifying rollover will be deemed never to have been a
part of the Plan.
(c) A Participant who is entitled to receive a
lump sum distribution from a qualified plan described in
Section 401(a) of the Code maintained by an Employer as the
result of separation of employment or retirement from a
Commonly Controlled Entity may elect to have such lump sum
distribution deposited into his Rollover Account under the
Plan. Such Rollover Contribution must be made in accordance
with procedures that may be specified by the Administrator.
III.5 Election Procedures.
(a) A Participant's election to make Before-Tax
Contributions and After-Tax Contributions will continue in
effect (with automatic adjustment for any change in his
Compensation) until changed or terminated pursuant to
procedures established by the Administrator, suspended under
the terms of this Plan, or until the Participant ceases to
be paid as an Eligible Employee.
(b) In the event of a mistake by either the
Employer or the Administrator regarding the amount of a
Participant's Before-Tax Contributions or After-Tax
Contributions during a Plan Year, the Employer may permit,
in its sole discretion, contributions in excess of the 18
percent limit set forth in Sections 3.1 and 3.2 to be made
for 1 or more payroll periods during such Plan Year, but
only to the extent required for such contributions for the
Plan Year to equal what they would have been in the absence
of the mistake.
ARTICLE IV
LIMITATION ON CONTRIBUTIONS
IV.1 Limit on Before-Tax Contributions. The aggregate
elective deferrals (as defined in Section 402(g)(3) of the
Code) made on behalf of each Participant under the Plan for
any Plan Year will not exceed:
(a) the Contribution Dollar Limit, reduced by:
(b) the sum of any of the following amounts that
were contributed on behalf of the Participant for the Plan
Year under a plan, contract, or arrangement other than this
Plan, including BP CAP:
(1) any employer contribution under a qualified
cash or deferred arrangement (as defined in Section 401(k)
of the Code) to the extent not includable in the
Participant's gross income for the taxable year under
Section 402(e)(3) of the Code (determined without regard to
Section 402(g) of the Code);
(2) any employer contribution to the extent not
includable in the Participant's gross income for the taxable
year under Section 402(h)(1)(B) of the Code (determined
without regard to Section 402(g) of the Code);
(3) any employer contribution to purchase an
annuity contract under Section 403(b) of the Code under a
salary reduction agreement (within the meaning of
Section 3121(a)(5)(D) of the Code); and
(4) any elective employer contribution under
Section 408(p)(2)(A)(i) of the Code;
provided that no contribution described in this subsection
(b) will be taken into account for the purpose of reducing
the dollar limit in subsection (a), above, if the plan,
contract, or arrangement is not maintained by a Commonly
Controlled Entity unless the Participant has filed a notice
with the Administrator not later than March 15 of the next
Plan Year regarding such contribution.
IV.2 Actual Deferral Percentage Test.
(a) The Plan will satisfy the actual deferral
percentage test set forth in Section 401(k)(3) of the Code
and Treasury Regulation 1.401(k)-1(b), the provisions of
which (and any subsequent Internal Revenue Service guidance
issued thereunder) are incorporated herein by reference,
each as modified by subsection (b), below. In accordance
with Section 401(k)(3) of the Code and Treasury Regulation
51.401(k)-1(b), as modified by subsection (b), below, the
actual deferral percentage for HCEs for any Plan Year will
not exceed the greater of:
(1) the actual deferral percentage for NHCEs
for the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual deferral
percentage for NHCEs for the current Plan Year multiplied by
2 and (ii) the actual deferral percentage for NHCEs for the
current Plan Year plus 2%.
(b) In performing the actual deferral percentage
test described in subsection (a), above, the following
special rules will apply:
(1) the deferral percentages of Participants
who are covered by an agreement that the Secretary of Labor
finds to be a collective bargaining agreement between
employee representatives and an Employer will be
disaggregated from the deferral percentages of other
Participants and the provisions of this Section 4.2 will be
applied separately with respect to each group.
(2) Employees who have not become eligible
to become Participants will be disregarded in applying this
Section 4.2.
(3) The Administrator may permissively
aggregate the Plan with other plans to the extent permitted
under Treasury Regulation 1.401(k)-1.
IV.3 Actual Contribution Percentage Test.
(a) The Plan will satisfy the actual contribution
percentage test set forth in Section 401(m)(2) of the Code
and Treasury Regulation 1.401(m)-1(b), the provisions of
which (and any subsequent Internal Revenue Service guidance
issued thereunder) are incorporated herein by reference,
each as modified by subsection (b), below. In accordance
with Section 401(m)(2) of the Code and Treasury Regulation
1.401(m)-1(b), as modified by subsection (b), below, the
actual contribution percentage for HCEs for any Plan Year
will not exceed the greater of:
(1) the actual contribution percentage for
NHCEs for the current Plan Year multiplied by 1.25, or
(2) the lesser of (i) the actual
contribution percentage for NHCEs for the current Plan Year
multiplied by 2 and (ii) the actual contribution percentage
for NHCEs for the current Plan Year plus 2%.
(b) In performing the actual contribution percentage
test described in subsection (a), above, the following
special rules will apply:
(1) the limit imposed by the actual
contribution percentage test will apply only to HCEs and
NHCEs who are not covered by an agreement that the Secretary
of Labor finds to be a collective bargaining agreement
between employee representatives and an Employer;
(2) Employees who have not become eligible
to become Participants will be disregarded in applying this
Section 4.3.
(3) The Administrator may permissively
aggregate the Plan with other plans to the extent permitted
under Treasury Regulation 1.401(m)-1.
IV.4 Prohibition on Multiple Use. The Plan will not
violate the prohibition against multiple use of the
alternative methods of compliance with Sections 401(k) and
(m) of the Code. The prohibition is set forth in
Section 401(m)(9) of the Code and Treasury Regulation
1.401(m)-2, the provisions of which (and any subsequent
Internal Revenue Service guidance issued thereunder) are
incorporated herein by reference, and will be applied using
the current year testing method; provided that:
(a) the limit imposed by the multiple use test
will apply only to HCEs and NHCEs who are not covered by an
agreement that the Secretary of Labor finds to be a
collective bargaining agreement between employee
representatives and an Employer;
(b) the multiple use test will be applied after
taking into account the modifications to the actual deferral
percentage test and the actual contribution percentage tests
made by Sections 4.2(b) and 4.3(b); and
(c) Employees who have not become eligible to
become Participants will be disregarded in applying this
Section 4.4.
IV.5 Maximum Contributions.
(a) In addition to any other limitation set forth
in the Plan and notwithstanding any other provision of the
Plan, in no event will the annual additions allocated to a
Participant's Account under the Plan, together with the
aggregate annual additions allocated to the Participant's
accounts under all other defined contribution plans required
to be aggregated with the Plan under the provisions of
Section 415 of the Code, exceed the maximum amount permitted
under Section 415 of the Code, the provisions of which are
incorporated herein by reference.
(b) If the limitations imposed by this
Section 4.5 apply to a Participant who is entitled to annual
additions under one or more tax-qualified plans with which
the Plan is aggregated for purposes of Section 415 of the
Code, the annual additions under the Plan and such other
plan or plans will be reduced in the following order, to the
extent necessary to prevent the Participant's benefits
and/or annual additions from exceeding the limitations
imposed by this Section:
(1) All other defined contribution plans in
which the Participant participated and with which the Plan
is aggregated for purposes of Section 415 of the Code, in an
order based on the reverse chronology of the annual
additions to the plans, beginning with the last annual
addition and ending with the first annual addition; and
(2) the Plan.
IV.6 Imposition of Limitations. Notwithstanding
anything contained in the Plan to the contrary, the
Administrator may, in his sole discretion, limit the amount
of a Participant's Before-Tax Contributions and After-Tax
Contributions during a Plan Year to the extent that he
determines that the imposition of such a limit is necessary
or appropriate to ensure that the Plan will satisfy the
requirements of this Article. Any such limitation may be
imposed on a Participant at any time and without advance
notice to the Participant, and regardless of whether the
Participant is covered by a collective bargaining agreement
between employee representatives and an Employer. The
Administrator can impose limitations beyond those that are
absolutely necessary to satisfy the requirements of this
Article and may, in his sole discretion, impose more
restrictive limitations that are designed to enable the Plan
to satisfy those requirements by a reasonable margin.
Notwithstanding anything contained in the Plan to the
contrary, in the event that the Contributions to be
allocated to a Participant for a particular payroll period
would cause the limitations of Section 4.5 to be exceeded
with respect to a Participant, the Match Contributions which
otherwise would be made with respect to such Participant for
such period will be first reduced or eliminated so that the
limitations of Section 4.5 are not exceeded.
IV.7 Return of Excess Annual Additions, Deferrals, and
Contributions.
(a) If a Participant's Before-Tax Contributions
or After-Tax Contributions cause the annual additions
allocated to a Participant's Account to exceed the limit
imposed by Section 4.5, such excess contributions (plus or
minus any gains or losses thereon) will be returned to the
Participant in the following order: (i) After-Tax
Contributions for which no Match Contributions were made;
(ii) Before-Tax Contributions for which no Match
Contributions were made; (iii) After-Tax Contributions for
which Match Contributions were made; and (iv) Before-Tax
Contributions for which Match Contributions were made.
Contributions returned pursuant to this subsection (a) will
be disregarded in applying the limits imposed by Sections
4.1 through 4.4.
(b) After any excess annual additions (plus or
minus any gains or losses thereon) with respect to a Plan
Year have been distributed as provided in subsection (a),
above, if a Participant's aggregate elective deferrals (as
defined in Section 402(g)(3) of the Code) with respect to a
Plan Year exceed the Contribution Dollar Limit, the
following rules will apply to such excess (the Participant's
"excess deferrals"):
(1) Not later than the first January 31
following the close of the Plan Year, the Participant may
allocate to the Plan all or any portion of the Participant's
excess deferrals for the Plan Year (provided that the amount
of the excess deferrals allocated to the Plan will not
exceed the amount of the Participant's Before-Tax
Contributions to the Plan for the Plan Year that have not
been withdrawn or distributed) and will notify the
Administrator of any amount allocated to the Plan.
(2) If excess deferrals have been made to
the Plan on behalf of a Participant for a Plan Year, the
Participant will be deemed to have allocated such excess
deferrals to the Plan pursuant to subsection (b)(1), above,
and the Plan will distribute such excess deferrals pursuant
to subsection (b)(3), below.
(3) As soon as practicable, but in no event
later than the first April 15th following the close of the
Plan Year, the Plan will distribute to the Participant the
amount allocated or deemed allocated to the Plan under
subsection (b)(1) or (b)(2), above (plus or minus any gains
or losses thereon). The distribution described in this
subsection (b)(3) will be made notwithstanding any other
provision of the Plan.
(c) After any excess annual additions (plus or
minus any gains or losses thereon) with respect to a Plan
Year have been distributed as provided in subsection (a),
above, after any excess deferrals (plus or minus any gains
or losses thereon) with respect to a Plan Year have been
distributed as provided in subsection (b), above, and after
any action pursuant to Section 4.6 with respect to the Plan
Year has been taken, if the actual deferral percentage for
the Plan Year of HCEs exceeds the limit imposed by Section
4.2, the following rules apply:
(1) (A) The amount of the excess
contributions (determined in accordance with
Section 401(k)(8)(B) of the Code and subparagraph (3),
below), plus or minus any gains or losses thereon
(including, in the discretion of the Administrator, gains or
losses attributable to the "gap period" within the meaning
of Treasury Regulation 1.401(k)-1(f)(4)), will be
distributed to HCEs, beginning with the HCE with the highest
dollar amount of Before-Tax Contributions for the Plan Year
in an amount required to cause that HCE's Before-Tax
Contributions to equal the dollar amount of the Before-Tax
Contributions of the HCE with the next highest dollar amount
of Before-Tax Contributions (or in such lesser amount that
is equal to the total amount of excess contributions). The
process described in the preceding sentence will continue
until the reduction equals the total excess contributions
made to the Plan.
(B) The distribution described in
subparagraph (A), above, will be made as soon as
practicable, but in no event later than the close of the
Plan Year following the close of the Plan Year with respect
to which the excess contributions were made.
(C) The gains or losses on excess
contributions will be determined by multiplying the total
annual earnings (positive or negative) for the Plan Year in
the Participant's Before-Tax Account by the following
fraction:
(i) The numerator of the fraction
will be the amount of the excess contributions.
(ii) The denominator of the
fraction will be the value of the Participant's Before-Tax
Account as of the last day of the Plan Year (or at the end
of the gap period, if elected by the Company), reduced by
any positive earnings (or increased by any negative
earnings) credited to the Participant's Before-Tax Account
for the Plan Year (and for the gap period, if elected by the
Company).
Notwithstanding the preceding provisions of this
subparagraph (C), in the discretion of the Administrator,
the gains and losses on excess contributions will be
determined in accordance with any method permitted under the
Code and the applicable Treasury Regulations.
(2) In accordance with Treasury Regulations,
the Administrator may elect, in his sole discretion, to
treat as an After-Tax Contribution the amount of the excess
contributions attributable to a Participant who is an HCE,
except to the extent that such After-Tax Contribution would
cause the Plan to exceed (or to continue to exceed) the
contribution percentage limit imposed by Section 4.3 or to
violate (or to continue to violate) the prohibition against
multiple use imposed by Section 4.4.
(3) The excess contributions to the Plan
will be determined in accordance with Section 401(k)(8)(B)
of the Code by performing the hypothetical calculation
described in this subparagraph (3). The actual deferral
percentage of the HCE with the highest individual actual
deferral percentage will be reduced to the extent necessary
to cause his actual deferral percentage to equal the actual
deferral percentage of the HCE with the second highest
individual actual deferral percentage (or, if it would
result in a lesser reduction, to the extent necessary to
cause the Plan to satisfy the actual deferral percentage
test under Section 4.2). The excess contribution to the Plan
is the amount by which the Before-Tax Contributions of the
HCE with the highest individual actual deferral percentage
would have been reduced after the hypothetical reduction in
actual deferral percentage described in the preceding
sentence. This process will continue until no excess
contributions remain.
The distribution described in subparagraph (1), above, will
be made notwithstanding any other provision of the Plan. The
amount distributed pursuant to subparagraph (1), above, or
recharacterized pursuant to subparagraph (2), above, for a
Plan Year with respect to a Participant will be reduced by
any excess deferral previously distributed from the Plan to
such Participant for the Participant's taxable year ending
with or within such Plan Year.
(d) If a Participant's Before-Tax Contributions
or After-Tax Contributions (plus or minus any gains or
losses thereon) are returned to him pursuant to the
provisions of this Section 4.7, any Match Contributions
(plus or minus any gains or losses thereon) with respect to
such returned Before-Tax Contributions or After-Tax
Contributions will be immediately forfeited. Any such
forfeitures will be applied to reduce the Company's
obligation to make Match Contributions pursuant to
Article III.
(e) After any excess deferrals (plus or minus any
gains or losses thereon), and any excess contributions (plus
or minus any gains or losses thereon), with respect to a
Plan Year have been distributed and/or re-characterized, in
accordance with subsections (a), (b), (c), and (d), above,
and after any action pursuant to Section 4.6 with respect to
the Plan Year has been taken, if the contribution percentage
for the Plan Year of HCEs exceeds the actual contribution
percentage limit imposed by Section 4.3, the following rules
will apply:
(1) (A) The amount of the excess aggregate
contributions for the Plan Year (determined in accordance
with Section 401(m)(6)(B) of the Code and subparagraph (3),
below), plus or minus any gains or losses thereon
(including, in the discretion of the Company, gains or
losses attributable to the "gap period" within the meaning
of Treasury Regulation 1.401(m)-1(e)(3)), will be
distributed (or, if forfeitable, will be forfeited) as soon
as practicable and in any event before the close of the Plan
Year following the close of the Plan Year with respect to
which the excess aggregate contributions were made.
(B) The gains or losses on excess
aggregate contributions will be determined by multiplying
the total annual earnings (positive or negative) for the
Plan Year in the Participant's After-Tax and Match Accounts
by the following fraction:
(i) The numerator of the fraction
will be the amount of the excess aggregate contributions.
(ii) The denominator of the
fraction will be the value of the Participant's After-Tax
and Match Accounts as of the last day of the Plan Year (or
at the end of the gap period, if elected by the Company),
reduced by any positive earnings (or increased by any
negative earnings) credited to the Participant's After-Tax
and Match Accounts for the Plan Year (and for the gap
period, if elected by the Company).
Notwithstanding the preceding provisions of this
subparagraph (B), in the discretion of the Administrator,
the gains and losses on excess contributions will be
determined in accordance with any method permitted under the
Code and the applicable Treasury Regulations.
(2) Any distribution in accordance with
subparagraph (1), above, will be made to HCEs, beginning
with the HCE with the highest dollar amount of After-Tax
Contributions and Match Contributions for the Plan Year in
an amount required to cause that HCE's After-Tax
Contributions and Match Contributions to equal the dollar
amount of the After-Tax Contributions and Match
Contributions of the HCE with the next highest dollar amount
of After-Tax Contributions and Match Contributions (or in
such lesser amount that is equal to the total amount of
excess aggregate contributions). This process will continue
until the reduction equals the total excess aggregate
contributions made to the Plan. Such distributions will be
made notwithstanding any other provision of the Plan.
(3) The excess aggregate contributions to
the Plan will be determined in accordance with
Section 401(m)(6)(B) of the Code by performing the
hypothetical calculation described in this subparagraph (3).
The actual contribution percentage of the HCE with the
highest individual actual contribution percentage will be
reduced to the extent necessary to cause his actual
contribution percentage to equal the actual contribution
percentage of the HCE with the second highest individual
actual contribution percentage (or, if it would result in a
lesser reduction, to the extent necessary to cause the Plan
to satisfy the actual contribution percentage under Section
4.3). The excess aggregate contribution to the Plan is the
amount by which the After-Tax Contributions and Match
Contributions on behalf of the HCE with the highest
individual actual contribution percentage would have been
reduced after the hypothetical reduction in actual
contribution percentage described in the preceding sentence.
This process will continue until no excess aggregate
contributions remain.
The determination of the excess aggregate contributions
under this subsection (e) for any Plan Year will be made
after taking the measures called for by the preceding
subsections of this Section 4.7.
(f) If, after all the actions required or
permitted by Section 4.6 and the preceding provisions of
this Section 4.7 have been taken, the Before-Tax
Contributions, After-Tax Contributions, and Match
Contributions of HCEs cause the Plan to violate the
prohibition against multiple use imposed by Section 4.4, the
contribution percentage of such HCEs will be reduced to the
extent necessary to cause the Plan to comply with that
prohibition, and the excess aggregate contributions will be
distributed (or, if forfeitable, will be forfeited) in the
manner described in subsection (e), above.
IV.8 Incorporation by Reference. Each incorporation by
reference in this Article IV of the provisions of
Sections 401(k)(3), (m)(2), (m)(9) and 415, and the specific
underlying regulations thereunder, includes this
incorporation by reference to any subsequent Internal
Revenue Service guidance issued thereunder.
ARTICLE V
ACCOUNTING FOR PARTICIPANTS'
ACCOUNTS AND FOR INVESTMENT OPTIONS
V.1 Individual Participant Accounting.
(a) Account Maintenance. The Administrator will
cause the Accounts for each Participant to reflect
transactions involving Contributions and other allocations
thereto, loans, earnings, losses, withdrawals, distributions
and expenses to be allocated and posted to the Accounts in
accordance with the terms of this Plan. Financial
transactions during or with respect to an Accounting Period
will be accounted for at the individual Account level by
allocating and posting each transaction to the Account as of
a Trade Date. At any point in time, the value of a
Participant's Accrued Benefit will be equal to the sum of
the aggregate of the following amounts determined under (1),
(2) and (3) with regard to each Investment Option:
(1) the (A) Unit Values for the portion of
his Accounts invested in each Investment Options under
5.2(a) multiplied by (B) the number of full and fractional
units for each such Investment Option posted to his
Accounts.
(2) the (A) fair market value for the shares
for the portion of his Accounts invested in each Investment
Option under 5.2(b) multiplied by (B) the number of full and
fractional shares for each such Investment Option posted to
his Accounts, and
(3) the fair market value of any other
assets of the Trust Fund (exclusive of assets described in
(1) and (2)) in which a portion of his Accounts is invested
or held.
(b) Trade Date Accounting and Investment Cycle.
For any transaction to be processed as of a Trade Date, the
Administrator must receive instructions by the Sweep Time
and such instructions will apply only to amounts held in and
posted to the Accounts as of the Trade Date. Except as
otherwise provided herein, all transactions will be effected
on the Trade Date relating to the Sweep Time (or as soon
thereafter as is administratively possible).
(c) Suspension of Transactions. Whenever the
Administrator considers such action to be in the best
interest of the Participants, the Administrator in its
discretion may suspend from time to time the Trade Date or
reset the Sweep Time.
(d) How Fees and Expenses are Charged to
Accounts. Account maintenance fees will be charged to
Accounts (to the extent such fees are not paid by the
Employer), provided that no fee will reduce an Account
balance below zero. Transaction type fees (such as loan set-
up fees, etc.) will be charged to the Accounts involved in
the transaction as determined pursuant to procedures adopted
by the Administrator. Fees and expenses incurred for the
management and maintenance of Investment Options will be
charged at the Investment Option level and reflected in the
net gain or loss of each Investment Option to the extent not
paid by the Employer.
(e) Error Correction. The Administrator may
correct any errors or omissions in the administration of the
Plan by crediting or charging any Account with the amount
that would have been allocated, credited or charged to the
Account had no error or omission been made. Funds necessary
for any such crediting will be provided through payment made
by the Administrator, or, if the Administrator was not
responsible for such error or omission, through payment by
the Employer.
V.2 Accounting for Investment Options.
(a) Unit Accounting. The investments in each
Investment Option designated by the Administrator as subject
to unit accounting will be maintained in full and fractional
units. The Administrator is responsible for determining the
number of full and fractional units of each such Investment
Option.
(b) Share Accounting. The investments in each
Investment Option designated by the Administrator as subject
to share accounting will be maintained in full and
fractional shares. The Administrator is responsible for
determining the number of full and fractional shares of each
such Investment Option.
V.3 Accounts for Alternate Payees. A separate Account
will be established for an Alternate Payee as of the date
and in accordance with the directions specified in the QDRO.
Such Account will be valued and accounted for in the same
manner as any other Account. An Alternate Payee will be
treated as a Participant to the extent provided as follows:
(a) Exchange Election. An Alternate Payee may
direct or exchange the investment of such Account in the
same manner as a Participant.
(b) Withdrawals and Forms of Payment. An
Alternate Payee will receive payment of the amount specified
in the QDRO as soon as administratively possible, regardless
of whether the Participant is an Employee, unless the QDRO
specifically provides that payment be delayed, including at
the election of the Alternate Payee. Payment may be made in
the same forms as are available to the Participant with
respect to whom the QDRO has been obtained, to the extent
provided in the QDRO.
(c) Participant Loans. An Alternate Payee will
not be entitled to borrow from his Account. If a QDRO
specifies that the Alternate Payee is entitled to any
portion of the Account of a Participant who has an
outstanding loan balance, all outstanding loans will
continue to be held in the Participant's Account and will
not be divided between the Participant's and Alternate
Payee's Accounts.
(d) Beneficiary. An Alternate Payee may
designate a Beneficiary in the same manner as a Participant,
to the extent provided for in the QDRO.
V.4 Accounts for Heritage BP Beneficiaries. A
separate Account will be established for a Heritage BP
Beneficiary entitled to any portion of a deceased Heritage
BP Participant's Accounts. Such Account will be valued and
accounted for in the same manner as any other Account. A
Heritage BP Beneficiary will be treated as a Participant to
the extent provided as follows:
(a) Exchange Election. A Heritage BP Beneficiary
may direct or exchange the investment of such Account in the
same manner as a Participant.
(b) Withdrawals and Forms of Payment. Payment to
a Heritage BP Beneficiary may be made in the same forms as
are available to a Heritage BP Participant.
(c) Participant Loans. A Heritage BP Beneficiary
will not be entitled to borrow from his Account.
(d) Beneficiary. A Heritage BP Beneficiary may
designate a Beneficiary in the same manner as a Participant.
V.5 Transition Rules. The Administrator may adopt
such procedures, including imposing "transition" periods, as
are necessary to accommodate any plan mergers, Investment
Option or accounting changes or events, or similar events as
it determines are necessary for the proper administration of
the Plan.
ARTICLE VI
INVESTMENT OPTIONS AND ELECTIONS
VI.1 Investment of Contributions.
(a) Investment Election. Each Participant may
direct the Administrator, by submission to the Administrator
of an Investment Election, to invest Contributions (and loan
repayments) posted to his Accounts and other amounts
allocated and posted to the Participant's Account in one or
more Investment Options; provided, however, that a separate
Investment Election is required for Rollover Contributions.
Notwithstanding the above, Match Contributions will be
invested directly in the Company Stock Fund. In the absence
of an Investment Election, Before-Tax Contributions, After-
Tax Contributions and Rollover Contributions (and loan
repayments) will be invested in the Money Market Fund.
(b) Effective Date of Investment Election; Change
of Investment Election. A Participant's initial Investment
Election will be effective with respect to an Investment
Option on the Trade Date which relates to the Sweep Time on
which or prior to which the Investment Election is received
and not revoked pursuant to procedures specified by the
Administrator. A Participant's Investment Election will
continue in effect, notwithstanding any change in his
Compensation or his Contribution Percentage, until the
earliest of: (1) the effective date of a new Investment
Election; or (2) the date he ceases to be a Participant. A
change in Investment Election will be effective with respect
to an Investment Option as soon as administratively possible
after the date the Administrator receives the Participant's
new Investment Election.
VI.2 Investment of Accounts.
(a) Exchange Election. Notwithstanding a
Participant's Investment Election, a Participant may direct
the Administrator, by submission of an Exchange Election to
the Administrator, to change the investment of his Accounts
between 2 or more Investment Options, on a pro rata basis
with respect to each of the Participant's Accounts
(exclusive of the Participant's loans).
(b) Effective Date of Exchange Election.
An Exchange Election to change a Participant's investment of
his Accounts in one Investment Option to another Investment
Option will be effective with respect to such Investment
Options on the Trade Date(s) which relates to the Sweep Time
on which or prior to which the Exchange Election is received
and not revoked pursuant to procedures specified by the
Administrator. Notwithstanding the foregoing, and except as
provided in Section 12.1 below, an Exchange Election made
with respect to the Account balance of a Participant who
dies on or after the Effective Date will not be valid if it
is made after such time that is established by the
Administrator following the date the Administrator is
notified of such Participant's death.
(c) Delayed Effective Date. Notwithstanding any
provision of this Section 6.2 to the contrary, if the sell
portion of an Exchange Election can not be processed due to
a problem in the market, a liquidity shortage in an
Investment Option or disruption of other sell or buy orders
in another Investment Option, the buy portion of the
Exchange Election will not be processed on a Trade Date
until the sell transaction can be processed.
VI.3 Investment Options. The Plan's Investment Options
are indicated in Appendix 1.55. In addition, a Designated
Officer may, from time to time, as directed by the
Investment Committee:
(a) limit or freeze investments in, or transfers
from, an Investment Option;
(b) add funding vehicles thereunder;
(c) liquidate, consolidate or otherwise
reorganize an existing Investment Option; or
(d) add new Investment Options to, or delete
Investment Options from, Appendix 1.55.
VI.4 Transition Rules. Effective as of the date
designated by the Designated Officer on which any Investment
Option is addressed under Section 6.3, each Participant will
have the opportunity to make new Investment Elections and
Exchange Elections to the Administrator no later than the
applicable Sweep Time. The Administrator may take such
action as the Administrator deems appropriate, including,
but not limited to:
(a) using any reasonable accounting methods in
performing his duties during the period of transition;
(b) designating into which Investment Option a
Participant's Accounts or Contributions will be invested;
(c) establishing the method for allocating net
investment gains or losses and the extent, if any, to which
amounts received by and distributions paid from the Trust
during this period share in such allocation;
(d) investing all or a portion of the Trust's
assets in a short-term, interest-bearing Investment Option
during such transition period;
(e) delaying any Trade Date during a designated
transition period or changing any Sweep Time or Valuation
Time during such transition period; or
(f) designating how and to what extent a
Participant's Investment Election Exchange Election will
apply to Investment Options.
VI.5 Restricted Investment Options. Notwithstanding
anything contained herein to the contrary: (a) a Participant
may not direct investment of future Contributions or loan
repayments in, or direct transfer of any portion of his
Account balance into, the U.S. Savings Bond Investment
Option or the Income Fund; (b) purchases and sales in the
Company Stock Fund will be restricted for Participants
subject to applicable statutory, stock exchange or Company
trading restrictions; and (c) amounts invested hereunder
will be subject to such restrictions as may be imposed by
(i) the issuer of securities to an Investment Option, or
(ii) the investment manager or advisor of such Investment
Option.
VI.6 Risk of Loss. Neither the Plan nor the Company
guarantees that the fair market value of the Investment
Options, or of any particular Investment Option, will be
equal to or greater than the amounts invested therein.
Neither the Plan nor the Company guarantees that the value
of the Accounts will be equal to or greater than the
Contributions allocated thereto. Except as required
pursuant to ERISA, each Participant will have sole
responsibility for the investment of his Accounts and for
transfers among the available Investment Options, and no
fiduciary, or other person will have any liability for any
loss or diminution in value resulting from any Participants'
exercise of, or failure to exercise, such investment
responsibility. Each Member assumes all risk of any
decrease in the value of the Investment Options and the
Accounts. The Plan is intended to constitute a plan
described in Section 404(c) of ERISA.
VI.7 Interests in the Investment Options. No Member
will have any claim, right, title, or interest in or to any
specific assets of any Investment Option until distribution
of such assets is made to such Member. No Member will have
any claim, right, title, or interest in or to the Investment
Option, except as and to the extent expressly provided
herein.
VI.8 Sole Source of Benefits. Members may only seek
payment of benefits under the Plan from the Trust, and
except as otherwise required by law, the Employer assumes no
responsibility or liability therefor.
VI.9 Alternate Payees and Heritage BP Beneficiaries.
See Sections 5.3 and 5.4 for the treatment of Alternate
Payees and Heritage BP Beneficiaries as Participants for
purposes of this Article VI.
ARTICLE VII
VESTING AND FORFEITURES
VII.1 Vesting in Match Account. Except as provided
in Section 7.2, an Active Participant will be 100 percent
vested in his Match Account if:
(a) he is credited with at least 5 years of
Service;
(b) he attains age 65;
(c) he becomes Disabled;
(d) he dies;
(e) his employment with each Commonly Controlled
Entity is terminated:
(1) and such termination is involuntary and
results from the sale or other disposition of all or part of
an Employer to a person or entity which is not a Commonly
Controlled Entity;
(2) under the terms of (A) a written
voluntary or involuntary severance plan of general
application is duly adopted by the Company or (B) a
separation agreement between the Participant and an
Employer; or
(3) and the Participant's job function has
been outsourced to a Contractor Firm pursuant to a contract
between the Contractor Firm and an Employer; or
(f) in the case of a Heritage BP Participant who
was hired prior to July 1, 1991, such Participant is
credited with at least 4 Years of Participation.
VII.2 Vesting in Heritage Amoco Match Account.
(a) A Participant with a Heritage Amoco Match
Account who does not have a nonforfeitable interest in such
Account in accordance with Section 7.1, above, will have a
nonforfeitable interest in a portion of such Account as
determined in accordance with the following schedule:
Years of Service Nonforfeitable Percentage
Less than 2 0%
2 but less than 3 25%
3 but less than 4 50%
4 but less than 5 75%
5 or more 100%
; provided that if a Participant has not made a withdrawal
from his Heritage Amoco Match Account, such Participant's
nonforfeitable interest in such Account will not be less
than:
(i) the amount in such Account, minus
(ii) the sum of all of the Match
Contributions credited to such Account, multiplied by;
(iii) the applicable percentage
determined in accordance with the following schedule:
Years of Service Applicable Percentage
Less than 2 100%
2 but less than 3 75%
3 but less than 4 50%
4 but less than 5 25%
5 or more 0%
(b) If a withdrawal from a Participant's Heritage
Amoco Match Account has been made to him at a time when he
is less than 100 percent vested in such Account balance, the
first vesting schedule in Section 7.2(a) will thereafter
apply as follows: At any relevant time prior to a
forfeiture of any portion thereof under Section 7.4, a
Participant's vested interest in his Heritage Amoco Match
Account will be equal to P(AB+W)-W, where P is the
Participant's nonforfeitable percentage at the relevant
time; AB is the Heritage Amoco Match Account balance; and W
is the sum of all prior withdrawals.
VII.3 Vesting in Before-Tax, After-Tax, and
Rollover Accounts. A Participant is always 100 percent
vested in his Before-Tax, After-Tax and Rollover Accounts.
VII.4 Forfeitures.
(a) If any portion of an Inactive Participant's
Match Account is not vested after the Effective Date, such
portion will be forfeited as follows:
(i) If the Inactive Participant receives a
withdrawal of his entire vested interest in his Account, the
non-vested portion of such Account will be forfeited upon
the complete withdrawal of such vested interest, subject to
the possibility of reinstatement as provided in Section
11.2. For purposes of this subsection, if the value of the
Inactive Participant's vested interest in such Account
balance is zero, the Inactive Participant will be deemed to
have received a withdrawal of his vested interest
immediately following his Severance from Service.
(ii) The non-vested portion of an Inactive
Participant's Match Account will be forfeited after the
Participant has incurred a Break in Service of 7 consecutive
12-month periods. The remaining vested portion of the
Participant's Match Account will be nonforfeitable and
segregated from the Participant's Match Account for so long
as the Match Account is not fully vested and such
aggregated, vested portion of the Match Account will no
longer be subject to this Article if the Inactive
Participant subsequently becomes an Active Participant.
(b) Notwithstanding any provisions of this
Article VII to the contrary, Match Contributions (plus or
minus any gains or losses thereon) may be forfeited pursuant
to the provisions of Article IV.
(c) Forfeitures may be applied to reduce the
Employer's obligation to make Contributions hereunder or to
pay reasonable Plan expenses.
VII.5 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 Match Account, any
Participant who is a Participant on the effective date of
such amendment or who is credited with 3 or more years of
Service will have a right to irrevocably elect to have his
nonforfeitable interest in such Match Account 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 Match Account under the Plan, as amended, at any time
is not less than such interest determined without regard to
such amendment. Such election will be made during the
period beginning on the date the amendment is adopted and
ending no later than the date which is 60 days after the
latest of the following dates: (a) the date the amendment
is adopted; (b) the date the amendment becomes effective; or
(c) the date on which the Participant is issued written
notice of the amendment by the Administrator.
Notwithstanding the foregoing provisions of this Section
7.5, the vested interest of each Participant on the
effective date of such amendment will not be less than his
vested interest under the Plan as in effect immediately
prior to the effective date of such amendment.
ARTICLE VIII
PARTICIPANT LOANS
VIII.1 Participant Loans Permitted. An Active
Participant will be eligible for a loan with respect to all
of his Accounts pursuant to this Article VIII only to the
extent: (a) the Participant will not be in default on the
loan under Section 8.9 immediately after the loan is made;
and (b) in the case of a Participant who has previously
defaulted on a loan (other than a Participant whose
outstanding loan balance was repaid in full in accordance
with Section 8.10(c) or who received the defaulted loan in
an actual (not deemed) distribution), the defaulted loan has
been repaid in full. All loan limits are determined as of
the Trade Date as of which the loan is funded. The funds
will be disbursed to the Participant as soon as is
administratively possible after the next following
Settlement Date.
VIII.2 Loan Funding Limits. The loan amount must be
within the following limits:
(a) Plan Maximum Limit. Subject to the legal
limit described in (b) below, the maximum a Participant may
borrow, including the outstanding balance of existing Plan
loans, is 50 percent of his following Accounts which are
fully vested; disregarding any amount subject to a QDRO:
Before-Tax Account
Rollover Account
Match Account
After-Tax Account
(b) Legal Maximum Limit. The maximum a
Participant may borrow, including the outstanding balance of
existing loans, is based upon the value of his vested
interest in this Plan and all other qualified plans
maintained by a Commonly Controlled Entity (the "Vested
Interest"). The maximum amount is equal to 50 percent of
his Vested Interest, not to exceed $50,000. However, the
$50,000 amount is reduced by the Participant's highest
outstanding balance of all loans from any Commonly
Controlled Entity's qualified plans during the 12-month
period ending on the day before the Trade Date on which the
loan is made.
(c) Loan Minimum Limit. The minimum amount a
Participant can borrow at any time is $1,000.
VIII.3 Maximum Number of Loans. A Participant may
have only 1 loan outstanding from the Plan at any time.
Notwithstanding the foregoing, an Eligible Employee who
becomes a Participant in the Plan upon a change in job
status may have more than 1 outstanding loan transferred to
this Plan from a Commonly Administered Plan pursuant to
Section 2.9, but may not apply for another loan until such
loan(s) cease to be outstanding.
VIII.4 Source of Loan Funding. A loan to a
Participant will be made solely from the assets of his own
Accounts as determined by the Administrator in his
discretion. The available assets will be determined first
by Contribution Account. The hierarchy for loan funding by
type of Contribution Account will be the order listed in
Section 8.2(a). Within each Account used for funding,
amounts will be taken by Investment Option in direct
proportion to the market value of the Participant's interest
in each Investment Option as of the Trade Date on which the
loan is made, unless the Participant elects otherwise.
VIII.5 Interest Rate. The interest rate charged on
Participant loans will be fixed throughout the term of the
loan and will equal one plus the prime rate, as published in
The Wall Street Journal, in effect on the last Business Day
of the calendar quarter immediately preceding the calendar
quarter in which the loan request is received by the
Administrator.
VIII.6 Repayment. Substantially level amortization
will be required of each loan with payments made at least
monthly. Loans may be prepaid in full at any time. The
loan repayment period will be as mutually agreed upon by the
Participant and the Administrator, not to exceed 5 years.
VIII.7 Repayment Hierarchy. Loan principal
repayments will be allocated and posted to the Participant's
Contribution Accounts in the order that was used to fund the
loan. Loan interest will be allocated and posted to the
Contribution Accounts in direct proportion to the principal
repayment. Loan payments will be invested in Investment
Options based upon the Participant's current Investment
Election for that Account except that the current Investment
Election in effect for Before-Tax and After-Tax
Contributions will also be applied for amounts posted to the
Participant's Match and Rollover Accounts.
VIII.8 Loan Application, Note and Security. A
Participant must apply for any loan in accordance with the
procedures established by the Administrator. The
Administrator will administer Participant loans and will
specify the time frame for approving loan applications. All
loans will be evidenced by a promissory note and security
agreement and secured only by up to 50 percent of a
Participant's vested Account balance determined immediately
after the origination of the loan. The Plan will have a
lien on such portion of a Participant's Account to the
extent of any outstanding loan balance. Each such note will
constitute an asset of each of the Accounts from which the
source of the loan originated. Likewise, each security
agreement will represent a liability of each of the
Accounts, but only to the extent that the note constitutes
an asset of such Account.
VIII.9 Default.
(a) A Participant will default on a loan if any
of the following events occurs:
(1) the Participant's death;
(2) The Participant's failure to make the
equivalent of one month's payment of principal and interest
on the loan;
(3) the Participant misses less than one
month's repayment but the loan's term cannot be extended to
recover these repayments without extending its term beyond 5
years;
(4) the Participant's failure to perform or
observe any covenant, duty, or agreement under the
promissory note evidencing the loan;
(5) receipt by the Plan of an opinion of
counsel to the effect that (A) the Plan will, or could, lose
its status as a tax-qualified Plan unless the loan is repaid
or (B) the loan violates, or might violate, any provision of
ERISA;
(6) any portion of the Participant's Account
that secures the loan becomes payable to the Participant,
his surviving Spouse or Beneficiary, an Alternate Payee, or
any other person; or
(7) the termination of the Plan.
VIII.10 Foreclosure.
(a) If a default on a loan occurs, the
Participant, the Participant's estate, or any other person
will have 90 days from the date of the default to pay the
entire outstanding balance of the loan to the Plan or may
elect to make one partial payment to the Plan to reduce the
outstanding balance of the loan. Upon the death of the
Participant, payment may only be made by certified check or
such other means acceptable to the Administrator.
(b) If full repayment does not happen under
Section 8.10(a), the Participant's nonforfeitable interest
in his Account securing the loan will be applied
immediately, to the extent lawful, when and to the extent
the Participant's Account is then available for withdrawal
in accordance with the applicable provisions of the Plan, to
pay the entire outstanding balance of the loan (together
with accrued and unpaid interest).
(c) Notwithstanding the foregoing, no portion of
the Participant's Before-Tax Account, or other Accounts
which are not available to be withdrawn, will be withdrawn
or applied to pay an outstanding loan before the date on
which it is otherwise withdrawable under the Plan. In the
event of a default and failure to repay under Section
8.10(a), the Administrator will direct the Trustee to report
the unpaid balance of the loan (less amounts withdrawn under
Section 8.10(b)) as a taxable distribution. To the extent
that the Participant's nonforfeitable interest in his
Account securing the loan has not been applied under
Section 8.10(b) to pay the entire outstanding balance of the
loan (together with accrued and unpaid interest), (i) the
loan may be repaid, (ii) no interest will accrue on such
loan, (iii) the loan will be considered outstanding for
purposes of Section 8.3 and (iv) any repayment will be
allocated and posted to the Participant's After-Tax Account
and treated as an After-Tax Contribution (other than for
purposes of Article IV).
(d) Any failure by the Administrator to enforce
the Plan's rights with respect to a default on a loan will
not constitute a waiver of such rights either with respect
to that default or any other default.
VIII.11 Spousal Consent. Spousal Consent will not be
required for any loan except to the extent required by
Section 10.10(e).
ARTICLE IX
WITHDRAWALS
IX.1 Withdrawal from After-Tax Account. By applying to
the Administrator in the form and manner prescribed by the
Administrator, an Active Participant may elect to withdraw
any portion up to the entire value of his After-Tax Account.
The withdrawal will be taken first from any After-Tax
Contributions made prior to 1987. After pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
from the balance of the After-Tax Account with a portion of
each withdrawal representing a return of After-Tax
Contributions in an amount equal to the product of (a) the
total withdrawal multiplied by (b) a fraction, the numerator
of which is the Participant's total After-Tax Contributions
remaining in the After-Tax Account prior to the withdrawal
and the denominator of which is the value of the balance of
the After-Tax Account.
IX.2 Withdrawal from Rollover Account. By applying to
the Administrator in the form and manner prescribed by the
Administrator, an Active Participant may elect to withdraw
any portion, up to the entire value of his Rollover Account.
IX.3 Withdrawal from Match Account.
(a) By applying to the Administrator in the form
and manner prescribed by the Administrator, an Active
Participant who is fully vested pursuant to Section 7.1 may
elect to withdraw any portion, up to the entire value of his
Match Account; provided that a fully vested Active
Participant who has not participated in the Plan for at
least 5 Years of Participation may only withdraw Match
Contributions that have been in the Plan for at least 2
years. For purposes of determining Years of Participation
in the Plan and the amount of time that Match Contributions
have been in the Plan, periods of participation and
accumulation under another plan may be considered, pursuant
to procedures established by the Administrator, in the case
of a transfer of assets and liabilities from such plan to
the Plan.
(b) By applying to the Administrator in the form
and manner prescribed by the Administrator, an Active
Participant may elect to withdraw any portion, up to the
value of his Heritage Amoco Match Account, minus the greater
of:
(i) the sum of all Match Contributions made
with respect to the Participant during the 24-month period
preceding the date of the withdrawal, or
(ii) the sum of all Match Contributions made
with respect to the Participant in which the Participant
would not have a nonforfeitable interest under Article VII
if the Participant Severed from Service on the date of the
withdrawal.
IX.4 Withdrawal from Before-Tax Account for Hardship.
(a) Subject to the provisions of this Section
9.4, an Active Participant may apply to the Administrator in
the form and manner prescribed by the Administrator, for a
withdrawal from his Before-Tax Account excluding any
earnings posted to his Before-Tax Account after December 31,
1988; provided that he has first withdrawn the total value
of his After-Tax Account, the total value of his Rollover
Account, and, to the extent the Participant is vested, the
total value of his Match Account pursuant to Sections 9.1,
9.2 and 9.3.
(b) A withdrawal under this Section 9.4 will be
permitted only if the Administrator determines that such
withdrawal is (1) on account of a Participant's "Deemed
Financial Need" and (2) "Deemed Necessary" to satisfy the
financial need.
A "Deemed Financial Need" will be limited to financial
commitments relating to:
(i) costs directly related to the purchase
or construction (excluding mortgage payments or balloon
payments) of a Participant's principal residence;
(ii) the payment of expenses for medical care
described in Section 213(d) of the Code previously incurred
by the Participant, the Participant's Spouse, or any
dependents of the Participant (as defined in Section 152 of
the Code) or necessary for those persons to obtain medical
care described in Section 213(d) of the Code;
(iii) payment of tuition and related
educational fees and room and board expenses for the next 12
months of post-secondary education for the Participant, his
Spouse, children or dependents (as defined in Section 152 of
the Code);
(iv) necessary payments to prevent the
eviction of the Participant from his principal residence or
the foreclosure on the mortgage of the Participant's
principal residence; or
(v) the payment of funeral or burial
expenses for the Participant's Spouse or any dependents of
the Participant (as defined in Section 152 of the Code).
A withdrawal is "Deemed Necessary" to satisfy the financial
need only if all of these conditions are met:
(i) the withdrawal may not exceed the dollar
amount needed to satisfy the Participant's documented
financial hardship, plus an amount necessary to pay federal,
state, or local income taxes or penalties reasonably
anticipated to result from such withdrawal;
(ii) the Participant must have obtained all
distributions, other than financial hardship distributions,
and all nontaxable loans under all plans maintained by any
Commonly Controlled Entity;
(iii) the Participant will be suspended
from making Before-Tax Contributions and After-Tax
Contributions (or similar contributions under any other
qualified or nonqualified plan of deferred compensation
maintained by a Commonly Controlled Entity) for at least 12
months from the date the withdrawal is received; and
(iv) the Contribution Dollar Limit for the
taxable year immediately following the taxable year in which
the financial hardship withdrawal is received will be
reduced by the Before-Tax Contributions for the taxable year
in which the financial hardship withdrawal is received.
IX.5 Withdrawals from Before-Tax Account for Other
Reasons. By applying to the Administrator in the form and
manner prescribed by the Administrator, an Active
Participant who (a) has attained age 59-1/2, or (b) becomes
Disabled, may elect to withdraw any portion, up to the
entire value of his Before-Tax Account.
IX.6 Partial Withdrawals. By applying to the
Administrator in the form and manner prescribed by the
Administrator, an Inactive Participant may make a pro rata
withdrawal from all Accounts of any amount up to the entire
vested portion of the value of those Accounts.
IX.7 Withdrawal Processing Rules.
(a) Minimum Amount. There is no minimum amount
for any type of withdrawal.
(b) Permitted Frequency. There is no maximum
number of withdrawals permitted in any Plan Year.
(c) Application by Participant. A Participant
must submit a withdrawal request in accordance with
procedures established by the Administrator. A Participant
who is not an Employee may make a withdrawal request, even
if the Participant is receiving amounts pursuant to a
systematic withdrawal plan under Article X.
(d) Approval by Administrator. The Administrator
is responsible for determining that a withdrawal request
conforms to the requirements described in this Section.
(e) Time of Processing. Except as otherwise
provided herein, the Administrator will process all
withdrawal requests which it receives by the Sweep Time that
relates to the Payment Date, based on the value as of the
Trade Date to which it relates, and fund them on the next
Settlement Date. The Administrator will then make payment
to the Participant as soon thereafter as is administratively
possible.
(f) Medium and Form of Payment. The medium of
payment for withdrawals is all cash; provided however, a
withdrawal may be paid, as directed by the Participant, all
in kind to the extent the withdrawal is funded from the
Company Stock Fund. Notwithstanding the foregoing, a
Heritage BP Participant (or Heritage BP Beneficiary) may
direct payment all in kind to the extent the withdrawal is
funded from the following Investment Options:
INVESCO Total Return Fund
Fidelity Blue Chip Growth Fund
Vanguard Wellesley Income Fund
Vanguard Growth and Income Portfolio
Vanguard Windsor Fund
The form of payment for all withdrawals will be a single
installment.
(g) Investment Option Sources. Within each
Account used for funding a withdrawal, amounts will be taken
by Investment Option in direct proportion to the market
value of the Participant's interest in each Investment
Option (which excludes the Participant's loans) as of the
Trade Date on which the withdrawal is made, unless the
Participant elects a withdrawal from specific Investment
Option(s).
(h) Direct Rollover. With respect to any cash
payment hereunder which constitutes an Eligible Rollover
Distribution, a Distributee may direct the Administrator to
have such payment paid to an Eligible Retirement Plan.
(i) Outstanding Loan. Notwithstanding any other
provision of this Article IX, the portion of a Participant's
Account that secures a loan to such Participant under
Article VIII may not be taken as a withdrawal.
(j) Spousal Consent. Spousal Consent will not be
required for any withdrawal except with respect to a
Heritage BP Participant who has elected an annuity form of
distribution pursuant to Section 10.10.
(k) Required Withdrawals. Notwithstanding any
provision of the Plan to the contrary, the Payment Date of
the Accrued Benefit of a Participant who is a 5-percent
owner (as defined in Section 416 of the Code), will not be
later than April 1 following the calendar year in which the
Participant attains age 70-1/2 (with required withdrawals to
be made by each December 31 thereafter) and will comply with
the requirements of Section 401(a)(9) of the Code and the
Treasury Regulations promulgated thereunder.
(l) Hierarchy. Except in the case of a
withdrawal from a specific Account pursuant to and only to
the extent permitted by Sections 9.1, 9.2, 9.3 or 9.4, the
funds used to finance a withdrawal described in Section 9.5
or 9.6 will be derived from the Participant's Accounts
(exclusive of the Participant's loans) in the following
order (to the extent necessary to finance the withdrawal):
After-Tax Account
Rollover Account
Match Account (to the extent vested)
Before-Tax Account (but only for a withdrawal under
Section 9.5 or for an Inactive Participant making a
withdrawal under Section 9.6)
IX.8 Alternate Payees and Heritage BP Beneficiaries.
See Sections 5.3 and 5.4 for the application of the
provisions of this Article IX to Alternate Payees and
Heritage BP Beneficiaries.
ARTICLE X
ADDITIONAL OPTIONAL FORMS OF BENEFIT
FOR AN INACTIVE PARTICIPANT
X.1 Request for Withdrawal of Benefits.
(a) Request for Withdrawal. Subject to the other
requirements of this Article, an Inactive Participant may
elect to have all of his vested Accrued Benefit paid to him
beginning upon any Settlement Date following his Severance
from Service (and prior to a Reemployment Date) in a form of
payment allowed hereunder.
(b) Failure to Request Withdrawal. If an
Inactive Participant fails to submit a withdrawal request in
accordance with procedures established by the Administrator
by the last Payment Date permitted under this Article, his
vested Accrued Benefit will be valued as of the Valuation
Date which immediately precedes such latest date of
withdrawal (the "Default Valuation Date") and a notice of
such withdrawal will be issued to his last known address as
soon as administratively possible. If the Participant does
not respond to the notice or cannot be located, his vested
Accrued Benefit determined on the Default Valuation Date
will be treated as a forfeiture. If the Participant
subsequently files a claim, the amount forfeited (unadjusted
for gains and losses) will be reinstated to his Accounts and
distributed as soon as administratively possible, and such
payment will be accounted for by charging it against the
forfeiture account or, to the extent the forfeiture account
is insufficient, by a contribution from the Employer of the
affected Inactive Participant.
X.2 Deadline for Withdrawal.
(a) Required Commencement at Retirement. A
Participant must make a request for payment before payment
must commence under this Section 10.2(a). In addition to
any other Plan requirements and unless the Inactive
Participant elects otherwise, or cannot be located, but
subject to the preceding sentence, the Payment Date of an
Inactive Participant's vested Accrued Benefit will be not
later than 60 days after the latest of the close of the Plan
Year in which: (i) the Participant attains the earlier of
age 65 or his Normal Retirement Date; (ii) occurs the tenth
anniversary of the Plan Year in which the Inactive
Participant commenced participation in the Plan; or (iii)
the Participant had a Severance from Service. However, if
the amount of the payment or the location of the Inactive
Participant (after a reasonable search) cannot be
ascertained by that deadline, payment will be made no later
than 60 days after the earliest date on which such amount or
location is ascertained.
(b) Minimum Required Distributions. In any case,
the Payment Date of the Accrued Benefit of a Participant
(i) who is not an Employee, or (ii) who is an Employee and
who is a 5-percent owner (as defined in Section 416 of the
Code), will not be later than April 1 following the calendar
year in which the Participant attains age 70-1/2 (with
required distributions to be made by each December 31
thereafter) and will comply with the requirements of Section
401(a)(9) of the Code and the Treasury Regulations
promulgated thereunder.
X.3 Payment Form and Medium.
(a) General. An Inactive Participant's vested
Accrued Benefit may be paid:
(1) in the form of a single sum, or
(2) under a systematic withdrawal plan
(installments) permitted under the Plan.
Within each Account used for funding a withdrawal, amounts
will be taken by Investment Option in direct proportion to
the market value of the Participant's interest in each
Investment Option at the Trade Date for which the
distribution is made, unless the Participant elects a
withdrawal from specific Investment Option(s).
(b) Medium of Payment. Payments will be made in
cash; alternatively, to the extent the withdrawal is funded
from the Company Stock Fund, the Inactive Participant can
elect to receive payment in whole shares of Company Stock or
a combination of whole shares and cash. A Heritage BP
Participant who is an Inactive Participant (or Heritage BP
Beneficiary) who elects a single sum withdrawal may also
elect to receive a payment in kind to the extent the
withdrawal is funded from the following funds:
INVESCO Total Return Fund
Fidelity Blue Chip Growth Fund
Vanguard Wellesley Income Fund
Vanguard Growth and Income Portfolio
Vanguard Windsor Fund
(c) All withdrawals pursuant to Section
10.3(a)(2) will be made exclusively in cash in accordance
with the following rules:
(1) The funds used to finance the withdrawal
will be derived from the Inactive Participant's Account
(exclusive of the Participant's loans) in the following
order (to the extent necessary to obtain the amount
necessary to finance the distribution):
After-Tax Account (unmatched first)
Rollover Account
Match Account (to the extent vested)
Before-Tax Account (unmatched first)
(2) Within each Account used for funding a
withdrawal, amounts will be taken in direct proportion to
the market value of the Participant's interest in each
Investment Option at the Trade Date on which the withdrawal
is made.
(d) An Inactive Participant who is receiving
withdrawals pursuant to Section 10.3(a)(2) may elect to
accelerate payments, receive a lump-sum distribution of the
remainder of his Accounts or to receive a withdrawal under
Article IX.
(e) If an Inactive Participant who elects to
receive installment payments pursuant to this Section 10.3
dies after his initial Payment Date but before his
nonforfeitable interest in his Account has been fully
distributed, the Inactive Participant's Beneficiary will
receive the remainder of the Participant's nonforfeitable
interest in his Account (determined as of the Trade Date on
which the distribution is made) in a lump-sum payment as of
a Valuation Time that occurs as soon as practicable
following the Inactive Participant's death and the
Administrator's receipt of all information and documentation
that it requires before making the distribution.
Notwithstanding the foregoing, a Heritage BP Beneficiary may
receive distributions pursuant to the terms of BP CAP as in
effect immediately prior to the Effective Date.
X.4 Small Amounts Paid Immediately. If an Inactive
Participant's vested Accrued Benefit is $5,000 or less (or
such larger amount as may be specified in Section 411(a)(11)
of the Code) at any time, including after withdrawals have
commenced, the Inactive Participant's Accrued Benefit will
be paid as a single sum as soon as administratively
possible, pursuant to such procedures as may be established
by the Administrator.
X.5 Payment Within Life Expectancy. An Inactive
Participant's payment election must be consistent with the
requirement of Section 401(a)(9) of the Code that all
payments are to be completed within a period not to exceed
the lives or the joint and last survivor life expectancy of
the Inactive Participant and his Beneficiary. The life
expectancies of an Inactive Participant and his Beneficiary
may be recalculated annually. If the Inactive Participant
does not properly notify the Administrator regarding whether
life expectancies will be recalculated annually, they will
not be. A single life expectancy will be used if the
Inactive Participant does not properly notify the
Administrator regarding the period to be used. The
elections regarding the life expectancy or expectancies to
be used with respect to an Inactive Participant's payment
election and the extent to which recalculation will apply
will be irrevocable.
X.6 Incidental Benefit Rule. The Participant's
payment election must be consistent with the requirement
that, if the Participant's Spouse is not his sole primary
Beneficiary, the minimum annual distribution for each
calendar year, beginning with the year in which he attains
age 70-1/2, will not be less than the quotient obtained by
dividing (a) the Inactive Participant's vested Accrued
Benefit as of the last Trade Date of the preceding year by
(b) the applicable divisor as determined under the
incidental benefit requirements of Section 401(a)(9) of the
Code.
X.7 Continued Payment of Amounts in Payment Status on
Effective Date. Any person who became an Inactive
Participant on the Effective Date only because he had an
Accrued Benefit and who had commenced to receive payments
prior to the Effective Date will continue to receive such
payments in the same form and payment schedule under this
Plan.
X.8 Direct Rollover. With respect to any cash payment
hereunder which constitutes an Eligible Rollover
Distribution, a Distributee may direct the Administrator to
have such payment paid to an Eligible Retirement Plan.
X.9 Delay. Notwithstanding any other provision of the
Plan, a payment will not be considered to be made after the
applicable Payment Date merely because actual payment is
reasonably delayed for the calculation and/or distribution
of the benefit amount, or to ascertain the location of the
payee, if all payments due are actually made.
X.10 Grandfather Provisions. If Section 10.4 is not
applicable, a Heritage BP Participant who is an Inactive
Participant may elect to receive the value of his Accounts
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 the Participant in accordance with procedures
established by the Administrator. The following information
and election rules will apply to any Heritage BP Participant
who elects an annuity option under this Section 10.10 or
under BP CAP:
(a) "QJSA". A qualified joint and survivor
annuity, meaning a form of benefit payment which is the
actuarial equivalent of the Participant's vested Accrued
Benefit at the Payment Date, payable to the Participant in
monthly payments for life and providing that, if the
Participant's Spouse survives him, monthly payments equal to
not less than 50 percent (and not greater than 100 percent)
of the amount payable to the Participant during his lifetime
will be paid to the Spouse for the remainder of his
lifetime.
(b) "QPSA". A qualified pre-retirement survivor
annuity, meaning that upon the death of a Participant before
the Payment Date of his vested Accrued Benefit, such benefit
will become payable to the surviving Spouse as an annuity,
unless Spousal Consent has been given to a different
Beneficiary or the surviving Spouse chooses a different form
of payment.
(c) QJSA Information to a Participant. No more
than 90 days before the Payment Date, each Participant who
has a Spouse and requests an annuity form of payment will be
given a written explanation of (1) the terms and conditions
of the QJSA; (2) the right to make an election to waive this
form of payment and choose an optional form of payment and
the effect of this election; (3) the right to revoke this
election and the effect of this revocation; (4) the need for
Spousal Consent; and (5) the right of the Participant to
consider, for at least 30 days, whether to waive the QJSA.
(d) QJSA Election. A Participant may elect (and
such election will include Spousal Consent if married), at
any time within the 90 day period ending on the Payment
Date, to (1) waive the right to receive the QJSA and elect
an optional form of payment; or (2) revoke or change any
such election.
(e) QJSA Spousal Consent to Participant Loans.
Spousal Consent must be obtained for any Participant loan
which is funded from any amount to which the election in
paragraph (d) above applies within the 90 day period ending
on the date such loan is secured.
(f) QJSA Spousal Consent to Withdrawals. Spousal
Consent must be obtained for any Participant withdrawal
which is funded from any portion of an Account to which the
election in paragraph (d) above applies within the 90 day
period ending on the date of such withdrawal.
(g) QPSA Beneficiary Information to Participant.
Each married Participant who has requested an annuity form
of payment will be given written information stating that
(1) his death benefit is payable to his surviving Spouse;
(2) his ability to choose that the benefit be paid to a
different Beneficiary; (3) the right to revoke or change a
prior designation and the effects of such revocation or
change; and (4) the need for Spousal Consent. Such
information will be provided during whichever of the
following periods ends later:
(i) the period that begins 1 year before the
date on which the Participant requests an annuity form of
payment and that ends 1 year after such date; and
(ii) the period that begins with the first
day of the Plan Year in which the Participant attains age 32
and that ends with the close of the Plan Year in which the
Participant attains age 35.
Notwithstanding the foregoing, if the Participant incurs a
Severance from Service after requesting an annuity form of
payment, but before attaining age 35, the information
described in the first sentence of this subsection will be
provided during the period that begins 1 year before the
date of the Participant's Severance from Service and that
ends 1 year after such date.
(h) QPSA Beneficiary Designation by Participant.
A married Participant may designate (with Spousal Consent) a
non-spouse Beneficiary at any time after the Participant has
been given the information described in paragraph (g) above
and upon the earlier of (1) the date the Participant incurs
a Severance from Service, or (2) the beginning of the Plan
Year in which that Participant attains age 35.
X.11 Alternate Payees and Heritage BP Beneficiaries.
See Sections 5.3 and 5.4 for the application of the
provisions of this Article X to Alternate Payees and
Heritage BP Beneficiaries.
ARTICLE XI
REEMPLOYMENT
XI.1 Break in Service Rules.
(a) Subject to subsection (b), a Participant who
is at least partially vested in his Match Account will
always have all periods of Service recognized under the Plan
for vesting purposes, regardless of the length of any Break
in Service.
(b) (1) If an Inactive Participant returns to
employment as an Employee at a time after he has incurred a
Break in Service of at least 7 consecutive 12-month periods,
upon his Reemployment Date with any Commonly Controlled
Entity, his Service earned after such Break in Service will
be disregarded for purposes of determining the
Participant's vested interest in his Match Account
attributable to employment before such Break in Service.
(2) If a Heritage Amoco Participant who
Severed from Service while under AESP prior to the Effective
Date and has a Break in Service of at least 5 consecutive
years prior to the Effective Date (determined under the
terms of AESP as in effect immediately prior to the
Effective Date), upon his Reemployment Date with any
Commonly Controlled Entity, his Service earned after such
Break in Service will be disregarded for purposes of
determining the Participant's vested interest in his Match
Account attributable to employment before such Break in
Service.
(c) If an Inactive Participant who is not at
least partially vested in his Match Account returns to
employment as an Employee at a time after he has incurred a
Break in Service of at least one 12-month period, but less
than 7 consecutive 12-month periods, the period of such
Break in Service will be excluded in determining such
Employee's Service for vesting purposes.
(d) If an Inactive Participant who is not at
least partially vested in his Match Account returns to
employment as an Employee at a time after he has incurred a
Break in Service of at least 7 consecutive 12-month periods,
upon his Reemployment Date his Service earned prior to such
Break in Service will be disregarded for all purposes.
XI.2 Restoration of Forfeited Amounts.
(a) If a Participant forfeits any portion of his
Account under Section 7.4(a) because of the withdrawal of
his complete vested interest in his Accounts after the
Effective Date, but again becomes an Employee before the
date he incurs a Break in Service of at least 7 consecutive
12-month periods, then the amount so forfeited, without any
adjustment for the earnings, expenses, losses, or gains of
the assets credited to his Accounts since the date
forfeited, will be recredited to his Accounts, The amount
to be recredited pursuant to this paragraph will be
accounted for by charging it against the forfeiture account
or, to the extent the forfeiture account is insufficient, by
a contribution from the Employer of the affected
Participant.
(b) A Heritage BP Participant who Severed from
Service while under the Plan or BP CAP prior to the
Effective Date and who subsequently has a Reemployment Date
after the Effective Date within 7 years of such Severance
from Service will have any forfeited amount restored to his
Match Account, adjusted as though such amounts had been
invested in the Income Fund since the date forfeited and
invested in accordance with the Participant's new Investment
Election for Before-Tax and After-Tax Contributions.
However, if such a Participant had received a distribution
of part or all of his Accounts, he must repay, in cash, the
full amount of such distribution on or before his final
repayment date before any such forfeited amount will be
restored to his Accounts and invested in accordance with the
Participant's Investment Election for Before-Tax and After-
Tax Contributions. In this case, no interest will be accrued
on such forfeited amount from the time of the distribution
until the time the distribution is repaid. For purposes of
repaying the distribution amounts the "final repayment date"
will be 5 years after his Reemployment Date. Amounts
previously forfeited after a Break in Service of at least 7
consecutive 12-month periods will not be restored.
(c) A Heritage Amoco Participant who Severed from
Service while under AESP prior to the Effective Date and
subsequently has a Reemployment Date after the Effective
Date within 7 years of such Severance from Service will have
any forfeited amount, without any adjustment for the
earnings, expenses, losses, or gains of the assets allocated
to his Accounts since the date forfeited, restored to his
Match Account and invested in accordance with the
Participant's new Investment Election for Before-Tax and
After-Tax Contributions. Amounts previously forfeited after
a Break in Service of at least 7 consecutive 12-month
periods will not be restored.
(d) Notwithstanding the foregoing paragraph (c),
a Heritage Amoco participant who Severed from Service while
under AESP prior to the Effective Date and had a Break in
Service of at least 5 consecutive years prior to the
Effective Date (determined under the terms of AESP as in
effect immediately prior to the Effective Date) will not
have any forfeited amount restored to his Match Account.
ARTICLE XII
DISTRIBUTION OF ACCRUED BENEFITS ON DEATH
XII.1 Payment to Beneficiary. On the death of a
Participant, his vested Accrued Benefit will be invested in
the Money Market Fund and will be paid to the Beneficiary or
Beneficiaries designated by the Participant in a single sum
as soon as practicable following the Participant's death, in
accordance with procedures established by the Administrator.
The Administrator may establish procedures to allow for such
Beneficiary or Beneficiaries to elect: (a) to accelerate
the time at which the Accrued Benefit is to be invested in
the Money Market Fund following the Participant's death, and
(b) that all or a portion of the Accrued Benefit invested in
the Company Stock Fund be distributed in kind.
XII.2 Beneficiary Designation.
(a) Each Participant may designate the
Beneficiary who is to receive the Participant's remaining
Plan interest at his death. The Participant may change his
designation of Beneficiary by filing a new designation with
the Administrator. Notwithstanding any designation to the
contrary, the Participant's Beneficiary will be the
Participant's surviving Spouse, unless such designation
includes Spousal Consent. In the absence of Spousal
Consent, a Participant will be deemed to have designated his
surviving Spouse as his Beneficiary unless and to the extent
that such designation is inconsistent with a QDRO. If the
Participant dies leaving no Spouse and either (1) the
Participant failed to file a valid Beneficiary designation,
or (2) all persons designated as Beneficiary have
predeceased the Participant, the Administrator will have the
Trustee distribute such Participant's Accrued Benefit in a
single sum to his estate as soon as practicable following
the Participant's death.
(b) Subject to the provisions of this Section, a
Participant may designate a Beneficiary under the Plan at
any time by making the designation in the form and manner
and at the time determined by the Administrator. No such
designation will be effective until and unless it is
received by the Administrator.
(c) Subject to the provisions of this Section, a
Participant may revoke a prior designation of a Beneficiary
at any time by making the revocation in the form and manner
and at the time determined by the Administrator. No such
revocation will be effective until and unless it is received
by the Administrator.
(d) Subject to the provisions of this Section, if
a Participant designates his Spouse as his Beneficiary,
except to the extent required by applicable law, that
designation will not be revoked or otherwise altered or
affected by any:
(i) change in the marital status of the
Participant and such Spouse,
(ii) agreement between the Participant and
such Spouse.
(e) If a Participant designates his Spouse as his
Beneficiary, and the Administrator receives a QDRO with
respect to the marriage, separation or divorce of the
Participant and such Spouse, such Spouse will cease to be
the Participant's Beneficiary unless and until the
Participant again designates his Spouse as his Beneficiary
in accordance with the provisions of this Section, except to
the extent otherwise provided in the QDRO.
(f) Except with respect to a Heritage BP
Beneficiary, after a Participant's death, the Participant's
Beneficiary will not have the rights and options otherwise
available under the Plan to Participants. For example, a
Beneficiary will not have the right to exchange an Account
among the Investment Options. The Beneficiary's sole right
under the Plan will be to receive a distribution in
accordance with Section 12.1. Payment will be made prior to
such time as is required under Section 401(a)(9) of the Code
and the regulations thereunder.
(g) A Participant's Beneficiary may not be
changed following the Participant's death, including, but
not limited to, by a disclaimer otherwise valid under
applicable law.
XII.3 Direct Rollover. With respect to any cash
payment hereunder which constitutes an Eligible Rollover
Distribution, a Distributee may direct the Administrator to
have such payment paid to an Eligible Retirement Plan.
XII.4 Grandfather Provisions.
(a) In the case of a Heritage BP Participant who
died prior to the Effective Date, unless a valid election of
an annuity contract under Section 10.10 is effective, and
death occurs before the Participant's "required beginning
date" (as defined in Section 401(a)(9) of the Code),
distribution of the Participant's vested Accounts will be
made in accordance with procedures established by the
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 (A) December 31 of the year following
the year of the Participant's death, or (B) 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 possible
thereafter.
(iv) Distribution Exception. In cases in
which a Beneficiary does not wish to receive a distribution
over his 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
(A) December 31 of the year the distribution is required to
commence under (ii) or (iii) above, or (B) 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.
(b) In the case of a Heritage BP Participant who
died prior to the Effective Date, unless a valid election of
an annuity contract under Section 10.10 is effective, and
death occurs after the Participant's "required beginning
date" (as defined in Section 401(a)(9) of the Code)
distribution of the remaining portion of a Participant's
vested Account will be made in accordance with procedures
established by the Administrator, and subject to an
applicable election, as follows:
(i) No Beneficiary Designated. The entire
account must be distributed immediately.
(ii) Beneficiary Designated.
(A) 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.
(B) 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 (1) no election is made
to have his designated Beneficiary's life expectancy
recalculated, or (2) 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. Any distributions, other than annuity contracts
or installment payments, may be made in cash or in kind (to
the extent provided under Section 9.7(f)), or both, in
accordance with the election of the Beneficiary.
(c) The following information and election rules
will apply to any Beneficiary of a Participant who dies
prior to his Payment Date under Article X after having
elected an annuity option under Section 10.10.
(i) Form of Payment. The Participant's
vested Accrued Benefit will be paid in the form of a QPSA.
(ii) QPSA Information to a Surviving Spouse.
Each surviving Spouse who requests an annuity form of
payment will be given a written explanation of (A) the terms
and conditions of being paid his vested Accrued Benefit in
the form of a single life annuity, (B) the right to make an
election to waive this form of payment and choose an
optional form of payment and the effect of making this
election, and (C) the right to revoke this election and the
effect of this revocation.
(iii) QPSA Election by Surviving Spouse.
A surviving Spouse may elect, at any time up to the Sweep
Time associated with the Settlement Date upon which payments
will begin, to (1) waive the single life annuity and elect
an optional form of payment, or (2) revoke or change any
such election.
(d) Small Amounts Paid Immediately. If a
Beneficiary's vested Accrued Benefit is $5,000 or less (or
such larger amount as may be specified in Section 411(a)(11)
of the Code) at any time, including after payments hereunder
have commenced, the Beneficiary's Accrued Benefit will be
paid as a single sum as soon as administratively possible,
pursuant to such procedures as may be established by the
Administrator.
XII.5 Alternate Payees and Heritage BP
Beneficiaries. See Sections 5.3 and 5.4 for the application
of the provisions of this Article XII to Alternate Payees
and Heritage BP Beneficiaries.
ARTICLE XIII
TRUST ARRANGEMENT
XIII.1 Trust Agreement. A Designated Officer may
enter into one or more Trust Agreements to provide for the
holding, investment and payment of Plan assets. All Trust
Agreements, as from time to time amended, will continue in
force and will be deemed to form a part of the Plan.
Subject to the requirements of the Code and ERISA, the
Administrator may cause assets of the Plan which are
securities to be held in the name of a nominee or in street
name provided such securities are held on behalf of the Plan
by:
(a) a bank or trust company that is subject to
supervision by the United States or a State, or a nominee of
such bank or trust company;
(b) a broker or dealer registered under the
Securities Exchange Act of 1934, or a nominee of such broker
or dealer; or
(c) a "clearing agency" as defined in Section
3(a)(23) of the Securities Exchange Act of 1934, or its
nominee.
XIII.2 Separate Entity. The Trust Fund under this
Plan from its inception will be a separate entity aside and
apart from the Employers or their assets, and the corpus and
income thereof will in no event and in no manner whatsoever
be subject to the rights or claims of any creditor of any
Employer.
XIII.3 Plan Asset Valuation. As of the Valuation
Time each Business Day, the value of the Plan's assets held
or posted to an Investment Option will be determined.
XIII.4 Right of Employers to Plan Assets. The
Employers will have no right or claim of any nature in or to
the assets of the Plan except the right to require the
Trustee to hold, use, apply, and pay such assets in its
possession in accordance with the Plan for the exclusive
benefit of the Participants or their Beneficiaries and for
defraying the reasonable expenses of administering the Plan;
provided, that:
(a) if the Plan receives an adverse determination
with respect to its initial qualification under
Sections 401(a), 401(k) and 401(m) of the Code,
Contributions conditioned upon the qualification of the Plan
will be returned to the appropriate Employer within 1 year
of such denial of qualification; provided, that the
application for determination of initial qualification is
made by the time prescribed by law for filing the respective
Employer's return for the taxable year in which the Plan is
adopted, or by such later date as is prescribed by the
Secretary of the Treasury under Section 403(c)(2)(B) of
ERISA;
(b) if, and to the extent that, deduction for a
Contribution under Section 404 of the Code is disallowed,
Contributions conditioned upon deductibility will be
returned to the appropriate Employer within 1 year after the
disallowance of the deduction;
(c) if, and to the extent that, a Contribution is
made through mistake of fact, such Contribution will be
returned to the appropriate Employer within 1 year of the
payment of the Contribution; and
(d) any amounts held suspended pursuant to the
limitations of Section 415 of the Code will be returned to
the Employers upon termination of the Plan.
All Contributions made hereunder are hereby expressly
conditioned upon the Plan being qualified under
Sections 401(a), 401(k) and 401(m) of the Code and a
deduction being allowed for such contributions under
Section 404 of the Code. Before-Tax Contributions returned
to an Employer pursuant to this Section will be paid to the
Participant for whom contributed as soon as administratively
convenient. If these provisions result in the return of
Contributions after such amounts have been allocated to
Accounts, such Accounts will be reduced by the amount of the
allocation attributable to such amount, adjusted for any
losses or expenses.
ARTICLE XIV
ADMINISTRATION
XIV.1 General.
(a) Designated Officer and Administrator. The
Company, through its by-laws and the authority vested in the
Board of Directors, hereby:
(1) enables a Designated Officer to have the
power and authority to act, to the extent provided herein,
on behalf of the Company, with respect to matters which
relate to the Plan, but not on behalf of the Plan; and
(2) establishes the Administrator and
enables the Administrator to have the power and authority to
act, to the extent provided herein, on behalf of the Plan,
but not on behalf of an Employer or the Company.
(b) Designated Officer Acting on Behalf of the
Company. Each Designated Officer will have the following
authority and control, and such other authority and control
as will be granted to it, from time to time, by the Board of
Directors or one of its committees, to act on behalf of the
Company but subject to any limitations imposed on such
authority and control by the Board of Directors or one of
its committees:
(1) to identify (and remove) any person as
an Administrative Named Fiduciary with respect to certain
authority to control and manage the administration and
operation of the Plan, in the manner provided herein;
(2) to consult with legal counsel,
independent consulting or evaluation firms, accountants,
actuaries, or other advisors, as necessary, to perform its
functions;
(3) to determine what expenses, if any,
related to the operation and administration of the Plan will
be paid from Employer assets, subject to applicable law;
(4) to establish such policies and, through
the use of such method of taking action as will be selected
by a Designated Officer, to make such delegations or
designations as may be necessary or incidental to a
Designated Officer's authority and control over the Plan to
such officers or executives as have functional
responsibility in the respective areas;
(5) to amend, in part or completely, the
Plan document;
(6) to add a corporation or business entity
as a participating Employer or to remove such corporation or
entity as a participating Employer on such terms and in such
manner as a Designated Officer, in its discretion, will
determine; and
(7) to take all other actions allocated to a
Designated Officer in this Plan or which a Designated
Officer determines in good faith to be necessary or
desirable to fulfill its duties and obligations under the
Plan.
(c) Administrator as an Applicable Named
Fiduciary. The Administrator, acting on behalf of the Plan
and subject to the last sentence of this Section 14.1(c),
will be an Applicable Named Fiduciary with respect to the
authority to manage and control the administration and
operation of the Plan, including without limitation, the
following:
(1) to appoint and compensate from the Trust
Fund such specialists (including attorneys, actuaries,
consultants and accountants) to aid it in the operation and
administration of the Plan, and arrange for such other
services, as the Administrator considers necessary or
appropriate in carrying out the provisions of the Plan;
(2) to appoint and compensate from the Trust
Fund an independent outside accountant to conduct such
audits of the financial statements of the Plan as the
Administrator considers necessary or appropriate;
(3) to execute on behalf of the Plan, or to
cause the Trustee to execute on behalf of the Plan,
Administrative Services Agreements or other contracts which
are legally enforceable and binding on the Plan, subject to
ERISA;
(4) to authorize a person who may, but need
not, be an officer or Employee of an Employer to be this
Plan's agent for service of legal process and to execute
documents on behalf of the Administrator, including any
instructions to the Trustee;
(5) to authorize a settlement or compromise
any litigation resulting in a final liability to the Plan
and Trust; and
(6) to delegate its authority and control
over management and operation of the Plan to a Fiduciary
pursuant to the procedures herein or to empower certain
entities to act as its agent with respect to such authority
and control;
(7) to make a claim determination, based
upon (i) the information known to the Administrator, (ii)
determinations made by an Employer, (iii) such other
information presented to the Administrator in a manner
consistent with its rules and procedures for presenting
evidence, and (iv) such final determinations as may be made
by each other Applicable Named Fiduciary within the scope of
its authority and control, all as are determined to be
relevant by the Administrator, as to any matter or issue
presented to him through the Plan's appeals procedure;
(8) maintain participant records;
(9) administer QDROs; and
(10) to determine eligibility for
participation and benefits under this Plan, including,
without limitation, the determination of those individuals
who are deemed to be an Employee of any Commonly Controlled
Entity.
A Designated Officer will not be an Applicable Named
Fiduciary whenever it acts on behalf of the Company rather
than as, for example, Administrator and, notwithstanding any
other term or provision of the Plan, the Administrator will
cease to be an Applicable Named Fiduciary with respect to
any specified portion of the operation and administration of
the Plan, to the extent that another Applicable Named
Fiduciary is designated pursuant to the procedure in the
Plan to severally have authority to manage and control such
portion of the operation and administration of the Plan.
(d) Procedures for Identification of an
Administrative Named Fiduciary. A Designated Officer,
acting on behalf of the Company, may from time to time,
identify (or revoke such identification of) a person to be
an Administrative Named Fiduciary with respect to some
portion of the authority to manage and control operation and
administration of the Plan. Such identification will either
(i) involve the designation of the person by name or title
in the Plan or Trust document and specification in the Plan
or Trust document of the management and control authority
with respect to which the person will be an Administrative
Named Fiduciary; or (ii) refer to an Administrative Services
Agreement with such person to provide services to or on
behalf of the Plan or Trust and use such Administrative
Services Agreement as a means for specifying the management
and control authority with respect to which such person will
be an Administrative Named Fiduciary. A Designated Officer
may make such identification by use of such method of taking
action as such Designated Officer may select. The Board of
Directors, by resolution, may also identify (or revoke such
identification of) a person to be an Administrative Named
Fiduciary with respect to some portion of the authority to
manage and control the operation and administration of the
Plan. No person who is identified as an Administrative
Named Fiduciary hereunder must consent to such
identification nor will it be necessary for a Designated
Officer to seek such person's acquiescence; however, where
such person has not signed an Administrative Services
Agreement, he must be given notification of the services to
be performed and perform such services. The authority to
manage and control, which any person who is identified to be
an Administrative Named Fiduciary hereunder may have, will
be several and not joint with the Administrator and will
result in the Administrator no longer being an
Administrative Named Fiduciary with respect to, nor having
any longer, such authority to manage and control. On and
after the designation of a person as an Administrative Named
Fiduciary, the Company, the Employer, each Designated
Officer, the Administrator, and any other Administrative
Named Fiduciary with respect to the Plan, will have no
liability for the acts (or failure to act) of any such
Administrative Named Fiduciary except to the extent of its
co-fiduciary duty under ERISA.
(e) Discretionary Authority of Administrative
Named Fiduciary. Each Administrative Named Fiduciary on
behalf of the Plan will enforce the Plan in accordance with
its terms. Each Administrative Named Fiduciary will have
full and complete authority to control and manage that
portion of the administration and operation of the Plan
allocated to such Administrative Named Fiduciary, including,
but not limited to, the authority and discretion to:
(1) Formulate, adopt, issue and apply
procedures and rules and change, alter or amend such
procedures and rules in accordance with law and as may be
consistent with the terms of the Plan;
(2) Exercise such discretion as may be
required to construe and apply the provisions of the Plan,
subject only to the terms and conditions of the Plan; and
(3) To take all other actions already
described in this Plan or which the Administrative Named
Fiduciary determines in good faith to be necessary or
desirable to fulfill its duties and obligations under the
Plan.
(f) Allocations and Delegations of
Responsibility.
(1) Delegations. Each Administrative Named
Fiduciary may designate persons (other than an
Administrative Named Fiduciary) to carry out Fiduciary
responsibilities it may have with respect to the Plan and
make a change of delegated responsibilities; provided,
however, trustee responsibilities may only be delegated to
an investment manager as described in ERISA. Such
delegation will either: (A) specify the delegated person by
name or position and specify the discretionary authority
with respect to which the person will be a Fiduciary; or
(B) refer to an Administrative Services Agreement with such
person to provide services to the Plan on behalf of the
delegating Administrative Named Fiduciary as a means of
specifying the discretionary authority with respect to which
such person will be a Fiduciary. The Administrative Named
Fiduciary may make such delegations by use of such method of
taking action which it may select. No person (other than an
investment manager (as defined in Section 3(38) of ERISA))
to whom Fiduciary responsibility has been delegated must
consent to being a Fiduciary nor will it be necessary for
the delegating Administrative Named Fiduciary to seek such
person's acquiescence; however, where such person has not
signed an Administrative Services Agreement, he must be
given notification of the services to be performed and
perform such services. The discretionary authority any
person who is delegated Fiduciary responsibilities hereunder
may have will be several and not joint with the delegating
Administrative Named Fiduciary. A delegation of Fiduciary
responsibility to a person which is not implemented in the
manner set forth herein will not be void; however, whether
the delegating Administrative Named Fiduciary will have
joint liability for acts of such person will be determined
by applicable law.
(2) Allocations. A Designated Officer,
acting on behalf of the Company, may allocate Fiduciary
responsibilities (other than trustee responsibilities
described in Section 405(c)(3) of ERISA) among named
fiduciaries when it identifies an Administrative Named
Fiduciary in the manner described in paragraph (d) hereof,
or may reallocate Fiduciary responsibilities among existing
named fiduciaries by action of a Designated Officer in
accordance with paragraph (d) hereof. An allocation of
Fiduciary responsibility to a person which is not
implemented in the manner set forth herein will not be void,
however, such person may not be an Administrative Named
Fiduciary with respect to the Plan.
(3) Limit on Liability. Fiduciary duties
and responsibilities which have been allocated or delegated
pursuant to the terms of the Plan are intended to limit the
liability, if any, of the Company, an Employer and the
members of the Board of Directors, the Administrator, each
Designated Officer and each Administrative Named Fiduciary,
as appropriate, in accordance with the provisions of
Section 405(c) of ERISA.
(g) Fiduciary Capacity. Any person or group of
persons may serve in more than one Fiduciary capacity with
respect to the Plan. The Administrator's status as an
employee of the Company will not disqualify such individual
from taking any action hereunder or render such individual
accountable for any distribution or other material advantage
such individual may receive under the Plan.
(h) Applicable Named Fiduciary Decisions Final.
The decision of the Administrator or another Applicable
Named Fiduciary in matters within its jurisdiction will be
final, binding, and conclusive upon Company, the Employer,
the Trustee, each Employee, Participant, Spouse and
Beneficiary, and every other person or party interested or
concerned.
(i) No Agency. Each Administrative Named
Fiduciary will perform (or fail to perform) its
responsibilities and duties or discretionary authority with
respect to the Plan as an independent contractor and not as
an agent of the Plan, the Company, any Employer, or the
Administrator. No agency is intended to be created nor is
any Designated Officer empowered to create an agency
relationship with an Administrative Named Fiduciary.
(j) Employer's Agent. The Company and each
Designated Officer will act as agent for each Employer when
acting hereunder.
XIV.2 Claims Procedure.
(a) Initial Review of Claim. If any individual
believes that he has improperly been excluded from
participation in the Plan, or if a Member believes he is
entitled to benefits in an amount greater than those which
he is receiving or has received, he may file a claim with
the Claims Administrator. Such a claim will be in writing
and state the nature of the claim, the facts supporting the
claim, the amount claimed, and the address of the claimant.
The Claims Administrator will review the claim and, unless
special circumstances require an extension of time, within
90 days after receipt of the claim, mail written notice by
registered or certified mail to the claimant of the decision
with respect to the claim. If special circumstances require
an extension of time, the claimant will be so advised in
writing mailed within the initial 90-day period and in no
event will such an extension exceed 90 days. The notice of
the decision with respect to the claim will be written in a
manner calculated to be understood by the claimant and, if
the claim is wholly or partially denied, set forth the
specific reasons for the denial, specific references to the
pertinent Plan provisions on which the denial is based, a
description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary, and an explanation of the claim review procedure
under the Plan, including a notice that (i) the claimant or
his duly authorized representative may request a review of
the denial in accordance with the procedures set forth in
subsection (b) of this Section, (ii) the claimant may have
reasonable access to pertinent documents, and (iii) the
claimant may submit comments in writing to the Claims
Administrator.
(b) Appeal of Claim. Within 60 days after notice
of the denial has been received by the claimant, the
claimant or his duly authorized representative may request a
review of the denial by the Claims Administrator by filing
with the Claims Administrator, a written request for such
review. If a request is so filed, review of the denial will
be made by the Claims Administrator within 60 days after
receipt of such request, unless special circumstances
require an extension of time, and the claimant will be given
written notice of the resulting final decision. If special
circumstances require an extension of time, the claimant
will be so advised in writing mailed within the initial 60-
day period and in no event will an extension exceed 60 days.
The notice of the Claims Administrator's final decision will
include specific reasons for the decision and specific
references to the pertinent Plan provisions on which the
decision is based and will be written in a manner calculated
to be understood by the claimant.
XIV.3 Notices to Participants, Etc. Any notice,
report or statement given, made, delivered or transmitted to
a Participant or any other person entitled to or claiming
benefits under the Plan will be deemed to have been duly
given, made or transmitted when sent via messenger, delivery
service, facsimile or mailed by first class mail with
postage prepaid and addressed to the Participant or such
person at the address last appearing on the records of the
Administrator or the Applicable Named Fiduciary, whichever
is applicable. A Participant or other person may record any
change of his address from time to time by following the
procedures established by the Administrator.
XIV.4 Notices to Claims Administrator. Any written
direction, notice or other communication from Participants
or any other person entitled to or claiming benefits under
the Plan to the Claims Administrator will be deemed to have
been duly given, made or transmitted either when delivered
to such location as will be specified upon the forms
prescribed by the Claims Administrator for the giving of
such direction, notice or other communication or when
otherwise received by the Claims Administrator.
XIV.5 Actions by the Company. Whenever the Company
or an Employer have the authority to take action under this
Plan, the following person or persons will have the
authority to act on behalf of the Company or Employer:
(a) action(s) may be taken by resolution of the
Board of Directors;
(b) the Designated Officer, unless such authority
has been expressly limited by the terms of this Plan or the
enabling resolutions of the Board of Directors or one of its
committees.
ARTICLE XV
ADOPTION AND WITHDRAWAL FROM PLAN
XV.1 Adoption by Other Employers.
(a) With the consent of a Designated Officer, any
Commonly Controlled Entity may adopt this Plan and
participate herein (for purposes of this Article XVI, a
"Participating Employer"), effective as of the date
specified in such adoption, by filing with the Designated
Officer a certified copy of a resolution of its board of
directors or other governing authority to that effect, and
such other instruments as the Designated Officer may
require, and, if the resolution involves a change in the
Trust Agreement, the Designated Officer's filing with the
Trustee a copy of such resolution, together with a certified
copy of the consent of the Designated Officer approving such
adoption.
(b) The adoption resolution may contain such
specific changes and variations in the terms of the Plan or
Trust Agreement that apply to such Participating Employer
and its Employees as may be acceptable to the Designated
Officer and if the resolution involves a change in the Trust
Agreement, the Trustee. However, the sole, exclusive right
to amend the Plan or the Trust Agreement in any other
respect is reserved in accordance with Section 16.1, and any
such amendment will be binding upon the Participating
Employer; provided that no amendment without the consent of
a Participating Employer may alter specific changes and
variations in the Plan or Trust Agreement terms adopted by
the Participating Employer in its adoption resolution. The
adoption resolution will become, as to such Participating
Employer and its Employees, a part of this Plan and the
Trust Agreement. It will not be necessary for the
Participating Employer to sign or execute the Plan, the
Trust Agreement, or any amendment thereof. The coverage date
of the Plan for any Participating Employer will be the date
stated in the adoption resolution, and from and after such
effective date, such Participating Employer will assume all
the rights, obligations and liabilities of an individual
Employer entity under the Plan and the Trust Agreement. The
administrative powers and control of the Company and any
Designated Officer, as provided in the Plan and the Trust
Agreement, including the exclusive right to amend the Plan
and the Trust Agreement, and the administrative powers of
the Company to appoint and remove the Trustee, and its
successors, will not be diminished by reason of the
participation of any Participating Employer in the Plan.
XV.2 Withdrawal from the Plan. With the consent of a
Designated Officer, a Participating Employer may discontinue
or revoke its participation in the Plan on at least 90 days'
notice by filing a properly executed document with the
Designated Officer. Notwithstanding the foregoing, a
Participating Employer will be deemed to have terminated its
participation in the Plan when it ceases to be a Commonly
Controlled Entity.
XV.3 Employee Transfers Within Participating Group. It
is anticipated that an Employee may be transferred between
Participating Employers. No such transfer will be deemed a
Severance from Service.
XV.4 Designation of Agent. Each Participating
Employer will be deemed a part of the Company; provided
that, with respect to its relations with the Trustee and the
Administrator in connection with the Plan, each
Participating Employer will be deemed to have irrevocably
designated the Company and each Designated Officer as its
agent.
XV.5 Designated Officers. Only the Senior Vice
President or the Group Vice President of BP Amoco p.l.c. can
act as a Designated Officer under this Article XV unless the
Board of Directors has specifically granted authority
outside of this Plan to another Designated Officer to act
under this Article XV, and then only to the extent so
granted.
ARTICLE XVI
AMENDMENT, TERMINATION AND MERGER
XVI.1 Amendments.
(a) Power to Amend. The Company may at any time
and from time to time amend, suspend or modify the Plan, in
whole or in part, by written instrument duly adopted by: (i)
the Board of Directors; or (ii) any Designated Officer, if
the Board of Directors has delegated to such Designated
Officer the authority to execute such amendments. Any such
amendment, suspension or modification will become effective
on such date as the Board of Directors or such Designated
Officer, as the case may be, will determine, and may apply
retroactively or prospectively to Members at the time
thereof, as well as to future Members; provided, however,
that no amendment will:
(1) increase the duties or liabilities of
the Trustee or the Administrator without its written
consent;
(2) have the effect of vesting in any
Employer any interest in any funds, securities or other
property, subject to the terms of this Plan and the Trust
Agreement;
(3) authorize or permit at any time any part
of the corpus or income of the Plan's assets to be used or
diverted to purposes other than for the exclusive benefit of
Members;
(4) except to the extent permissible under
ERISA and the Code, make it possible for any portion of the
Trust assets to revert to an Employer to be used for, or
diverted to, any purpose other than for the exclusive
benefit of Members entitled to Plan benefits and to defray
reasonable expenses of administering the Plan;
(5) permit an Employee to be paid the
balance of his Before-Tax Account unless the payment would
otherwise be permitted under Section 401(k) of the Code; and
(6) have any retroactive effect as to
deprive any such person of any benefit already accrued,
except that no amendment made in order to conform the Plan
as a plan described in Section 401(a) of the Code of which
amendments are permitted by the Code or are required or
permitted by any other statute relating to employees'
trusts, or any official regulations or ruling issued
pursuant thereto, will be considered prejudicial to the
rights of any such person.
(b) Restriction on Amendment. No amendment to
the Plan will deprive a Participant of his nonforfeitable
rights to benefits accrued to the date of the amendment. In
addition to the foregoing, the Plan will not be amended so
as to eliminate an optional form of payment of an Accrued
Benefit attributable to employment prior to the date of the
amendment. The foregoing limitations do not apply to
benefit accruals occurring after the date of the amendment.
(c) A Designated Officer. The Senior Vice
President or the Group Vice President of BP Amoco p.l.c.
acting as a Designated Officer on behalf of the Company, may
amend, modify, change or revise the Plan or any Appendix, in
whole or in part, or with respect to all persons or a
designated group of persons unless the Board of Directors
has specifically granted authority outside of this Plan to
another Designated Officer to act under this Article XVI,
and then only to the extent so granted; provided however
(1) no such action may be taken if it could not have been
adopted under this Section by the Board of Directors; and
(2) no such action may amend Articles XIV and XVI.
XVI.2 Plan Termination. It is the expectation of
the Company that it will continue the Plan and the payment
of Contributions hereunder indefinitely, but the
continuation of the Plan and the payment of Contributions
hereunder is not assumed as a contractual obligation of the
Company or any other Employer. The Company reserves the
right, at any time, to terminate the Plan, or to reduce,
suspend or discontinue its or any other Employer's
Contributions hereunder, provided, however, that the
Contributions for any Plan Year accrued or determined prior
to the end of such year will not after the end of such year
be retroactively reduced, suspended or discontinued except
as may be permitted by law. Upon termination of the Plan or
complete discontinuance of Contributions hereunder (other
than for the reason that the Employer has had no net profits
or accumulated net profits), each Participant's Accrued
Benefit will be fully vested. Upon termination of the Plan
or a complete discontinuance of Contributions, unclaimed
amounts will be applied as forfeitures and any unallocated
amounts will be allocated to Participants who are Eligible
Employees as of the date of such termination or
discontinuance on the basis of Compensation for the Plan
Year (or short Plan Year). Upon a partial termination of
the Plan, the Accrued Benefit of each affected Participant
will be fully vested. In the event of termination of the
Plan, the Administrator will direct the Trustee to
distribute to each Participant the entire amount of his
Accrued Benefit as soon as administratively possible, but
not earlier than would be permitted in order to retain the
Plan's qualified status under Sections 401(a), (k) and (m)
of the Code, as if all Participants who are Employees had
incurred a Severance from Service on the Plan's termination
date. Should a Participant or a Beneficiary not elect
immediate payment of a nonforfeitable Accrued Benefit in
excess of $5,000, the Administrator will direct the Trustee
to continue the Plan and Trust Agreement for the sole
purpose of paying to such Participant his Accrued Benefit or
death benefit, respectively, unless in the opinion of the
Administrator, to make immediate single sum payments to such
Participant or Beneficiary would not adversely affect the
tax qualified status of the Plan upon termination and would
not impose additional liability upon any Employer or the
Trustee.
XVI.3 Plan Merger and Spinoff.
(a) General. The Plan will not merge or
consolidate with, or transfer any assets or liabilities to
any other plan, unless each person entitled to benefits
would receive a benefit immediately after the merger,
consolidation or transfer (if the Plan were then terminated)
which is equal to or greater than the benefit he would have
been entitled to immediately before the merger,
consolidation or transfer (if the Plan were then
terminated). The Designated Officer will amend or take such
other action as is necessary to amend the Plan in order to
satisfy the requirements applicable to any merger,
consolidation or transfer of assets and liabilities.
(b) Appendix. Appendix 16.3 sets forth special
provisions which reflect the transfer of certain liabilities
and assets (i) from AESP to the Plan and (ii) from this Plan
to the BP Amoco DirectSave Plan, effective as of the
Effective Date, and may set forth such special provisions as
may apply to any subsequent merger, consolidation or
transfer of assets and liabilities.
XVI.4 Design Decisions. Decisions regarding the
design of the Plan (including any decision to amend or
terminate, or to not amend or terminate the Plan) will be
made in a settlor capacity and will not be governed by the
fiduciary responsibility provisions of ERISA.
ARTICLE XVII
SPECIAL TOP-HEAVY RULES
XVII.1 Application of Article XVII. This Article
XVII will apply only if the Plan is Top-Heavy, as defined
below. If, as of any Top-Heavy Determination Date, as
defined below, the Plan is Top-Heavy, the provisions of
Section 17.04 will take effect as of the first day of the
Plan Year next following the Top-Heavy Determination Date
and will continue to be in effect until the first day of any
subsequent Plan Year following a Top-Heavy Determination
Date as of which it is determined that the Plan is no longer
Top-Heavy.
XVII.2 Definitions Concerning Top-Heavy Status. In
addition to the definitions set forth in Article I, the
following definitions will apply for purposes of this
Article XVII, and will be interpreted in accordance with the
provisions of Section 416 of the Code:
(a) Aggregation Group - a group of Company Plans
consisting of each Company Plan in the Required Aggregation
Group and each other Company Plan selected by the Company
for inclusion in the Aggregation Group that would not, by
its inclusion, prevent the group of Company Plans included
in the Aggregation Group from continuing to meet the require
ments of Section 401(a)(4) and 410 of the Code.
(b) Annual Compensation - compensation for a
calendar year within the meaning of Treasury Regulation
1.415-2(d)(11)(ii) to the extent that such compensation
does not exceed the annual compensation limit in effect for
the calendar year under Section 401(a)(17) of the Code.
(c) Company Plan - any plan of any Commonly
Controlled Entity that is, or that has been determined by
the Internal Revenue Service to be, qualified under Section
401(a) or 403(a) of the Code.
(d) Key Employee - any employee of any Commonly
Controlled Entity who satisfies the criteria set forth in
Section 416(i)(1) of the Code.
(e) Required Aggregation Group - one or more
Company Plans comprising each Company Plan in which a Key
Employee is a participant and each Company Plan that enables
any Company Plan in which a Key Employee is a participant to
meet the requirements of Section 401 (a)(4) or 410 of the
Code.
(f) Top-Heavy - the Plan is included in an
Aggregation Group under which, as of the Top-Heavy
Determination Date, the sum of the actuarial present value
of the cumulative accrued benefits for Key Employees under
all defined benefit plans in the Aggregation Group and the
aggregate of the accounts of Key Employees under all defined
contribution plans in the Aggregation Group exceeds 60
percent of the analogous sum determined for all employees.
The determination of whether the Plan is Top-Heavy will be
made in accordance with Section 416(g)(2)(B) of the Code.
(g) Top-Heavy Determination Date - the December
31 immediately preceding the Plan Year for which the
determination is made.
(h) Top-Heavy Ratio - the percentage calculated
in accordance with subparagraph (f), above, and
Section 416(g)(2) of the Code.
(i) Top-Heavy Year - a Plan Year for which the
Plan is Top-Heavy.
XVII.3 Calculation of Top-Heavy Ratio. The Top-
Heavy Ratio with respect to any Plan Year will be determined
in accordance with the following rules:
(a) Determination of Accrued Benefits: The
accrued benefit of any current Participant will be
calculated, as of the most recent valuation date that is
within a 12-month period ending on the Top-Heavy
Determination Date, as if the Participant had voluntarily
terminated employment as of such valuation date. Such
valuation date will be the same valuation date used for
computing plan costs for purposes of the minimum funding
provisions of Section 412 of the Code. Unless, as of the
valuation date, the Plan provides for a nonproportional
subsidy, the actuarial present value of the accrued benefit
will reflect a retirement income commencing at age 65 (or
attained age, if later). If, as of the valuation date, the
Plan provides for a nonproportional subsidy, the benefit
will be assumed to commence at the age at which the benefit
is most valuable.
(b) Aggregation. The Plan will be aggregated
with all Company Plans included in the Aggregation Group.
XVII.4 Effect of Top-Heavy Status.
(a) Minimum Contribution. Notwithstanding
Article III, as of the last day of each Top-Heavy Year, the
Employer will make, for each Participant, (i) the
contributions it otherwise would have made under the Plan
for such Top-Heavy Year, or if greater, (ii) contributions
for such Top-Heavy Year that, when added to the
contributions made by the Employer for such Participant (and
any forfeitures allocated to his Accounts) for such Top-
Heavy Year under all other defined contribution plans of any
Commonly Controlled Entity, aggregate three percent of his
Annual Compensation; provided that the Plan will meet the
requirements of this subsection (a) without taking into
account Before-Tax Contributions or other employer
contributions attributable to a salary reduction or similar
arrangement.
(b) Inapplicability to Union Employees. The
preceding provisions of this Section 17.4 will not apply
with respect to any employee included in a unit of employees
covered by an agreement that the Secretary of Labor finds to
be a collective bargaining agreement between employee
representatives and the Employer, if there is evidence that
retirement benefits were the subject of good faith
bargaining between such employee representatives and the
Employer.
XVII.5 Effect of Discontinuance of Top-Heavy Status.
If, for any Plan Year after a Top-Heavy Year, the Plan is no
longer Top-Heavy, the provisions of Section 17.4 will not
apply with respect to such Plan Year.
XVII.6 Intent of Article XVII. This Article XVII is
intended to satisfy the requirements imposed by Section 416
of the Code and will be construed in a manner that will
effectuate this intent. This Article XVII will not be
construed in a manner that would impose requirements on the
Plan that are more stringent than those imposed by
Section 416 of the Code.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
XVIII.1 Assignment and Alienation. As provided by
Section 401(a)(13) of the Code and to the extent not
otherwise required by law, no benefit provided by the Plan
may be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any
benefit with respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance
as security for a loan from the Plan which is permitted
pursuant to Section 4975 of the Code.
XVIII.2 Protected Benefits. All benefits which are
protected by the terms of Section 411(d)(6) of the Code and
Section 204(g) of ERISA, which cannot be eliminated without
adversely affecting the qualified status of the Plan on and
after the Effective Date, will be provided under this Plan
to Participants for whom such benefits are protected. The
Administrator will cause such benefits to be determined and
the terms and provisions of the Prior Plan immediately prior
to the Effective Date, are incorporated herein by reference
and made a part hereof, but only to the extent such terms
and provisions are so protected. Otherwise, they will
operate within the terms and provisions of this Plan, as
determined by the Administrator.
XVIII.3 Plan Does Not Affect Employment Rights. The
Plan does not provide any employment rights to any Employee.
The Employer expressly reserves the right to discharge an
Employee at any time, with or without cause, without regard
to the effect such discharge would have upon the Employee's
interest in the Plan.
XVIII.4 Deduction of Taxes from Amounts Payable. The
Trustee will deduct from the amount to be distributed such
amount as the Administrator, in his sole discretion, deems
proper to protect the Trustee and the Plan's assets held
under the Trust Agreement against liability for the payment
of death, succession, inheritance, income, or other taxes,
and out of money so deducted, the Trustee may discharge any
such liability and pay the amount remaining to the
Participant, the Beneficiary or the deceased Participant's
estate, as the case may be.
XVIII.5 Facility of Payment. If a Member is declared
an incompetent or is a minor and a conservator, guardian, or
other person legally charged with his care has been
appointed, any benefits to which such Member is entitled
will be payable to such conservator, guardian, or other
person legally charged with his care. The decision of the
Administrator in such matters will be final, binding, and
conclusive upon the Employer and the Trustee and upon each
Member, and every other person or party interested or
concerned. An Employer, the Trustee and the Administrator
will not be under any duty to see to the proper application
of such payments.
XVIII.6 Source of Benefits. All benefits payable
under the Plan will be paid or provided for solely from the
Plan's assets held under the Trust Agreement and the
Employers assume no liability or responsibility therefor.
XVIII.7 Reduction for Overpayment. The Administrator
will, whenever it determines that a person has received
benefit payments under this Plan in excess of the amount to
which the person is entitled under the terms of the Plan,
make a reasonable attempt to collect such overpayment from
the person. The amount of any overpayment may be set off
against further amounts payable to or on account of the
person who received the overpayment.
XVIII.8 Company Merger. In the event any successor
corporation to the Company, by merger, consolidation,
purchase or otherwise, will elect to adopt the Plan, such
successor corporation will be substituted hereunder for the
Company upon filing in writing with the Trustee its election
so to do.
XVIII.9 Employees' Trust. The Plan and Trust
Agreement are created for the exclusive purpose of providing
benefits to the Members of the Plan and defraying reasonable
expenses of administering the Plan. The Plan and Trust
Agreement will be interpreted and operated in a manner
consistent with their being, respectively, a Plan described
in Sections 401(a), 401(k) and 401(m) of the Code and Trust
Agreements exempt under Section 501(a) of the Code. The
Designated Officer and the Administrator are authorized to
the fullest extent allowed by law, to take whatever action
may be required to correct any such interpretational or
operational violation which would result in the Plan being a
Plan described in Sections 401(a), 401(k) and 401(m) of the
Code and Trust Agreements exempt under Section 401(a) of the
Code. At no time will the assets of the Plan be diverted
from the above purpose.
XVIII.10 Construction. Unless the contrary is plainly
required by the context, wherever any words are used herein
in the masculine gender, they will be construed as though
they were also used in the feminine gender, and vice versa;
wherever any words are used herein in the singular form,
they will be construed as though they were also used in the
plural form, and vice versa; and wherever the words
"herein," "hereof," "hereunder," and words of similar import
are used, they will be construed to refer to the Plan in its
entirety and not only to the portion of the Plan in which
they appear. Any election, direction, notice or designation
(or similar action) to be made by a Member hereunder will be
made in such manner as is provided for by, and acceptable
to, the Administrator. No such election, direction, notice
or designation (or similar action) will be deemed to have
been given to the Administrator unless it is properly
completed and delivered to the Administrator in accordance
with the procedures established by such Administrator for
such purpose, and will take effect at such time as is
established by the Administrator, which in any event shall
not be earlier than is administratively possible.
XVIII.11 Invalidity of Certain Provisions. If any
provision of this Plan will be held invalid or
unenforceable, such invalidity or unenforceability will not
affect any other provisions hereof and the Plan will be
construed and enforced as if such provisions, to the extent
invalid or unenforceable, had not been included.
XVIII.12 Headings. The headings or articles are
included solely for convenience of reference, and if there
is any conflict between such headings and the text of this
Plan, the text will control.
XVIII.13 Governing Law. The Plan will be construed,
administered and regulated in accordance with the provisions
of ERISA and, to the extent not preempted thereby, in
accordance with the laws of the State of Illinois,
determined without regard to its choice of law rules.
XVIII.14 Notice and Information Requirements. Except
as otherwise provided in this Plan or in the Trust
Agreement, the Employer will have no duty or obligation to
affirmatively disclose to any Member, nor will any Member
have any right to be advised of, any material information
regarding the Employer, at any time prior to, upon or in
connection with the Employer's purchase, or any other
distribution or transfer (or decision to defer any such
distribution) of any Company Stock or any other stock held
under the Plan.
XVIII.15 Reliance on Information Provided to Plan.
Notwithstanding anything contained herein to the contrary,
if an individual is provided a statement in confirmation of
any election or information provided to the Plan by such
individual hereunder, the election or information reflected
on such confirmation statement will be deemed to be accurate
and may be conclusively relied upon for all purposes
hereunder unless the individual timely demonstrates to the
Administrator, in the form and manner established by the
Administrator, that the election or information reflected on
the confirmation statement is not what the individual had
originally delivered to the Administrator.
Executed this ____ day of ___________________, 2000.
BP AMOCO CORPORATION
By:________________________________
Title:_______________________________
<PAGE>
APPENDIX 16.3
TO
BP AMOCO PARTNERSHIP SAVINGS PLAN
SUPPLEMENT A
16.3(a) Purpose. The purpose of this Supplement A is
to set forth the special provisions (not otherwise set forth
in the Plan) which apply to Eligible Employees who were
participants in AESP as of the day prior to the Effective
Date, and including Alternate Payees with respect to such
persons, collectively, (the "AESP Participants"),
notwithstanding any other provisions of the Plan to the
contrary.
(b) Accounts. As of the Effective Date, the assets and
liabilities of the AESP Participants under AESP will be
transferred, (in cash or in kind as determined by the
Company) to or for the benefit of the Plan. Each AESP
Participant will have allocated and posted to the Accounts
under the Plan the amounts credited to such Participants'
accounts under AESP as of the day prior to the Effective
Date.
SUPPLEMENT B
16.3(a) Purpose. The purpose of this Supplement B is
to set forth the special provisions (not otherwise set forth
in the Plan) which apply to each participant in this Plan
immediately prior to the Effective Date who is a retail at
site assistant manager (a "Retail Participant"), and Alternate
Payees and Beneficiaries of such persons.
(b) Spinoff. As of the Effective Date, the assets
and liabilities of each Retail Participant under the Plan
will be transferred (in cash or in kind as determined by the
Company) to or for the benefit of the BP Amoco DirectSave Plan.
(c) Termination of Participation. As of the Effective Date,
each person for whom assets and liabilities have been transferred
to the BP Amoco DirectSave Plan will: (i) cease to be a participant
in the Plan, (ii) not become a Participant in this Plan on the
Effective Date, (iii) have no Accrued Benefit or Service under this
Plan, and (iv) have no right to any benefits from the Plan.
<PAGE>
<PAGE>
EXHIBIT 4.3
BP AMOCO MASTER TRUST
FOR EMPLOYEE SAVINGS PLANS
(As Amended and Restated Effective as of April 6, 2000)
<PAGE>
TABLE OF CONTENTS
PAGE
1. DEFINITIONS 2
1.1 Administrative Named Fiduciary 2
1.2 Administrative Services Agreement 2
1.3 Administrator 2
1.4 Applicable Named Fiduciary 2
1.5 Business Day 3
1.6 Chief Financial Officer 3
1.7 Code 3
1.8 Company 3
1.9 Company Managed Account 3
1.10 Designated Officer 3
1.11 Effective Date 3
1.12 Employer 3
1.13 ERISA 3
1.14 Fiduciary 4
1.15 Investment Committee or Committee 4
1.16 Investment Account 4
1.17 Investment Fund 4
1.18 Investment Manager 4
1.19 Mutual Fund Window 4
1.20 NAV 4
1.21 Operating Agreement 4
1.22 Participant 4
1.23 Plan Sponsor 4
1.24 Plan or Plans 5
1.25 Recordkeeper 5
1.26 Senior Vice President 5
1.27 Trust 5
1.28 Trust Fund 5
2. TRUST FUND 5
2.1 Receipt of Assets 5
2.2 Accounting for a Plan's Undivided Interest in the
Trust Fund 6
2.3 Engagement of Recordkeeper 6
3. DISBURSEMENTS FROM THE TRUST FUND 7
4. INVESTMENT FUNDS 8
4.1 In General 8
4.2 Participant Directed Brokerage Accounts 9
4.3 Company Managed Accounts 10
4.4 Trustee Investment Responsibilities. 10
4.5 Investment Accounts 11
5. VALUATION OF TRUST FUND 12
5.1 Valuation of Trust Fund 12
5.2 Duties of the Trustee with Respect to Valuation. 12
5.3 Calculation of the NAV for an Investment Fund 14
5.4 Suspension of Valuations 14
6. POWERS OF THE TRUSTEE 15
6.1 Investment Powers of the Trustee 15
6.2 Discretionary Administrative Powers of the Trustee 24
7. LIABILITY AND INDEMNIFICATION 25
7.1 Standard of Care by Trustee. 25
7.2 No Trustee Duty Regarding Contributions 26
7.3 Indemnification 26
8. SECURITIES OR OTHER PROPERTY 27
9. SECURITY CODES 28
10. TAXES AND TRUSTEE COMPENSATION 28
10.1 Taxes Imposed on Trust Fund 28
10.2 Trustee Compensation and Other Expenses 28
11. ACCOUNTS OF THE TRUSTEE 29
12. RELIANCE ON COMMUNICATIONS 31
13. RESIGNATION AND REMOVAL OF TRUSTEE 32
14. ADDITIONAL TRUSTEE 33
15. ACTIONS BY THE COMPANY 33
16. TRUST GOVERNANCE 34
16.1 Authority of Applicable Named Fiduciary. 34
16.2 Authority of Investment Committee and Chief Financial
Officer. 34
16.3 Fiduciary to Direct Trustee. 34
16.4 Company to Direct Trustee. 34
17. AMENDMENT 35
18. TERMINATION 35
19. PARTICIPATION OF OTHER EMPLOYERS 35
19.1 Adoption by Other Employers; Withdrawals 35
19.2 Powers and Authorities of Other Employers to be
Exercised Exclusively by Company 37
20. MISCELLANEOUS 38
20.1 Governing Law 38
20.2 Status of Plans 38
20.3 No Reversion to Employer 39
20.4 Non-Alienation of Benefits 40
20.5 Duration of Trust 40
20.6 No Guarantees 40
20.7 Duty to Furnish Information 40
20.8 Withholding 41
20.9 Parties Bound 41
20.10 Necessary Parties to Disputes 41
20.11 Unclaimed Benefit Payments 41
20.12 Severability 42
20.13 References 42
20.14 Headings 42
20.15 No Liability for Acts of Predecessor and Successor
Trustees 42
20.16 Construction 42
20.17 Notices. 43
20.18 Counterparts 43
EXHIBIT A 44
EXHIBIT B 45
EXHIBIT C 53
<PAGE>
BP AMOCO MASTER TRUST
FOR EMPLOYEE SAVINGS PLANS
This Agreement is effective the 6th day of April, 2000
between BP AMOCO CORPORATION, a Corporation organized under the
laws of Indiana (the "Company"), and STATE STREET BANK & TRUST
COMPANY, a Trust Company organized under the laws of the
Commonwealth of Massachusetts (the "Trustee").
RECITALS:
WHEREAS, the Company sponsors a number of savings plans
qualified under Section 401(a) of the Internal Revenue Code of
1986, as amended, for the benefit of its eligible employees and
the eligible employees of certain of its subsidiaries and
affiliates;
WHEREAS, effective as of November 1, 1990, the Company
established the Amoco Employee Savings Plan Trust Agreement (the
"Trust") to serve as a funding vehicle for one of the
aforementioned savings plans;
WHEREAS, the Trust is a U.S. domestic trust;
WHEREAS, the Company and the Trustee now consider it
desirable to amend and restate the Trust in its entirety,
effective April 6, 2000;
WHEREAS, effective as of the close of business on April 6,
2000, the Trustee is appointed Successor Trustee to a trust
agreement, effective February 1, 1999 (the "BP America Trust") by
and between BP America Inc. and Fidelity Management Trust
Company; and
WHEREAS, effective April 6, 2000, the BP America Trust is
merged into the Trust, and the Trust is amended and restated as
set forth below.
AGREEMENT:
NOW, THEREFORE, IT IS HEREBY AGREED by the Company and the
Trustee that, in consideration of their mutual undertakings, the
Trust and the BP America Trust are hereby amended and restated in
the form of this Agreement effective April 6, 2000. It is
further agreed as follows:
1. DEFINITIONS
1.1 "Administrative Named Fiduciary" means a person or
entity, who: (a) has authority to control and manage the
operation and administration of the Plan or the Trust, within the
meaning of Section 402(a)(1) of ERISA; (b) has discretionary
authority or discretionary responsibility to administer the Plan
or the Trust, within the meaning of Section 3(21)(A)(ii) of
ERISA; or (c) exercises discretionary authority or discretionary
control respecting management of the Plan or the Trust within the
meaning of Section 3(21)(A)(i) of ERISA (other than trustee
responsibilities within the meaning of Section 405(c)(3) of
ERISA), and includes the Administrator and any other person
(A) named in any of the Plans or the Trust, or (B) identified by
a Designated Officer to be such an Administrative Named
Fiduciary.
1.2 "Administrative Services Agreement" means an agreement
with a service provider to provide services to the Plan.
1.3 "Administrator" means the Senior Vice President, or if
an Applicable Named Fiduciary has been identified with respect to
the authority involved in the provision of the Plan under
consideration, then reference to the Administrator in that
context refers to such Applicable Named Fiduciary. References in
this Trust to the Administrator will be deemed a reference to any
person (other than a Fiduciary) to whom ministerial
responsibilities involved in the provisions of the Plan have been
delegated by the Administrator, including the Recordkeeper.
1.4 "Applicable Named Fiduciary" means: (a) with respect to
any authority, control or discretion in the operation,
administration or management of the Plan or the Trust, the
Administrator or the Administrative Named Fiduciary who is
charged with, or who exercises responsibility for, such matter;
or (b) with respect to the authority or control respecting
management or disposition of the Trust Fund (including trustee
responsibilities within the meaning of Section 405(c)(3) of
ERISA), (1) the Investment Committee, (2) the Chief Financial
Officer but only with respect to (i) managing Plan and Trust
receipts and disbursements, (ii) preparing Plan and Trust reports
and returns, and (iii) managing the investment of the Managed
Account pursuant to the guidelines of the Investment Committee;
and (c) any other person (1) named in the Trust or (2) identified
by a Designated Officer to be an Applicable Named Fiduciary with
respect to specified authority or control.
1.5 "Business Day" means a day when the New York Stock
Exchange is open for business.
1.6 "Chief Financial Officer" means the Chief Financial
Officer of the Company or, upon the resignation or removal of
such Chief Financial Officer, any successor officer to the Chief
Financial Officer who performs substantially similar duties with
respect to administration of employee benefits (whether assigned
a different title by the Company or not), or, in the absence of
such a successor, the person to whom such Chief Financial Officer
would report.
1.7 "Code" means the Internal Revenue Code of 1986, as
amended and any regulations issued thereunder.
1.8 "Company" means BP Amoco Corporation.
1.9 "Company Managed Account" means a Company Managed
Account as described pursuant to Section 4.3.
1.10 "Designated Officer" means the Senior Vice President,
and any other officer of the Company, and the Group Vice
President, Human Resources of BP Amoco p.l.c. and any other
officer of BP Amoco p.l.c. to whom (but only to the extent
specifically provided) authority to act on behalf of the Company
has been granted by the Board of Directors of the Company or one
of its committees.
1.11 "Effective Date" means April 6, 2000, the date the
amendment and restatement of this Trust Agreement is effective.
1.12 "Employer" means the Company or any corporation (or
other trade or business) which is a member of a controlled group
of corporations of which the Company is a member as determined
under Section 414(b) or (c) of the Code, and which corporation is
a participating employer as of the Effective Date, or as
thereafter may be changed in accordance with the provisions of
Section 19.1.
1.13 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended and any regulations issued thereunder.
1.14 "Fiduciary" means: (a) any individual or entity which a
Designated Officer identifies to be an Administrative Named
Fiduciary with respect to such individual's or entity's authority
to control and manage the operation and administration of the
Plan; (b) any individual or entity which an Administrative Named
Fiduciary, acting on behalf of the Plan, designates to be a
Fiduciary; or (c) any other individual or entity who performs a
fiduciary function under the Plan as defined in Section 3(21) of
ERISA.
1.15 "Investment Committee" or "Committee" means the
Investment Committee designated by the Company for the Trust, or
if none, the Chief Financial Officer.
1.16 "Investment Account" means an account described in
Section 4.5.
1.17 "Investment Fund" means a separate account established
and maintained in the Trust Fund for an investment option made
available under a Plan.
1.18 "Investment Manager" means an investment manager
appointed by the Applicable Named Fiduciary to manage assets
under the Plan (within the meaning of Sections 3(38) and
402(c)(3) of ERISA. If any Investment Manager has authority to
invest in assets which will be held outside the jurisdiction of
the district courts of the United States, it must be an entity
described in 29 C.F.R. 2550.404b-1(a)(2)(ii).
1.19 "Mutual Fund Window" means an arrangement sponsored and
maintained by the Recordkeeper pursuant to an Administrative
Services Agreement between the Recordkeeper and the Administrator
to provide for the purchase, sale and holding as a part of the
Trust Fund, of shares of investment companies registered under
the Investment Company Act of 1940.
1.20 "NAV" means the net asset value of an Investment Fund.
1.21 "Operating Agreement" means an agreement between the
Trustee, the Company and the Recordkeeper, as may be amended,
pursuant to which certain Plan and Trust administrative functions
and duties are governed.
1.22 "Participant" means any individual, including an
alternate payee under a "qualified domestic relations order" or a
beneficiary in whose name an account is held under a Plan.
1.23 "Plan Sponsor" means BP Amoco Corporation.
1.24 "Plan" or "Plans" means individually and collectively,
the tax-qualified employee benefit plan or plans of the Company
or the tax-qualified employee benefit plan or plans of any
Employer using the trust as the funding vehicle for such plan or
plans as the case may be. Each Plan which is funded through the
Trust is listed in Exhibit A.
1.25 "Recordkeeper" means the entity which provides
recordkeeping and administrative services to a Plan pursuant to
an Administrative Services Agreement.
1.26 "Senior Vice President" means the Senior Vice President
- - Human Resources of the Company or, upon the resignation or
removal of such Senior Vice President, any successor officer to
the Senior Vice President who performs substantially similar
duties with respect to administration of employee benefits
(whether assigned a different title by the Company or not), or,
in the absence of such a successor, the General Counsel of the
Company.
1.27 "Trust" means the BP Amoco Master Trust for Employee
Savings Plans.
1.28 "Trust Fund" means all Plan assets held by the Trustee
in the Trust pursuant to the provisions of this Trust Agreement.
2. TRUST FUND
2.1 Receipt of Assets. The Trustee will receive and accept
for the purposes hereof all sums of money and other property paid
to it or merged into the Trust (and all related Plan liabilities,
payables and receivables), by, or at the direction of the
Company, or, pursuant to Article 19 herein, by, or at the
direction of, the Company or any Employer and will hold, invest,
reinvest, manage, administer and distribute such monies and other
property and the increments, proceeds, earnings and income
thereof (and all related Plan liabilities, payables and
receivables) pursuant to the terms of this Trust Agreement and
for the exclusive benefit of Participants. The Trustee need not
inquire into the source of any money or property transferred to
it nor into the authority or right of the transferor of such
money or property to transfer such money or property to the
Trustee.
2.2 Accounting for a Plan's Undivided Interest in the Trust
Fund. All transfers to, withdrawals from, and other transactions
regarding the Trust Fund must be conducted in such a way that the
proportionate interest in the Trust Fund of each Plan and the
fair market value of that interest may be determined at any time.
Whenever the assets of more than one Plan are commingled in the
Trust Fund or in any Investment Fund, the undivided interest
therein of that Plan will be debited or credited (as the case may
be): (a) for the entire amount of every contribution received on
behalf of that Plan, every benefit payment, or other expense
attributable solely to that Plan, and every other transaction
relating only to that Plan; and (b) for its proportionate share
of every item of collected or accrued income, gain or loss, and
general expense; and other transactions attributable to the Trust
Fund or that Investment Fund as a whole. As of each date when the
fair market value of the investments held in the Trust Fund or an
Investment Fund are determined as provided for in Article 5, the
Trustee will adjust the value of each Plan's interest therein to
reflect the net increase or decrease in such values since the
last such date. For all of the foregoing purposes, fractions of a
cent may be disregarded.
2.3 Engagement of Recordkeeper. The Administrator has
engaged the Recordkeeper, on behalf of the Plan, to perform
certain services set forth in the Administrative Services
Agreement, the Operating Agreement, and including but not limited
to, maintaining Participant accounts for all contributions, loans
and loan repayments, rollovers, and other deposits made for the
purpose of determining how such deposits are to be allocated to a
Plan's investment options, for determining requirements for
disbursements from or transfers among investment options in
accordance with the terms of the Plan, for maintaining
Participant records for the purpose of voting or tendering shares
in an investment option as described in Section 4.1 herein, for
distributing information about the investment options provided
for under the Plan, and for distributing Participant statements
at periodic intervals.
3. DISBURSEMENTS FROM THE TRUST FUND
Subject to the terms of the Operating Agreement, the Trustee
will from time to time on the directions of the Administrator
make payments out of the Trust Fund to such persons, in such
manner, in such amounts and for such purposes, as may be
specified by the Administrator. Such directions may require
payment from the Trust assets of any administration expenses of
the Plan, including expenses and obligations (i) associated with
the administration and operation of the Plan and the Trust,
(ii) arising under an Administrative Services Agreement or this
Trust Agreement, and (iii) arising in connection with the
management and investment of Plan assets. The Administrator may
direct the Trustee to reimburse the Company for any noninterest
bearing amounts advanced by the Company on behalf of a Plan and
the Trustee may rely that any amount directed by the
Administrator to be paid as a reimbursement to the Company does
not include interest.
The Administrator is responsible for insuring that any
payment directed under this Article conforms to the provisions of
the Plans, this Trust Agreement, and the provisions of ERISA.
Each direction of the Administrator is to be in writing (or
electronically as may be permitted in the Funds Transfer
Operating Agreement ("FTOP") and Operating Agreement) and will be
deemed to include a certification that any payment or other
distribution directed thereby is one which the Administrator is
authorized to direct. Payments by the Trustee not made by the
Recordkeeper as payment agent may be made by the Trustee by its
check to the order of the payee. Payments or other distributions
hereunder may be mailed to the payee at the address last
furnished to the Trustee by the Recordkeeper or Administrator or
if no such address has been so furnished, to the payee in care of
the Recordkeeper. The Trustee will not incur any liability or
other damage on account of any payments or other distributions
made by it in accordance with a proper direction of the
Administrator unless it would be unreasonable for the Trustee to
not question such direction.
4. INVESTMENT FUNDS
4.1 In General.
(a) The Investment Committee, from time to time, may
direct the Trustee to establish one or more
Investment Funds within the Trust Fund for a Plan,
which may be invested in:
(1) shares of investment companies registered
under the Investment Company Act of 1940
through a Mutual Fund Window;
(2) collective funds maintained by a bank or
trust company;
(3) securities which constitute "qualifying
employer securities" or "qualifying employer
real property" within the meaning of Section
407 of ERISA, to the extent specifically
authorized by a Plan and to the extent that
the Trustee (other than solely as a directed
trustee) and Investment Manager, or an
Applicable Named Fiduciary, whichever is
applicable, has determined that such
investment is not prohibited by Sections 406
or 407 of ERISA;
(4) Participant Directed Brokerage Accounts;
(5) pools of insurance contracts;
(6) funds managed by a registered investment
manager, bank or insurance company;
(7) accounts managed by an Applicable Named
Fiduciary for the Plan; or
(8) other investment options available from time
to time under a Plan or such other funds as
may be described by the Company. The
Investment Funds of the Trust Agreement are
described on Exhibit "B", which may be
amended.
(b) The Trustee is not responsible for any loss of any
kind which may result by reason of the manner of
division of the Trust Fund into Investment Funds,
or for the investment management of these
accounts, except as provided for in Section 4.4
respecting a Trustee Managed Investment Account,
if any. The Trustee will transfer to each such
Investment Fund such portion of the assets of the
Trust Fund as the Investment Committee directs.
The Trustee is not responsible for any liability
arising on account of its following any direction
of the Investment Committee and the Trustee has no
duty to review investment guidelines, objectives
and restrictions established by the Investment
Committee on behalf of the Plans.
(c) All interest, dividends and other income received
with respect to, and any proceeds received from
the sale or other disposition of, securities or
other property held in an Investment Fund is to be
credited to and reinvested in such Investment
Fund. All expenses of the Trust Fund which are
allocable to a particular Investment Fund will be
so allocated and charged. Subject to the
provisions of the Plans, the Investment Committee
may direct the Trustee to eliminate an Investment
Fund or Funds, and the Trustee will thereupon
dispose of the assets of such Investment Fund and
reinvest the proceeds thereof in accordance with
the directions of the Investment Committee.
4.2 Participant Directed Brokerage Accounts. The Trustee
will, if so directed by the Applicable Named Fiduciary, segregate
all or a portion of the Trust Fund held by it into one or more
separate investment accounts to be known as Participant Directed
Brokerage Accounts. Whenever a Participant is directing the
investment and reinvestment of a Participant Directed Brokerage
Account, the Participant will have the powers and duties which an
Investment Manager would have under this Trust Agreement if an
Investment Manager were then serving and the Trustee will be
protected to the same extent as it would be protected under this
Trust Agreement as to directions or the absence of directions of
an Investment Manager. A Participant will be entitled to give
orders directly to the broker for the purchases and sale of
securities. The broker will provide confirmation of each order to
the Administrator which will maintain records in such form as to
satisfy reporting requirements of the Plan.
4.3 Company Managed Accounts.
(a) The Trustee will, if so directed in writing by the
Applicable Named Fiduciary, segregate all or a
portion of the Trust Fund held by it into one or
more separate investment accounts to be known as
Company Managed Investment Accounts. The
Applicable Named Fiduciary, by written notice to
the Trustee, may at any time relinquish its powers
under this Section 4.3 and direct that a Company
Managed Investment Account no longer be
maintained. Whenever the Applicable Named
Fiduciary is directing the investment and
reinvestment of an Investment Account or a Company
Managed Investment Account, the Applicable Named
Fiduciary will have the powers and duties which an
Investment Manager would have under this Trust
Agreement if an Investment Manager were then
serving and the Trustee will be protected to the
same extent as it would be protected under this
Trust Agreement as to directions or the absence of
directions of an Investment Manager.
(b) During any time when there is no Investment
Manager with respect to an Investment Fund (such
as before an investment management agreement takes
effect or after it terminates), the Applicable
Named Fiduciary shall direct the investment and
reinvestment of such Investment Account.
4.4 Trustee Investment Responsibilities.
(a) The Trustee has no duty or responsibility to
direct the investment and reinvestment of the
Trust Fund, any Investment Fund or any Investment
Account unless expressly agreed to in writing
between the Trustee and the Applicable Named
Fiduciary. In the event that the Trustee enters
into such an agreement, it will have the powers
and duties of an Investment Manager under this
Trust Agreement with regard to such Investment
Account.
(b) Subject to such directions as the Applicable Named
Fiduciary provides (which may be a standing letter
of direction), the Trustee will conduct a daily
cash sweep of all U.S. dollar denominated excess
cash contained in the Trust (including excess cash
in Investment Accounts managed by Investment
Managers, until such time as the Investment
Manager provides a separate cash sweep direction
to the Trustee) to a State Street maintained
collective investment fund for assets of employee
benefit plans qualified under Section 401(a) of
the Code ("State Street STIF").
4.5 Investment Accounts.
(a) The Applicable Named Fiduciary, from time to time
and in accordance with the provisions of the
Plans, may appoint one or more independent
Investment Managers, pursuant to a written
investment management agreement describing the
powers and duties of the Investment Manager, to
direct the investment and reinvestment of all or a
portion of the Trust Fund or an Investment Fund.
The Applicable Named Fiduciary will furnish the
Trustee with written notice of the appointment of
each Investment Manager hereunder, and of the
termination of any such appointment. Such notice
will specify the assets which will constitute the
Investment Account of such Investment Manager. The
Trustee will be fully protected in relying upon
the effectiveness of such appointment and the
Investment Manager's continuing satisfaction of
the requirements set forth above until it receives
written notice from the Applicable Named Fiduciary
to the contrary. The Trustee will conclusively
presume that each Investment Manager, under its
investment management agreement, is entitled to
act, in directing the investment and reinvestment
of the Investment Account for which it is
responsible, in its sole and independent
discretion and without limitation, except for any
limitations which from time to time the Applicable
Named Fiduciary and the Trustee agree (in writing)
will modify the scope of such authority.
(b) Except as provided by ERISA or as provided in the
Operating Agreement, the Trustee has no liability:
(1) for the acts or omissions of any Investment
Manager (except to the extent the Trustee itself
is serving as Investment Manager); (2) for
following directions, including investment
directions of an Investment Manager (other than
the Trustee) or the Applicable Named Fiduciary,
which are given in accordance with this Trust
Agreement; (3) for failing to act in the absence
of Investment Manager direction (except to the
extent the Trustee itself is serving as Investment
Manager); or (4) for any loss of any kind which
may result by reason of the manner of division of
the Trust Fund or Investment Fund into Investment
Accounts.
5. VALUATION OF TRUST FUND
5.1 Valuation of Trust Fund. The Trustee will value the
Trust Fund and each Investment Fund as of the close of business
at the end of each Business Day. The Trustee must determine the
fair market value of assets of the Trust Fund based upon the
standards described in Section 5.2.
5.2 Duties of the Trustee with Respect to Valuation.
(a) Values will be determined by the Trustee on the
basis of the following valuation rules:
(1) Securities must be valued at their market
values based on information and financial
publications of general circulation,
statistical and valuation services, records
of security exchanges, appraisals by
qualified persons, transactions and bona fide
offers in assets of the type in question and
other information customarily used in the
valuation of assets ("Pricing Sources"), or
(i) if market values are not available, or
(ii) with respect to Securities the
underlying assets of which are not custodied
by the Trustee, at their fair values as
provided to the Trustee by the party with
authority to trade such securities. An
Investment Manager must certify, at the
request of the Trustee, the value of any
securities or other property held in any
Investment Account managed by such Investment
Manager which for reasons specified in
Section 5.2(a)(1)(i) or (ii) cannot be valued
reliably independently, and such
certification will be regarded as a direction
with regard to such valuation.
(2) An investment purchased and awaiting payment
against delivery will be included for
valuation purposes as a security held.
Investments sold but not delivered pending
receipt of proceeds will be valued at the net
sales price.
(3) For purposes of valuation with respect to (1)
and (2) above, all securities and cash or
cash equivalents will be quoted in the local
currency and then converted into U.S. dollars
using the appropriate exchange rate obtained
by the Trustee.
(b) The Trustee may rely on the prices provided by
Pricing Sources, an Investment Manager or the
Applicable Named Fiduciary as a certification as
to value in performing any valuations or
calculations required of the Trustee by this Trust
Agreement, and will have no liability for any
incorrect data provided to it by Pricing Sources,
an Investment Manager or the Applicable Named
Fiduciary except as may arise from Trustee's lack
of reasonable care in selecting Pricing Sources.
5.3 Calculation of the NAV for an Investment Fund.
(a) The Trustee, upon the Applicable Named Fiduciary's
direction, may calculate the NAV of an Investment
Fund in accordance with the following rules:
(1) The NAV of the Investment Fund will equal the
value of the assets of the Investment Fund,
including accrued income or other accounts
receivable, less the accrued liabilities
incurred by the Investment Fund.
(2) For an investment purchased and awaiting
payment against delivery the accounts payable
will be adjusted to reflect the purchase
price, including brokers' commissions and
other expenses incurred in the purchase
thereof, but not disbursed as of the
valuation date.
(b) The items carried as accrued liabilities are to be
identified from time to time by the Trustee or the
Administrator. The Trustee will develop procedures
for determining how an identified accrued
liability will impact the NAV of an Investment
Fund, which determination may be approved or
changed by the Administrator. At the end of each
month the Trustee and the Administrator will
review trust expense accruals to determine if any
changes are required.
5.4 Suspension of Valuations. Notwithstanding anything to
the contrary in this Agreement, the Trustee, at the direction of
the Applicable Named Fiduciary, or upon consultation and approval
of the Applicable Named Fiduciary, may suspend the valuation of
an Investment Fund for the whole or any part of any period when
(a) any market or exchange on which a significant portion of the
investments of the Investment Fund are quoted is closed (other
than for ordinary holidays) or during which dealings therein are
restricted or suspended; (b) there has been a breakdown in the
means of communication, or in any software and/or hardware
systems, normally employed in determining the price or value of
any of the investments of the Investment Fund, or of current
prices on any market or exchange on which a significant portion
of the investments of the Investment Fund are quoted; or (c) when
for any reason the prices or values of any investments owned by
the Investment Fund cannot reasonably be promptly and accurately
ascertained. The Trustee will use reasonable efforts to rectify
any problems affecting its ability to value assets and will begin
valuations as soon as practicable after such problems are
resolved.
6. POWERS OF THE TRUSTEE
6.1 Investment Powers of the Trustee.
(a) The Trustee has and can exercise the following
powers and authority: (i) over Investment Accounts
for which it has express investment management
discretion as provided in Section 4.4, (ii) upon
direction of the Investment Manager of an
Investment Account, (iii) upon direction of a
Participant with respect to: (A) a Participant
Directed Brokerage Account or (B) for voting and
tendering of qualified employer securities, (iv)
upon direction of the Applicable Named Fiduciary
for a Company Managed Account, or (v) upon
direction of the Applicable Named Fiduciary with
respect to: (A) purchases and sales of interests
in Investment Funds on behalf of Participants or
(B) lending to Participants in the Plans:
(1) To purchase, receive, or subscribe for any
securities or other property and to retain in
trust such securities or other property.
(2) To acquire and hold qualifying employer
securities and qualifying employer real
property, as such investments are defined in
Section 407(d) of ERISA.
(3) To sell for cash or on credit, to grant
options, convert, redeem, exchange for other
securities or other property, to enter into
standby agreements for future investment,
either with or without a standby fee, or
otherwise to dispose of any securities or
other property at any time held by it.
(4) Upon direction from the Administrator or
Applicable Named Fiduciary, to settle,
compromise or submit to arbitration any
claims, debts, or damages, due or owing to or
from the Trust, to commence or defend suits
or legal proceedings and to represent the
Trust in all suits or legal proceedings in
any court of law or before any other body or
tribunal.
(5) To trade in financial options and futures,
including index options and options on
futures and to execute in connection
therewith such account agreements and other
agreements including contracts for the
exchange of interest rates, or investment
performance, currencies or other notional
principal contracts in such form and upon
such terms as the Investment Manager or the
Applicable Named Fiduciary may direct.
(6) Subject to Section 6.1(a)(7), to exercise all
voting rights, tender or exchange rights, any
conversion privileges, subscription rights
and other rights and powers available in
connection with any securities (except for
securities issued by the Company or an
affiliate) or other property at any time held
by it; to oppose or to consent to the
reorganization, consolidation, merger, or
readjustment of the finances of any
corporation, company or association, or to
the sale, mortgage, pledge or lease of the
property of any corporation, company or
association any of the securities which may
at any time be held by it and to do any act
with reference thereto, including the
exercise of options, the making of agreements
or subscriptions and the payment of expenses,
assessments or subscriptions, which may be
deemed as necessary or advisable by the
Investment Manager or Applicable Named
Fiduciary in connection therewith, and to
hold and retain any securities or other
property which it may so acquire; and to
deposit any property with any protective,
reorganization or similar committee, and to
pay and agree to pay part of the expenses and
compensation of any such committee and any
assessments levied with respect to property
so deposited.
(7) To exercise all voting or tender or exchange
offer rights with respect to all qualifying
employer securities held by it except that
portion, if any, for which it has received
voting or tender or exchange offer
instructions from Participants in the Plans
as provided in this paragraph. Each
Participant may direct the Trustee,
confidentially, how to vote or whether or not
to tender or exchange the qualifying employer
securities representing his proportionate
interest in the assets of the Plans. The
Administrator will furnish the Trustee with
the name and address of each Participant and
the number of shares held for the
Participant's account as near as practicable
to the record date fixed for the
determination of Participants entitled to
vote, tender or exchange, and will provide
the Trustee with all other information and
assistance which the Trustee may reasonably
request. Shares for which the Trustee has not
received timely voting or tender or exchange
instructions may be voted or tendered by the
Trustee in its sole discretion.
(8) To lend to Participants in the Plans such
amounts and upon such terms and conditions as
the Administrator may direct. Any such
direction will be deemed to include a
certification by the Administrator that such
lending is in accordance with the provisions
of ERISA and the Plans.
(9) To borrow money in such amounts and upon such
terms and conditions as may be deemed
advisable or proper by the Applicable Named
Fiduciary or Investment Manager to carry out
the purposes of the trust and to pledge any
securities or other property for the
repayment of any such loan.
(10) To invest all or a portion of the Trust Fund
in contracts issued by insurance companies,
including contracts under which the insurance
company holds Plan assets in a separate
account or commingled separate account
managed by the insurance company. The Trustee
is entitled to rely upon any written
directions of the Applicable Named Fiduciary
or the Investment Manager under this Section
6.1, and the Trustee is not responsible for
the terms of any insurance contract that it
is directed to purchase and hold or for the
selection of the issuer thereof or for
performing any functions under such contract
(other than the execution of any documents
incidental thereto on the instructions of the
Applicable Named Fiduciary or the Investment
Manager).
(11) To manage, administer, operate, lease for any
number of years, develop, improve, repair,
alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal
with any real property or interest therein at
any time held by it, and to hold any such
real property in its own name or in the name
of a nominee, with or without the addition of
words indicating that such property is held
in a fiduciary capacity, all upon such terms
and conditions as may be deemed advisable by
the Investment Manager or Applicable Named
Fiduciary.
(12) To renew, extend or participate in the
renewal or extension of any mortgage, upon
such terms as may be deemed advisable by the
Applicable Named Fiduciary or Investment
Manager, and to agree to a reduction in the
rate of interest on any mortgage or of any
guarantee pertaining thereto in any manner
and to any extent that may be deemed
advisable by the Applicable Named Fiduciary
or Investment Manager for the protection of
the Trust Fund or the preservation of the
value of the investment; to waive any
default, whether in the performance of any
covenant or condition of any mortgage or in
the performance of any guarantee, or to
enforce any such default in such manner and
to such extent as may be deemed advisable by
the Applicable Named Fiduciary or Investment
Manager; to exercise and enforce any and all
rights of foreclosure, to bid on property on
foreclosure, to take a deed in lieu of
foreclosure with or without paying
consideration therefor, and in connection
therewith to release the obligation on the
bond secured by such mortgage, and to
exercise and enforce in any action, suit or
proceeding at law or in equity any rights or
remedies in respect to any such mortgage or
guarantee.
(13) To hold part or all of the Trust Fund
uninvested.
(14) To employ suitable agents and counsel and to
pay their reasonable and proper expenses and
compensation.
(15) To appoint ancillary trustees or custodians
to hold any portion of the assets of the
trust and to pay their reasonable expenses
and compensation.
(16) To purchase and sell foreign exchange and
contracts for foreign exchange, including
transactions entered into with State Street
Bank and Trust Company, its agents or
subcustodians; provided that the price and
associated expenses obtained are at least as
favorable to the Trust as if such transaction
was conducted with an unrelated party.
(17) To form corporations and to create trusts to
hold title to any securities or other
property, all upon such terms and conditions
as may be deemed advisable by the Applicable
Named Fiduciary or Investment Manager.
(18) To register any securities held by it
hereunder in its own name, in the name of its
nominee, in the name of its agent, or in the
name of its agent's nominee with or without
the addition of words indicating that such
securities are held in a fiduciary capacity,
and to hold any securities in bearer form and
to deposit any securities or other property
in a depository or clearing corporation.
(19) To make, execute and deliver, as Trustee, any
and all deeds, leases, mortgages,
conveyances, waivers, releases, or other
instruments in writing necessary or desirable
for the accomplishment of any of the
foregoing powers.
(20) To invest at any bank, including State Street
Bank and Trust Company, (i) in any type of
interest bearing investments (including, but
not limited to savings accounts, money market
accounts, certificates of deposit and
repurchase agreements) and (ii) in
noninterest bearing accounts (including but
not limited to checking accounts); provided
that the earnings rate and associated
expenses obtained are at least as favorable
to the Trust as if the same transaction was
conducted with an unrelated party.
(21) To invest in collective investment funds and
common and group trust funds maintained by
State Street Bank and Trust Company or by
other banks or trust companies supervised by
a federal or state agency exclusively for the
investment of the assets of employee benefit
plans qualified under Section 401(a) of the
Code, notwithstanding that the bank or trust
company is the Trustee, an Investment
Manager, or is otherwise a "party in
interest" as defined in Section 3(14) of
ERISA. The instruments establishing such
funds, as amended, are deemed a part of this
Trust Agreement and incorporated by reference
herein. The combining of money and other
assets of this Trust with money and other
assets and accounts in such fund or funds is
specifically authorized. The Trustee
acknowledges that it is a fiduciary with
respect to any such collective investment
fund which is maintained by State Street Bank
and Trust Company and will maintain (through
periodic buy/sell transactions) the
proportions of any such State Street
collective investment fund within ranges
presented by the Investment Manager in
standing instructions.
(22) To invest in open-end and closed-end
investment companies, regardless of the
purposes for which such funds were created,
including those managed, serviced or advised
by the Trustee, an affiliate of the Trustee,
and any partnership, limited or unlimited,
joint venture and other forms of joint
enterprise created for any lawful purpose.
(b) Except as otherwise provided in this Trust
Agreement, the Investment Manager of an Investment
Account, or the Applicable Named Fiduciary in the
case of a Company Managed Account, has the power
and authority, to be exercised in its sole
discretion at any time and from time to time, to
issue orders for the purchase or sale of
securities directly to a broker. Written
notification of the issuance of each such order
will be given promptly to the Trustee by the
Investment Manager or the Applicable Named
Fiduciary and the confirmation of each such order
will be confirmed to the Trustee by the broker.
Unless otherwise directed by the Applicable Named
Fiduciary or Investment Manager, such notification
will be authority for the Trustee to pay for
securities purchased or to deliver securities sold
as the case may be. Upon the direction of the
Investment Manager or the Applicable Named
Fiduciary, the Trustee will execute and deliver
appropriate trading authorizations, but no such
authorization will be deemed to increase the
liability or responsibility of the Trustee under
this Trust Agreement.
(c) The Trustee will transmit promptly to the
Investment Manager (or the Applicable Named
Fiduciary), as the case may be, all notices of
conversion, redemption, tender, exchange,
subscription, class action, claim in insolvency
proceedings, proxies or other rights or powers
relating to any of the securities in the Trust
Fund, which notices are received by the Trustee
from its agents or custodians, from issuers of the
securities in question and from the party (or its
agents) extending such rights. The Trustee has no
obligation to determine the existence of any
conversion, redemption, tender, exchange,
subscription, class action, claim in insolvency
proceedings or other right or power relating to
any of the securities in the Trust Fund of which
notice was given prior to the purchase of such
securities by the Trust Fund, and has no
obligation to exercise any such right or power
unless the Trustee is informed of the existence of
the right or power.
(d) Provided that the Trustee has promptly transmitted
materials to the appropriate parties, the Trustee
is not to be liable for any untimely exercise or
assertion of such rights or powers described in
Section 6.1(c) above in connection with securities
or other property of the Trust Fund at any time
held by it unless: (i) it or its agents or
custodians are in actual possession of such
securities or property, and (ii) if the Trustee is
not treated as an Investment Manager for such
securities, it receives directions to exercise any
such rights or powers from the Applicable Named
Fiduciary or the Investment Manager, as the case
may be, and both (i) and (ii) occur at least one
Business Day prior to the date on which such
rights or powers are to be exercised with respect
to securities held in the United States and three
Business Days for all other securities.
(e) If the Trustee is directed by the Applicable Named
Fiduciary or an Investment Manager to purchase
securities issued by any foreign government or
agency thereof, or by any corporation or other
entity domiciled outside of the United States: i)
the Trustee shall provide market information to
the Applicable Named Fiduciary or the Trust's
Investment Managers consistent with industry
standards for professional global custodians; ii)
the Trustee will receive for and credit to the
Trust Fund any money or assets, including
dividends and interest, due and payable from or on
account of the securities and other investments
and /or assets in the Trust Fund, based upon tax
status information supplied by the Administrator;
iii) the Trustee shall, in the ordinary course of
business, take all necessary administrative steps
for the timely collection of interest, repayments
and dividends, and for exercising or cashing in
rights and warrants as instructed, obtaining new
coupon or dividend sheets and effecting conversion
transactions; however, the Trustee will not
attempt to enforce such collections by legal
process unless directed in writing to do so by the
Applicable Named Fiduciary or Investment Manager,
and unless arrangements are made to Trustee's
reasonable satisfaction with respect to
reimbursement of expenses for any such legal
process; (iv) the Trustee will submit to the
relevant tax authorities documents received from
the Administrator with regard to the Trust's tax
status and will use reasonable efforts to assist
the Applicable Named Fiduciary or Investment
Managers in claiming any refund or withholding of
tax to which the Trust Fund has been subject.
Except with respect to the foregoing activities
conducted in the ordinary course of business, the
Trustee will have no responsibility to determine
what foreign laws or regulations (including,
without limitation, any laws or regulations
affecting receipt by the Trust of dividends,
interest or other distributions) might apply to
such securities or other investments or to the
Trust.
(f) All Investment Company Shares are to be registered
in the name of the Trustee or its nominee.
Investment Company Shares will be voted by the
Recordkeeper in accordance with the terms of the
Operating Agreement and Administrative Services
Agreement.
6.2 Discretionary Administrative Powers of the Trustee.
(a) Notwithstanding the appointment of an Investment
Manager, the Trustee will have the following
powers and authority, to be exercised in its sole
discretion, with respect to the Trust Fund:
(1) To employ suitable agents, custodians and
counsel and, subject to Section 10.2, to pay
their reasonable expenses and compensation.
(2) To register any securities held by it
hereunder in its own name, in the name of its
nominee, in the name of its agent, or in the
name of its agent's nominee with or without
the addition of words indicating that such
securities are held in a fiduciary capacity,
and to hold any securities in bearer form and
to deposit any securities or other property
in a depository or clearing corporation.
(3) To make, execute and deliver, as Trustee, any
and all deeds, leases, mortgages,
conveyances, waivers, releases or other
instruments in writing necessary or desirable
for the accomplishment of any of the
foregoing powers.
(4) Generally to do all ministerial acts, whether
or not expressly authorized, which the
Trustee may deem necessary or desirable in
carrying out its duties under this Trust
Agreement.
(b) Notwithstanding anything in the Plans or this
Trust Agreement to the contrary, the Trustee may
not be required by the Applicable Named Fiduciary,
the Administrator, Recordkeeper or any Investment
Manager to engage in any action, nor make any
investment which constitutes a prohibited
transaction or is otherwise contrary to the
provisions of ERISA or which is otherwise contrary
to law or to the terms of the Plans or this Trust
Agreement.
7. LIABILITY AND INDEMNIFICATION
7.1 Standard of Care by Trustee. The Trustee at all times
will discharge its assigned duties and responsibilities under
this Trust Agreement with reasonable care, and solely in the
interest of Participants in the following manner:
(1) for exclusive purpose of providing benefits
to Participants and defraying reasonable
expenses of administering the Plan;
(2) to the extent it exercises discretion (as
defined in "ERISA"), with the care, skill,
prudence, and diligence under the
circumstances then prevailing that a prudent
person acting in a like capacity and familiar
with such matters would use in the conduct of
an enterprise of a like character and with
like aims; and
(3) in accordance with the provisions of the Plan
and this Trust Agreement insofar as they are
consistent with the provisions of ERISA.
7.2 No Trustee Duty Regarding Contributions. The Trustee is
not under any duty to require payment of any contributions to the
Trust Fund or determine that a contribution is in compliance with
a Participant investment direction, or to see that any payment
made to it is computed in accordance with the provisions of the
Plans, or otherwise be responsible for the adequacy of the Trust
Fund to meet and discharge any liabilities under the Plans. The
Company is responsible for ensuring timely payment of employer
contributions to the Trust Fund.
7.3 Indemnification
(a) Subject to subsection (b) below and to the extent
permitted by applicable law, the Company will
indemnify and save harmless the Trustee for and
from any loss or expense (including reasonable
attorneys' fees) arising:
(1) out of an authorized action hereunder taken
in good faith by the Trustee on any matter as
to which this Trust Agreement provides that
the Trustee is directed, protected, not
liable, or not responsible
(2) out of a Plan not qualifying as an ERISA
404(c) plan or the inability of a Participant
to exercise independent control over his
account within the meaning of 29 C.F.R.
Section 2550.404c-1, or
(3) by reason of any breach of any statutory or
other duty owed to the Plans by the Company,
any Employer, the Applicable Named Fiduciary,
the Administrator, the Recordkeeper or any
Investment Manager or any delegate of any of
them (and for the purposes of this sentence
the Trustee is not to be considered to be
such a delegate).
(b) The Trustee will indemnify and save harmless the
Plans, the Applicable Named Fiduciary, Investment
Managers, Administrator, Company and Employers for
and from any loss or expense (including reasonable
attorney's fees) arising out of the Trustee's
negligence, intentional misconduct, or breach of
fiduciary duty.
(c) Indemnification hereunder is contingent upon the
party seeking indemnification promptly notifying
the other of the claim, fully cooperating in
defense of the claim, and not unilaterally
settling the claim without the indemnifying
party's written consent (which consent will not be
unreasonably withheld).
(d) This Section 7.3 will survive the termination of
this Agreement or the resignation or removal of
the Trustee for any reason.
8. SECURITIES OR OTHER PROPERTY
The words "securities or other property", used in this Trust
Agreement, refers to any property, real or personal, or part
interest therein, wherever situated, including, without
limitation, governmental, corporate or personal obligations,
trust and participation certificates, partnership interests,
annuity or investment contracts issued by an insurance company,
leaseholds, fee titles, mortgages and other interests in realty,
preferred and common stocks, certificates of deposit, financial
options and futures or any other form of option, evidences of
indebtedness or ownership in foreign corporations or other
enterprises or indebtedness of foreign governments, and any other
evidences of indebtedness or ownership, including securities or
other property of the Company, even though the same may not be
legal investment for trustees under any law other than ERISA.
9. SECURITY CODES
If the Trustee has issued to the Company, or to any
Investment Manager appointed by the Applicable Named Fiduciary,
with the agreement of the Company or Investment Manager, as
appropriate, security codes or passwords in order that the
Trustee may verify that certain transmissions of information,
including directions or instructions, have been originated by the
Company or the Investment Manager, as the case may be, the
Trustee will be kept indemnified by and be without liability to
the Company for any action taken or omitted by it in reliance
upon receipt by the Trustee of transmissions of information with
the proper security code or password, including communications
purporting to be directions or instructions, which the Trustee
reasonably believes to be from the Company or Investment Manager
to whom such security code has been issued. The Trustee will not
accept communications without the security code.
10. TAXES AND TRUSTEE COMPENSATION
10.1 Taxes Imposed on Trust Fund.
(a) The Trustee will promptly notify the Applicable
Named Fiduciary in writing of any taxes that may
be assessed against the Trust or Trust Fund
assets. In the event that the Applicable Named
Fiduciary determines that any of the taxes are not
lawfully assessed, it may elect to direct the
Trustee to contest such assessment at the expense
of the Trust, or the Applicable Named Fiduciary
may itself contest the assessment on behalf of the
Trust. Upon resolution of any such contest, the
Applicable Named Fiduciary will direct the Trustee
to pay any required amounts from the Trust Fund,
but in the absence of such direction the Trustee
may pay from the Trust Fund the amount still
demanded by the assessing tax authority.
(b) Until advised to the contrary by the
Administrator, the Trustee will assume that the
Trust is exempt from Federal, State and local
income taxes, and will act in accordance with that
assumption. The Administrator will timely file all
Federal, State and local tax and information
returns relating to the Plans and Trust.
10.2 Trustee Compensation and Other Expenses.
The Trustee is entitled to such reasonable compensation as
is agreed upon by the Company and the Trustee in writing as
attached hereto as Exhibit D. Such compensation and all
reasonable and proper expenses of administration of the Trust
which are authorized by the Company, including counsel fees
incurred for the benefit of the Trust by the Trustee, may be
withdrawn by the Trustee out of the Trust Fund unless paid by the
Company, but such compensation and expenses will be paid by the
Company if the same cannot by operation of law be withdrawn from
the Trust Fund. The Company may not unreasonably withhold
authorization for reasonable and proper expenses of
administration of the Trust. If the Trustee has advanced cash or
securities for any proper purpose under the Trust any such
advances will remain a charge on the Trust Fund until so paid by
the Company or withdrawn by the Trustee.
11. ACCOUNTS OF THE TRUSTEE
(a) The Trustee will maintain or cause to be
maintained suitable records, data and information
relating to its functions hereunder. The Trustee
will keep accurate and detailed accounts of all
investments, receipts, disbursements, and other
transactions hereunder, and such other records as
the Applicable Named Fiduciary may from time to
time direct, as agreed to by the Trustee. Its
books and records relating thereto are to be open
to inspection and audit at all reasonable times by
the Company or its duly authorized representatives
and each Investment Manager. To the extent any
audit by the Company or its authorized
representatives and each Investment Manager is not
commercially reasonable, the Trustee will be
entitled to reasonable compensation and
reimbursement of its reasonable expenses incurred
in connection with such audits or inspections and
such entitlement will survive the termination of
this Trust Agreement.
(b) Within 60 days after the close of each fiscal year
of the Trust and at more frequent intervals if
agreed to by the parties hereto, and within 60
days after the removal or resignation of the
Trustee as provided hereunder, the Trustee will
render to the Applicable Named Fiduciary a written
statement and account showing in reasonable
summary the investments, receipts, disbursements,
and other transactions engaged in during the
preceding fiscal year or period, and setting forth
the assets and liabilities of the Trust. Accounts
maintained by the Applicable Named Fiduciary or
Recordkeeper, such as the Mutual Fund Window or
Participant Directed Brokerage Accounts, may be
incorporated into Trustee reports. Unless the
Applicable Named Fiduciary files with the Trustee
written exceptions or objections to any such
statement and account within 6 months after
receipt thereof and except as otherwise required
or provided by applicable law, the Applicable
Named Fiduciary will be deemed to have approved
such statement and account, to the extent
permitted by law, and in such case or upon written
approval by the Applicable Named Fiduciary of any
such statement and account, the Trustee will be
released and discharged with respect to all
matters and things embraced in such statement and
account as though it had been settled by a decree
of a court of competent jurisdiction in an action
or proceeding in which the Company, all other
necessary parties and all persons having any
beneficial interest in the Trust Fund were
parties.
(c) The Applicable Named Fiduciary will direct the
accounts of the Trust to be audited at least
annually and upon resignation or removal of the
Trustee, such audits to be conducted by the
Company's internal auditors or by an independent
qualified public accountant selected by the
Applicable Named Fiduciary in its discretion. The
Company will furnish a copy of each such audit
report to the Trustee.
(d) The Applicable Named Fiduciary, the Administrator,
each Investment Manager, and the Trustee must file
such descriptions and reports and make such other
publications, disclosures, registrations and other
filings as are required of them respectively by
ERISA or in accordance with applicable Federal,
state or local law. The Trustee and the Company
must timely provide such information as the other
may reasonably request to make these filings.
(e) Nothing contained in this Trust Agreement or in
the Plans deprives the Trustee of the right to
have a judicial settlement of its account. In any
proceeding for a judicial settlement of the
Trustee's accounts or for instructions in
connection with the Trust, the only necessary
party thereto in addition to the Trustee is the
Company, and no participant or other person having
or claiming any interest in the Trust Fund is
entitled to any notice or service of process
(except as required by law). Any judgment,
decision or award entered in any such proceeding
or action will be conclusive upon all interested
persons.
12. RELIANCE ON COMMUNICATIONS
(a) The Trustee may rely upon a certification of the
Applicable Named Fiduciary (or its delegate), the
Administrator or the Recordkeeper with respect to
any instruction, direction or approval of such
party and may rely upon a certification of the
Company as to the membership of the Board,
Committee or the identity of an Applicable Named
Fiduciary as they then exist, and may continue to
rely upon such certification until a subsequent
certification is filed with the Trustee.
(b) The Trustee is fully protected in acting upon any
instrument, certificate, or paper of the Company,
its Board of Directors, the Administrator (or any
member of the Board or Committee) and Applicable
Named Fiduciary or the Recordkeeper, believed by
it to be genuine and to be signed or presented by
any authorized person, and the Trustee is under no
duty to make any investigation or inquiry as to
any statement contained in any such writing but
may accept the same as fully authorized by the
Company, the Board, Committee, Applicable Named
Fiduciary or the Recordkeeper, if applicable, as
the case may be.
(c) The Trustee will be further protected in relying
upon a certification from any Investment Manager
appointed by the Applicable Named Fiduciary as to
the person or persons authorized to give
instructions or directions on behalf of such
Investment Manager and may continue to rely upon
such certification until a subsequent
certification is filed with Trustee.
13. RESIGNATION AND REMOVAL OF TRUSTEE
Any Trustee acting hereunder may resign at any time by
giving 90 days prior written notice to the Applicable Named
Fiduciary, which notice may be waived by the Applicable Named
Fiduciary. The Applicable Named Fiduciary may remove the Trustee
at any time upon 30 days prior written notice to the Trustee,
which notice may be waived by the Trustee. In case of the
resignation or removal of the Trustee, the Applicable Named
Fiduciary must appoint a successor trustee. Any successor trustee
will have the same powers and duties as those conferred upon the
Trustee named in this Trust Agreement. The removal of a Trustee
and the appointment of a new Trustee will be by a written
instrument delivered to the Trustee. Upon the appointment of a
successor trustee, the resigning or removed Trustee must transfer
or deliver the Trust Fund to such successor trustee.
14. ADDITIONAL TRUSTEE
The Applicable Named Fiduciary reserves the right at any
time and from time to time to appoint an additional trustee or
trustees, with such powers and duties, consistent with the Plans,
as the Applicable Named Fiduciary may determine. In the event of
such an appointment or appointments, the Trustee, upon direction
of the Applicable Named Fiduciary, will assign, transfer and pay
over to any such additional trustee the portion of the Trust Fund
determined by the Applicable Named Fiduciary to be held by the
Trustee for particular Participants designated by the Applicable
Named Fiduciary, and the Trustee will thereafter act as Trustee
hereunder and under the Plan only in respect to those
Participants' accounts allocated to the Trustee by the Applicable
Named Fiduciary. The Trustee will receive and hold as a part of
the Trust Fund such cash and other property as may, from time to
time, be delivered to it by any such additional trustee.
15. ACTIONS BY THE COMPANY
Whenever the Company has authority to take action under this
Trust in a settlor capacity, the following person (or persons)
has the authority to act on behalf of the Company:
(a) the following action(s) may be taken by resolution
of the Company's Board of Directors or its
delegate: (i) amending and terminating this Trust,
or (ii) all other actions which could be taken by
or on behalf of the Company; and
(b) for all other actions which could be taken by or
on behalf of the Company under this Trust, other
than the designation of members of the Investment
Committee, a Designated Officer.
16. TRUST GOVERNANCE
16.1 Authority of Applicable Named Fiduciary. Each
Applicable Named Fiduciary has such authority and control or
discretion with respect to this Trust as is described in this
Trust. The Administrator, as an Applicable Named Fiduciary, has
the authority to execute Administrative Services Agreements which
are binding on this Trust to the extent that the Administrator
has the authority under this Trust, and subject to applicable
law, to direct the Trustee to pay from the Trust assets to the
Recordkeeper payments in satisfaction of obligations and expenses
incurred by this Trust under such Administrative Services
Agreements, and all of the rights and benefits under all
Administrative Services Agreements inure to this Trust, without
limitation.
16.2 Authority of Investment Committee and Chief Financial
Officer. The Investment Committee and Chief Financial Officer
have the authority and discretion to manage and control the Trust
assets as provided to each in this Trust.
16.3 Fiduciary to Direct Trustee. Each Applicable Named
Fiduciary, the Investment Committee and Chief Financial Officer,
on their own behalf and on behalf of the Plan or this Trust with
respect to which the person is a Fiduciary, is to furnish the
Trustee the name of each person upon whose statement of the
decision or direction of such Fiduciary the Trustee is authorized
to rely. Until notified of a change in the identity of such
person or persons, the Trustee may act upon the assumption that
there has been no change.
16.4 Company to Direct Trustee. The Company is to furnish
the Trustee the name of each person upon whose statement of the
decision or direction of the Company the Trustee is authorized to
rely. Until notified of a change in the identity of such person
or persons, the Trustee may act upon the assumption that there
has been no change. With respect to each Plan, the Company will
notify the Trustee in writing as to the identity of such Plan's
Administrator, and any other Applicable Named Fiduciary with
respect to such Plan and the scope of authority of each whenever
the term "Applicable Named Fiduciary" is used in this Trust, and
the Trustee may rely on such notification.
17. AMENDMENT
This Trust Agreement may be amended by agreement between the
Trustee and the Company at any time or from time to time and in
any manner, and the provisions of any such amendment may be
applicable to the Trust Fund as constituted at the time of the
amendment as well as to the part of the Trust Fund subsequently
acquired.
18. TERMINATION
This Trust Agreement and the trust created hereby may be
terminated at any time by the Company, and upon such termination
or upon the dissolution or liquidation of the Company, in the
event that a successor to the Company by operation of law or by
the acquisition of its business interests does not elect to
continue the Plans and the trust, the Trust Fund will be paid out
by the Trustee when directed by the Administrator.
Notwithstanding the foregoing, the Trustee is not required to pay
out any assets of the Trust Fund upon termination of the Trust
until the Trustee has received written certification from the
Administrator that all provisions of law with respect to such
termination have been complied with. The Trustee must rely
conclusively on such written certification, and is under no
obligation to investigate or otherwise determine its propriety.
19. PARTICIPATION OF OTHER EMPLOYERS
19.1 Adoption by Other Employers; Withdrawals.
(a) The Trust is maintained by the Company for use as
the funding vehicle for the Plans which it
maintains for various groups of employees and for
use as the funding vehicle for the Plans of any
Employer.
(1) Any Employer designated by the Company as
being authorized and as having adopted this
Trust with the consent of the Administrator
as a funding vehicle for its own Plans may,
at any time thereafter, become a party to
this Trust Agreement; and
(2) Any Employer which is a party to this Trust
Agreement which has adopted one or more other
Plans and as being authorized to use this
Trust as the funding medium for such other
Plan or Plans may, at any time thereafter,
use this Trust for the purposes of such other
Plan or Plans with the consent of the
Administrator.
(b) Thereafter, the Trustee will receive and hold as a
part of the Trust Fund, subject to the provisions
of this Trust Agreement, any deposits made to it
under such Plans by or at the direction of such
Employer. Should this paragraph become operative:
(1) In the event of the withdrawal of a Plan from
the trust or in the event of the Company's or
an Employer's election to terminate or to
fund separately the benefits provided under
any of its Plans, the Company will cause a
valuation to be made of the share of the
Trust Fund which is held for the benefit of
persons having an interest therein under such
Plans. The Trustee will thereupon segregate
and dispose of such share in accordance with
the written directions of the Company.
(2) If the Administrator or any Employer receives
notice that one or more of its Plans is no
longer qualified under the provisions of
Section 401 of the Code or the corresponding
provisions of any future Federal revenue act,
the Administrator will immediately cause a
valuation to be made of the share of the
Trust Fund which is held for the benefit of
such persons having an interest under such
disqualified Plan or Plans. The Trustee will
thereupon segregate, withdraw from the Trust
Fund, and dispose of such share in accordance
with the terms of the disqualified Plan or
Plans. The Administrator may direct the
Trustee to dispose of such share by the
transfer and delivery of such share to itself
as trustee of a separate trust, the terms and
conditions of which will be identical with
those of this Trust Agreement, except that
either the Company or the Employer
maintaining such disqualified Plan or Plans
and the Trustee will be the only parties
thereto.
(3) In the event that any group of employees
covered by a Plan is withdrawn from such
Plan, the Administrator will, if required by
the terms of such Plan, cause a valuation to
be made of the share of the Trust Fund which
is held for the benefit of such group of
employees. The Trustee will thereupon
segregate and dispose of such share in
accordance with the direction of the
Administrator accompanied by its
certification to the Trustee that such
segregation and disposition is in accordance
with the terms of such Plan and the
requirements of the law.
(c) The Trustee will have no duty to see that the
valuation of any share in accordance with the
provisions of this Section 19.1 is caused to be
made by the Administrator, nor to segregate and
dispose of any such share in the absence of the
written direction of the Administrator to do so.
19.2 Powers and Authorities of Other Employers to be
Exercised Exclusively by Company. Each Employer, other than the
Company, which is, or becomes a party to this Trust Agreement,
hereby irrevocably gives and grants to the Company full and
exclusive power and authority to exercise all of the powers
conferred upon it by the terms of this Trust Agreement and to
take or refrain from taking any and all action which such
Employer might otherwise take or refrain from taking with respect
to this Trust Agreement, including the sole and exclusive power
to exercise, enforce or waive any rights whatsoever which such
Employer might otherwise have with respect to the Trust Fund, and
each such Employer, by becoming a party to this Trust Agreement,
irrevocably appoints the Company its agent for such purposes. The
Trustee will have no obligation to account to any such Employer
or to follow the instructions of or otherwise deal with any such
Employer, the intention being that the Trustee will deal solely
with the Company as if the Trustee and the Company were the only
parties in this Trust Agreement.
20. MISCELLANEOUS
20.1 Governing Law. To the extent not inconsistent with
ERISA, as heretofore or hereafter amended, the provisions of this
Trust Agreement are governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts. The Company hereby
submits to the jurisdiction of the State and Federal Courts
located in the Commonwealth of Massachusetts including any
appellate courts thereof.
20.2 Status of Plans. The Company is responsible for
verifying that while any assets of a Plan are held in the Trust
Fund, the Plan:
(a) is "qualified" with the meaning of Section 401(a)
of the Code and, as a defined contribution plan
either (A) the Plan provides that each Participant
is a "named fiduciary" (as described in Section
402(a)(2) of the provisions of ERISA) who is duly
authorized under the Plan to provide investment
direction to the Administrator, acting as agent
for such Participant, for conveyance to the
Trustee, or (B) the Plan is duly qualified as an
"ERISA Section 404(c) Plan" described in 29 C.F.R.
Section 2550.404c under which each Participant is
authorized to provide investment direction to the
Administrator, acting as agent for such
Participant, for conveyance to the Trustee;
(b) is permitted by the United States Treasury
Department to pool its funds in a group trust;
(c) permits its assets to be commingled for investment
purposes with the assets of other such plans by
investing such assets in this Trust Fund whether
or not its assets will in fact be held in a
separate investment fund; and
(d) does not prohibit the Administrator from
appointing the Recordkeeper to perform services as
described herein, and provides that the
Administrator is the fiduciary responsible for
carrying out Participant investment directions.
20.3 No Reversion to Employer. Except as provided herein, no
portion of the principal or the income of the Trust Fund can
revert to or be recoverable by the Company or any Employer or
ever be used for or diverted to any purpose other than for the
exclusive benefit of participants in the Plans and persons
claiming under or through them pursuant to the Plans, provided,
however, that:
(a) all contributions are conditioned upon the
deductibility of the contributions under Section
404(a) of the Code, and, to the extent determined
to be nondeductible, the Trustee will, upon
written request of the affected Company, return
such amount as may be permitted by law to such
Company, as appropriate, within 1 year after the
determination of nondeductibility or within such
other period as is permitted by applicable law;
and
(b) if a contribution or any portion thereof is made
by the Company by a mistake of fact, the Trustee
will, upon written request of the Company, return
such amounts as may be permitted by law to the
Company, as appropriate, within one year after the
date of payment to the Trustee or within such
other period as is permitted by applicable law;
and
(c) if a contribution is conditioned upon the
qualification of the Plans and Trust under
Sections 401 and 501 of the Code, the
contributions of the Company to the Trust for all
Plans years, with the gains and losses thereon,
will be returned by the Trustee to the Company, as
appropriate, within 1 year in the event that the
Commissioner of Internal Revenue fails to rule
that the Plans and Trust were as of such date
qualified and tax-exempt (within the meaning of
Sections 401 and 501 of the Code); and
(d) in the event that a Plan whose assets are held in
the Trust Fund is terminated, assets of such Plan
may be returned to the Employer if all Plan
liabilities to participants and beneficiaries of
such Plan have been satisfied; and
(e) assets may be returned to the Employer to the
extent that the law permits such transfer.
The Trustee is under no obligation to return any part of the
Trust Fund as provided in this Section 20.3 until the Trustee has
received a written certification from the Administrator that such
return is in compliance with this Section 20.3, the Plans and the
requirements of applicable law. The Trustee may rely conclusively
on such written certification and will be under no obligation to
investigate or otherwise determine its propriety.
20.4 Non-Alienation of Benefits. Except as provided as
pursuant to a Qualified Domestic Relations Order under Section
414(p), no benefit to which a Participant is or may become
entitled under a Plan will at any time be subject in any manner
to alienation or encumbrance, nor be resorted to, appropriated or
seized in any proceeding at law, in equity or otherwise. No
Participant or other person entitled to receive a benefit under a
Plan will, except as specifically provided in such Plan, have
power in any manner to transfer, assign, alienate or in any way
encumber such benefit under such Plan, or any part thereof, and
any attempt to do so will be void.
20.5 Duration of Trust. Unless sooner terminated, the trust
created under this Trust Agreement will continue for the maximum
period of time which the laws of the Commonwealth of
Massachusetts shall permit.
20.6 No Guarantees. Neither the Company, nor any Employer,
nor the Trustee guarantees the Trust Fund from loss or
depreciation, nor the payment of any amount which may become due
to any person under the Plans or this Trust Agreement.
20.7 Duty to Furnish Information. Both the Company and the
Trustee will furnish to the other any documents, reports,
returns, statements, or other information that the other
reasonably deems necessary to perform its duties imposed under
the Plans or this Trust Agreement or otherwise imposed by law.
20.8 Withholding. The Administrator will withhold any tax
which by law is required to be withheld from any payment under
the Plans, unless the Trustee has agreed in writing to do so. The
Administrator will provide all information reasonably requested
by the Trustee to enable the Trustee to so withhold.
20.9 Parties Bound. This Trust Agreement is binding upon the
parties hereto, all participants in the Plans and persons
claiming under or through them pursuant to the Plans, and, as the
case may be, the heirs, executors, administrators, successors,
and assigns of each of them.
In the event of the merger or consolidation of the Company
or any Employer or other circumstances whereby a successor
person, firm or company continues to carry on all or a
substantial part of its business, and such successor will elect
to carry on the provisions of the Plan or Plans applicable to
such business, as therein provided, such successor will be
substituted hereunder for the Company or such Employer, as the
case may be, upon the filing in writing of its election so to do
with the Trustee. The Trustee may, but need not, rely on the
certification of an officer of the Company, and a certified copy
of a resolution of the Board of Directors of such successor,
reciting the facts, circumstances and consummation of such
succession and the election of such successor to continue the
said Plan or Plans as conclusive evidence thereof, without
requiring any additional evidence.
20.10 Necessary Parties to Disputes. Necessary parties to
any accounting, litigation or other proceedings include only the
Trustee, the Administrator and the Company and any appropriate
Employers and the settlement or judgment in any such case in
which the Company, the Administrator, the appropriate Employers
and the Trustee are duly served or cited will be binding upon all
participants in the Plans and their beneficiaries and estates,
and upon all persons claiming by, through or under them.
20.11 Unclaimed Benefit Payments. If any check or share
certificate in payment of a benefit hereunder which has been
mailed by regular US mail to the last address of the payee
furnished the Trustee by the Administrator is returned unclaimed,
the Trustee will notify the Administrator and will discontinue
further payments to such payee until it receives the further
instruction of the Administrator.
20.12 Severability. If any provisions of this Trust
Agreement are held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions of this Trust
Agreement will continue to be fully effective.
20.13 References. Unless the context clearly indicates
to the contrary, a reference to a statute, regulation, document
or provision will be construed as referring to any subsequently
enacted, adopted or executed counterpart.
20.14 Headings. Headings and subheadings in this Trust
Agreement are inserted for convenience of reference only and are
not to be considered in the construction of its provisions.
20.15 No Liability for Acts of Predecessor and Successor
Trustees. The Trustee has no liability for the acts or omissions
of any predecessors or successors in office.
20.16 Construction.
(a) General. Unless the contrary is plainly required
by the context, wherever any words are used herein
in the masculine gender, they will be construed as
though they were also used in the feminine gender,
and vice versa; wherever any words are used herein
in the singular form, they will be construed as
though they were also used in the plural form, and
vice versa; and wherever the words "herein,"
"hereof," "hereunder," and words of similar import
are used, they will be construed to refer to the
Trust in its entirety and not only to the portion
of the Trust in which they appear.
(b) Other Agreements. Certain aspects of the relations
between the Recordkeeper, the Company and the
Trustee are governed by the Operating Agreement.
In the case of any conflict between the Operating
Agreement and the Trust Agreement, with respect to
matters specifically covered by the Operating
Agreement the provisions of the Operating
Agreement will control. The provisions of this
Trust Agreement will govern interpretation of any
matters not specifically covered by the Operating
Agreement.
20.17 Notices. Notices to the parties must be in
writing to the current "Designated Representative" identified on
the contact list referenced in the Operating Agreement.
20.18 Counterparts. This Trust Agreement may be executed
in one or more counterparts, each of which constitute an
original.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers as of
the day and year first above written.
BP AMOCO CORPORATION
BY:
TITLE:
STATE STREET BANK AND TRUST COMPANY
BY:
TITLE:
<PAGE>
EXHIBIT A
Plans participating in the Trust as of April 6, 2000:
BP Amoco Employee Savings Plan
BP Amoco Partnership Savings Plan
BP Amoco DirectSave Plan
BP America Savings and Investment Plan
<PAGE>
EXHIBIT B
Investment Funds
CORE INVESTMENT OPTIONS
Short-Term
Money Market Fund
Bond
Bond Index Fund
Bond Index Fund - Long Duration
Bond Index Fund - Short Duration
Income Fund (Frozen)
U.S. Savings Bonds (Frozen)
Hybrid
Balanced Index Fund - Aggressive
Balanced Index Fund - Conservative
Balanced Index Fund - Moderate
Large Cap
Equity Index Fund
Equity Index Fund - Growth
Equity Index Fund - Value
Mid Cap
Mid-Cap Equity Index Fund
Small Cap
Small-Cap Equity Index Fund
Small-Cap Equity Index Fund - Growth
Small-Cap Equity Index Fund - Value
International
International Equity Index Fund
International Equity Index Fund - Europe
International Equity Index Fund - Far East
Company Stock
BP Amoco Stock Fund
MUTUAL FUND WINDOW INVESTMENT OPTIONS
Short-Term
Fidelity Retirement Money Market Portfolio
Bond Funds
Intermediate-Term Government
Fidelity Government Income Fund
Strong Government Securities Fund
T. Rowe Price U.S. Treasury Intermediate Bond Fund
USAA GNMA Trust
Long-Term Government
PIMCO Long-Term U.S. Government Fund
Short-Term Bond
Harbor Short Duration Fund
Fidelity Institutional Short-Intermediate Government Fund
PIMCO Low Duration Fund
Intermediate-Term Bond
Dodge & Cox Income Fund
Fidelity Investment Grade Bond Fund
Harbor Bond Fund
INVESCO Select Income Fund
MAS Fixed Income Portfolio
PIMCO Total Return Fund
PIMCO Total Return Fund III
Long-Term Bond
USAA Income Fund
Multi-Sector Bond
Dreyfus Core Bond Fund
Janus Flexible Income Fund
T. Rowe Price Spectrum Income Fund
High Yield Bond
Fidelity Capital & Income Fund
Fidelity High Income Fund
INVESCO High Yield Fund
MAS High Yield Portfolio
PIMCO High Yield Fund
Convertible Bond
Fidelity Convertible Securities Fund
Emerging Markets Bond
Fidelity New Markets Income Fund
International Bond
Payden & Rygel Global Fixed Income Fund
PIMCO Foreign Bond Fund
Hybrid Funds
Domestic Hybrid
Calvert Social Investment Fund Balanced Portfolio
Columbia Balanced Fund, Inc.
Dreyfus Founders Balanced Fund F
Dreyfus Premier Balanced Fund
Fidelity Balanced Fund
Fidelity Puritanr Fund
INVESCO Total Return Fund
Janus Balanced Fund
MAS Balanced Portfolio
Vanguard Asset Allocation Fund
Vanguard Wellesley Income Fund
Vanguard Wellington Fund
Large Cap U.S. Stock Funds
Large Cap Value
American Century Equity Growth Fund
American Century Income & Growth Fund
American Mutual Fund
Clipper Fund
Dreyfus Aggressive Value Fund
Fidelity Equity-Income Fund
Fidelity Equity-Income II Fund
Fundamental Investors
INVESCO Value Equity Fund
Investment Company of America
Legg Mason Value Trust, Inc.
MAS Equity Portfolio
T. Rowe Price Equity Income Fund, Inc.
Vanguard Equity Income Fund
Vanguard Growth and Income Fund
Vanguard Windsor Fund
Vanguard Windsor II Fund
Warburg Pincus Value Fund
Washington Mutual Investors Fund
Large Cap Blend
AIM Blue Chip Fund
Domini Social Equity Fund
Dreyfus Appreciation Fund, Inc.
Dreyfus Disciplined Stock Fund
Fidelity Blue Chip Growth Fund
Fidelity Disciplined Equity Fund
Fidelity Dividend Growth Fund
Fidelity Fiftysm
Fidelity Fund
Fidelity TechnoQuantr Growth Fund
INVESCO Equity Income Fund
Morgan Stanley Dean Witter Institutional Fund, Inc. -
Equity Growth Portfolio Class A
PIMCO StocksPLUS Fund
T. Rowe Price Blue Chip Growth Fund
T. Rowe Price Dividend Growth Fund
T. Rowe Price Growth Stock Fund
USAA Growth Fund
Vanguard PRIMECAP Fund
Warburg Pincus Capital Appreciation Fund
Large Cap Growth
Alger Capital Appreciation Retirement Portfolio
Columbia Growth Fund
Dreyfus Founders Growth Fund F
Dreyfus Premier Third Century Fund, Inc.
Dreyfus Premier Worldwide Growth Fund, Inc.
Fidelity Growth Company Fund
Fidelity Large Cap Stock Fund
Fidelity Retirement Growth Fund
Harbor Capital Appreciation Fund
INVESCO Blue Chip Growth Fund
Janus Fund
Janus Growth and Income Fund
Janus Twenty Fund
Merrill Lynch Fundamental Growth Fund, Inc.
Papp America - Abroad Fund
Putnam Investors Fund A
Scudder Large Company Growth Fund
Strong Total Return Fund, Inc.
Vanguard U.S. Growth Fund
Medium Cap U.S. Stock Funds
Medium Cap Value
American Century Equity Income Fund
American Century Value Fund
Fidelity Value Fund
Strong Opportunity Fund
Strong Schafer Value Fund
T. Rowe Price Value Fund
Medium Cap Blend
Ariel Appreciation Fund
Fidelity Capital Appreciation Fund
Fidelity Trend Fund
Legg Mason Special Investment Trust, Inc.
Montgomery Select 50 Fundr
Neuberger Berman Socially Responsive Trust
Medium Cap Growth
Alger MidCap Growth Retirement Portfolio
Alger Small Cap Retirement Portfolio
Baron Asset Fund
Fidelity Aggressive Growth Fund
Fidelity Export and Multinational Fund
Fidelity Mid-Cap Stock Fund
Fidelity OTC Portfolio
INVESCO Dynamics Fund
MAS Mid Cap Growth Portfolio
Strong Growth Fund
T. Rowe Price Mid-Cap Growth Fund
Warburg Pincus Emerging Growth Fund
Small Cap U.S. Stock Funds
Small Cap Value
Franklin Balance Sheet Investment Fund Class A
PIMCO Small-Cap Value Fund
Warburg Pincus Small Company Value Fund
Small Cap Blend
Acorn Fund
Fidelity Small Cap Selector
MAS Small Cap Value Portfolio
Neuberger Berman Genesis Trust
PIMCO Micro-Cap Growth Fund
T. Rowe Price Small-Cap Stock Fund
Small Cap Growth
Baron Growth Fund
Delaware Trend Fund
Dreyfus Founders Discovery Fund F
Franklin Small Cap Growth Fund-A
INVESCO Small Company Growth Fund
Managers Special Equity Fund
Morgan Stanley Dean Witter Institutional Fund, Inc. -
Small Company Growth Portfolio Class B
Specialty U.S. Stock Funds
Specialty-Health Care
INVESCO Health Sciences Fund
T. Rowe Price Health Sciences
Specialty-Real Estate
Cohen & Steers Realty Shares
Fidelity Real Estate Investment Portfolio
Specialty Technology
Morgan Stanley Dean Witter Institutional Fund, Inc. -
Technology Portfolio
Class A
PBGH Technology & Communications Fund
PIMCO Innovation Institutional Fund
Specialty-Utilities
Fidelity Utilities Fund
INVESCO Utilities Fund
International Stock Funds
Foreign Stock
American Century International Growth Fund
Deutsche International Equity Fund
Fidelity Aggressive International Fund*
Fidelity Diversified International Fund
Fidelity International Growth & Income Fund
Fidelity Overseas Fund
GAM International Fund A
J.P. Morgan Institutional International Equity Fund
Lazard International Equity Portfolio
Managers International Equity Fund
Putnam International Growth Fund A
Templeton Foreign Fund A
Warburg Pincus International Equity Fund
Europe Stock
Fidelity Europe Capital Appreciation Fund
Fidelity Europe Fund
INVESCO European Fund
Merrill Lynch EuroFund
Putnam Europe Growth Fund A
T. Rowe Price European Stock Fund
International Hybrid
AIM Global Growth & Income Fund
Fidelity Global Balanced Fund
Latin America Stock
Fidelity Latin America Fund
Scudder Latin America Fund
T. Rowe Price Latin America Fund
Diversified Pacific Asia Stock
Fidelity Pacific Basin Fund
Fidelity Southeast Asia Fund
Merrill Lynch Pacific Fund, Inc.
Putnam Asia Pacific Growth Fund A
Japan Stock
Fidelity Japan Fund
Diversified Emerging Markets Stock
Fidelity Emerging Markets Fund
Lazard Emerging Markets Portfolio
Templeton Developing Markets Trust A
Templeton Institutional Funds, Inc. - Emerging Markets
Series
World Stock
Capital World Growth and Income Fund
Janus Worldwide Fund
Mutual Discovery Fund Class A
New Perspective Fund
Putnam Global Growth Fund A
Templeton Growth Fund, Inc. A
Templeton World Fund A
Hybrid Asset Allocation Funds
Fidelity Freedom Incomer Fund
Fidelity Fredome 2000r Fund
Fidelity Freedom 2010r Fund
Fidelity Freedom 2020r Fund
Fidelity Freedom 2030r Fund
<PAGE>
EXHIBIT C
Trustee Fees
I. TRUSTEE/CUSTODIAN CHARGES
.50 Basis Points on the month end Net Asset Value
II. PORTFOLIO ACCOUNTING
Core Fund Portfolios: $ 7,500 per portfolio/year
AE01 - BP Amoco Stock Fund AE19 - Equity Index Fund --Value
AE02 - Money Market Fund AE20 - Small-Cap Equity Index Fund -- Value
AE04 - U.S. Savings Bonds AE21 - Small-Cap Equity Index Fund -- Growth
AE10 - Equity Index Fund AE22 - International Equity Index Fund --
Europe
AE11 - Bond Index Fund AE23 - International Equity Index Fund
-- Far East
AE12 - Balanced Index Fund - Moderate AE24 - Bond Index Fund -- Short Duration
AE13 - Mid-Cap Equity Index Fund AE25 - Bond Index Fund -- Long Duration
AE14 - International Equity Index Fund AE26 - Balanced Index Fund --
Conservative
AE16 - Small-Cap Equity Index Fund AE27 - Balanced Index Fund -- Aggressive
AE18 - Equity Index Fund -- Growth AE28 - Income Fund
Participant Directed Window Portfolios: $45,000 per portfolio/year
AE33-BP Amoco Employee Savings Plan AE35-BP Amoco DirectSave Plan
AE34-BP Amoco Partnership Savings Plan AE38-BP America SIP
Stable Value Fund Portfolios: $ 5,000 per portfolio/year
AE29 - PIMCO AE32 - J.P. Morgan
AE30 - Loomis AE39 - BP Amoco
AE31 - Dwight
Loan Fund: (AE17) $ 5,000 per portfolio/year
Cash Fund: (AE06, AE36) $ 5,000 per portfolio/year
III. PORTFOLIO ACTIVITY
$15 per Depository Trade (DTC, FED, PTC)
$15 per Physical Trade
$15 per Time Deposit
III. OTHER FEES
Short Term Investment Fund
An administrative/management fee of 18 basis points will be
netted out of the yield. This fee applies to any of the above
portfolios that invest in STIF.
Plan Accounting
$1000 per plan annually for each investment option
Out-of-pockets
Out-of-pockets such as courier, telex, registration and
communications charges are borne by the client.
4/5/00
_______________________________
* Formerly known as Fidelity International Value Fund
<PAGE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the
Registration Statement (Post-Effective Amendment No. 1 Form
S-8 No. 333-79399) of BP Amoco p.l.c. of our report dated 15
February 2000 with respect to the consolidated financial
statements and schedule of BP Amoco p.l.c. included in its
Annual Report (Form 20-F) for the year ended 31 December
1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
Ernst & Young
London, England
6 April 2000
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the
Registration Statement (Post-Effective Amendment No. 1 Form
S-8 No. 333-79399) pertaining to the BP Amoco DirectSave Plan
(formerly The DirectSave Plan), the BP Amoco Partnership Savings
Plans(formerly the BP America Partnership Savings Plan), and
the BP America Savings and investment plan (collectively,
the "Plans") of our reports dated June 18, 1999, with
respect to the financial statements of the Plans included in
the Annual Reports (Form 11-K) for the year ended December
31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Chicago, Illinois
April 6, 2000
<PAGE>
<PAGE>
Exhibit 23.3
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 of Amoco Corporation appearing in the December
31, 1999 Annual Report on Form 20-F of BP Amoco p.l.c.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Chicago, IL
April 7, 2000
