<PAGE>
As filed with the Securities and Exchange Commission on April 10, 2000
Registration No. 333-9798
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 Employee Savings Plan
(formerly Amoco Employee Savings Plan)
Management Incentive Program of BP Amoco Corporation
and its Participating Subsidiaries
1991 Incentive Program of
BP Amoco Corporation and its Participating Subsidiaries
Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
(Full titles of plans)
--------
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. 333-9798) by filing this
Post Effective Amendment No. 1 thereto to reflect the amendment
and restatement of one of the plans covered by this registration
statement.
Effective April 7, 2000 the Amoco Employee Savings Plan is
renamed the BP Amoco Employee Savings Plan. The amended and
restated plan text is filed herewith as Exhibit 4.1. The new
Trust Agreement for the BP Amoco Employee Savings Plan is filed
herewith as Exhibit 4.2.
<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 7, 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/ Sir John Browne Attorney-in-fact
Sir John Browne
<PAGE>
SIGNATURE OF BP AMOCO EMPLOYEE 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 AMOCO FABRICS AND FIBERS COMPANY SALARIED 401(K)
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 AMOCO FABRICS AND FIBERS COMPANY HOURLY 401(K)
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>
EXHIBIT INDEX
Exhibit Description
4.1 BP Amoco Employee Savings Plan
effective April 7, 2000.
4.2 BP Amoco Master Trust for Employee
Savings Plans effective April 6,
2000.
4.3 Management Incentive Program of BP
Amoco Corporation and its
Participating Subsidiaries effective
January 4, 1999
4.4 1991 Incentive Program of BP Amoco
Corporation and its Participating
Subsidiaries effective January 4,
1999
4.5 Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
4.6 Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
4.7 Declaration of Trust dated December
14, 1995 by and between Amoco Fabric
and Fibers Company and Bankers Trust
Company
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. 333-9798 (incorporated
by reference)
<PAGE>
<PAGE>
EXHIBIT 4.1
BP AMOCO
EMPLOYEE SAVINGS PLAN
<PAGE>
BP AMOCO EMPLOYEE SAVINGS PLAN
BP Amoco Corporation (the "Company") maintains, effective April
7, 2000, the BP Amoco Employee 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 Amoco
Employee Savings Plan ("AESP"), and reflects the merger of the BP
America Capital Accumulation Plan ("BP CAP") into the Plan on or
after April 7, 2000 (concurrently with the transfer of certain
liabilities and assets of AESP and BP CAP to the BP Amoco
DirectSave Plan and to the BP Amoco Partnership Savings 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 AESP or BP CAP 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
AESP or BP CAP, whichever is applicable, 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.
Immediately prior to the Effective Date, these Accounts were
referred to in AESP as the "Tax Deferred Savings Account," the
"After Tax Savings Account," the "Company Matching Contribution
Account" and the "Rollover Account," respectively, and the
amounts in such accounts as of the Effective Date have been
allocated and posted to the corresponding Accounts hereunder. As
of the merger of BP CAP into this Plan, the accounts held under
BP CAP, have been allocated and posted to these Accounts in
accordance with Appendix 16.3.
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
disabled for purposes of the Employer's long term disability
plan.
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
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 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 (other than an Employee at
its Fairfield, California facility); 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 AESP or BP CAP 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 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 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 Employee 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 "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, AESP or BP CAP 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 AESP or BP CAP
immediately before the Effective Date will continue as a
Participant as of the Effective Date, except as provided in
Supplements B and C of Appendix 16.3.
(b) Other Eligible Employee. Each person who is an
Eligible Employee on the Effective Date will be eligible to
become a Participant on the Effective Date. Each other Eligible
Employee will be eligible to become a Participant on his
Employment Date or Reemployment Date, or if later, the date such
person becomes an Eligible Employee.
II.2 Participation upon Change of Job Status. An Employee
who 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 AESP or BP CAP
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 AESP or BP CAP with regard to breaks in
service as such rules were in effect under AESP or BP CAP 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 medical leave of absence approved by his Employer or
if the Employee is receiving benefits under his Employer's
Sickness and Disability Benefits policy, his Employer's
Occupational Illness and Injury policy, or his Employer's Long-
Term Disability Program (or any successors thereto), he will
receive Service for the period of his absence from employment not
to exceed a period of 24 months.
(c) 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.
(d) 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.
(e) If an Employee is absent from employment on
account of any Authorized Absence (other than a leave described
in subsections (b), (c), or (d), 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 7 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 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 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 is declared mentally incompetent or becomes
permanently and totally 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 2 loans outstanding from the Plan at any time.
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, 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.
(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 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 apply to the merger of BP CAP into the Plan and
which reflect the transfer of certain liabilities and assets to
the BP Amoco Partnership Savings Plan and the BP Amoco DirectSave
Plan, both 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 BP CAP and AESP 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 Abandoned ESOP Accounts. Effective November 30,
1989, the abandoned accounts and related assets under the Amoco
Corporation Employee Stock Ownership Plan ("ESOP") were
transferred to the Plan. To the extent that valid claims had not
been made for them on December 31, 1990, the accounts transferred
from the ESOP were forfeited on January 1, 1991. If the
Administrator determines that an individual has made a valid
claim for benefits under the ESOP, such benefits will be paid
from the Plan. Such distribution will be made from any available
forfeitures under the Plan and then from additional employer
contributions if necessary. The benefit distributed with respect
to an abandoned ESOP account will be equal to the value of the
applicable account on January 1, 1991.
XVIII.16 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:_______________________________
APPENDIX 16.3
TO
BP AMOCO EMPLOYEE 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 the participants in BP CAP (other than those
described in Supplement B and C) immediately prior to the
Effective Date, and including Alternate Payees and eligible
Beneficiaries of such persons, collectively, (the "BP
Participants"), notwithstanding any other provisions of the Plan
to the contrary.
(b) Accounts. As of the Effective Date, each BP
Participant will have allocated and posted to the Accounts under
the Plan the amounts credited to such Participants' accounts
under BP CAP as of the Effective Date, in accordance with the
following Schedule:
BP CAP Account Plan Account
After-Tax Account After-Tax Account
Before-Tax Account Before-Tax Account
Matching Contributions Match Account
Account
Rollover Account Rollover Account
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 the AESP immediately
prior to the Effective Date who is a retail at site 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 Partnership Savings Plan.
(c) Termination of Participation. As of the Effective
Date, each person for whom assets and liabilities have been
transferred to the BP Amoco Partnership Savings 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.
SUPPLEMENT C
16.3(a) Purpose. The purpose of this Supplement C is to
set forth the special provisions (not otherwise set forth in the
Plan) which apply to each participant in AESP and BP CAP
immediately prior to the Effective Date who is a retail at site
hourly employee (a "DirectSave Participant"), and Alternate
Payees and Beneficiaries of such persons.
(b) Spinoff. As of the Effective Date, the assets and
liabilities of each DirectSave 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 Closing
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 4.2
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 4.3
AMENDED AND RESTATED
MANAGEMENT INCENTIVE PROGRAM OF
BP AMOCO CORPORATION AND ITS
PARTICIPATING SUBSIDIARIES
(Initially Approved April 22, 1986)
Preamble
The Management Incentive Program of Amoco Corporation
and its Participating Subsidiaries (as approved April 22,
1986 and amended April 25, 1989) shall be effective from
April 25, 1989 to the effective date of the merger
("Merger") of Amoco Corporation with a wholly-owned
subsidiary of The British Petroleum Company. From and
including the effective date of the Merger this Amended and
Restated Management Incentive Program of BP Amoco
Corporation shall be effective until later amended,
superceded or terminated.
1. Purpose and Effective Date
The purpose of this Program is to further the interests
of BP Amoco Corporation, an Indiana corporation, its
Participating Subsidiaries and its shareholder by providing
incentives in the form of incentive compensation awards,
stock option grants, performance unit grants and restricted
stock grants to Employees who contribute materially to the
success and profitability of the Corporation and such
subsidiaries. Such awards and grants recognize and reward
outstanding performances and individual contributions and
give key employees and selected employees in middle
management who possess valuable experience and skills. This
Program also enables the Corporation and its subsidiaries to
attract and retain such Employees.
This Program initially became effective upon its
approval by the shareholders of Amoco Corporation on April
22, 1986.
2. Definitions
As used in this Program:
(1) The term "Appropriate Committee" means the
Compensation and Organization Committee of the Corporation
and its designees (formerly the Directors' Compensation
Committee) with respect to Employees who are members of the
Board or officers of the Corporation and the Human Resources
Committee (formerly Salary Committee) of the Corporation
with respect to other Employees.
(2) The term "Beneficiary" means a person or persons
designated by an Employee to receive, in the event of death,
any unpaid portion of an incentive compensation award or
grant of performance units made to the Employee, any
unexercised stock option or Stock Appreciation Right held by
the Employee or any Restricted Shares. Any Employee may,
subject to such limitations as may be prescribed by the
Compensation and Organization Committee, designate one or
more persons primarily or contingently as beneficiaries in
writing upon forms supplied by and delivered to the
Corporation, and may revoke such designations in writing.
If an Employee fails effectively to designate a beneficiary,
then the Employee's estate shall be deemed to be the
Employee's beneficiary.
(3) The term "Board" means the Board of Directors of
the Corporation.
(4) The term "BP Amoco" means BP Amoco p.l.c., an
English public limited company or any successor corporation.
(5) The term "Corporation" means BP Amoco Corporation,
an Indiana corporation or any successor corporation.
(6) The term "Employees" refers to all persons
participating, or eligible for participation, in the
Program.
(7) The term "Fair Market Value Per Share" in
reference to Shares means (i) the average of the reported
highest and lowest sale prices per Share as reported on the
New York Stock Exchange on the date as of which
determination is to be made, or (ii) in the absence of
reported sales on that date, the average of such reported
highest and lowest sale prices per Share on the next
preceding date on which reported sales occurred.
(8) The term "Participating Subsidiary" means (i) any
subsidiary of the Corporation more than 50% of the aggregate
outstanding voting shares of all outstanding classes and
series of which are beneficially owned, directly or
indirectly, by the Corporation, and one or more employees of
which receive awards or are granted options, performance
units or Restricted Shares pursuant to this Program or (ii)
any "affiliate" of the Corporation and one or more Employees
of which receive awards or are granted options, performance
units or Restricted Shares pursuant to this Program. An
"affiliate" for purposes of the definition of Participating
Subsidiary means any entity that directly or indirectly
through one or more intermediaries, controls, or is
controlled by, or is under common control with, the
Corporation. "Control" means direct or indirect ownership of
more than 50% or more of the equity of a corporation or the
ability through share ownership or otherwise to elect a
majority of the board of directors of a corporation.
(9) The term "Restricted Shares" means Shares which
may be issued under the Restricted Stock Grant Plan in
Section 6.
(10) The term "Retirement" means termination of an
Employee's employment by retirement under the normal,
mandatory, and applicable disability, age plus service or
consent provisions of a retirement plan of the Corporation
or of a Participating Subsidiary.
(11) The term "Shares" means American Depositary Shares
of BP Amoco.
(12) The term "Share Unit" means the right to receive a
payment equivalent in value to Share on the date of payment.
(13) The term "Stock Appreciation Rights" means the
rights described in Section 5.13(a).
3. Eligibility
Participation in the Incentive Compensation Plan,
Incentive Stock Option Plan and Performance Unit Plan
included in this Program is limited to key employees of the
Corporation and its Participating Subsidiaries, including
officers and members of the Board, who in the judgment of
the Appropriate Committee contribute materially to the
profitability and success of the Corporation. Participation
in the Restricted Stock Grant Plan included in this Program
is limited to key employees of the Corporation and its
Participating Subsidiaries, including officers and members
of the Board, and to employees of the Corporation and its
Participating Subsidiaries in middle management who at the
time of selection are not eligible for regular participation
in the Incentive Compensation Plan, Incentive Stock Option
Plan or the Performance Unit Plan included in this Program
and who, in the judgment of the Appropriate Committee,
possess valuable experience and skills and have contributed,
and can be expected to continue to contribute, materially to
the profitability and success of the Corporation and/or its
Participating Subsidiaries.
4. Incentive Compensation Plan
4.1. Establishment of Bonus Reserve.
(a) For each of the calendar years 1987 through 1991
(a "Bonus Year"), the Corporation shall establish an account
entitled "Bonus Reserve." Subject to the provisions of
Section 4.3(b), the maximum amount creditable to the Bonus
Reserve for any Bonus Year shall not exceed 3% of the amount
by which the adjusted earnings for that Bonus Year exceed an
amount equal to 7% of the capital employed for that Bonus
Year.
(b) "Adjusted earnings" for any Bonus Year shall be
the amount reported as net income in the consolidated
statement of income for that Bonus Year included in the
Corporation's annual report to shareholders, plus (i)
interest on long-term debt and capitalized leases (including
current installments and net of foreign and federal income
taxes), (ii) amounts credited to the Bonus Reserve during
that Bonus Year (net of federal income taxes), (iii)
appropriate adjustments to exclude amounts restored to
income during that Bonus Year under Section 4.3(b) and (iv)
any adjustments which the Board, in its discretion, may deem
appropriate for any significant non-recurring items of
income or loss.
(c) "Capital employed" for any Bonus Year shall be the
amount reported in the consolidated financial statements
included in the Corporation's annual report to shareholders
as of the end of the calendar year preceding that Bonus Year
as (i) total capital (including amounts reported as common
stock and earnings retained and invested in the business,
less cost of treasury stock), plus (ii) long-term debt and
capitalized leases (including current installments), and
(iii) any adjustments which the Board, in its discretion,
may deem appropriate for any significant changes during that
Bonus Year in the amount of total capital or debt, other
than changes in total capital arising from earnings and
dividend payments.
(d) The Bonus Reserve shall not be represented by any
special or separate fund.
4.2. Credits to Bonus Reserve.
(a) As soon as practicable after the end of each Bonus
Year, the Corporation's independent accountants shall
determine the maximum amount creditable to the Bonus Reserve
for that Bonus Year. This determination shall be final.
(b) The Compensation and Organization Committee may
specify an amount less than the maximum as the amount to be
credited to the Bonus Reserve for any Bonus Year.
4.3. Awards from Bonus Reserve.
(a) As soon as practicable after the amount to be
credited to the Bonus Reserve for any Bonus Year has been
determined, the Appropriate Committee shall:
(1) in the case of Employees who were employed by
the Corporation for all or any part of a Bonus Year,
make all awards for that Bonus Year, and
(2) in the case of Employees who were employed by
Participating Subsidiaries for all or any part of a
Bonus Year, recommend awards which may be made to those
Employees for that Bonus Year by the respective
Participating Subsidiaries by whom they are employed or
in appropriate cases make or recommend that other
Participating Subsidiaries make such awards, in each
case in such amount and in such method of payment, as
the Appropriate Committee in its discretion may
determine or recommend.
(b) The aggregate amount of awards so made for any
Bonus Year by the Appropriate Committee and the
Participating Subsidiaries shall not exceed the balance of
the Bonus Reserve for that Bonus Year. The cash value of
each award when made shall be the only amount charged
against the Bonus Reserve with respect to such award. The
portion, if any, of the Bonus Reserve for any Bonus Year
which has not been charged with awards by the end of the
calendar year in which awards are made shall, upon
determination of the Compensation and Organization
Committee, be credited either to the Bonus Reserve for the
succeeding Bonus Year or to income. In addition, the
portion, if any, of the Bonus Reserve established for 1986
under the previous Incentive Compensation Plan of the
Management Incentive Program of the Corporation which has
not been charged with awards by the end of 1987 shall, upon
determination of the Compensation and Organization
Committee, be credited either to the Bonus Reserve for 1987
or to income.
4.4. Form and Time of Payment of Awards.
(a) Each award or recommendation for an award, as the
case may be, may be made at the discretion of the
Appropriate Committee either in cash, in Shares, in Share
Units, in a form of substantially equivalent economic value,
or partly in one form and partly in one or more other forms.
In the case of an award in Shares or Share Units, the number
shall be determined by using the Fair Market Value Per Share
on the date of the award.
(b) At the discretion of the Appropriate Committee,
awards may provide that payment be made during employment or
after Retirement, in full or in part, as soon as practicable
after the date of the award or in one or more deferred
installments, or in any combination thereof, mandatorily or
at the election of Employees.
(c) The payment of any award shall be subject to such
obligations or conditions as the Appropriate Committee may
specify in making or recommending the award. Such committee
may restrict Shares delivered in payment of an award in such
a period or periods of time following delivery as it may
deem appropriate.
(d) In the event of the death of an Employee to whom
an award is to be or shall have been made, the award or any
portion thereof remaining unpaid shall be paid to such
Employee's Beneficiary either in the manner in which payment
would have been made had the Employee not died or in such
other manner as may be determined by the Appropriate
Committee.
(e) When payment of all or part of an award is
deferred in the form of Shares or Share Units, the account
of the person to whom the award was made will be credited
with an amount per Share equal to the dividends payable on
each issued and outstanding Share ("dividend equivalents").
Amounts thus credited shall, in the discretion of the
Appropriate Committee, either:
(1) be paid in cash as and when each such credit
shall be made, or
(2) be credited in Shares or Share Units, with
the number determined by using the Fair Market Value
Per Share on the date of the dividend payment and
delivered in such form and at such time or times as may
be determined by the Appropriate Committee.
(f) When payment of all or part of an award is
deferred in cash, the Appropriate Committee may provide that
the account of the person to whom the award was made shall
be credited with amounts equivalent to interest ("interest
equivalents"). Amounts thus credited shall be at the rate
determined by the Compensation and Organization Committee.
(g) Payment of any unpaid installment of an award may,
for good cause, be accelerated at the direction or upon the
recommendation of the Appropriate Committee in its sole
discretion.
(h) Any award payable in Shares may, in the discretion
or on the recommendation of the Appropriate Committee, be
paid in cash, on each date on which payment in Shares would
otherwise have been made, in an amount equal to the Fair
Market Value Per Share on each such date, multiplied by the
number of Shares which would otherwise have been paid on
such date.
(i) Share Units may be awarded in accordance with the
following terms and conditions and such other terms and
conditions as the Appropriate Committee may impose:
(1) The number of Share Units awarded with
respect to any award shall be the number determined by
using the Fair Market Value Per Share on the date of
the award.
(2) Any award made in Share Units may, in the
discretion or on the recommendation of the Appropriate
Committee, be paid in Shares on each date on which
payment in cash would otherwise be made.
(j) In lieu of the foregoing forms of payment of
awards, the Appropriate Committee may specify or recommend
any other form of payment which it determines to be of
substantially equivalent economic value to the cash value of
the award including, without limitation, forms involving
payments to a trust or trusts for the benefit of one or more
Employees.
(k) Payment of dividend equivalents, interest
equivalents and amounts equal to increases in market value
in respect of Shares, of Share Units, or of any other
securities, and increases or decreases in market value of
such Shares or securities transferred under the Plan, shall
not be deemed to reduce or increase the amount of any award
or to effect a reduction or increase in the Bonus Reserve.
4.5. Payment of Awards.
Each payment of an award that is to be made in cash
shall be from the general funds of the company making the
payment. Each payment of an award in Shares shall be made
according to terms determined by the Board.
5. Incentive Stock Option Plan
5.1. Shares Subject to Option.
Except as otherwise provided in Section 8, no more than
8,000,000 Shares in the aggregate may be sold pursuant to
options granted under this Plan. The Shares to be offered
under this Plan will be offered upon terms determined by the
Board. Options shall be granted only in respect of Shares
or the appropriate number of ordinary shares of BP Amoco.
5.2. Grants of Options.
(a) In the case of Employees who are members of the
Board or officers of the Corporation, options shall be
granted only in accordance with the recommendations of the
Compensation and Organization Committee and, in the case of
other Employees, only in accordance with the recommendations
of the Salary Committee. Options shall be granted by the
Corporation except as otherwise determined by the
Appropriate Committee.
(b) No option shall be granted after December 31,
1991.
5.3. Types of Options.
Options granted to Employees may be either of a type
that meets the requirements of any provision of the Internal
Revenue Code of 1954, as amended from time to time
("statutory options"), or of a type that does not meet such
requirements ("non-statutory options"), if otherwise
consistent with the provisions of this Plan as in effect
from time to time. Statutory options granted under this
Plan may be issued as "incentive stock options" as defined
in Section 422A(b) of such Code; provided that the aggregate
Fair Market Value (determined as of the date the option is
granted) of the stock for which any Employee may be granted
an incentive stock option in any calendar year shall not
exceed $100,000 plus any unused limit carryover to such year
permitted by Section 422A(c)(4) of such Code.
5.4. Restrictions on Grants.
No option shall be granted to any Employee within
twenty-four (24) months preceding the Employee's mandatory
retirement date.
5.5. Option Price.
The option price per Share shall be that recommended by
the Appropriate Committee, but shall not be less than 100%
of the Fair Market Value Per Share on the date the option is
granted.
5.6. Period of Option.
The expiration date of each option shall be that
recommended by the Appropriate Committee. In no event shall
the expiration date be later than ten (10) years after the
date an option is granted.
5.7. Restrictions on Transfer.
Options and any rights or privileges pertaining thereto
shall not be transferable other than by will or the laws of
descent and distribution or as provided in Section 2(2) and
shall be exercisable during the Employee's lifetime only by
him or his guardian or legal representative.
5.8. Required Period of Employment.
Before any part of an option may be exercised by the
Employee to whom it is granted, such Employee must complete
a period of continuous employment immediately following the
date on which the option is granted, which period shall be
that recommended by the Appropriate Committee. In no event
shall the required period of continuous employment be less
than twenty-four (24) months.
5.9. Exercise of Option.
After completion of the required period of employment,
an option may be exercised according to its terms during the
balance of the option period. The option may be exercised
only by the Employee to whom it is granted, except as
otherwise provided in Section 5.7 and 5.10.
5.10. Termination of Employment.
If an Employee to whom an option is granted ceases to
be employed either by the Corporation or by a Participating
Subsidiary before the option is exercised, then the option
shall terminate at the time the Employee ceases to be so
employed, except that:
(1) If the Employee dies while employed either by
the Corporation or a Participating Subsidiary and after
completion of the required period of continuous
employment following the date the option was granted,
then the option shall be exercisable by the Beneficiary
of the Employee, but only within the period specified
in the option grant which shall not be later than one
(1) year after the date of the Employee's death and, in
any event, not later than the expiration date of the
option.
(2) If the Employee retires after completion of
the required period of continuous employment following
the date the option was granted, the option shall be
exercisable by the Employee, but only within the period
specified in the option grant which shall not be later
than the expiration date of the option. If an
Employee, to whom this Section 5.10(2) is applicable,
dies before the expiration of the period specified in
the option grant during which the option may be
exercised, and without having exercised the option,
then the option shall be exercisable by the Beneficiary
of the Employee during the remainder of such specified
period but only within one (1) year after the date of
the Employee's death and, in any event, not later than
the expiration date of the option.
5.11. Payment for Shares.
Shares purchased upon exercise of an option shall be
paid for in full at the time the option is exercised.
5.12. Other Provisions.
The option may contain such other terms, provisions and
conditions as may be recommended by the Appropriate
Committee so long as those terms, provisions and conditions
are not inconsistent with the provisions of this Plan.
5.13. Stock Appreciation Rights.
(a) Stock Appreciation Rights may be granted in
connection with all or part of any option granted under this
Plan, either at the time of the grant of such option or at
any time thereafter during the term of the option, and shall
entitle the holder of the related option to the extent
unexercised, upon exercise of the Stock Appreciation Rights
and surrender of the related option (or applicable portion
thereof), to receive a number of Shares, or cash, determined
pursuant to Section 5.13(b). Such option shall, to the
extent so surrendered, thereupon cease to be exercisable.
(b) Stock Appreciation Rights shall be subject to such
terms and conditions not inconsistent with the Plan as shall
from time to time be determined or recommended by the
Appropriate Committee, and to the following terms and
conditions:
(1) Stock Appreciation Rights shall be
exercisable at such time or times and to the extent,
but only to the extent, that the option to which they
relate shall be exercisable.
(2) Stock Appreciation Rights shall in no event
be exercisable unless and until the holder of the Stock
Appreciation Rights shall have completed a period of
continuous service with the Corporation or a
Participating Subsidiary, or both, immediately
following the date upon which the Stock Appreciation
Rights shall have been granted, which period shall be
determined or recommended by the Appropriate Committee
and shall be a period of at least six months.
(3) Upon exercise of Stock Appreciation Rights,
the holder thereof shall be entitled to receive a
number of Shares equal in aggregate value to the amount
by which the Fair Market Value Per Share on the date of
such exercise shall exceed the option price per Share
of the related option, multiplied by the number of
Shares in respect of which the Stock Appreciation
Rights shall have been exercised. All or any part of
the obligation arising out of an exercise of Stock
Appreciation Rights may, in the discretion of the
Appropriate Committee, be settled by the payment of
cash equal to the aggregate value of the Shares (or a
fraction of a Share) that would otherwise be delivered
under the preceding sentence of this Section
5.13(b)(3).
(4) Stock Appreciation Rights shall not be
transferable other than by will or the laws of descent
and distribution or as provided in Section 2(2) and
shall be exercisable during the Employee's lifetime
only by him or his guardian or legal representative.
(c) To the extent that Stock Appreciation Rights shall
be exercised, the option in connection with which such Stock
Appreciation Rights shall have been granted shall be deemed
to have been exercised for the purpose of the maximum
limitation set forth in Section 5.1.
5.14. Surrender of Non-Statutory Option Following
Death.
Following the death of an Employee, the Corporation may
at its discretion, upon the request of such Employee's
Beneficiary who holds an exercisable non-statutory option
and in consideration for the surrender of such option, pay
the amount by which the Fair Market Value Per Share on the
date of such request shall exceed the option price per Share
multiplied by the number of Shares as to which the request
is made. The number of Shares subject to options so
surrendered shall be charged against the maximum number set
forth in Section 5.1.
6. Restricted Stock Grant Plan
6.1. Shares Subject to Awards.
Except as otherwise provided in Section 8, the maximum
number of Restricted Shares which may be issued under this
Plan ("Restricted Shares") shall be 530,000 Shares. The
Shares which may be issued under the Plan shall be issued
upon terms determined by the Board.
6.2. Awards of Restricted Shares.
(a) The Appropriate Committee shall from time to time
in its discretion select the Employees who are employed by
the Corporation who shall participate in the Plan and
determine the number of Restricted Shares to be made subject
to each award and the terms and conditions of each such
award. In the case of Employees who are employed by a
Participating Subsidiary, the Appropriate Committee shall
recommend the Employees to participate in the Plan, the
number of Restricted Shares to be made subject to each award
and the terms and conditions of each such award. No
Employee shall have any right to participate in the Plan
unless and until so selected or recommended. Any Employee
selected or recommended to participate during any one period
shall not by virtue of such participation participate for
any other period unless and until selected or recommended to
participate for such other period. Grants of Restricted
Shares shall be made by the Corporation or a Participating
Subsidiary, as the Appropriate Committee shall determine to
be appropriate.
(b) No Restricted Shares shall be awarded under the
Plan after December 31, 1991.
(c) Each award of Restricted Shares shall be evidenced
by a written agreement which shall contain such terms and
conditions consistent with the Plan as the Appropriate
Committee may, in its sole discretion, determine or
recommend, as the case may be.
6.3. Terms and Conditions of Restrictions.
(a) Shares issued or transferred to an Employee as an
award of Restricted Shares shall be subject to the following
restrictions:
(1) none of the Restricted Shares may be sold,
assigned, transferred, pledged or otherwise encumbered,
except as otherwise specifically provided, during the
Restriction Period (as defined in Section 6.5); and
(2) all of the Restricted Shares shall be
forfeited and all rights of the Employee to such
Restricted Shares shall terminate without any payment
of consideration by the Corporation if the Employee
fails to remain in the continuous employment of the
Corporation or a Participating Subsidiary for such
period as the Appropriate Committee shall designate in
accordance with Section 6.5, whether due to
resignation, voluntary retirement or termination for
cause.
(b) Upon and following the date Restricted Shares are
issued to an Employee (except following a forfeiture of the
Restricted Shares as set forth above in this Section 6.3 and
in Section 6.7), the Employee shall have all of the rights
of a shareholder including but not limited to the right to
receive all dividends paid on such Shares and the right to
vote such Shares.
6.4. Certificates for Shares.
(a) As soon as practicable after the receipt by the
Corporation or a Participating Subsidiary of an award
agreement executed by the Employee as provided in Section
6.2 and of a stock power endorsed by the Employee in blank
with respect to the Restricted Shares covered by the
agreement, unless a later date for issuance of stock
certificates is provided in the award agreement, the
Corporation shall cause to be issued a stock certificate,
registered in the name of the Employee, evidencing the
Restricted Shares awarded by the agreement. Unless such
certificate is deposited with a custodian pursuant to
Section 6.4(b) below, each such certificate shall bear a
restrictive legend to the following effect:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the
restrictions, terms and conditions (including
forfeiture and restrictions against transfer) contained
in the Restricted Stock Grant Plan of Amoco Corporation
and its Participating Subsidiaries and an Agreement
entered into between the registered owner of such
shares and Amoco Corporation or one of its
Participating Subsidiaries. A copy of the Plan and
Agreement is on file in the office of the Secretary of
Amoco Corporation, 200 East Randolph Drive, Chicago,
Illinois 60601."
Such legend shall not be removed from any stock
certificate evidencing such Restricted Shares until the
lapse or release of the restrictions imposed pursuant to
Section 6.3(a) on such Restricted Shares.
(b) As an alternative to delivering any stock
certificate pursuant to Section 6.4(a) above and in lieu of
the legend on any certificate provided in Section 6.4(a),
each certificate in respect of Restricted Shares awarded
hereunder, together with a stock power relating to such
Restricted Shares, shall be deposited by the Corporation
with a custodian to be designated by the Corporation. The
Corporation shall cause such custodian to issue to the
Employee a receipt evidencing any Restricted Shares held by
it registered in the name of such Employee.
(c) The Employee shall not be deemed for any purpose
to be, or have any rights as, a holder with respect to any
Restricted Shares awarded except if, as and when the
Restricted Shares are issued and then only from that date.
No adjustment shall be made for dividends or distributions
or other rights for which the record date is prior to the
date such Restricted Shares are issued.
(d) As soon as practicable after the lapse or release
of the restrictions imposed pursuant to Section 6.3(a) on
any such Restricted Shares, the Corporation shall cause to
be issued in the Employee's name shares evidencing the
Restricted Shares with respect to which the restrictions
have lapsed or been released, free of restrictions.
6.5. Restriction Period.
The restrictions set forth in Section 6.3(a) shall
lapse with respect to any award at such time as to all
Restricted Shares, or from time to time as to part of the
Restricted Shares, in each case after not less than two
years, as the Appropriate Committee in its sole discretion
shall designate or recommend, as the case may be, at the
time of award of the Restricted Shares (the "Restriction
Period"). The restrictions set forth in Section 6.3(a)
shall lapse at the end of the applicable Restriction Period
or upon the earlier occurrence of an event described in
Section 6.6.
6.6. Lapse of Restrictions.
(a) In the event that the employment of an Employee is
terminated prior to the lapse of restrictions on Restricted
Shares by reason of death or involuntary retirement, the
restrictions on all Restricted Shares awarded to such
Employee shall lapse on the date of such termination.
(b) The Appropriate Committee shall have the authority
to accelerate or recommend the acceleration of the time at
which the restrictions will lapse or to remove any of such
restrictions whenever it may decide, in its discretion,
that, by reason of changes in applicable tax or other laws
or other material changes in circumstances arising after the
date of the award, such action is in the best interests of
the Corporation and equitable to the Employee.
6.7. Section 83(b) Election Prohibited.
Each Employee shall agree at the time of an award, and
as a condition thereof, that he will not in the year of
grant make an election under Section 83(b) of the Internal
Revenue Code of 1954, as amended, to include in gross income
the value of any Restricted Shares at the date of grant. If
an Employee makes such an election, all Restricted Shares
awarded to such Employee shall be forfeited.
7. Performance Unit Plan
7.1. Grants of Performance Units.
(a) In the case of key employees who are members of
the Board or officers of the Corporation, performance units
shall be granted by the Corporation in accordance with the
recommendations of the Appropriate Committee.
(b) No performance units shall be granted after
December 31, 1991.
(c) In determining the number of performance units to
be granted to an Employee, the Appropriate Committee shall
take into account an Employee's responsibility level,
performance, salary, incentive compensation awards, stock
option grants and such other considerations as it deems
appropriate. The amount payable to an Employee with respect
to a grant of performance units shall not exceed 0.75 times
the sum of the Employee's base annual rate of salary at the
end of the performance period plus the amount of the then
most recent incentive compensation award made to the
Employee.
7.2. Performance Measures and Performance Periods.
(a) Performance units may be granted to an Employee
contingent upon the future performance of the Corporation,
which may include performance relative to a group of
selected companies in the industry. The Compensation and
Organization Committee shall establish the applicable
performance measure or measures and the time period over
which such performance shall be measured. Performance
measures may be used singly or in combination, and different
performance measures may be used for different performance
periods. A performance period shall not be shorter than
three years. The applicable performance measure shall be
established by the end of the first year of each performance
period but may be subject to such later revisions as the
Compensation and Organization Committee shall deem
appropriate.
(b) Each performance measure shall be related to such
items as the Corporation's earnings per share, return on
assets, return on shareholders' equity or such other
measures related to the Corporation's performance as the
Compensation and Organization Committee shall determine. To
the extent that a performance measure is either not achieved
or is exceeded, a proportionate amount, either less or more
than the grant amount of a performance unit, may be earned,
subject to such limitations, if any, as the Compensation and
Organization Committee may determine.
7.3. Termination of Employment.
A grant of performance units to an Employee shall
terminate for all purposes if the Employee does not remain
continuously in the employ of the Corporation or a
Participating Subsidiary at all times during the first two
years of a performance period. An Employee whose employment
terminates after the second year of a performance period may
receive such portion of the payment of the Employee's grant
at the end of the performance period as the Compensation and
Organization Committee may determine.
7.4. Payment of Grants.
(a) Payment with respect to performance units will be
made promptly after the end of the performance period
established when such units were granted or such later date
or dates as the Compensation and Organization Committee
shall determine. Payment may be made in cash, in Shares, in
Share Units, in a form of substantially equivalent economic
value, or partly in one form and partly in one or more other
forms, all at the discretion of the Compensation and
Organization Committee.
(b) The Compensation and Organization Committee may
determine to make payment with respect to performance units
in one or more installments or to permit each Employee to
elect to receive payment with respect to performance units
in one or more installments under rules established by the
Compensation and Organization Committee. In the event of
payments in installments, the provisions of Section 4.4(c)
through (g) with respect to incentive compensation awards
shall apply to grants of performance units.
(c) Amounts payable with respect to any grant of
performance units shall be subject to such adjustment, in
light of the Corporation's relative performance in the
industry and such factors as acquisitions and divestitures,
regulatory or legislative changes, accounting changes or
other circumstances, as the Compensation and Organization
Committee deems appropriate.
7.5. Nontransferability.
No grant of performance units under this Plan shall be
transferable otherwise than by will or the laws of descent
and distribution or by Beneficiary designation as provided
in Section 2(2).
8. Effect of Changes in Capitalization
In the event of a recapitalization, stock split, stock
dividend or other change in capitalization affecting the
Shares (or underlying securities), an appropriate adjustment
shall be made by the Board in the number of Shares (or
underlying securities) issuable under the Restricted Stock
Grant Plan, the number of Shares and the option price of
Shares which are, or may become, subject to options granted
or to be granted under the Incentive Stock Option Plan, the
number of Shares or Share Units awarded but not yet paid
under the Incentive Compensation Plan and, to the extent
applicable, the number of performance units granted but not
yet paid and any related performance measure under the
Performance Unit Plan.
9. Relationship of Management Incentive Program to Benefit
Plans
The amount charged against the Bonus Reserve with
respect to each award to an Employee under the Incentive
Compensation Plan included in this Program shall be eligible
for inclusion in the Employee's earnings base for the
purpose of determining the benefits to which the Employee is
entitled under retirement, savings, employee stock ownership
plan, group life insurance and long-term disability plans of
the Corporation or a Participating subsidiary. To the
extent that such amount exceeds the amount that may be
properly included for purpose of the Corporation's or
Participating subsidiary's qualified Retirement Plan and
qualified Savings Plan, benefits relating to such excess may
be paid by the Corporation or Participating Subsidiary under
one or more supplemental plans of like type. No other
income of an Employee attributable to this Program shall be
included in the Employee's earnings for purposes of any
benefit plan in which the Employee may be eligible to
participate.
10. Effect of Program On Right to Continued Employment and
Interest In Particular Property
Neither the existence of this Program nor any incentive
compensation award or option, performance units or
Restricted Shares granted pursuant to it shall create any
right to continued employment of any Employee by the
Corporation or any Participating Subsidiary. No person
shall have, under any circumstances, any interest
whatsoever, vested or contingent, in any particular property
or asset of the Corporation or of any Participating
Subsidiary or in any particular Share or Shares (other than
Restricted Shares held by a custodian) by virtue of any
incentive compensation award, unpaid installment thereof, or
grant of stock options, performance units or Restricted
Shares.
This Program shall not be deemed a substitute for, and
shall not preclude the establishment or continuation of any
other plan, practice or arrangement that may now or
hereafter be provided for the payment of compensation,
special awards or employee benefits to employees generally,
or to any class or group of employees, such as and without
limitation, any savings, thrift, profit-sharing, pension,
retirement, excess benefit, insurance or health care plans.
Any such arrangements may be authorized by the Corporation
and/or its Participating Subsidiaries and payment thereunder
made independently of this Program.
11. Administration
11.1. Compensation and Organization Committee.
The Compensation and Organization Committee is
authorized to interpret and administer this Program, and to
establish general criteria and precedents for the terms and
conditions of awards under the Program. Except as otherwise
provided in this Program, the Compensation and Organization
Committee may designate persons and entities other than its
members to carry out its responsibilities under this
Program.
11.2. Finality of Determinations.
Determinations of the Board, the Compensation and
Organization Committee, the Human Resources Committee, and
the designees of those committees, within their respective
areas of authority under the provisions of this Program,
shall be final.
12. Amendment and Discontinuance
12.1. Amendments.
The Board may amend the Program (i) so that options,
grants or awards theretofore or thereafter granted or made
under the Program shall meet the requirements of any
provision applicable thereto as the result of amendment
subsequent to 1998 of the Internal Revenue Code and adoption
or amendment of regulations thereunder, (ii) in response to
changes in securities laws, or rules, regulations or
regulatory interpretation thereof, applicable to the Program
or other applicable laws, rules or regulations, or (iii) for
any other reason, except that no amendment may affect an
Employee's rights under any option, grant or award (subject
to any conditions or contingencies included in such option,
grant or awards) granted or made prior to such amendment
without such Employee's consent.
12.2. Discontinuance.
The Board may suspend or discontinue the Program in
whole or in part, but any such suspension or discontinuance
shall not affect incentive compensation awards made or
options, performance units or Restricted Shares granted
prior thereto.
13. Compliance With Applicable Legal Requirements
No certificate for Shares or other securities
distributable pursuant to the Program shall be issued and
delivered unless the issuance of such certificates complies
with all applicable legal requirements including, without
limitation, compliance with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, the requirements of the exchanges on which
Shares or other securities may, at the time, be listed and
applicable United Kingdom law.
As amended and restated January 4, 1999.
<PAGE>
<PAGE>
Exhibit 4.4
This document
constitutes part of
a prospectus
covering securities
that have been
registered under the
Securities Act of
1933.
AMENDED AND RESTATED
1991 INCENTIVE PROGRAM OF
BP AMOCO CORPORATION AND ITS PARTICIPATING SUBSIDIARIES
Preamble
The 1991 Incentive Program of Amoco Corporation and its
Participating Subsidiaries amended and restated effective
November 1, 1996 shall be effective from November 1, 1996 to
the effective date of the merger (the "Merger") of Amoco
Corporation with a wholly owned subsidiary of The British
Petroleum Company. From and after the effective date of the
Merger this Amended and Restated 1991 Incentive Program of
BP Amoco Corporation and its Participating Subsidiaries
shall be effective until later amended, superceded or
terminated.
1. Purpose and Effective Date
The purpose of this 1991 Incentive Program of BP Amoco
Corporation and its Participating Subsidiaries is to further
the interests of BP Amoco Corporation, an Indiana
corporation, its affiliates and its shareholder by providing
incentives in the form of awards to employees who contribute
materially to the success and profitability of the
Corporation and its affiliates. Such awards recognize and
reward outstanding performances and individual contributions
of key, managerial and other salaried employees who possess
valuable experience and skills. This Program also enables
the Corporation and its affiliates to attract and retain
such employees.
This Program initially became effective on April 23, 1991
and shall remain effective until December 31, 2001, subject
to the ability of the Board of Directors and the
Compensation and Organization Committee to terminate this
Program as provided in Section 14.1.
2. Definitions
As used in this Program:
(1) "Adjusted Net Income" means the net income of the
Corporation as reported in the Corporation's annual
financial statements adjusted to exclude publicly disclosed
unusual or special items affecting reported net income.
(2) "Award" means the grant of any form of Option,
Stock Appreciation Right, Performance Award, Restricted
Share, Bonus, or any other form of Share based or non-Share
based Award granted pursuant to this Program.
(3) "Award Agreement" means a written agreement
between the Corporation and a Participant that sets forth
the terms, conditions and limitations applicable to an
Award.
(4) "Beneficiary" means a person or persons designated
by a Participant to receive, in the event of death, any
unpaid portion of an Award held by the Participant. Any
Participant may, subject to such limitations as may be
prescribed by the Committee, designate one or more persons
primarily or contingently as beneficiaries in writing upon
forms supplied by and delivered to the Corporation, and may
revoke such designations in writing. If a Participant fails
effectively to designate a beneficiary, then the
Participant's estate shall be deemed to be the Participant's
beneficiary.
(5) "Board" means the Board of Directors of the
Corporation.
(6) "Bonus" means any payment under Section 7.
(7) "BP Amoco" means BP Amoco p.l.c., an English
public limited company or any successor corporation.
(8) "Change in Control" has the meaning set forth in
Section 9.
(9) "Chief Executive Officer" means the Employee of
the Corporation serving in such capacity.
(10) "Code" means the Internal Revenue Code of 1986, as
amended and in effect from time to time, or any successor
statute.
(11) "Committee" means the Compensation and
Organization Committee of the Corporation or any successor
committee.
(12) "Corporation" means BP Amoco Corporation, an
Indiana corporation, or any successor corporation.
(13) "Employee" means any individual who is a salaried
employee on the payroll of the Corporation or any
Participating Subsidiary.
(14) "Fair Market Value Per Share" in reference to
Shares means (i) the average of the reported highest and
lowest sale prices per Share as reported on the New York
Stock Exchange on the date as of which determination is to
be made, or (ii) in the absence of reported sales on that
date, the average of such reported highest and lowest sale
prices per Share on the next preceding date on which
reported sales occurred.
(15) "Named Executive Officer" means an Employee as
described in Section 162(m)(3) of the Code for the year an
Award is granted.
(16) "Option" means an Award to purchase Shares granted
pursuant to Section 6.1, and includes Incentive Stock
Options and Non-Qualified Options, as such terms are defined
in Section 6.1.
(17) "Participant" means any Employee who is granted an
Award under this Program.
(18) "Participating Subsidiary" means (i) any
subsidiary of the Corporation, more than 50% of the
aggregate outstanding voting shares of all outstanding
classes and series of which are beneficially owned, directly
or indirectly, by the Corporation, and one or more Employees
of which are Participants, or are eligible for Awards,
pursuant to this Program or (ii) any "affiliate" of the
Corporation and one or more Employees of which are
Participants, or are eligible for Awards pursuant to this
Program. An "affiliate" for purposes of the definition of
Participating Subsidiary means any entity that directly or
indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, the
Corporation. "Control" means direct or indirect ownership of
more than 50% or more of the equity of a corporation or the
ability through share ownership or otherwise to elect a
majority of the board of directors of a corporation.
(19) "Performance Award" has the meaning described in
Section 6.4.
(20) "Program" means this 1991 Incentive Program of BP
Amoco Corporation and its Participating Subsidiaries as it
may be amended from time to time.
(21) "Restricted Shares" means Shares, which have
certain restrictions attached to the ownership thereof,
which may be issued under Section 6.3.
(22) "Retirement" means termination of a Participant's
employment with the Corporation or a Participating
Subsidiary by retirement under the normal, mandatory, and
applicable age plus service or other provision of the
applicable retirement plan of the Corporation or a
Participating Subsidiary.
(23) "Shares" means American Depositary Shares of BP
Amoco.
(24) "Share Unit" means the right to receive a payment
equivalent in value to one Share on the date of payment.
(25) "Stock Appreciation Right" means a right, the
value of which is determined relative to the appreciation in
value of Shares, which may be issued under Section 6.2.
(26) "Totally Disabled" means solely because of disease
or injury, a Participant is deemed by a qualified physician
selected by the Corporation or Participating Subsidiary to
be unable to work at any reasonable occupation. "Reasonable
occupation" means any gainful activity for which the
Participant is, or may reasonably become, fitted by
education, training or experience, but shall not mean any
activity if it is in connection with an approved
rehabilitation program. Notwithstanding the foregoing, a
Participant shall not be deemed Totally Disabled if the
cause of disability was contributed to or resulted from: (i)
intentionally self-inflicted injuries; (ii) drug addiction;
(iii) insurrection, rebellion, participation in a riot or
civil commotion; or (iv) commission by the Participant of an
assault, battery or felony.
3. Administration
3.1 Compensation and Organization Committee
(a) This Program shall be administered by the
Committee, which shall be appointed by the Board. The Board
may remove members from or add members to the Committee.
Vacancies on the Committee shall be filled by the Board.
(b) To the extent permitted by Section 14.3, the
Committee is authorized to (i) determine which Employees
shall be Participants in the Program and which Awards shall
be granted to Participants, (ii) establish, amend and
rescind rules, regulations and guidelines relating to this
Program as it deems appropriate, (iii) interpret and
administer this Program, Awards and Award Agreements, (iv)
establish, modify and terminate terms and conditions of
Award Agreements, (v) grant waivers and accelerations of
Program, Award and Award Agreement restrictions and (vi)
take any other action necessary for the proper
administration and operation of the Program, all of which
shall be executed in accordance with the objectives of this
Program.
(c) The Committee may designate persons and entities
other than its members to carry out any of its
responsibilities under and described in this Program, under
such conditions or limitations as the Committee may
establish.
3.2 Effect of Determinations
Determinations of the Committee and its designees shall
be final, binding and conclusive on the Corporation, its
Participating Subsidiaries, shareholders, Employees and
Participants. No member of the Committee or any of its
designees shall be personally liable for any action or
determination made in good faith with respect to this
Program, any Award, or any Award Agreement.
4. Eligibility
Persons eligible for Awards under this Program shall
consist of key, managerial and other Employees who possess
valuable experience and skills and have contributed, or can
be expected to contribute, materially to the success of the
Corporation and/or its Participating Subsidiaries. The
Committee shall determine which Employees shall be
Participants, the types of Awards to be made to Participants
and the terms, conditions and limitations applicable to the
Awards.
5. Shares Subject to this Program
5.1 Maximum Number of Shares
The maximum number of Shares available for Awards under
this Program in each calendar year during any part of which
this Program shall be in effect shall be nine tenths of one
percent (0.9%) of the total outstanding Shares as of
December 31 of the immediately preceding year, subject to
Section 8 of this Program. Any and all such Shares may be
issued in respect of any of the types of Awards; provided,
however that no more than thirteen million two hundred
thirty thousand (13,230,000) Shares shall be issued with
respect to Incentive Stock Options, and provided, further,
that no more than twenty percent (20%) of the Shares
available for Awards under this Program shall be issued in
respect of Restricted Shares.
Notwithstanding the immediately preceding paragraph, any
Participant, including any Named Executive Officer, shall be
limited to a maximum annual aggregate award (a) under
Section 6.1 of no more than 248,000 Shares underlying an
Option Award and (b) under Section 6.2 of no more than
248,000 Shares or Share Units related to a Stock
Appreciation Right Award.
5.2 Share Accounting
Any unused Shares of the nine tenths of one percent
(0.9%) limit described in Section 5.1 in any calendar year,
shall be available for Awards in succeeding calendar years.
Shares granted under this Program shall be derived from
sources determined by the Committee in accordance with
applicable law. No fractional Shares shall be granted under
this Program.
6. Awards
Awards may include, but are not limited to, those
described in this Section 6. Awards may be granted singly,
in combination, or in tandem with other Awards. Subject to
the other provisions of this Program, Awards may also be
made in combination or in tandem with, in replacement of, or
as alternatives to, grants or rights under this Program and
any other employee plan of the Corporation or its
Participating Subsidiaries, including any plan of any
acquired entity. Subject to the terms of the Awards
described in this Section 6 and the related Award Agreement,
the form of payment for Awards may be in cash, in Shares, in
Share Units, or such other form as determined by the
Committee, and may be made partly in one form and partly in
one or more other forms, all as determined by the Committee.
Except as otherwise provided in this Program, Awards shall
be evidenced by Award Agreements, the terms of which may be
amended or accelerated by the Committee following the grant
of any Award and need not be uniform among Participants.
Except as otherwise provided in this Program, Awards shall
be granted for such minimum consideration as is required by
applicable law, rules and regulations, and such additional
consideration, if any, as may be determined by the
Committee.
6.1 Options
Options may be granted under this Program from time to
time. If Options are granted they shall be upon the
following terms and conditions and such additional terms and
conditions, not inconsistent with the express provisions of
this Program, as the Committee in its discretion shall deem
desirable:
(a) Options granted to Employees may be either of a
type that meets the requirements of incentive stock options,
as defined in Section 422 of the Code ("Incentive Stock
Options"), or of a type or types that do not meet such
requirements ("Non-Qualified Options"), if otherwise
consistent with the provisions of this Program.
(b) The option price per Share for all Options shall
be that recommended by the Committee, but it shall not be
less than one hundred percent (100%) of the Fair Market
Value Per Share on the date the Option is granted.
(c) Award Agreements for Options shall conform to the
requirements of this Program, and may contain such other
provisions as the Committee shall deem advisable; provided,
however, that if an Option is designated as an Incentive
Stock Option the terms of the Award Agreement shall be in
conformance with the statutory requirements for an Incentive
Stock Option as specified in the Code.
(d) Award Agreements for Options shall specify when an
Option may be exercisable. An Option may be exercised, in
whole or in part, by giving written notice of exercise to
the Corporation specifying the number of Shares to be
purchased. Shares purchased upon exercise of an Option
shall be paid for in full at the time the Option is
exercised in cash or in Shares. Payment may also be made in
any other manner or form approved by the Committee,
consistent with applicable law, regulations and rules.
(e) A holder of an Option shall have no rights as a
holder with respect to any Shares covered by such Option
unless and until the date of the issuance of such Shares.
(f) (i) If a Participant dies while employed by the
Corporation or a Participating Subsidiary and after
completion of the required period of continuous
employment as provided in the Award Agreement following
the date an Option is granted, then the Option shall be
exercisable by the Beneficiary of the Participant, but
only within the period specified in the Award Agreement
which shall not be later than three (3) years after the
date of the Participant's death and, in any event, not
later than the expiration date of the Option.
(ii) Following the death of a Participant, the
Committee may at its discretion, upon the request of such
Participant's Beneficiary who holds an exercisable Option
and in consideration of the surrender of such Option, pay
the amount by which the Fair Market Value Per Share on
the date of such request shall exceed the Option price
per Share multiplied by the number of Shares as to which
the request was made.
(g) If a Participant is deemed by the Corporation or
the applicable Participating Subsidiary to be Totally
Disabled, or if a Participant Retires, after completion of
any required period of continuous employment as provided in
the Award Agreement, following the date an Option was
granted, the Option shall be exercisable by the Participant
or the Participant's legal guardian or representative, but
only within the period specified in the Award Agreement,
which shall not be later than the expiration date of the
Option. If a Participant, to whom this Section 6.1(g) is
applicable, dies before the expiration of the period
specified in the Award Agreement during which the Option may
be exercised, and without having exercised the Option, then
the Option shall be exercisable by the Beneficiary of the
Participant during the remainder of such specified period
but only within three (3) years after the date of the
Participant's death, and in any event, not later than the
expiration date of the Option.
6.2 Stock Appreciation Rights
Stock Appreciation Rights may be granted under this
Program from time to time. If Stock Appreciation Rights are
granted they shall be upon the following terms and
conditions, and such additional terms and conditions, not
inconsistent with the express provisions of this Program, as
the Committee in its discretion shall deem desirable:
(a) A Stock Appreciation Right may be granted in
tandem with part or all of, in addition to, or completely
independent of, an Option or any other Award under this
Program. A Stock Appreciation Right issued in tandem with
an Option may be granted at the time of grant of the related
Option or at any time thereafter during the term of the
Option.
(b) Award Agreements for Stock Appreciation Rights
shall conform to the requirements of this Program and may
contain such other provisions (including but not limited to,
the permitted form of payment for the exercise of the Stock
Appreciation Right, the requirement of employment for
designated periods of time prior to exercise and the ability
of the Committee to revoke Stock Appreciation Rights which
are issued in tandem with Options without compensation to
the Participant) as the Committee shall deem advisable.
(c) Stock Appreciation Rights issued in tandem with
Options shall be subject to the following:
(i) Stock Appreciation Rights shall be exercisable
at such time or times and to the extent, but only to the
extent, that the Option to which they relate shall be
exercisable.
(ii) Upon exercise of Stock Appreciation Rights the
holder thereof shall be entitled to receive a number of
Shares equal in aggregate value to the amount by which
the Fair Market Value Per Share on the date of such
exercise shall exceed the option price per Share of the
related Option, multiplied by the number of Shares in
respect of which the Stock Appreciation Rights shall have
been exercised.
(iii) All or any part of the obligation arising out
of an exercise of Stock Appreciation Rights may, at the
discretion of the Committee, be settled by the payment of
cash equal to the aggregate value of the Shares (or a
fraction of a Share) that would otherwise be delivered
under the Section 6.2 (c) (ii).
(iv) Upon exercise of Stock Appreciation Rights the
Participant shall surrender to the Corporation the
unexercised tandem Options.
(v) Stock Appreciation Rights issued in tandem with
Options shall automatically terminate upon the exercise
of such Options.
6.3 Restricted Shares
Awards of Restricted Shares may be granted under this
Program from time to time. If Awards of Restricted Shares
are granted they shall be upon the following terms and
conditions and such additional terms and conditions, not
inconsistent with the express provisions of this Program, as
the Committee in its discretion shall deem desirable:
(a) Restricted Shares are Shares which are subject to
such terms, conditions and restrictions as the Committee
deems appropriate, which may include restrictions upon the
sale, assignment, transfer or other disposition of the
Restricted Shares and the requirement of forfeiture of the
Restricted Shares upon termination of employment under
certain specified conditions. The Committee may condition
the lapsing of restrictions on part or all of an Award of
Restricted Shares upon the attainment of specific
performance goals or such other factors as the Committee may
determine. Awards of Restricted Shares may be granted for
no cash consideration or for such minimum consideration as
may be required by applicable law.
(b) Award Agreements for Restricted Shares shall
conform to the requirements of this Program, and may contain
such other terms and conditions (including but not limited
to, a description of a period during which the Participant
may not transfer the Restricted Shares and limits on
encumbering the Restricted Shares during such period) as the
Committee shall deem desirable. To the extent permitted by
Section 14.3 hereof, the Committee may provide for the lapse
of any such term or condition in installments and may
accelerate or waive any such term or condition in whole or
in part, based on service, performance and/or such other
factors or criteria as the Committee may determine.
(c) Award Agreements for Restricted Shares shall
provide that the certificates representing Restricted Shares
shall be legended, that the shares shall be held by a
custodian, or that there be other mechanisms for maintaining
control by the Corporation of the Restricted Shares until
the restrictions thereon are no longer in effect. After the
lapse, waiver or release of the restrictions imposed
pursuant to the Award Agreement on any Restricted Shares, an
equal amount of Shares without restrictions shall be
released to the Participant.
(d) Except as otherwise provided in this Program or in
the Award Agreement, the Participant shall have, with
respect to Awards of Restricted Shares, all of the rights of
a holder of Shares, including the right to vote the
Restricted Shares and the right to receive any dividends on
such Restricted Shares. The Committee may provide that the
payment of cash dividends shall or may be deferred. Any
reinvestment of deferred cash dividends shall be as
determined by the Committee. Non-cash dividends issued with
respect to Restricted Shares shall be subject to the same
terms, conditions and restrictions that apply to the
Restricted Shares with respect to which such dividends are
issued. Any additional Shares issued with respect to
dividends shall not be counted against the maximum number of
Shares for which Awards may be granted under this Program as
set forth in Section 5.
(e) If the employment of a Participant is terminated
prior to the lapse of restrictions on Restricted Shares
because the Participant dies, becomes Totally Disabled or
Retires involuntarily, the restrictions on all Restricted
Shares awarded to a Participant shall lapse on the date of
such termination.
6.4 Performance Awards
Performance Awards may be granted under this Program from
time to time. If Performance Awards are granted they shall
be upon the following terms and conditions and such
additional terms and conditions, not inconsistent with the
express provisions of this Program, as the Committee in its
discretion shall deem advisable:
(a) Performance Awards are Awards which are based upon
the performance of all or a portion of the Corporation
and/or its Participating Subsidiaries or which are based
upon the individual performance of a Participant.
Performance Awards may be in the form of performance units,
performance shares and such other forms of Performance
Awards which the Committee shall determine to be desirable.
Performance Awards are Awards which are granted to
Participants contingent upon (i) the future performance of
all or a portion of the Corporation and/or one or more
Participating Subsidiaries, which may include, without
limitation, performance relative to a group of companies in
the same or related industries, achievement of specific
business objectives, attainment of certain growth rates,
profitability goals and such other measurements as the
Committee determines to be appropriate, (ii) the future
performance of a Participant, which may include, without
limitation, attainment of specified goals and objectives and
such other measurements as the Committee determines to be
appropriate, (iii) the future performance of a combination
of all or a portion of the Corporation and/or one or more
Participating Subsidiaries and a Participant, or (iv) such
other measurements and criteria as may be considered
appropriate by the Committee. Performance Awards may
contain multiple performance measurements.
(b) Award Agreements for Performance Awards shall
conform to the requirements of this Program and may contain
such other terms and conditions (including but not limited
to, applicable performance measurements, a description of
whether performance measurements are to be used singly or in
combination, a description of whether different performance
measurements may be used for different performance periods,
the length of performance periods, the ability of the
Committee to amend and adjust measurements, payouts and
performance periods of Performance Awards and any
requirements of employment during performance periods) as
the Committee shall deem desirable.
(c) Award Agreements for Performance Awards shall
provide for a required minimum period of continuous
employment during a performance period of a Performance
Award. If such minimum period of continuous employment
shall have elapsed, the Award Agreement may provide, or the
Committee may determine, the portion of the payment of the
Performance Award which the Participant or the Participant's
Beneficiary, as applicable, is to receive at the end of the
performance period.
6.5 Other Awards
The Committee may grant other Share based Awards under
this Program, including without limitation, those Awards
pursuant to which Shares are or may in the future be
acquired, Awards denominated in Share Units, securities
convertible into Shares and dividend equivalents. The
Committee shall determine the terms and conditions of such
other Share based Awards. Shares issued in connection with
such other Share based Awards shall be issued for such
minimum consideration as shall be required by applicable
law, rules and regulations, and such additional
consideration, if any, as may be determined by the
Committee.
The Committee may also grant other non-Share based Awards
under this Program and shall determine the terms and
conditions of such other non-Share based Awards. The
Committee may grant such other Share based Awards and non-
Share based Awards in tandem or combination with other
Awards or each other, in exchange of other Awards, or in
tandem or combination with, or as alternatives to grants or
rights under any other employee plan of the Corporation,
including any plan of any acquired entity. The Committee
shall have the authority to determine the Participants for
such Awards and all other terms and conditions of such other
Awards. No amendment of this Program is required for the
creation of another type of Award.
7. Bonuses
7.1 Determination of Bonuses
Bonuses may be granted under this Program from time to
time. The amount of Bonuses which may be awarded shall be
as determined by the Committee. The Committee may establish
a basis upon which aggregate Bonus expenditures for any year
shall be determined, which may include measurements of
financial performance of the Corporation and/or one or more
of its Participating Subsidiaries, relative performance of
the Corporation and/or any one or more of its Participating
Subsidiaries within the same or related industries,
competitive compensation considerations and other
measurements and criteria.
In the case of Named Executive Officers, the maximum
annual individual Bonus Award to the Chief Executive Officer
shall be limited to an amount no greater than 0.15% of
Adjusted Net Income and for the other Named Executive
Officers, an amount no greater than 0.10% of Adjusted Net
Income.
The Committee in its sole discretion may, but shall not
be required to, reduce the amount of, or not grant a Bonus
Award that could otherwise be granted based upon such
considerations as it deems appropriate.
7.2 Form and Time of Payment of Bonuses
(a) Each Bonus may be made at the discretion of the
Committee either in cash, in Shares, in Share Units, or in
another form as determined by the Committee and may be made
partly in one form and partly in one or more other forms.
In the case of an Award of a Bonus in Shares or Share Units,
the number shall be determined by using the Fair Market
Value Per Share on the date of the Award of the Bonus.
(b) The payment of any Bonus shall be subject to such
obligations or conditions as the Committee may specify in
making or recommending the Award of the Bonus, but Bonuses
need not be evidenced by Award Agreements.
(c) When payment of all or part of a Bonus is deferred
in the form of Shares or Share Units, the account of the
Participant to whom the Bonus was made will be credited with
an amount per Share equal to the dividends payable on each
issued and outstanding Share ("dividend equivalents").
Amounts thus credited shall, in the discretion of the
Committee, either:
(i) be paid in cash as and when each such credit
shall be made, or
(ii) be credited in Shares or Share Units, with the
number determined by using the Fair Market Value Per
Share on the date of the dividend payment and delivered
in such form and at such time or times as may be
determined by the Committee.
(d) When payment of all or part of a Bonus is deferred
in cash, the Committee may provide that the account of the
Participant to whom the Bonus was made shall be credited
with amounts equivalent to interest ("interest
equivalents"). Amounts thus credited shall be at the rate
determined by the Committee.
(e) Any Bonus payable in Shares may, in the discretion
of the Committee, be paid in cash, on each date on which
payment in Shares would otherwise have been made, in an
amount equal to the Fair Market Value Per Share on each such
date, multiplied by the number of Shares which would
otherwise have been paid on such date.
(f) Bonuses may be awarded in Share Units in
accordance with the following terms and conditions and such
other terms and conditions as the Committee may impose:
(i) The number of Share Units awarded with respect
to any Bonus shall be the number determined by using the
Fair Market Value Per Share on the date of the Award of
the Bonus.
(ii) Any Bonus made in Share Units may, in the
discretion or on the recommendation of the Committee, be
paid in Shares on each date on which payment in cash
would otherwise be made.
(g) In lieu of the foregoing forms of payment of
Bonuses, the Committee may specify or recommend any other
form of payment which it determines to be of substantially
equivalent economic value to the cash value of the Bonus
including, without limitation, forms involving payments to a
trust or trusts for the benefit of one or more Participants.
(h) Each payment of a Bonus that is to be made in cash
shall be from the general funds of the Corporation or the
Participating Subsidiary making the payment.
(I) In the event of the death of a Participant to whom
a Bonus is to be or shall have been made, the Bonus or any
portion thereof remaining unpaid shall be paid to such
Participant's Beneficiary either in the manner in which
payment would have been made had the Participant not died or
in such other manner as may be determined by the Committee.
8. Adjustments upon Changes in Capitalization
Subject to any required action by the Corporation's or
any Participating Subsidiary's shareholders, in the event of
a reorganization, recapitalization, stock split, stock
dividend, exchange of Shares (or the underlying securities),
combination of Shares (or the underlying securities),
merger, consolidation or any other change in corporate
structure of the Corporation or a Participating Subsidiary
affecting the Shares, or in the event of a sale by the
Corporation or any Participating Subsidiary of all or a
significant part of assets, or any distribution to
shareholders other than a normal cash dividend, the
Committee may make appropriate adjustment in the number,
kind, price and value of Shares authorized by this Program
and any adjustments to outstanding Awards as it determines
appropriate so as to prevent dilution or enlargement of
rights.
9. Change in Control
9.1 Definition of Change in Control
A "Change in Control" shall be deemed to have occurred if
any one or more of the events described in paragraphs (a),
(b) or (c) below occurs:
(a) Any "person," as such term is used in Sections
13(d) and 14(d) of the Exchange Act (including any group of
persons with which any person [or its affiliates or
associates, as such terms are defined in Rule 12b-2 under
the Exchange Act, of such person] has any agreement,
arrangement or understanding, oral or written, regarding the
acquiring, holding, voting or disposing of any of the
Corporation's securities, but excluding a trustee or other
fiduciary holding securities under an employee benefit plan
of the Corporation) (i) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing
twenty percent (20%) or more of the combined voting power of
the Corporation's then outstanding securities (hereinafter
referred to as an "Acquiring Person"), and (ii) any such
person becoming an Acquiring Person was not approved by the
Board of Directors of the Corporation which was composed of
"Continuing Directors," as that term is defined below in
(b), before the person became an Acquiring Person; or
(b) The Board of Directors is no longer comprised of
"Continuing Directors" (which for purposes of this Program
shall mean (i) any person who is a director prior to the
effective date of this Program and who is not, while serving
as a director, an Acquiring Person (or a representative,
affiliate or associate thereof), or (ii) any person whose
nomination for election, or election, to the Board of
Directors subsequent to the date of this Program is
recommended or approved by at least two-thirds of Continuing
Directors and who is not, while serving as a director, an
Acquiring Person (or a representative, affiliate or
associate thereof) ); or
(c) There occurs a "Business Combination," as that
term is defined as of the effective date of this Program in
INDIANA CODE Section 23-1-43-5 (with the terms "resident
domestic corporation" and "interested shareholder" as used
in that Section being deemed to refer to the Corporation and
to an Acquiring Person, respectively), that was not approved
by the Board of Directors of the Corporation, which was
comprised of Continuing Directors, before the Acquiring
Person became an Acquiring Person.
However, in no event shall a Change in Control be deemed
to have occurred, with respect to a Participant, if that
Participant is part of an Acquiring Person which consummates
the Change in Control transaction. A Participant shall be
deemed "part of an Acquiring Person" for purposes of the
preceding sentence if the Participant is an equity
participant or has agreed to become an equity participant in
the Acquiring Person (except for (i) passive ownership of
less than 3% of the securities of the Acquiring Person; or
(ii) ownership of equity participation in the Acquiring
Person which is otherwise not deemed to be significant, as
determined prior to the Change in Control by a majority of
the disinterested Continuing Directors).
9.2 Effect of Change in Control
Upon the occurrence of an event of Change in Control,
unless otherwise specifically prohibited by the terms of the
second paragraph of Section 6:
(a) Any and all Options and Stock Appreciation Rights
shall become immediately exercisable;
(b) Any restriction periods and restrictions imposed
on Restricted Shares shall lapse, and within ten (10)
business days after the occurrence of a Change in Control,
an equal amount of Shares without restrictions shall be
released to the applicable Participants;
(c) The target value attainable under all Performance
Awards shall be deemed to have been fully earned for the
entire performance period as of the effective date of the
Change in Control, except that all Performance Awards which
shall have been outstanding less than six (6) months on the
effective date of the Change in Control shall not be deemed
to have earned the target value; and
(d) Subject to Section 14.3 hereof, all such other
actions and modifications to the Awards as determined by the
Committee to be appropriate before the Acquiring Person
became an Acquiring Person upon the Change in Control of the
Corporation shall become effective.
10. Relationship of the Program to Benefit Plans
Except to the extent excluded under an applicable plan
document, the determination of whether a Bonus or any
portion thereof is to be treated as includable in a
Participant's earnings base, for the purpose of determining
such Participant's benefits under retirement, savings, group
life insurance, long-term disability plans and other benefit
plans of the Corporation or a Participating Subsidiary, will
be made by the Committee. No other income of a Participant
attributable to this Program shall be included in the
Participant's earnings for purposes of any benefit plan in
which the Participant may be eligible to participate.
11. Effect of the Program On Right to Continued
Employment and Interest In Particular Property
None of the existence of this Program, any Awards granted
pursuant hereto or any Award Agreement shall create any
right to continued employment of any Employee by the
Corporation, any of its subsidiaries or Participating
Subsidiaries. No Participant shall have, under any
circumstances, any interest whatsoever, vested or
contingent, in any particular property or asset of the
Corporation, any subsidiary or any Participating Subsidiary
or in any particular Share or Shares (other than Restricted
Shares held by a custodian) by virtue of any Award. A
Participant may be granted additional Awards under this
Program under such circumstances and at such times as the
Committee may determine; provided, however, that no
Participant shall be entitled to any Award in the absence of
a specific grant by the Committee of an Award,
notwithstanding the prior grant of an Award to such
Participant.
This Program shall not be deemed a substitute for, and
shall not preclude the establishment or continuation of any
other plan, practice or arrangement that may now or
hereafter be provided for the payment of compensation,
special awards or employee benefits to employees of the
Corporation, its Participating Subsidiaries, and its
subsidiaries generally, or to any class or group of
employees, including without limitation, any savings,
thrift, profit-sharing, pension, retirement, excess benefit,
insurance, health care plans or other employee benefit
plans. Any such arrangements may be authorized by the
Corporation, its Participating Subsidiaries, and its
subsidiaries generally and payment thereunder made
independently of this Program.
12. Withholding Taxes and Deferrals
12.1 Cash Withholding
The Corporation or its Participating Subsidiaries shall
have the right to deduct from any cash payment made under
Awards under this Program any federal, state or local
income, or other taxes required by law to be withheld with
respect to such payment or to take such other action as may
be necessary in the opinion of the Corporation or its
Participating Subsidiaries to satisfy all obligations for
the payment of such taxes.
12.2 Share Withholding
Any Share based Award may provide by the grant thereof
that the recipient of such Award may elect, in accordance
with any applicable laws, rules and regulations, to pay a
portion or all of the amount of such minimum required
withholding taxes in Shares. In such event, the Participant
shall authorize the Corporation to withhold, or shall agree
to deliver to the Corporation, Shares owned by such
Participant or a portion of the Shares that otherwise would
be distributed to such Participant, having a Fair Market
Value equal to the amount of withholding tax liability.
12.3 Deferrals
The Committee may require or permit a Participant to
defer such Participant's receipt of the payment of cash or
the delivery of Shares that would otherwise be due to such
Participant by virtue of the exercise, the satisfaction of
any requirements or goals or lapse or waiver of restrictions
of an Award made under this Program. If any such deferment
election is required or permitted, the Committee shall
establish rules and procedures for such payment deferrals.
13. Compliance With Applicable Legal Requirements
No Shares or other securities distributable pursuant to
this Program shall be issued and delivered unless the
issuance thereof complies with all applicable legal
requirements including, without limitation, compliance with
the provisions of applicable state securities laws, the
Securities Act of 1933, as amended from time to time or any
successor statute, the Securities Exchange Act of 1934, as
amended from time to time or any successor statute, the
requirements of the exchanges on which Shares or other
securities may, at the time, be listed, and applicable
United Kingdom law.
14. Amendments
14.1 Program Amendments
The Committee or the Board, as appropriate, may, insofar
as permitted by law, from time to time, with respect to any
Shares at the time not subject to Awards, suspend or
discontinue this Program or revise or amend it in any
respect whatsoever.
14.2 Amendments of Awards
Subject to the terms and conditions and within the
limitations of this Program, the Committee may amend,
cancel, modify, or extend outstanding Awards granted under
this Program.
14.3 Rights of Participants
No amendment, suspension or termination of this Program
nor any amendment, cancellation or modification of any
outstanding Award or Award Agreement that would adversely
affect the right of any Participant with respect to an Award
previously granted under this Program will be effective
without the written consent of the affected Participant.
Such written consent may be obtained simultaneously with the
grant of any Award.
15. Miscellaneous Provisions
15.1 Beneficiaries
Any Award Agreement may provide that in the case of an
Award that is not forfeitable by its terms upon the death of
the Participant, the Participant may designate a Beneficiary
with respect to such Award in the event of death of a
Participant. If such Beneficiary is the executor or
administrator of the estate of the Participant, any rights
with respect to such Award may be transferred to the person
or persons or entity (including a trust) entitled thereto by
bequest of or inheritance from the holder of such Award.
15.2 Awards in Foreign Countries
The Committee shall have the authority to adopt such
modifications, procedures and subplans as may be necessary
or desirable to comply with provisions of the laws of
foreign countries in which the Corporation or its
Participating Subsidiaries may operate to assure the
viability of the benefits of Awards made to Participants
employed in such countries and to meet the objectives of
this Program.
15.3 Non-Transferability
Except as otherwise provided in Award Agreements or in
this Program, Awards under this Program may not be
transferred by Participants during their lifetimes and may
not be assigned, pledged or otherwise transferred, except
for those Awards which are not forfeitable upon the death of
a Participant may be transferred by will or the laws of
descent and distribution. The designation of a Beneficiary
shall not constitute a transfer.
15.4 Cancellation of Awards
Except as otherwise provided in this Program or in
applicable Award Agreements, the terms of which need not be
uniform among Participants, if a Participant to whom an
Award is granted ceases to be employed by the Corporation or
by a Participating Subsidiary, all of such Participant's
unexercised Awards and Awards on which there are
restrictions shall be immediately canceled.
As amended and restated effective January 4, 1999.
<PAGE>
<PAGE>
EXHIBIT 4.5
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
Effective January 1, 1996
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
TABLE OF CONTENTS
Page
I INTRODUCTION
1.1 Effective Date 1
1.2 Compliance with Code and ERISA 1
1.3 Exclusive Benefit of Participants 1
1.4 Limitation on Rights Created by Plan 1
1.5 Application of Plan's Terms 1
1.6 Benefits Not Guaranteed 2
II DEFINITIONS
2.1 Affiliated Company 3
2.2 Amoco 3
2.3 Amoco Corporation 3
2.4 Applicable Compensation 3
2.5 Beneficiary 4
2.6 Casual Employee 4
2.7 Code 4
2.8 Employer 4
2.9 Entry Date 4
2.10 ERISA 4
2.11 Highly-Compensated Employee 4
2.12 Hour of Service 6
2.13 Hourly Employee 6
2.14 Part-Time Employee 6
2.15 Participant 6
2.16 Plan 7
2.17 Plan Year 7
2.18 Pre-Tax Contributions 7
2.19 Regular Employee 7
2.20 Salaried Employee 7
2.21 Spouse. 7
2.22 Temporary Employee 7
2.23 Trust Agreement 7
2.24 Trust Fund. 7
2.25 Trustee 7
III PARTICIPATION
3.1 Eligible Class. 9
3.2 Participation 10
3.3 End of Participation 10
3.4 Reentry of Former Participant 10
IV PRE-TAX CONTRIBUTIONS BY PARTICIPANTS
4.1 Pre-Tax Contributions 11
4.2 Procedure for Pre-Tax Contributions 11
4.3 Collection of Pre-Tax Contributions 11
4.4 Change in Pre-Tax Contributions 11
4.5 401(k) Pre-Tax Contributions Limitation 12
4.6Maximum Amount of Participant Pre-Tax Contributions 13
4.7 Direct Rollover Contributions 13
V COMPANY MATCHING CONTRIBUTIONS
5.1 Company Matching Contributions 15
5.2 Time of Contribution 15
5.3 Section 415 Annual Contribution Limitation 15
5.4 Combined Benefit Limitations 16
5.5 Limitation on Allocation of Contributions 16
5.6 Allocation of Earnings to Distributions of
Excess Contributions 17
5.7 Multiple Use of Alternative Limitation 17
5.8 No Interest in Company. 18
VI ACCOUNTS AND CREDITS
6.1 Establishment of Accounts 19
6.2 Crediting Participants' Pre-Tax Contributions 19
6.3 Crediting Matching Contributions 19
6.4 Crediting Rollovers 19
6.5 Charge to Accounts 19
VII INVESTMENT FUNDS AND CREDITING INVESTMENT EXPERIENCE
7.1 Investment Funds 20
7.2 Investment Directions and Transfers Among Funds 20
7.3 Valuation of Assets 21
7.4 Crediting Investment Experience 21
VIII LOANS TO PARTICIPANTS
8.1Plan Administrator Shall Administer the Loan Program 23
8.2 Availability of Loans 23
8.3 Conditions of Loan 23
8.4 Accounting for Loans 25
IX IN-SERVICE WITHDRAWALS
9.1 Withdrawals From Rollover Account 26
9.2 Withdrawals From Pre-Tax Contribution Account 26
9.3 Order of Asset Liquidation for All Withdrawals 27
X DISTRIBUTIONS
10.1 Distributions 28
10.2 Termination of Employment Prior to
Retirement or Death 28
10.3 Reemployment 31
10.4 $3,500 Cash-Out 31
10.5 Required Distribution Date 31
10.6 Distribution Upon Death of a Participant 32
10.7 Rehire Before Distribution 33
10.8 Waiver of 30-Day Notice 33
XI DIRECT ROLLOVERS
11.1 Direct Rollover 34
11.2 Definitions 34
XII AMENDMENT, MERGER AND TERMINATION OF PLAN
12.1 Amendment of Plan 36
12.2 Merger of Plans 36
12.3 Termination 36
12.4 Effect of Termination 36
XIII NAMED FIDUCIARIES
13.1 Identity of Named Fiduciaries 38
13.2Responsibilities and Authority of Plan Administrator38
13.3 Responsibilities and Authority of Trustee 38
13.4 Responsibilities of Amoco 38
13.5 Responsibilities Not Shared 38
13.6 Dual Fiduciary Capacity Permitted 39
13.7 Actions by Amoco. 39
13.8 Advice 39
XIV PLAN ADMINISTRATOR
14.1 Appointment 40
14.2 Notice to Trustee 40
14.3 Administration of Plan. 40
14.4 Reporting and Disclosure 40
14.5 Records 40
14.6 Claims Review Procedure. 40
14.7 Administrative Discretion; Final Authority 41
XV PARTICIPATING EMPLOYERS
15.1 Adoption by Other Employers 42
15.2 Designation of Agent 42
15.3 Employee Transfers 42
15.4 Discontinuance of Participation 42
15.5Participating Employer Contribution for Affiliate 42
XVI MISCELLANEOUS
16.1 Qualified Domestic Relations Orders 43
16.2 Nonalienation of Benefits 43
16.3 Payment of Minors and Incompetents 43
16.4 Current Address of Payee 43
16.5 Disputes over Entitlement to Benefits 44
16.6 Payment of Benefits 44
16.7 Plan Supplements 44
16.8 Rules of Construction 44
16.9 Text Controls 44
16.10 Applicable State Law 45
16.11 Plan Administration Expenses 45
16.12 Voting and Tendering of Amoco Stock 45
16.13 Action by Company 46
SUPPLEMENT A
Special Rules for Top-Heavy Plans A-1
<PAGE>
ARTICLE I INTRODUCTION
1.1 Effective Date. Amoco Fabrics and Fibers Company
established the Amoco Fabrics and Fibers Company Salaried 401(k)
Savings Plan ("Plan") effective as of January 1, 1996.
1.2 Compliance with Code and ERISA. This Plan is intended
to qualify as a profit-sharing plan under Code Section 401(a) and
a cash or deferred arrangement under Code Section 401(k). It is
also intended to comply with the applicable provisions of ERISA.
The Plan will be interpreted in a manner that comports with these
intentions.
1.3 Exclusive Benefit of Participants. The Plan is for the
exclusive benefit of Participants and their Beneficiaries.
Employer and Participant contributions are made to the Trust Fund
for the purpose of accumulating a fund for distribution to
Participants and their Beneficiaries in accordance with the Plan.
Except as provided in Section 5.6, no part of the Trust Fund or
any distribution therefrom will be used for or diverted to
purposes other than for the exclusive benefit of Participants and
their Beneficiaries and defraying the reasonable expenses of
administering the Plan and Trust Fund not paid by the Employer.
1.4 Limitation on Rights Created by Plan. Nothing
appearing in the Plan will be construed (a) to give any person
any benefit, right or interest except as expressly provided
herein, or (b) to create a contract of employment or to give any
Employee the right to continue as an Employee or to affect or
modify his terms of employment in any way.
1.5 Application of Plan's Terms. The benefits and rights
of a Participant and his Beneficiaries under the Plan will be
determined in accordance with the terms of the Plan that are in
effect on the date that contributions on a Participant's behalf
are made or credited to his Accounts or on the date of the
Participant's retirement, death or other termination of
employment, whichever may be applicable.
1.6 Benefits Not Guaranteed. The Employer and the Trustee
do not guarantee the payment of benefits hereunder. Benefits
will be paid from the assets of the Trust Fund and are limited to
the amount of assets therein.
ARTICLE II DEFINITIONS
This article contains a number of definitions of terms used
in the Plan. Other terms are defined, explained or clarified in
other articles. This is done for convenience of plan
administration. There is no other significance to the location
of a definition.
2.1 "Affiliated Company" means (i) any corporation (foreign
or domestic) controlled by, controlling or under common control
with Amoco Corporation, by ownership, direct or indirect, of more
than eighty percent (80%) of the voting stock thereof, and any of
their respective successors in business; (ii) a trade or business
which is under common control (as defined in Code Section 414(c))
with Amoco Corporation; (iii) a corporation, partnership or other
entity which, together with Amoco, is a member of an affiliated
service group (as defined in Code Section 414(m)); or (iv) an
organization which is required to be aggregated with Amoco
pursuant to regulations promulgated under Code Section 414(o).
2.2 "Amoco" means Amoco Fabrics and Fibers Company, a
Delaware Corporation, or its successor.
2.3 "Amoco Corporation" means Amoco Corporation, an Indiana
Corporation, or its successor.
2.4 "Applicable Compensation" of a Participant means his
total salary, wages and commissions; overtime; shift
differentials; bonuses, including bonuses in the form of premium
pay for services rendered outside of normal working hours or
conditions; and variable incentive payments, paid to him for
services rendered to an Employer, before reduction for any pre-
tax contributions he elected under section 4.1 and any Code
Section 125 cafeteria plan, but excluding any compensation for
any year in excess of $150,000 (or such greater amount as may be
determined by the Commissioner of Internal Revenue for that
year).
2.5 "Beneficiary" means a person or persons (natural or
otherwise) designated by a Participant in accordance with Section
10.6 (b) to receive any death benefit payable under this Plan, or
if there is no such designation, the person (natural or otherwise
entitled) to receive any death benefit in accordance with Section
10.6 (c).
2.6 "Casual Employee" means a person who is employed for
work which is irregular or occasional in nature, and who works
the schedule of hours (either daily or weekly) in effect at the
place of employment for employees regularly assigned to the same
or similar work.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute enacted in
its place.
2.8 "Employer" means Amoco or any successor organization,
and any other entity of Amoco that adopts the Plan for its
Employees with the consent of Amoco in accordance with Section
15. The term "Employer" may refer to each Employer individually
or to all the Employers collectively, as the context may require.
2.9 "Entry Date" means the date an Employee is eligible to
participate in the Plan pursuant to Section 3.2 and Section 3.4.
2.10 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor
statute enacted in its place.
2.11 "Highly-Compensated Employee" means any present or
former employee who, during the current or immediately preceding
plan year:
(a) was a five percent (5%) owner of the
company at any time during the "determination
year" or "look-back year";
(b) received annual compensation from a
participating Employer of more than $75,000 during
the "look-back year" (or such greater amount as
may be determined by the Commissioner of Internal
Revenue for that year);
(c) received annual compensation during the
"look-back year" from a participating Employer of
more than $50,000 (or such greater amount as may
be determined by the Commissioner of Internal
Revenue for that year) and was in the top-paid
twenty percent (20%) of the employees; or
(d) was an officer of a participating
Employer during the "look-back year" receiving
annual compensation greater than fifty percent
(50%) of the limitation in effect under Section
415(b)(1)(A) of the Internal Revenue Code;
provided, that for purposes of this subparagraph
(d), no more than 50 employees of the company (or
if lesser, the greater of 3 employees or ten
percent (10%) of the employees) shall be treated
as officers.
For purposes of subsection 2.11, 4.5 and 5.5, an employee's
compensation means his total cash compensation for services
rendered to a participating Employer as an employee, determined
in accordance with Section 415(c)(3) of the Internal Revenue Code
and the regulations thereunder, but including Pre-Tax
Contributions he had elected under subsection 4.1 and any Code
Section 125 cafeteria plan.
The term highly-compensated employee also includes employees
who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year"
and the employee is one of the 100 employees who received the
most compensation from a participating Employer during the
determination year. The "look-back year" shall be the calendar
year ending with or within the Plan Year for which testing is
being performed, and the "determination year" (if applicable)
shall be the period of time, if any, which extends beyond the
"look-back year" and ends on the last day of the Plan Year for
which testing is being performed (the "lag period"). If the "lag
period" is less than twelve months long, the dollar threshold
amounts specified in this section shall be prorated based upon
the number of months in the "lag period".
If an employee is, during a determination year or look-back
year, a family member of either a five percent (5%) owner who is
an active or former employee or a highly-compensated employee who
is one of the 10 most highly-compensated employees ranked on the
basis of compensation paid by the employer during such year, then
the family member and the five percent (5%) owner or top-10
highly-compensated employee shall be aggregated. In such case,
the family member and five percent (5%) owner or top-10 highly-
compensated employee shall be treated as a single employee
receiving compensation and plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of
the family member and five percent (5%) owner or top-10 highly-
compensated employee. For purposes of this section, family
member includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such lineal
ascendants and descendants.
2.12 "Hour of Service," for purposes of determining an
Employee's eligibility to participate under Section 3.2 and Year
of Vesting Service under Section 10.2 (b), means any hour for
which an Employee is compensated by an Employer, directly or
indirectly, or is entitled to compensation from an Employer for
the performance of duties and for reasons other than the
performance of duties, and each previously uncredited hour for
which back pay has been awarded or agreed to by an Employer,
irrespective of mitigation of damages. Hours of Service shall be
credited to the period for which duties are performed (or for
which payment is made if no duties were performed), except that
Hours of Service for which back pay is awarded or agreed to by an
Employer shall be credited to the period to which the back pay
award or agreement pertains. The rules for crediting Hours of
Service set forth in paragraphs (b) and (c) of Section 2530.200b-
2 of Department of Labor regulations are incorporated by
reference. References in this section to an Employer shall
include any affiliated or related corporation which is a
controlled group member as defined in the Code.
2.13 "Hourly Employee" means a person who is compensated on
the basis of an hourly rate or rates of pay.
2.14 "Part-Time Employee" means a person who is employed for
work which is irregular or occasional in nature and who works
less than the schedule of hours (either daily or weekly) in
effect at the place of employment for employees regularly
assigned to the same or similar work.
2.15 "Participant" means an Employee or former Employee
whose participation in the Plan has begun and has not yet ended.
2.16 "Plan" means the Amoco Fabrics and Fibers Company
Employee Savings Plan, as set forth in this Plan document, and as
it may be amended from time to time.
2.17 "Plan Year" means the 12-month period beginning on
January 1 and ending on the next following December 31.
2.18 "Pre-Tax Contributions" means contributions by an
Employer on behalf of a Participant in the amount equal to the
amount such Participant elects, in writing filed with his
Employer, which reduces his compensation subject to federal
income taxation.
2.19 "Regular Employee" means a person who is assigned to a
position which requires full-time service as determined by his
Employer, which is established to fill regular and ordinary
employment requirements, and which is expected to continue for an
indefinite period of time.
2.20 "Salaried Employee" means a person who is principally
compensated on the basis of a monthly or annual rate of pay.
2.21 "Spouse" means the person to whom a Participant is
lawfully married (under the law of the state in which the
Participant resides).
2.22 "Temporary Employee" means a person who is assigned to
a position which requires full-time service as determined by his
Employer, which is established due to an unusual circumstance,
and which will continue for a specific period of time or until
the occurrence of a specified event such as the return to work of
a regular employee or the completion of a special assignment or
project.
2.23 "Trust Agreement" means the instrument executed by
Amoco and the Trustee, as amended from time to time, fixing the
rights and responsibilities of each party with respect to the
holding, investment and administration of the Trust Fund.
2.24 "Trust Fund" means the property held by the Trustee for
the purposes of the Plan.
2.25 "Trustee" means the person, individual or corporation,
serving as sole trustee, or the persons serving as co-trustees,
at any time under the terms of the Trust Agreement. Copies of
the Plan and Trust Agreement, and any amendments thereto, will be
on file at Amoco Corporation at 200 East Randolph Drive, Chicago,
Illinois 60601, where they may be examined by any participant or
other person entitled to benefits under the Plan. The provisions
of and benefits under the Plan are subject to the terms and
provisions of the Trust Agreement.
ARTICLE III PARTICIPATION
3.1 Eligible Class. Each Salaried Employee employed by a
participating Employer is in the eligible class, except the
following:
(a) Salaried Employees included in a unit of Employees
covered by a collective bargaining agreement between the employer
and Employee representatives, if retirement benefits were the
subject of good faith bargaining and if two percent or less of
the employees who are covered pursuant to that agreement are
professionals as defined in section 1.410(b)-9 of the Internal
Revenue Service regulations. For this purpose, the term
"Employee representatives" does not include any organization more
than half of whose members are Employees who are owners,
officers, or executives of the employer.
(b) Salaried Employees who are nonresident aliens (within
the meaning of Code Section 7701(b)(1)(B)) and who receive no
earned income (within the meaning of Code Section 911(d)(2)) from
the employer which constitutes income from sources within the
United States (within the meaning of Code Section 861(a)(3)).
(c) Salaried Employees who are leased employees (as defined
below). A "leased employee" means any person who is not an
employee of a participating Employer, but who has provided
services to a participating Employer of a type which have
historically (within the business field of a participating
Employer) been provided by employees, on a substantially full-
time basis for a period of at least one year, pursuant to an
agreement between a participating Employer and a leasing
organization. The period during which a leased employee performs
services for a participating Employer shall be taken into account
for purposes of subsection 3.2 and 10.2 of the Plan if such
leased employee becomes an employee of a participating Employer;
unless (i) such leased employee is a participant in a money
purchase pension plan maintained by the leasing organization
which provides a non-integrated employer contribution rate of at
least ten percent (10%) of compensation, immediate participation
for all employees and full and immediate vesting, and (ii) leased
employees do not constitute more than twenty percent (20%) of a
participating Employer's nonhighly compensated workforce.
3.2 Participation. Participation in the Plan is voluntary
and no Salaried Employee will be required to participate.
Subject to the conditions and limitations of the Plan, each
Salaried Employee in the Eligible Class who is employed on
January 1, 1996, is eligible to participate immediately. Each
Salaried Employee in the Eligible Class hired after January 1,
1996, will be eligible to participate as follows. A Regular or
Temporary Employee in the Eligible Class will be eligible to
participate starting as soon as administratively practicable
after the first day his employment commences with his Employer.
A Casual or Part-Time Employee in the Eligible Class will be
eligible to participate as soon as administratively practicable
after the first day of his payroll cycle starting immediately
after he is credited with 1,000 Hours of Service within the
fiscal year commencing with his date of hire or, if he fails to
meet that requirement, as soon as administratively practicable
after the first day of his payroll cycle starting immediately
after he is credited with 1,000 Hours of Service within any
succeeding Plan Year.
3.3 End of Participation. A Participant's active
participation in the Plan will end upon the termination of his
service as a Salaried Employee in the Eligible Class for any
reason. A Participant's participation in the Plan will end when
he has no further interest under the Plan.
3.4 Reentry of Former Participant. A former Participant
who terminates his service with his Employer and who returns to
service as a Salaried Employee in the Eligible Class will become
an active Participant on his date of rehire and will be eligible
to make Pre-Tax Contributions starting on the first date of his
payroll cycle, of the calendar month, starting immediately on or
after his date of rehire.
ARTICLE IV PRE-TAX CONTRIBUTIONS BY
PARTICIPANTS
4.1 Pre-Tax Contributions. Under the terms stated below,
and subject to any limitations contained in the Plan, a
Participant may elect to make Pre-Tax Contributions to the Plan
in integral percentages of his Applicable Compensation from a
minimum of one percent to a maximum of sixteen percent (16%).
4.2 Procedure for Pre-Tax Contributions. A Participant who
wishes to make Pre-Tax Contributions must notify the Plan
Administrator and specify the amount of his Pre-Tax Contributions
and provide such other information as the Plan Administrator may
require. A Participant will be given the opportunity to elect
Pre-Tax Contributions beginning on the first date when he is
eligible to participate in the Plan pursuant to Article III. His
Pre-Tax Contributions will begin on such date provided he gives
the Plan Administrator advance notice in the manner prescribed by
the Plan Administrator by the date required by the Plan
Administrator. If the Participant declines to make Pre-Tax
Contributions initially, he may elect to begin making Pre-Tax
Contributions as of the first day of any of his subsequent
payroll cycles, of the applicable calendar month, provided he
notifies the Plan Administrator by the date required by the Plan
Administrator.
4.3 Collection of Pre-Tax Contributions. The Employer will
collect Participants' Pre-Tax Contributions using payroll
procedures. A Participant's Pre-Tax Contributions shall be
deducted by his Employer from his compensation at the time of
payment of such compensation. Amounts so deducted (or by which a
Participant's compensation has been so reduced) for any
accounting period under the Plan shall be paid to the trustee as
soon as practicable thereafter, but no later than thirty days
after the accounting date which ends that accounting period.
4.4 Change in Pre-Tax Contributions.
(a) Increase or Reduction. A Participant making Pre-
Tax Contributions may increase or reduce the rate of his Pre-Tax
Contributions to any higher or lower rate he elects (subject to
the limitations stated in Section 4.1) by notifying the Plan
Administrator once a calendar month. The new rate will become
effective with his first payroll cycle of the applicable calendar
month after the Plan Administrator has been notified.
(b) Suspension. A Participant may suspend his Pre-Tax
Contributions by notifying the Plan Administrator. The
suspension of Pre-Tax Contributions will become effective with
his first payroll cycle of the applicable calendar month after
notifying the Plan Administrator.
(c) Resumption. A Participant who suspended his Pre-
Tax Contributions may resume such contributions on the first day
of his payroll cycle of the applicable calendar month after
notifying the Plan Administrator by the date required by the Plan
Administrator.
(d) Plan Administrator Rules. The Plan Administrator
may establish such rules and procedures for Pre-Tax Contributions
as the Plan Administrator deems necessary for the efficient
administration of the Plan.
4.5 401(k) Pre-Tax Contributions Limitation.
Notwithstanding the foregoing provisions of this Section 4, in no
event shall the average deferral percentage (as defined below)
for any Plan Year of the highly compensated employees who are
Plan Participants exceed the greater of:
(a) the average deferral percentage of all
other Participants for such Plan Year multiplied
by 1.25; or
(b) the average deferral percentage of all
other Participants for such Plan Year multiplied
by 2.0; provided that the average deferral
percentage of such highly compensated employees
does not exceed that of all other Participants by
more than 2 percentage points.
The "average deferral percentage" of a group of Participants for
a Plan Year means the average of the ratios (determined
separately for each Participant in such group to the nearest one-
hundredth of one percent) of: (i) the Pre-Tax Contributions made
by such Participant for such Plan Year; to (ii) the Participant's
compensation (as defined in subsection 2.11) for such Plan Year.
For purposes of this subsection 4.5, a Participant means any
employee who is eligible to make contributions under the Plan.
The Pre-Tax Contributions made by the highly compensated
employees will be reduced (in the order of their contribution
percentages beginning with the highest percentage) to the extent
necessary to meet the requirements of this subsection 4.5. If,
because of the foregoing limitations, a portion of the Pre-Tax
Contributions made by a highly compensated employee may not be
credited to his account for a Plan Year, such portion (and the
earnings thereon) shall be distributed to such employee within
two and one-half months after the end of that Plan Year.
4.6 Maximum Amount of Participant Pre-Tax Contributions.
In no event shall the amount of Pre-Tax Contributions by a
Participant for any calendar year exceed $9,500 (or such greater
amount as may be determined by the Commissioner of Internal
Revenue for that calendar year). If, because of the foregoing
limitation, a portion of the Pre-Tax Contributions made by a
Participant may not be credited to his account for a calendar
year, such portion (and the earnings thereon) shall be
distributed to the Participant by April 15 of the following
calendar year.
4.7 Direct Rollover Contributions.
(a) With the approval of the Plan Administrator, a
Salaried Employee may make a direct rollover ("Rollover
Contribution") to the Plan in cash in an amount which constitutes
all or part of an "Eligible Rollover Distribution" (as defined in
Section 401(a)(31)(C) of the Code) from a qualified defined
benefit and/or defined contribution plan (except a "Keogh" plan
and/or an Individual Retirement Account) as defined in the Code.
However, a direct rollover to this Plan of accumulated deductible
employee contributions made under another plan will not be
permitted, and a direct or indirect transfer to this Plan from
another qualified plan will not be permitted if such transfer
would subject this Plan to the qualified joint and survivor rules
of Code Section 401(a)(11).
(b) The Employer, the Plan Administrator and the
Trustee have no responsibility for determining the propriety of,
proper amount or time of, or status as a tax-free transaction of,
any transfer under subsection (a) above.
(c) The Plan Administrator shall develop such
procedures, and may require such information from an the
individual who is requesting to make a direct rollover to the
Plan, as necessary or desirable in order to determine that the
proposed rollover will meet the requirements of this Section 4.7.
(d) A direct rollover will be credited to a separate
Rollover Account in the name of the Participant making such
Rollover Contribution. Such account shall be 100% vested in the
Participant.
(e) The Plan Administrator in its discretion may
direct the return to the Participant of any Rollover Contribution
to the extent the Plan Administrator determines that such return
may be necessary to insure the continued qualification of this
Plan under Section 401(a) of the Code or that the holding of such
Rollover Contributions would be administratively burdensome.
ARTICLE V COMPANY MATCHING CONTRIBUTIONS
5.1 Company Matching Contributions. For each Plan Year the
Employer will make a matching contribution ("Company Matching
Contributions") on behalf of each Participant who makes Pre-Tax
Contributions during such Plan Year in accordance with the
following schedule. For each Plan Year the Company Matching
Contributions made on behalf of each Participant will equal fifty
percent (50%) of the sum of such Participant's Pre-Tax
Contributions which are equal to or less than six percent (6%)
of such Participant's Applicable Compensation.
5.2 Time of Contribution. The Employer will make Company
Matching Contributions under Section 5.1 to the Trustee in cash
and will normally make such contributions as soon as practicable
after each payroll cycle. In any event, such contributions will
be made, without interest, to the Trustee no later than the due
date (including extensions) for filing the Employer's federal
income tax return for such year.
5.3 Section 415 Annual Contribution Limitation.
(a) Notwithstanding anything contained herein to the
contrary, the annual additions (Pre-Tax Contributions and Company
Matching Contributions) to a Participant's Accounts for each Plan
Year (which will be the limitation year for purposes of Code
Section 415) may not exceed the lesser of (i) $30,000, as
adjusted periodically for cost-of-living changes in accordance
with Code Section 415 and regulations thereunder, or (ii) twenty-
five percent (25%) of his total Code Section 415 compensation for
such Plan Year. "Code Section 415 compensation" means a
Participant's compensation for services rendered to an Employer
as an employee determined in accordance with Section 415(c)(3) of
the Code and the regulations thereunder.
(b) Annual additions to a Participant's Account for
any Plan Year means the sum of the annual additions (as defined
in Code Section 415(c)(2)) under all qualified defined
contribution plans maintained by Amoco or any Affiliated Company.
(c) If the foregoing limit is applicable to a
Participant for a Plan Year, the Plan Administrator shall reduce
the annual additions to such Participants' Accounts by returning
contributions in the following order of priority:
(i) the Pre-Tax Contributions made on behalf of
the Participant under this Plan; and
(ii) the Company Matching Contributions made on
behalf of the Participant under this Plan.
5.4 Combined Benefit Limitations. If a Participant in this
Plan also is a Participant in a defined benefit plan maintained
by Amoco or a member of Amoco Corporation's controlled group of
corporations, the aggregate benefits payable to, or on account
of, him under both plans will be determined in a manner
consistent with Section 415 of the Code and Section 1106 of the
Tax Reform Act of 1986. Accordingly, there will be determined
with respect to the Participant a defined contribution plan
fraction and a defined benefit plan fraction in accordance with
said Sections 415 and 1106. The benefits provided for the
Participant under the defined benefit plan will be adjusted to
the extent necessary so that the sum of such fractions determined
with respect to the Participant does not exceed 1.0.
5.5 Limitation on Allocation of Contributions.
Notwithstanding the foregoing provisions of this Section 5, in no
event shall the contribution percentage (as defined below) of the
highly compensate employees who are Plan Participants for any
Plan Year exceed the greater of:
(a) the contribution percentage of all other
Participants for such Plan Year multiplied by
1.25; or
(b) the contribution percentage of all other
Participants for such Plan Year multiplied by 2.0;
provided that the contribution percentage of the
highly compensate employees does not exceed that
of all other Participants by more than 2
percentage points.
The "contribution percentage" of a group of Participants for a
Plan Year means the average of the ratios (determined separately
for each Participant in such group) of: (i) the sum of company
matching contributions for such Plan Year; to (ii) the
Participant's compensation (as defined in subsection 2.4) for
such Plan Year. For purposes of this subsection 5.5, a
Participant means any employee who is eligible to receive company
matching contributions. The company matching contributions
allocated to the highly compensated employees will be reduced (in
the order of their contribution percentages beginning with the
highest percentage) to the extent necessary to meet the
requirements of this subsection. If, because of the foregoing
limitations, a portion of the matching contributions allocated to
a highly compensated employee may not be credited to his account
for a Plan Year, such portion (and the earnings thereon) shall be
distributed to such employee within two and one-half months after
the end of that Plan Year.
5.6 Allocation of Earnings to Distributions of Excess
Contributions. The earnings allocable to distributions of Pre-
Tax Contributions exceeding the limits of subsection 4.5 and Pre-
Tax Contributions exceeding the limits of subsection 4.6 shall be
determined by multiplying the earnings attributable to the
Participant's Pre-Tax Contributions for the year by a fraction,
the numerator of which is the applicable excess amount, and the
denominator of which is the balance in the appropriate account of
the Participant on the last day of such year reduced by gains (or
increased by losses) attributable to such account for the year.
The earnings as so determined shall be increased by ten percent
(10%) thereof for each month (or portion thereof in excess of 15
days) between the end of the year and the date of distribution.
5.7 Multiple Use of Alternative Limitation. In accordance
with Treasury regulation 1.401(m)-2(c), multiple use of the
alternative limitation which occurs as a result of testing under
the limitations described in subsections 4.5 and 5.5 will be
corrected in the manner described in Treasury Regulation 1.401(m)-
1(e). The term "alternative limitation" as used above means the
alternative methods of compliance with Sections 401(k) and 401(m)
of the Code contained in Sections 401(k)(3)(A)(ii)(II) and
401(m)(2)(A)(ii) thereof, respectively.
5.8 No Interest in Company. A Participating Employer shall
have no right, title or interest in the trust fund, nor shall any
part of the trust fund revert or be repaid to a Participating
Employer, directly or indirectly, unless:
(a) the Internal Revenue Service initially
determines that the Plan does not meet the
requirements of Section 401(a) of the Code, in
which event the contributions made to the Plan by
a Participating Employer shall be returned to it
within one year after such adverse determination;
(b) a contribution is made by a
Participating Employer by mistake of fact and such
contribution is returned to the Participating
Employer within one year after payment to the
trustee; or
(c) a contribution conditioned on the
deductibility thereof is disallowed as an expense
for federal income tax purposes and such
contribution (to the extent disallowed) is
returned to a Participating Employer within one
year after the disallowance of the deduction.
Contributions may be returned to a Participating Employer
pursuant to the subparagraph (a) above only if they are
conditioned upon initial qualification of the Plan, and an
application for determination was made by the time prescribed by
law for filing Amoco's Federal income tax return for the taxable
year in which the Plan was adopted (or such later date as the
Secretary of the Treasury may prescribe). The amount of any
contribution that may be returned to a Participating Employer
pursuant to subparagraph (b) or (c) above must be reduced by any
portion thereof previously distributed from the trust fund and by
any losses of the trust fund allocable thereto, and in no event
may the return of such contribution cause any Participant's
account balances to be less than the amount of such balances had
the contribution not been made under the Plan.
ARTICLE VI ACCOUNTS AND CREDITS
6.1 Establishment of Accounts. The Plan Administrator will
establish and maintain in the name of each Participant such of
the following accounts as are appropriate for the Participant:
(a) Pre-Tax Contribution Account;
(b) Company Contribution Account; and
(c) Rollover Account.
Credit and charges to such Accounts will be made as provided in
the Plan. A Participant is 100% vested in his Pre-Tax
Contributions Account and Rollover Account at all times.
6.2 Crediting Participants' Pre-Tax Contributions. Pre-Tax
Contributions made by a Participant for a payroll cycle will be
credited to such Participant's Accounts as of the Valuation Date
(as defined in Section 7.3) (as soon as practicable) immediately
following receipt thereof by the Trustee.
6.3 Crediting Matching Contributions. Company Matching
Contributions made pursuant to Section 5.1 for a payroll cycle
will be credited to the Company Contribution Account of those
Participants entitled to a Company Matching Contribution for such
payroll cycle as of the Valuation Date (as soon as practicable)
immediately following receipt thereof by the Trustee.
6.4 Crediting Rollovers. Rollovers will be credited to the
Participant's Rollover Account as of the Valuation Date (as soon
as practicable) immediately following receipt thereof by the
Trustee.
6.5 Charge to Accounts. Any amount distributed, paid or
withdrawn from an Account will be charged against such Account as
of the Valuation Date on which the distribution, payment or
withdrawal occurs.
ARTICLE VII INVESTMENT FUNDS AND CREDITING INVESTMENT EXPERIENCE
7.1 Investment Funds. The Trustee will separate the Trust
Fund into four Investment Funds as follows:
(a) Amoco Stock Fund
(b) Money Market Fund
(c) Equity Index Fund
(d) Balanced Fund
The Plan Administrator will maintain records which reflect
the portion of each Account of a Participant that is invested in
each separate Investment Fund. The existence of such records and
of Participants' Accounts will not be deemed to give any person
any right, title or interest in or to any specific assets or part
of the Trust Fund or any separate Investment Fund.
7.2 Investment Directions and Transfers Among Funds.
(a) Investment of Accounts. Each Participant may
direct the separate Investment Fund or Funds in which his
Accounts will be invested. Once a calendar month, a Participant
may direct investment of his Pre-Tax Contributions to his Account
entirely in one Investment Fund or in a combination of two or
more of the Investment Funds, provided that combinations must be
specified in five percent (5%) increments and the total
combinations must equal 100%. Company Matching Contributions
will be invested initially in the Amoco Stock Fund.
In addition, once a calendar month the Participant may
direct transfers among the Investment Funds, so that his Accounts
are invested entirely in one Investment Fund or in a combination
of two or more of the Investment Funds, provided that
combinations must be specified in five percent (5%) increments
and the total combinations must equal 100%.
The Participant's change in investment direction or
transfer of assets among Investment Funds shall be effective the
first day of the first full payroll cycle following the election.
The Participant will have sole responsibility for the
investment of his Accounts and for transfers among the available
Investment Funds, and no named fiduciary or other person will
have any liability for any loss or diminution in value resulting
from the Participant's exercise of such investment
responsibility. It is intended that Section 404(c) of ERISA will
apply to a Participant's exercise of investment responsibilities
under this subsection.
(b) Manner and Time of Giving Directions. A
Participant's initial directions governing the investment of his
Pre-Tax Contribution Account and Rollover Account must be made by
notifying the Plan Administrator and must be in five percent (5%)
increments. A Participant may change the investment of future
contributions to his Accounts or direct transfers among the
Investment Funds in five percent (5%) increments once a calendar
month by contacting the Plan Administrator in accordance with
uniform rules. If a Participant does not give complete
directions to the Plan Administrator, his Pre-Tax Contributions
or Rollover Contribution will be invested pro rata (rounded to
the applicable five percent (5%) increment) in the Investment
Funds as directed in the incomplete directions. If no directions
are given, all contributions will be invested in the Money Market
Fund.
7.3 Valuation of Assets. As of the last business day of
each calendar month and at any other date ("Valuation Date") that
the Plan Administrator may direct, the Trustee will determine the
fair market value of the assets in each separate Investment Fund
of the Trust Fund, relying upon such evidence of valuation as the
Trustee deems appropriate.
7.4 Crediting Investment Experience. As of each Valuation
Date (before crediting any contributions or making any investment
transfers as of such date), Investment Fund management expenses
not paid directly by the Employer, investment income and gains
and losses in asset values in each separate Investment Fund since
the preceding Valuation Date will be credited or charged to
Participants' Accounts invested in such fund. The allocation of
Investment Fund management expenses and investment results will
be in proportion to the adjusted account balances in such fund as
of each Valuation Date. The adjusted account balance of an
Account invested in a separate Investment Fund is the amount in
such Account as of the close of business on the preceding
Valuation Date, increased by any Pre-Tax Contributions, Company
Matching Contributions and loan repayments credited to such
Account as of the current Valuation Date under Article VI and
Article VIII, decreased by any withdrawals, transfers or
distributions from such Account since the preceding Valuation
Date, and increased or decreased in accordance with uniform rules
established by the Plan Administrator to allocate equitable
expenses and investment results.
ARTICLE VIII LOANS TO PARTICIPANTS
8.1 Plan Administrator Shall Administer the Loan Program.
The Plan Administrator shall administer the loan program in
accordance with the provisions of Article VIII, in a uniform and
nondiscriminatory manner.
8.2 Availability of Loans. Upon application by a
Participant who is an active Employee, the Plan Administrator may
direct the Trustee to make a loan (in increments of $50) to the
Participant from his Accounts.
A Participant may make two loans during a
calendar year. However, he may not have more than two
outstanding loans. Also, a Participant will not be permitted to
make a loan if he previously defaulted on a Plan loan within the
preceding 36 months.
8.3 Conditions of Loan.
(a) Maximum Amount. The loan shall not exceed the
lesser of (A) $50,000 reduced by the highest outstanding loan
balance during the one-year period ending on the day before the
Valuation Date the current loan is made or (B) 50% of the market
value of the Participant's non-forfeitable accrued benefit on the
Valuation Date the loan request from the Participant is processed
by the Plan Administrator.
(b) Minimum Amount. The minimum loan shall be $500.
(c) Repayment Period. The term of the loan shall not
be less than 6 months and not more than 54 months in increments
of 6 months. The payment of interest and principal shall be
amortized in level payments not less frequently than quarterly.
(d) Interest Rate. The interest rate shall equal the
prime rate, as published in the Wall Street Journal, in effect on
the next-to-last business day of the month immediately before the
month in which the loan request is received by the Plan
Administrator and will be fixed for the term of the loan.
(e) Participant Fees. Reasonable fees may be charged
to the borrower for making and administering the loan. Effective
January 1, 1996 this fee shall be $40.
(f) Security for Repayment. Each loan hereunder will
be a Participant-directed investment for the benefit of the
Participant requesting such loan; accordingly, any default in the
repayment of principal or interest of any loan hereunder will
reduce the amount available for distribution to such Participant
(or his Beneficiary). Any loan hereunder will be effectively and
adequately secured by fifty percent (50%) of the non-forfeited
accrued benefit in the Participant's Accounts.
(g) Repayment. Each Participant who requests a loan
from his Accounts will execute an agreement to repay the
principal and interest of the loan through payroll withholding
from his compensation. The Plan Administrator may establish back-
up repayment procedures for Participants on an "authorized leave
of absence." Any loan hereunder may be prepaid in full by
certified or cashier's check at any time after six months since
the first repayment by payroll without penalty. If the automatic
payroll arrangement lapses by the Participant's termination of
employment for any reason or is canceled, and a new arrangement
is not in place before the next payment is due the loan shall be
in default and the entire unpaid principal and interest of any
loan then outstanding to such Participant will become immediately
due and payable.
(h) Action Upon Default. If a Participant defaults on
any payment of interest or principal on a loan hereunder or
defaults upon any other obligation relating to such loan, the
Plan Administrator shall immediately request payment of principal
and interest on the loan, and if not paid within the time
specified in the request for payment, the amount of the loan will
be deemed distributed to him. If the default is by reason of
termination of employment, and the Participant refuses to pay the
entire outstanding principal and interest on the loan in full
within 90 days of the default, the loan will be deemed
distributed to him. However, no foreclosure on the Participant's
loan or attachment of the Participant's Account balances will
occur until a distributable event occurs in the Plan.
(i) Distribution to Participant With Loan. In the
case of any Participant who terminates employment with a loan
outstanding hereunder, the amount available for distribution to
such Participant (or his Beneficiary) will consist of the portion
of his Accounts invested in the Investment Funds of the Trust
Fund. In the case of a Participant dying with an outstanding
loan, such loan will be deemed distributed to his estate upon his
death.
8.4 Accounting for Loans.
(a) Source of Loan. The Plan Administrator shall
liquidate the Participant's Accounts in the following order to
make a loan to him:
Participant Accounts.
(1) Pre-Tax Contribution Account
(2) Rollover Account
(3) Company Contribution Account
The Plan Administrator shall also liquidate the Participant's
Investment Funds pro rata.
(b) Loan Investment Account. The Plan Administrator
will establish and maintain a loan investment account for each
borrowing Participant. The unpaid principal and accrued but
unpaid interest on the loan to a Participant will be reflected
for plan accounting purposes in the Participant's loan account.
Repayments of principal by the Participant will reduce the
Participant's loan account balance and will be credited to the
Participant's other Accounts in the following order:
Participant Accounts.
(1) Company Contribution Account
(2) Rollover Account
(3) Pre-Tax Contribution Account
Repayments will be invested in the Investment Funds according to
a Participant's current investment election.
ARTICLE IX IN-SERVICE WITHDRAWALS
9.1 Withdrawals From Rollover Account. A Participant may
withdraw in cash any portion of his accrued benefit in his
Rollover Account once during a calendar year. Notwithstanding the
foregoing, the minimum amount a Participant may withdraw is $300.
9.2 Withdrawals From Pre-Tax Contribution Account. A
Participant may withdraw in cash from his Pre-Tax Contribution
Account once every calendar year the amount necessary to meet one
of the following immediate and heavy financial needs:
1. Medical expenses described in Code
Section 213(d) previously incurred by the
Participant, his spouse, or any of his dependents
(as defined in Code Section 152) or necessary for
these persons to obtain medical care described in
Code Section 213(d);
2. The purchase (excluding mortgage
payments) of a principal residence for the
Participant;
3. Payment of tuition, housing, and related
educational fees for the next 12 months of post-
secondary education for the Participant, his
spouse, children, or dependents;
4. The need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the Participant's
principal residence; or
5. Other unexpected or unusual expenses
creating a financial need for which withdrawal is
permitted by Code Regulation Section 1.401(k)-1.
The amount of an immediate and heavy financial need
includes any amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to result
from a withdrawal from a Participant's Pre-Tax Contribution
Account. Notwithstanding the foregoing, the amount withdrawn
cannot include the Participant's earnings on all his Pre-Tax
Contributions. In addition, before a Participant makes a
withdrawal from his Pre-Tax Contribution Account he must make a
loan under the Plan for the maximum amount permitted and then
withdraw the maximum amount permitted by the Plan from his
Rollover Account. If a Participant makes a withdrawal from his
Pre-Tax Contribution Account he will be prohibited from making
any Pre-Tax Contributions for the 12-month period commencing with
the first day of his payroll cycle of the calendar month starting
immediately after the distribution of such withdrawal. Finally,
notwithstanding Section 4.6, if a Participant makes a withdrawal
from his Pre-Tax Account, the Code Section 402(g) limitation that
applies to his Pre-Tax Contributions during the Plan Year
immediately after such withdrawal shall be reduced by the total
amount of his Tax-Deferred Contributions during the year of the
withdrawal.
9.3 Order of Asset Liquidation for All Withdrawals. The
Plan Administrator shall liquidate the Investment Funds of the
Account from which the withdrawal is being made pro rata.
ARTICLE X DISTRIBUTIONS
10.1 Distributions.
(a) Amount. A Participant whose employment terminates
as a result of Retirement will receive the total amount in his
Accounts in a single-sum payment as soon as administratively
practicable after the month such separation of service occurs.
If a Participant receives immediate distribution of his Accounts,
his Account balances will be determined as of the Valuation Date
immediately preceding such distribution. If a Participant defers
payment of part or all of his Accounts, his Account balances will
be determined as of the Valuation Date immediately preceding his
subsequent distribution.
(b) Retirement Defined. For purposes of this Plan,
"Retirement" means a Participant's termination of employment on
or after his 65th birthday. A Participant will become fully
vested in his Company Contribution Account balance upon reaching
his 65th birthday (normal retirement age).
(c) Form of Payment. Upon a Participant's termination
of service with his Employer, a distribution of his Accounts will
be paid in a single-sum payment of his entire Account balances at
any time until age 65. All distributions made pursuant to this
subsection shall be made in cash, except that a Participant can
elect to receive Amoco common stock in-kind.
10.2 Termination of Employment Prior to Retirement or Death.
(a) If a Participant's service with an Employer
terminates prior to his attainment of age 65, he shall be 100%
vested in an amount equal to the market value of his Pre-Tax
Contribution Account and Rollover Account. In addition, such
Participant shall acquire a vested interest in his Company
Contribution Account balance in accordance with the following
vesting schedule:
Years of
Vesting Service
Vested
At least But Less Than Percentage
2 years 0%
2 years 3 years 25%
3 years 4 years 50%
4 years 5 years 75%
5 years 100%
The benefit determined in accordance with the foregoing provision
shall never be adjusted or altered in any fashion on account of
any years of Vesting Service which the Participant might complete
upon reemployment with an Employer, except as otherwise provided
in Section 10.3.
(b) (i) Vesting Service or Period of Vesting
Service. Vesting Service means the aggregate of all years and
fractions of years of an Employee's Periods of Vesting Service
with an Employer and an Affiliated Company. Fractions of years
shall be expressed in terms of months. A period of Vesting
Service shall mean a period beginning on the first day of the
calendar month during which the Employee enters service (or
reenters service) and ending on the termination date (as defined
below) with respect to such period, subject to the following
special rules:
(A) An Employee shall be deemed to enter
service on the date he first completes an Hour of Service.
(B) An Employee shall be deemed to reenter
service on the date following a termination date when he
again completes an Hour of Service.
(C) The termination date of an Employee
shall be the last day of the calendar month during which the
earlier of the following occurs: (i) the date he quits, is
discharged, retires or dies, or (ii) except as provided
below, the first anniversary of the date he is absent from
service for any other reason (including, but not limited to,
vacation, holiday, leave of absence, and layoff). If an
Employee, absent from service under circumstances described
in (ii), quits, is discharged, retires or dies before the
first anniversary of commencement of said absence, his
termination date shall be the date he quits, is discharged,
retires or dies. An absence described in (ii) shall be
deemed to commence with respect to an Employee on the date
he is terminated as an Employee on the payroll records of
the Employer and members of Amoco Corporation's controlled
group of corporations. An Employee shall be deemed to have
continued in service (and thus not to have incurred a
termination date) for the following periods:
i) any period for which he
shall be required to be given credit for service
under any laws of the United States; and
ii) any period for which he is
on an approved "leave of absence".
(D) All periods of service of an Employee
shall be aggregated in determining his Vesting Service.
(E) If an Employee shall be absent from
work because he quits, is discharged or retires, and he
reenters service before the first anniversary of the date of
such absence, such date shall not constitute a termination
date and the period of such absence shall be included as
service.
(ii) Month of Vesting Service. A Month of
Vesting Service means a calendar month during any part of which
an Employee was credited with an Hour of Service as defined in
Section 2.12.
(iii) Year of Vesting Service. A Year of Vesting
Service means 12 Months of vesting service, whether or not
consecutive.
(iv) One-Year Break In Service. A One-Year
Break In Service means a Period of twelve consecutive calendar
months during which the Employee is not credited with one month
of Vesting Service.
(c) Form of Payment. A Participant whose service
terminates with his Employer will be paid a distribution of his
vested Account balances in a single-sum payment as soon as
administratively practicable after the month such separation of
service occurs, unless he elects to defer receipt of his
distribution until a date not later than his attainment of age
65.
A single-sum payment made pursuant to this subsection shall be
made in cash, unless the Participant elects to receive Amoco
common stock in kind.
(d) If a Participant receives immediate distribution
of his Accounts, his Account balances will be determined as of
the Valuation Date immediately preceding such distribution. If a
Participant defers payment of his Accounts, his Account balances
will be determined as of the Valuation Date immediately preceding
his subsequent distribution.
(e) The determination of the amount to which such
terminated Participant is entitled in accordance with the
foregoing rules shall be made by the Plan Administrator.
(f) Any amount of a Participant's Company
Contribution Account to which he is not entitled at the time of
his termination of employment shall be forfeited by him when his
service terminates with his Employer. As soon as practicable
after such forfeiture occurs it shall be used to reduce Company
Matching Contributions or pay Plan administration expenses in
accordance with Section 16.11.
10.3 Reemployment. If a terminated Participant is reemployed
by an Employer, he shall again become a Participant upon
reemployment pursuant to Section 3.4. All future Company
Matching Contributions shall be credited to his Company
Contribution Account, and his prior Period(s) of Vesting Service
shall be restored for the purpose of calculating the vested
portion of such Account. Also, the portion of his Company
Contribution Account that has been forfeited shall be restored
without interest to his Company Contribution Account.
10.4 $3,500 Cash-Out. If the value of the nonforfeitable
portion of the Participant's Accounts does not exceed $3,500 as
of the Valuation Date immediately following his termination of
service for any reason, the Plan Administrator shall distribute
in cash and in a single-sum payment the entire balance in his
Accounts as soon as administratively practicable.
10.5 Required Distribution Date. Distribution to any
Participant must be made no later than April 1 following the
calendar year in which he reaches age 70-1/2 in annual payments
based on such Participant's life expectancy as of the date he
attained age 70-1/2 in accordance with the minimum distribution
rules of Section 401(a)(9) of the Code and the regulations
promulgated thereunder.
10.6 Distribution Upon Death of a Participant.
(a) In General. If Participant dies while employed
by the Employer with a balance in any Account under the Plan, his
Beneficiary will receive 100% of the amount in his Accounts.
Such amount will be determined as of the Valuation Date
immediately preceding the date when the Plan Administrator makes
such distribution. After the Plan Administrator identifies the
Beneficiary, he shall distribute to such Beneficiary in cash, the
remaining amount in the deceased Participant's Accounts as soon
as administratively practicable.
(b) Designation of Beneficiary. A Participant may
designate one or more Beneficiaries and may revoke or change such
designation at any time. If the Participant names two or more
Beneficiaries, distribution to them will be in such proportions
as the Participant designates or, if the Participant does not so
designate, in equal shares pro rata from such Participant's
Accounts. If the Participant designates one or more
Beneficiaries and one the Beneficiaries predeceases the
Participant, then the deceased Beneficiary's share will be
distributed pro rata in accordance with the Participant's
beneficiary election as to the other Beneficiary(ies). Any
designation of Beneficiary will be in writing on such form as the
Plan Administrator may prescribe and will be effective upon
filing with the Plan Administrator.
Notwithstanding the preceding paragraph, the sole
Beneficiary of a married Participant will be the Participant's
spouse unless the spouse consents in writing to the designation
of another person as beneficiary. The spouse's consent must
acknowledge the effect of such consent and be witnessed by a
notary public.
(c) No Designation. Any portion of a distribution
payable upon the death of a Participant which is not disposed of
by a designation of Beneficiary for any reason whatsoever will be
paid to the Participant's spouse if living at his death,
otherwise to the Participant's estate.
(d) Payment Under Prior Designation. Amoco may
direct the Plan Administrator to make payment in accordance with
a prior designation of Beneficiary (and will be fully protected
in so doing) if such direction (i) is given before a later
designation is received, or (ii) is due to Amoco's inability to
verify the authenticity of a later designation. Such a
distribution will discharge all liability therefor under the
Plan.
10.7 Rehire Before Distribution. If a former Participant is
rehired by an Employer or an Affiliated Company, before
distribution of his Accounts has been made, such distribution
will be deferred until his subsequent termination of employment.
10.8 Waiver of 30-Day Notice. If a distribution is one to
which Code Section 401(a)(11) and 417 do not apply, such
distribution may commence less than 30 days after the notice
required under Regulation 1.411(a)-11(c) is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not
to elect a distribution (and, if applicable, a particular
distribution option), and (2) the Participant, after receiving
the notice, affirmatively elects a distribution.
ARTICLE XI DIRECT ROLLOVERS
11.1 Direct Rollover. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a distributee's
election under this section, a distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have
any portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a
direct rollover.
11.2 Definitions.
(a) "Eligible Rollover Distribution" is any
distribution provided for in this Plan of all or any portion of
the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of
any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) "Eligible Retirement Plan" is an individual
retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of the Code, or
a qualified trust described in section 401(a) of the Code that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) "Distributee" includes a Participant, the
Participant's surviving spouse and the Participant's spouse who
is the alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code.
(d) "Direct Rollover" is a payment by the Plan to the
eligible retirement plan specified by the distributee.
ARTICLE XII AMENDMENT, MERGER AND TERMINATION OF PLAN
12.1 Amendment of Plan. At any time and from time to time,
Amoco may amend or modify any or all of the provisions of the
Plan without the consent of any person, provided that no
amendment will reduce any Participant's nonforfeitable Account
balance as of the date such amendment is adopted (or its
effective date if later) or eliminate an optional form of
benefit, and provided further that no amendment will permit any
part of the Trust Fund to revert to the Employer or be used for
or diverted to purposes other than for the exclusive benefit of
Participants or their Beneficiaries, except as provided in
Section 5.6.
12.2 Merger of Plans. A merger or consolidation with, or
transfer of assets or liabilities to, any other plan will be
permitted only if the benefit each Participant would receive if
such plan were terminated immediately after the merger,
consolidation or transfer is not less than the benefit he would
have received if this Plan had terminated immediately before the
merger, consolidation or transfer.
12.3 Termination. Amoco has established the Plan and is
maintaining the Plan with the bona fide expectation and intention
that it will continue the Plan indefinitely, but Amoco will not
be under any obligation or liability whatsoever to maintain the
Plan for any particular length of time. Notwithstanding any
other provision hereof, Amoco may terminate this Plan at any
time. There will be no liability to any Participant, Beneficiary
or other person as a result of any such discontinuance or
termination.
The Employer's failure to make contributions in any year or
years will not operate to terminate the Plan in the absence of
formal action by Amoco to terminate the Plan.
12.4 Effect of Termination. Upon complete discontinuance of
contributions or termination or partial termination of the Plan,
the Pre-Tax and Rollover Accounts of affected Participants will
remain nonforfeitable and their Company Contribution Account will
become nonforfeitable. After termination of the Plan, no
Employee will become a Participant and no further Pre-Tax
Contributions or Company Matching Contributions will be made
hereunder on behalf of Participants.
The Trustee will continue to hold the assets of the Trust Fund
for distribution as directed by the Plan Administrator. The Plan
Administrator directs the Trustee to disburse the Plan's assets
as immediate benefit payments, to retain and disburse them in the
future, or to follow any other procedure which it deems
advisable.
ARTICLE XIII NAMED FIDUCIARIES
13.1 Identity of Named Fiduciaries.
(a) Named Fiduciaries. Amoco, the Plan
Administrator, the Trustee and any investment manager appointed
by Amoco will be the named fiduciaries under the Plan and will
control and manage the Plan and its assets to the extent and in
the manner indicated in the Plan and in the Trust Agreement. Any
responsibility assigned to a named fiduciary will not be deemed
to be a duty of a "fiduciary" (as defined in ERISA) solely
because of such assignment.
(b) Plan Administrator. Amoco Corporation is the
"Plan Administrator" as defined in ERISA.
13.2 Responsibilities and Authority of Plan Administrator.
The Plan Administrator will have the responsibilities and
authority with respect to control and management of the Plan and
its assets as set forth in detail in various articles of the Plan
including Article XIII.
13.3 Responsibilities and Authority of Trustee. The Trustee
will manage and control the assets of the Plan, except to the
extent that such responsibilities are specifically assigned
hereunder or under the Trust Agreement to Amoco, or the
Participants, or are delegated to one or more investment managers
by Amoco. The responsibilities and authority of the Trustee are
set forth in detail primarily in the Trust Agreement.
13.4 Responsibilities of Amoco. Amoco will have the
responsibilities and authority to appoint, remove and replace the
Trustee and to amend and terminate the Plan and Trust. The
responsibilities and authority of Amoco are set forth in further
detail in the various articles of the Plan and in the Trust
Agreement.
13.5 Responsibilities Not Shared. Except as otherwise
provided herein or required by law, each named fiduciary will
have only those responsibilities that are specifically assigned
to it hereunder, in the Administrative and Recordkeeping Services
Agreement, and in the Trust Agreement, and no named fiduciary
will incur liability because of improper performance or
nonperformance of responsibilities assigned to another named
fiduciary.
13.6 Dual Fiduciary Capacity Permitted. Any person or group
of persons may serve in more than one fiduciary capacity.
13.7 Actions by Amoco. Wherever the Plan specifies that Amoco
is required or permitted to take any action, such action will be
taken by its board of directors, or by a duly authorized
committee thereof, or by one or more directors, officers,
employees or other persons duly authorized to do so by the board
of directors.
13.8 Advice. A named fiduciary may employ or retain such
attorneys, accountants, investment advisors, consultants,
specialists and other persons or firms as it deems necessary or
desirable to advise or assist it in the performance of its
duties. Unless otherwise provided by law, the fiduciary will be
fully protected with respect to any action taken or omitted by
him or it in reliance upon any such person or firm rendered
within his or its area of expertise.
ARTICLE XIV PLAN ADMINISTRATOR
14.1 Appointment. Amoco is the Plan Sponsor and retains the
authority to appoint a Plan Administrator. Any notice or
document required to be given to or filed with the Plan
Administrator will be properly given or filed if delivered or
mailed, by registered mail, postage prepaid, to the Plan
Administrator, in care of Amoco Corporation at 200 East Randolph
Drive, Chicago, Illinois 60601.
14.2 Notice to Trustee. Amoco will notify the Trustee in
writing of the appointment, and the Trustee may assume such
appointment continues in effect until written notice to the
contrary is given by Amoco.
14.3 Administration of Plan. The Plan Administrator and Amoco
will have all powers and authority necessary and appropriate to
carry out its responsibilities as provided in the Plan. All
determinations and actions of the Plan Administrator will be
conclusive and binding upon all persons, except as otherwise
provided herein or by law, and except that the Plan Administrator
may revoke or modify a determination or action previously made in
error. The Plan Administrator will exercise all powers and
authority given to it in a nondiscriminatory manner.
14.4 Reporting and Disclosure. The Plan Administrator will
prepare, file, submit, distribute or make available any plan
descriptions, reports, statements, forms or other information to
any government agency, Employees, former Employees, or
Beneficiary as may be required by law or by the Plan.
14.5 Records. The Plan Administrator will record its acts and
decisions, and keep all data, records, books of account and
instruments pertaining to plan administration. The Employer will
supply all information required by the Plan Administrator to
administer the Plan, and the Plan Administrator may rely upon the
accuracy of such information.
14.6 Claims Review Procedure. Any request for benefits (the
"claim") by a Participant or his Beneficiary (the "claimant")
will be filed in writing with the Plan Administrator. Within a
reasonable period after receipt of a claim, the Plan
Administrator will provide written notice to any claimant whose
claim has been wholly or partly denied, including: (a) the
reasons for the denial, (b) the Plan provisions on which the
denial is based, (c) any additional material or information
necessary to perfect the claim and the reasons why it is
necessary, and (d) the Plan's claims review procedure. The
claimant will be given a full and fair review in writing within a
reasonable period after notification of the denial. The claimant
may review pertinent documents and may submit issues and comments
orally, in writing, or both. The Plan Administrator will render
its decision or review properly and in writing and will include
specific reasons for the decision and reference to the Plan
provisions on which the decision is based. The Participant may
appeal the Plan Administrator's decision by making such appeal in
writing filed with Amoco Corporation (Director, Qualified Plans -
Human Resources) within 60 days after his receipt of the Plan
Administrator's decision.
14.7 Administrative Discretion; Final Authority.
(a) The Plan Administrator shall have the exclusive
discretionary authority to interpret the provisions of, and make
factual determinations under, the Plan and to decide any and all
matters arising hereunder, including without limitation the right
to remedy possible ambiguities, inconsistencies, or omissions by
general rule or particular decision; provided that all such
interpretations and decisions shall be applied in a uniform and
nondiscriminatory manner to all Participants and beneficiaries
who are similarly situated. The Plan Administrator shall
determine conclusively for all parties all questions arising out
of the interpretation or administration of the Plan.
(b) The Plan Administrator may delegate authority
with respect to certain matters, and the Plan Administrator may
allocate its responsibilities among Amoco employees.
(c) To the extent that the Plan Administrator
properly delegates or allocates administrative powers or duties
to any other individual or entity, such individual or entity
shall have exclusive discretionary authority, as described in
subsection 14.7(a), to exercise such powers or duties.
ARTICLE XV PARTICIPATING EMPLOYERS
15.1 Adoption by Other Employers.
Notwithstanding anything herein to the contrary, with the
consent of Amoco, any other entity may adopt this Plan and all of
the provisions hereof, and participate herein and be known as a
participating Employer, by a properly executed Participation
Agreement evidencing said intent and will of such participating
Employer. A Participation Agreement may contain terms and
conditions approved by Amoco that apply only to such
participating Employer and shall constitute an amendment of the
Plan.
15.2 Designation of Agent. Each participating Employer shall
be deemed a part of this Plan; provided, however, that with
respect to all of its relations with the Trustee and Plan
Administrator for the purpose of this Plan, each participating
Employer shall be deemed to have designated irrevocably Amoco as
its agent.
15.3 Employee Transfers. It is anticipated that an Employee
may be transferred between participating Employers and non-
participating Affiliated Companies. No such transfer shall
effect a termination of employment hereunder for purposes of
Section 10.
15.4 Discontinuance of Participation. Any participating
Employer shall be permitted to discontinue or revoke its
participation in the Plan with a properly executed document filed
with Amoco and with the consent of Amoco.
15.5 Participating Employer Contribution for Affiliate. If
any participating Employer is prevented in whole or in part from
making a contribution to the Trust Fund which it would otherwise
have made under the Plan for any reason, then, pursuant to Code
Section 404(a)(3)(B), so much of the contribution which such
participating Employer was so prevented from making may be made,
for the benefit of the participating Employees of such
participating Employer, by the other participating Employers who
are members of the same affiliated group within the meaning of
Code Section 1504.
ARTICLE XVI MISCELLANEOUS
16.1 Qualified Domestic Relations Orders.
(a) A Qualified Domestic Relations Order (QDRO) is a
judgment, decree, or order which meets the requirements of Code
Section 414(p). An alternate payee is an individual named in the
QDRO who is to receive some or all of the Participant's benefits.
(b) A payment to an alternate payee shall be in cash
and in a single sum.
16.2 Nonalienation of Benefits. No benefit, right or interest
hereunder of any person will be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
charge, or to seizure, attachment or other legal, equitable or
other process, or be liable for, or subject to, the debts,
liabilities or other obligations of such person, except that the
Plan Administrator may prescribe rules for the payment of
benefits in accordance with Qualified Domestic Relations Orders
as defined in Section 16.1.
16.3 Payment of Minors and Incompetents. If the Plan
Administrator deems any person incapable of giving a binding
receipt for benefit payments because of his minority, illness,
infirmity or other incapacity, it may direct payment directly for
the benefit of such person, or to any person selected by Amoco to
disburse it. Such payment, to the extent thereof, will discharge
all liability for such payment under the Plan.
16.4 Current Address of Payee. Any person entitled to
benefits is responsible for keeping Amoco informed of his current
address at all times. The Plan Administrator, the Trustee and
Amoco have no obligation to locate such person, and will be fully
protected if all payments and communications are mailed to his
last known address, or are withheld pending receipt of proof of
his current address and proof that he is alive. If payments are
withheld and after reasonable efforts, the Plan Administrator
cannot locate a former Participant (or Beneficiary) within a
reasonable time, but in any event not later than four (4) years,
the amount of the Participant's Accounts shall be forfeited and
shall be reapplied in such a way as to reduce succeeding Company
Matching Contributions under the Plan; provided, however, that if
such former Participant (or Beneficiary) subsequently files a
valid claim for benefits with the Plan Administrator or Amoco
with respect to his Account balances under the Plan, his Accounts
shall be restored to the value previously forfeited (and without
interest) from such Accounts.
16.5 Disputes over Entitlement to Benefits. If two or more
persons claim entitlement to payment of the same benefit
hereunder, the Plan Administrator may withhold payment of such
benefit until the dispute has been determined by a court of
competent jurisdiction or has been settled by the persons
concerned.
16.6 Payment of Benefits. Unless he elects otherwise, a
Participant's benefit payments under the Plan will begin no later
than 60 days after the close of the Plan Year in which the latest
of the following dates occurs: (a) the date he terminates
service with his Employer; (b) his 65th birthday; or (c) the
tenth anniversary of the year in which he began participating in
the Plan.
16.7 Plan Supplements. The provisions of the Plan may be
modified by supplements to the Plan. The terms and provisions of
each supplement are a part of the Plan and supersede the
provisions of the Plan to the extent necessary to eliminate
inconsistencies between the Plan and the supplement.
16.8 Rules of Construction.
(a) A word or phase defined or explained in any
section or article has the same meaning throughout the Plan
unless the context indicates otherwise.
(b) Where the context so requires, the masculine
includes the feminine, the singular includes the plural, and the
plural includes the singular.
(c) Unless the context indicates otherwise, the words
"herein," "hereof," "hereunder," and words of similar import
refer to the Plan as a whole and not only to the section in which
they appear.
16.9 Text Controls. Headings and titles are for convenience
only and the text will control in all matters.
16.10 Applicable State Law. To the extent that state
law applies, the provisions of the Plan will be construed,
enforced and administered according to the laws of the State of
Georgia.
16.11 Plan Administration Expenses. All reasonable Plan
administration expenses shall be paid out of the Trust Fund;
provided that the obligation of the Trust Fund to pay such
expenses shall cease to exist to the extent such expenses are
paid by an Employer or are paid to the Trust Fund as a
reimbursement by an Employer. This provision shall be deemed to
apply to any contract or arrangement to provide for expenses of
plan administration without regard to whether or not the
signatory or party to such contract or arrangement is, as a
matter of administrative convenience, an Employer. Any
reasonable plan administration expense paid to the Trust Fund by
an Employer as a reimbursement shall not be considered an
Employer contribution and shall not be credited to Participants'
Accounts. The Plan Administrator shall only direct the Trustee
to pay Plan administration expenses from the Trust Fund upon the
written direction of Amoco.
16.12 Voting and Tendering of Amoco Stock.
(a) For the purposes of voting or responding to bona
fide offers with respect to the Amoco Corporation Stock held by
the Plan, each Participant and Beneficiary of a deceased
Participant whose Accounts are invested in whole or in part in
the Amoco Stock Fund shall be a "named fiduciary" within the
meaning of Section 403(a)(1) of ERISA. The Trustee shall follow
the proper instructions, which instructions shall be held by the
Trustee in strict confidence, of the Participants and
Beneficiaries with respect to such Amoco Corporation stock in the
manner described in this Section 16.
(b) Before each annual or special meeting of Amoco
Corporation, there shall be sent to each Participant or
Beneficiary to whom Amoco Corporation stock is allocated a copy
of the proxy solicitation material for the meeting, together with
a form requesting instructions to the Trustee on how to vote the
Amoco Corporation stock allocated to his Accounts. Upon receipt
of such instructions, the Trustee shall vote the Amoco
Corporation stock as instructed.
(c) The Trustee shall vote Amoco Corporation stock
for which no voting instructions are timely received to the
extent required by law in its uncontrolled discretion.
(d) In the event that a bona fide offer (such as a
tender offer or exchange offer) shall be made to acquire any
Amoco Corporation Employer stock held by the Trustee, each
Participant or Beneficiary of a deceased Participant shall be
entitled to direct the Trustee as to the disposition of the Amoco
Corporation stock (including fractional shares) allocated to his
Accounts, and to direct the Trustee to take other solicited
action on his behalf (including the voting of such Stock) with
respect to the Amoco Corporation stock allocated to this account.
Amoco, with the cooperation of the Trustee, shall use its best
efforts to provide each Participant or Beneficiary to whom this
paragraph may apply with a copy of any offer solicitation
material generally available to members of the public who hold
the Amoco Corporation stock affected by the offer, or with such
other written information as the offeror may provide. Such
material shall be provided with a form requesting instructions to
the Trustee as to the disposition under the offer of the Amoco
Corporation stock allocated to each Account. Upon receipt of
such instructions from the Participant or Beneficiary, the
Trustee shall respond to the offer in accordance with such
instructions with respect to the Amoco Corporation stock
allocated to the Account.
(e) The Trustee shall respond to an offer described
in subsection (d) with respect to Amoco Corporation stock for
which no instructions are timely received to the extent required
by law in its uncontrolled discretion.
16.13 Action by Company. Any action required or
permitted to be taken by Amoco (or a participating Employer)
under the Plan shall be by resolution of its Board of Directors,
by resolution of a duly authorized committee of its Board of
Directors, or by a person or persons authorized by resolution of
its Board of Directors or such committee.
SUPPLEMENT A
Special Rules for Top-Heavy Plans
A-1. Purpose and Effect. The purpose of this Supplement A is
to comply with the requirements of Section 416 of the Internal
Revenue Code. The provisions of this Supplement A shall be
effective for each Plan Year in which the Plan is a "top-heavy
plan" within the meaning of Section 416(g) of the Internal
Revenue Code.
A-2. Top-Heavy Plan. In general, the Plan will be a top-heavy
plan for any Plan Year if, as of the last day of the preceding
Plan Year (the "determination date"), the aggregate account
balances of Participants who are key employees (as defined in
Section 416(i)(1) of the Internal Revenue Code) exceed 60 percent
of the aggregate account balances of all Participants. In making
the foregoing determination, the following special rules shall
apply:
(a) A Participant's account balances
shall be increased by the aggregate
distributions, if any, made with respect to
the Participant during the 5-year period
ending on the determination date.
(b) The account balances of a Participant
who was previously a key employee, but who is
no longer a key employee, shall be
disregarded.
(c) The accounts of a beneficiary of a
Participant shall be considered accounts of
the Participant.
(d) The account balances of a Participant
who did not perform any services for the
company during the 5-year period ending on the
determination date shall be disregarded.
A-3. Key Employee. In general, a "key employee" is an
employee who, at the time during the 5-year period ending on the
determination date, is:
(a) an officer of Amoco receiving annual
compensation greater than 50% of the
limitation in effect under Section
415(b)(1)(A) of the Internal Revenue Code;
provided, that for purposes of this
subparagraph (a), no more than 50 employees of
Amoco (or if lesser, the greater of employees
or 10 percent of the employees) shall be
treated as officers;
(b) one of the ten employees receiving
annual compensation from Amoco of more than
the limitation in effect under Section
415(c)(1)(A) of the Internal Revenue Code and
owning both more than 1/2 percent interest and
the largest interest in Amoco;
(c) a 5 percent owner of Amoco; or
A-1
(d) a 1 percent owner of Amoco receiving
annual compensation from Amoco of more than
$150,000.
A-4. Minimum Vesting. For any Plan Year in which the Plan is
a top-heavy plan, a Participant's vested percentage in his
company contribution account shall not be less than the
percentage determined under the following table:
Years of Service Vested Percentage
Less than 2 0
2 20
3 40
4 60
5 80
6 or more 100
If the foregoing provisions of this paragraph A-4 become
effective, and the Plan subsequently ceases to be a top-heavy
plan, each Participant who has then completed three or more years
of service may elect to continue to have the vested percentage of
his company contribution account determined under the provisions
of this paragraph A-4.
A-5. Minimum Company Contribution. For any Plan Year in which
the Plan is a top-heavy plan, the company contributions, if any,
credited to each Participant who is not a key employee shall not
be less than three percent of such Participant's compensation for
that year. In no event, however, shall the company contributions
credited in any year to a Participant who is not a key employee
(expressed as a percentage of such Participant's compensation)
exceed the maximum company contribution and remainders credited
in that year to a key employee (expressed as a percentage of such
key employee's compensation up to $150,000).
A-6. Maximum Earnings. For any Plan Year in which the Plan is
a top-heavy plan, a Participant's earnings in excess of $150,000
(or such greater amount as may be determined by the Commissioner
of Internal Revenue for that Plan Year) shall be disregarded for
purposes of subsection 5.5 of the Plan.
A-7. Aggregation of Plans. In accordance with Section
416(g)(2) of the Internal Revenue code, other plans maintained by
Amoco may be required or permitted to be aggregated with this
Plan for purposes of determining whether the Plan is a top-heavy
plan.
A-8. No Duplication of Benefits. If Amoco maintains more than
one plan, the minimum company contribution otherwise required
under the paragraph A-5 above may be reduced in accordance with
regulations of the Secretary of the Treasury to prevent
inappropriate duplication of minimum contributions or benefits.
A-2
A-9. Adjustment of Combined Benefit Limitations. For any Plan
Year in which the Plan is a top-heavy plan, the determination of
the defined contribution plan fraction and defined benefit plan
fraction under subsection 5.4 of the Plan shall be adjusted in
accordance with the provisions of Section 416(h) of the Internal
Revenue Code.
A-10. Use of Terms. All terms and provisions of the
Plan shall apply to this Supplement A, except that where the
terms and provisions of the Plan and this Supplement A conflict,
the terms and provisions of this Supplement A shall govern.
A-3
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
December 8, 1998
Action by Consent of Directors, Amoco Fabrics and Fibers
Company , (the "Company") effective December 8, 1998.
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Savings Plan"); and
WHEREAS, the second amendment of the Savings Plan as Amended and
Restated effective January 1, 1996, is now considered desirable
in order to reflect recent changes in the law governing the
Savings Plan and to make certain other clarifications of plan
language;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Savings Plan, the President of the
Company is hereby authorized and directed to adopt on behalf of
the Company the second amendment of the Savings Plan.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Cash Balance Retirement Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Cash Balance Retirement Plan (the "Cash Balance Plan");
and
WHEREAS, amendment of the Cash Balance Plan as Amended and
Restated effective January 1, 1994, is now considered desirable
in order to reflect recent changes in the law governing the Cash
Balance Plan and to make certain other clarifications of plan
language;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 10.1 of the Cash Balance Plan, the President of
the Company is hereby authorized and directed to adopt on behalf
of the Company the first amendment of the Cash Balance Plan.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Cash Value Retirement Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Cash Value Retirement Plan (the "Cash Value Plan"); and
WHEREAS, the first amendment of the Cash Value Plan was adopted
December 19, 1997, to reflect recent changes in the law governing
the Cash Value Plan and to make certain other clarifications of
plan language;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 10.1 of the Cash Value Plan, the Company hereby
authorizes the Senior Vice President (Human Resources) of Amoco
Corporation to adopt on behalf of the Company the first amendment
of the Cash Value Plan.
FURTHER RESOLVED, that all actions in accordance with these
resolutions taken by the Senior Vice President (Human Resources)
of Amoco Corporation, including the adoption of the first
amendment of the Cash Value Plan, are hereby ratified and
confirmed.
____________________________________
B. J. Armistead
____________________________________
W. S. Johnson
____________________________________
C. A. Texter
<PAGE>
SECOND AMENDMENT OF
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Salaried 401(k)
Savings Plan (the "Plan"); and
WHEREAS, certain amendments to the Plan are now deemed desirable;
NOW, THEREFORE, pursuant to the power reserved to the Company in
Article XII of the Plan, the Plan is hereby amended as follows:
1. Effective as of January 1, 1997, substituting the following
for Section 2.4 of the Plan:
"2.4 `Applicable Compensation' means amounts paid by Amoco
or an Affiliated Company to an Employee who is eligible to
participate as (i) basic salary and wages, including forms
of base pay delivered in alternative forms such as
piecework; payment of mileage for drivers; overtime; shift
differentials, (ii) pay-in-lieu of vacation, (iii)
commissions, (iv) variable incentive payments, (v) bonuses
in the year received while an Employee, including foreign
service premium payments made prior to January 1, 1997, (vi)
lump sum performance awards, and (vii) amounts contributed
on behalf of the Employee to a cafeteria plan or a cash or
deferred arrangement and not included in the Employee's
gross income for federal income tax purposes under Section
125 or 402(e)(3) of the Code, but excluding (i) sign-on
retention, severance and separation payments, (ii) reward
and recognition payments, (iii) remuneration received
attributable to moving and educational expenses, (iv)
expense allowances and reimbursement for federal income tax
purposes, and (vi) any other items of remuneration not
listed above.
For any Plan Year beginning on or after January 1, 1996, the
amount of Applicable Compensation taken into account under
the Plan for any Participant will not exceed $150,000 or
such greater amount as may be determined by the Commissioner
of Internal Revenue for that year."
2. Effective as of January 1, 1997, by substituting the
following for Section 2.11 of the Plan:
"2.11 `Highly-Compensated Employee' means any present or
former employee who:
(a) was a five percent (5%) owner of the company during
the current or immediately preceding plan year; or
(b) received annual compensation from an Employer of
more than $80,000 (or such greater amount as may be
determined by the Commissioner of the Internal Revenue
for that year) during the immediately preceding plan
year.
For purposes of subsections 2.11, 4.5 and 5.5, an employee's
compensation means his total cash compensation for services
rendered to a participating Employer as an employee,
determined in accordance with Section 415(c)(3) of the
Internal Revenue Code and the regulations thereunder, and
including amounts deferred pursuant to Sections 125 and
402(e)(3) of the Internal Revenue Code."
3. Effective as of January 1, 1996, by substituting "Salaried
401(k)" for the word "Employee" where the latter appears in
Section 2.16 of the Plan.
4. Effective as of November 1, 1996, by adding the following
subparagraph (d) to Section 3.1 of the Plan immediately following
subparagraph (c) thereof:
"(d) a Salaried Employee who is a leased employee. A
`leased employee' means any person who would not otherwise
be considered an employee but who has provided services to
the Employer under the primary direction or control of the
Employer, on a substantially full time basis for a period of
at least one year, pursuant to an agreement between the
Employer and a leasing organization. The period during
which a leased employee performs services for a
participating Employer shall be taken into account for
purposes of subsections 3.2 and 10.2 of the Plan if such
leased employee becomes an employee of a participating
Employer, unless (i) such leased employee is a participant
in a money purchase pension plan maintained by the leasing
organization which provides a non-integrated employer
contribution rate of at least ten percent (10%) of
compensation, immediate participation for all employees and
full and immediate vesting, and (ii) leased employees do not
constitute more than twenty percent (20%) of a participating
Employer's nonhighly compensated workforce."
5. Effective as of February 3, 1997, by substituting the phrase
"but no later than the 15th business day of the month next
following such deduction" for the phrase "but no later than
thirty days after the accounting date which ends that accounting
period" where the latter appears in the last sentence of Section
4.3 of the Plan.
6. Effective as of January 1, 1997, by substituting the words
"the immediately preceding Plan Year" for the words "such Plan
Year" where the latter appear in subparagraphs (a) and (b) of
Section 4.5 of the Plan.
7. Effective as of January 1, 1997, by substituting the
following for the penultimate sentence of Section 4.5 of the
Plan:
"The Pre-Tax Contributions made by the highly compensated
employees will be reduced (in the order of their
contribution amounts beginning with the highest amount) to
the extent necessary to meet the requirements of this
subsection 4.5."
8. Effective as of January 1, 2000, by deleting Section 5.4 of
the Plan.
9. Effective as of January 1, 1997, by substituting the words
"the immediately preceding Plan Year" for the words "such Plan
Year" where the latter appear in subparagraphs (a) and (b) of
Section 5.5 of the Plan.
10. Effective as of January 1, 1997, by substituting the
following for the penultimate sentence of Section 5.5 of the
Plan:
"The company matching contributions allocated to the highly
compensated employees will be reduced (in the order of their
contribution amounts beginning with the highest amount) to
the extent necessary to meet the requirements of this
subsection 5.5."
11. Effective as of January 1, 1996, by substituting the
following for the third paragraph of Section 7.2(a) of the Plan:
"The Participant's change in investment direction or
transfer of assets among Investment Funds shall be based on
the value as of the close of business on the last business
day of the payroll cycle in which the election is made and
shall be posted as of the first business day of the next
full payroll cycle following the election."
12. Effective as of January 1, 1996, by substituting the
following for Section 7.3 of the Plan:
"7.3 Valuation of Assets. As of each date the Employer's
payroll is run and at any other date ("Valuation Date") that
the Plan Administrator may direct, the Trustee will
determine the fair market value of the assets in each
separate Investment Fund of the Trust fund, relying upon
such evidence of valuation as the Trustee deems
appropriate."
13. Effective as of January 1, 1996, by adding the following
sentence to the first paragraph of subsection 10.2(c) of the Plan
at the end thereof:
"Except as provided in subsection 10.4, no amount shall be
paid to a Participant prior to age 65 without his consent."
14. Effective as of January 1, 1998, by substituting the
following for Section 10.4 of the Plan:
"10.4 $5,000 Cash-Out. If the value of the nonforfeitable
portion of a Participant's account is $5,000 or less (or
such higher amount as may be permitted under applicable law)
as of the Valuation Date immediately following his
termination of service for any reason, the Plan
Administrator shall direct that the Participant's account be
paid as soon as practicable in a single sum."
15. Effective as of January 1, 1996, by substituting the
following for the first sentence of Section 14.6 of the Plan:
"A claim for benefits by a Participant or his Beneficiary (a
`claimant') shall be in writing and signed by the claimant
or the claimant's authorized representative. The claim must
contain all of the necessary information for the Plan
Administrator to act upon such claim. A claim must be sent
or delivered to:
MetLife Recordkeeping
800 Crescent Centre Drive
Franklin, TN 37067
The date of the filing of a claim shall be the date a fully
completed claim is received at the above address."
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendments to the
Amoco Fabrics and Fibers Company Salaried 401(k) Savings Plan.
Dated this _____ day of ___________________, 1998.
_____________________________________
President
Amoco Fabrics and Fibers Company
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the "Company").
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Salaried Savings
Plan"); and
WHEREAS, Amoco Corporation has entered into a Plan and Agreement
of Merger dated August 11, 1998, and amended as of October 22,
1998 (the "Merger Agreement") by and among The British Petroleum
Company ("BP"), Eagle Holdings, Inc., a subsidiary of BP, and
Amoco providing for the merger ("Merger") of Eagle Holdings, Inc.
with and into Amoco, resulting in, among other items (1) Amoco
being a wholly owned subsidiary of BP, (2) Amoco changing its
name to BP Amoco Corporation, and BP changing its name to BP
Amoco p.l.c., and (3) Amoco's outstanding common stock being
converted into ordinary shares of BP Amoco p.l.c. in the form of
American Depositary Shares ("ADSs"); and
WHEREAS, the third amendment of the Salaried Savings Plan as
Amended and Restated effective January 1, 1996, is now considered
desirable in connection with the Merger;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Salaried Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the third amendment of the Salaried Savings
Plan, effective as of the close of the Merger.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Hourly 401(k) Savings Plan (the "Hourly Savings Plan");
and
WHEREAS, Amoco Corporation has entered into a Plan and Agreement
of Merger dated August 11, 1998, and amended as of October 22,
1998 (the "Merger Agreement") by and among The British Petroleum
Company ("BP"), Eagle Holdings, Inc., a subsidiary of BP, and
Amoco providing for the merger ("Merger") of Eagle Holdings, Inc.
with and into Amoco, resulting in, among other items (1) Amoco
being a wholly owned subsidiary of BP, (2) Amoco changing its
name to BP Amoco Corporation, and BP changing its name to BP
Amoco p.l.c., and (3) Amoco's outstanding common stock being
converted into ordinary shares of BP Amoco p.l.c. in the form of
American Depositary Shares ("ADSs"); and
WHEREAS, the second amendment of the Hourly Savings Plan as
Amended and Restated effective January 1, 1996, is now considered
desirable in connection with the Merger;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Hourly Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the second amendment of the Hourly Savings
Plan, effective as of the close of the Merger.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
____________________________________
B. J. Armistead
____________________________________
W. S. Johnson
____________________________________
C. A. Texter
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the "Company").
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Salaried Savings
Plan"); and
WHEREAS, Amoco Corporation has entered into a Plan and Agreement
of Merger dated August 11, 1998, and amended as of October 22,
1998 (the "Merger Agreement") by and among The British Petroleum
Company ("BP"), Eagle Holdings, Inc., a subsidiary of BP, and
Amoco providing for the merger ("Merger") of Eagle Holdings, Inc.
with and into Amoco, resulting in, among other items (1) Amoco
being a wholly owned subsidiary of BP, (2) Amoco changing its
name to BP Amoco Corporation, and BP changing its name to BP
Amoco p.l.c., and (3) Amoco's outstanding common stock being
converted into ordinary shares of BP Amoco p.l.c. in the form of
American Depositary Shares ("ADSs"); and
WHEREAS, the third amendment of the Salaried Savings Plan as
Amended and Restated effective January 1, 1996, is now considered
desirable in connection with the Merger;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Salaried Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the third amendment of the Salaried Savings
Plan, effective as of the close of the Merger.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Hourly 401(k) Savings Plan (the "Hourly Savings Plan");
and
WHEREAS, Amoco Corporation has entered into a Plan and Agreement
of Merger dated August 11, 1998, and amended as of October 22,
1998 (the "Merger Agreement") by and among The British Petroleum
Company ("BP"), Eagle Holdings, Inc., a subsidiary of BP, and
Amoco providing for the merger ("Merger") of Eagle Holdings, Inc.
with and into Amoco, resulting in, among other items (1) Amoco
being a wholly owned subsidiary of BP, (2) Amoco changing its
name to BP Amoco Corporation, and BP changing its name to BP
Amoco p.l.c., and (3) Amoco's outstanding common stock being
converted into ordinary shares of BP Amoco p.l.c. in the form of
American Depositary Shares ("ADSs"); and
WHEREAS, the second amendment of the Hourly Savings Plan as
Amended and Restated effective January 1, 1996, is now considered
desirable in connection with the Merger;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Hourly Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the second amendment of the Hourly Savings
Plan, effective as of the close of the Merger.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
B. J. Armistead
W. S. Johnson
C. A. Texter
<PAGE>
THIRD AMENDMENT OF
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan (the "Plan"); and
WHEREAS, Amoco Corporation ("Amoco") has entered into a Plan and
Agreement of Merger dated August 11, 1999, and amended as of
October 22, 1999 (the "Merger Agreement") by and among The
British Petroleum Company ("BP"), Eagle Holdings, Inc., a
subsidiary of BP, and Amoco providing for the merger ("Merger")
of Eagle Holdings, Inc. with and into Amoco, resulting in, among
other items (1) Amoco being a wholly owned subsidiary of BP, (2)
Amoco changing its name to BP Amoco Corporation, and BP changing
its name to BP Amoco p.l.c., and (3) Amoco's outstanding common
stock being converted into ordinary shares of BP Amoco p.l.c. in
the form of American Depositary Shares ("ADSs"); and
WHEREAS, amendment of the Plan is now considered desirable in
connection with the Merger;
NOW, THEREFORE, pursuant to the power reserved to the Company in
Article XII of the Plan and delegated to the President of the
Company, the Plan is hereby amended, effective as of the close of
the Merger, as follows:
1.By substituting the following for Section 2.3 of the Plan:
"2.3 'BP Amoco' means BP Amoco Corporation, an Indiana
corporation, and any successor thereto."
2.All references to the "Amoco Stock Fund" on
and after the Merger will be to the "BP Amoco
Stock Fund" and all references to "Amoco
Corporation" on and after the Merger will be
to "BP Amoco." Notwithstanding the foregoing,
in the context of any Plan provision where BP
Amoco refers to the issuer of common stock,
"BP Amoco" will mean BP Amoco p.l.c., or any
successor thereto.
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendment of the
Amoco Fabrics and Fibers Company Salaried 401(k) Savings Plan.
Dated this ____ day of January, 1998.
President
Amoco Fabrics and Fibers Company
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the "Company") .
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Salaried Savings
Plan"); and
WHEREAS, the Salaried Savings Plan previously has been amended
and further amendment thereof is considered desirable I) to allow
the Salaried Savings Plan to Automatically cash out any
terminated vested participant who, as of April 1, 1999, has an
account balance with a present value of $5,000 or less, ii) to
modify the loan provisions to permit direct loan repayments by
participants involved in bankruptcy proceedings, and iii) to
permit the Salaried Savings Plan to accept transfers of certain
account balances from the Amoco Performance Share Plan in
connection with the termination of that plan;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Salaried Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the fourth amendment of the Salaried
Savings Plan, effective as of April 1, 1999.
FURTHER RESOLVED, that the proper officers of the Company should
be, and hereby are, authorized and directed in the name of and
for the Company to take any action that they deem proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Hourly 401(k) Savings Plan (the "Hourly Savings Plan");
and
WHEREAS, the Hourly Savings Plan previously has been amended and
further amendment thereof is considered desirable i) to allow the
Hourly Savings Plan to automatically cash out any terminated
vested participant who, as of April 1, 1999, has an account
balance with a present value of $5,000 or less, ii) to modify the
loan provisions to permit direct loan repayments by participants
involved in bankruptcy proceedings, and iii) to permit the Hourly
Savings Plan to accept transfers of certain account balances from
the Amoco Performance Share Plan in connection with the
termination of that plan;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Hourly Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the third amendment of the Hourly Savings
Plan, effective as of April 1, 1999.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
R. S. Clark
W. S. Johnson
C. A. Texter
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the "Company").
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Salaried Savings
Plan"); and
WHEREAS, the Salaried Savings Plan previously has been amended
and further amendment thereof is considered desirable i) to allow
the Salaried Savings Plan to automatically cash out any
terminated vested participant who, as of April 1, 1999, has an
account balance with a present value of $5,000 or less, ii) to
modify the loan provisions to permit direct loan repayments by
participants involved in bankruptcy proceedings, and iii) to
permit the Salaried Savings Plan to accept transfers of certain
account balances from the Amoco Performance Share Plan in
connection with the termination of that plan;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Salaried Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the fourth amendment of the Salaried
Savings Plan, effective as of April 1, 1999.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Hourly 401(k) Savings Plan (the "Hourly Savings Plan");
and
WHEREAS, the Hourly Savings Plan previously has been amended and
further amendment thereof is considered desirable i) to allow the
Hourly Savings Plan to automatically cash out any terminated
vested participant who, as of April 1, 1999, has an account
balance with a present value of $5,000 or less, ii) to modify the
loan provisions to permit direct loan repayments by participants
involved in bankruptcy proceedings, and iii) to permit the Hourly
Savings Plan to accept transfers of certain account balances from
the Amoco Performance Share Plan in connection with the
termination of that plan;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Hourly Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the third amendment of the Hourly Savings
Plan, effective as of April 1, 1999.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
____________________________________
R. S. Clark
____________________________________
W. S. Johnson
____________________________________
C. A. Texter
<PAGE>
FOURTH AMENDMENT OF
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Salaried 401(k)
Savings Plan (the "Plan"); and
WHEREAS, certain amendments of the Plan are now considered
desirable;
NOW, THEREFORE, pursuant to the power reserved to the Company in
Article XII of the Plan, the Plan is hereby amended, effective as
of April 1, 1999, as follows:
1. By substituting the following for the second sentence
of subsection 8.3(g) of the Plan:
"The Plan Administrator may establish back-up repayment
procedures for any Participant who is on an `authorized
leave of absence' or who files a petition in bankruptcy
or becomes the subject of a wage earning plan under
federal or state bankruptcy insolvency laws."
2. By substituting the following for Section 10.4 of the
Plan:
"10.4 $5,000 Cash-Out. Effective as of
January 1, 1998, if the value of the nonforfeitable
portion of a Participant's Account is $5,000 or less
(or such higher amount as may be permitted under
applicable law) as of the Valuation Date immediately
following his termination of employment for any reason,
the Plan Administrator shall direct that the
Participant's Account be paid as soon as practicable in
a single sum. If a Participant's employment was
terminated for any reason prior to January 1, 1998, and
the value of his Account as of April 1, 1999 is $5,000
or less, the Plan Administrator shall direct that the
Participant's Account as of April 1, 1999 be
distributed as soon as practicable in a single sum."
3. By adding the following new Supplement B immediately
after Supplement A of the Plan:
"SUPPLEMENT B
Direct Transfer from the Amoco Performance Share Plan
Upon the termination of the Amoco Performance
Share Plan (the `APSP'), the APSP account balance of
each Salaried Employee described in Section 3.1 who was
a participant in the APSP (a `Supplement B
Participant') shall be transferred to the Plan. Each
Supplement B Participant who had not previously become
a Participant in the Plan shall become a Participant in
the Plan on the date of the transfer. The amounts so
transferred shall be credited to each Supplement B
Participant's Rollover Account which will be
established in accordance with Section 6.4 as of the
Valuation Date (as defined in Section 7.3) immediately
following receipt by the Trustee. The transferred
portion of a Supplement B Participant's Rollover
Account will be invested in the Money Market Fund until
the Participant directs otherwise in accordance with
Section 7.2.
Except as otherwise provided in the preceding
paragraph, all terms and conditions of the Plan shall
apply to amounts transferred from the APSP to the
Plan."
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendment of the
Amoco Fabrics and Fibers Company Salaried 401(k) Savings Plan.
Dated , 1999.
_____________________________________
President
Amoco Fabrics and Fibers Company
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the "Company).
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
WHEREAS, the Company maintains the Amoco Fabrics and Fibers
Company Salaried 401(k) Savings Plan (the "Salaried Savings
Plan"); and
WHEREAS, the Salaried Savings Plan previously has been amended
and further amendment thereof is now considered desirable in
response to comments received from the Internal Revenue Service
pursuant to a determination application request;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved to the Company
under subsection 12.1 of the Salaried Savings Plan, the President
of the Company is hereby authorized and directed to adopt on
behalf of the Company the Fifth Amendment of the Salaried Savings
Plan.
FURTHER RESOLVED, that the President of the Company is hereby
authorized and directed to take any action that he deems proper,
necessary, or advisable to carry out the purposes of these
resolutions.
R. S. Clark
W. S. Johnson
C. A. Texter
<PAGE>
FIFTH AMENDMENT
OF
AMOCO FABRICS AND FIBERS COMPANY
SALARIED 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan (the "Plan"); and
WHEREAS, certain amendments to the Plan are now deemed
desirable;
NOW, THEREFORE, pursuant to the power reserved to the
Company in Article XII of the Plan, the Plan is hereby
amended as follows:
1. Effective as of January 1, 1997 by deleting the word
"cash" where it appears in subsection 2.11 of the Plan.
2. Effective as of January 1, 1996, by adding the
following sentence after the last sentence of subsection
2.11 of the Plan;
"For purpose of this subsection, the term `Employer'
shall include all Affiliated Companies, the
determination year shall be the plan year for which
the determination of who is highly compensated is
being made and the look-back year shall be the 12-
month period immediately preceding the determination
year."
3. Effective as of January 1, 1996, by adding the
following at the end of subsection 4.5 of the Plan:
"If a Participant has made Pre-Tax
Contributions to the Plan which exceed
the limits specified in this subsection
("excess 401(k) contributions") and those
excess 401(k) contributions are to be
distributed or re-characterized, then the
excess 401(k) contributions shall be
reduced by the amount of Pre-Tax
Contributions which exceeded the limit
specified in subsection
4.6 ("excess deferrals") which have
previously been distributed for the
taxable year ending in the same plan
year. The excess deferrals to be
distributed for a taxable year will be
reduced by the excess 401(k)
contributions previously distributed or
re-characterized for the plan year
beginning in such taxable year. For
purposes of satisfying the limitations of
this subsection 4.5, all elective
contributions made under two or more
plans of the Employer that are aggregated
for purposes of Sections 401(a)(4) and
410(b) of the Internal Revenue Code
(other than Section 410(b)(2)(A)(ii)) are
to be treated as made under a single
plan; and if two or more plans are
permissively aggregated for purposes of
Section 401(k) of the Internal Revenue
Code, the aggregated plans must also
satisfy Section 401(a)(4) and 410(b) of
the Internal Revenue Code as if they were
a single plan."
4. Effective as of January 1, 1996, by adding the
following at the end of Section 5.5 of the Plan:
"The contribution percentage of a highly
compensated employee who is eligible to
participate in more than one plan of the
Employer to which employee or matching
contributions are made is calculated by
treating all plans in which such employee
is eligible to participate as one plan.
However, plans that may not be
permissively aggregated are not
aggregated for purposes of the preceding
sentence. For purposes of satisfying the
limitations of this subsection 5.5, all
employee and matching contributions made
under two or more plans of the Employer
that are aggregated for purposes of
Sections 401(a)(4) and 410(b) of the
Internal Revenue Code (other than Section
410(b)(2)(A)(ii)) are to be treated as
made under a single plan. If two or more
plans are permissively aggregated for
purposes of Section 401(m) of the
Internal Revenue Code, the aggregated
plans must also satisfy Sections
401(a)(4) and 410(b) of the Internal
Revenue Code as if they were a single
plan."
5. Effective as of January 1, 1996, by adding the
following sentence at the end of paragraph A-3 of Supplement
A of the Plan:
"For purposes of this paragraph A-3,
`compensation' has the meaning set forth
in Section 414(q)(4) of the Internal
Revenue Code."
6. Effective as of January 1, 1996, by adding the phrase
"as defined in Section 415(c (3) of the Internal Revenue
Code" immediately after the word "compensation" wherever it
appears in paragraph A-5 of Supplement A to the Plan.
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendments
to the Amoco Fabrics and Fibers Company Salaried 401(k)
Savings Plan.
Dated this ___ day of ___________, 1999.
President
Amoco Fabrics and Fibers Company
<PAGE>
<PAGE>
EXHIBIT 4.6
AMOCO FABRICS AND FIBERS COMPANY
HOURLY 401(k) SAVINGS PLAN
As Amended and Restated
Effective January 1, 1996
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
HOURLY 401(k) SAVINGS PLAN
TABLE OF CONTENTS
Page
I INTRODUCTION
1.1 Effective Date 1
1.2 Compliance with Code and ERISA 1
1.3 Exclusive Benefit of Participants 1
1.4 Limitation on Rights Created by Plan 1
1.5 Application of Plan's Terms 2
1.6 Benefits Not Guaranteed 2
II DEFINITIONS
2.1 Affiliated Company 3
2.2 Amoco 3
2.3 Amoco Corporation 3
2.4 Applicable Compensation 3
2.5 Beneficiary 4
2.6 Casual Employee 4
2.7 Code 4
2.8 Employer 4
2.9 Entry Date 4
2.10 ERISA 4
2.11 Highly-Compensated Employee 4
2.12 Hour of Service 6
2.13 Hourly Employee 6
2.14 Part-Time Employee 6
2.15 Participant 6
2.16 Plan 7
2.17 Plan Year 7
2.18 Pre-Tax Contributions 7
2.19 Regular Employee 7
2.20 Salaried Employee 7
2.21 Spouse. 7
2.22 Temporary Employee 7
2.23 Trust Agreement 7
2.24 Trust Fund. 7
2.25 Trustee 7
III PARTICIPATION
3.1 Eligible Class. 9
3.2 Participation 10
3.3 End of Participation 10
3.4 Reentry of Former Participant 10
IV PRE-TAX CONTRIBUTIONS BY PARTICIPANTS
4.1 Pre-Tax Contributions 11
4.2 Procedure for Pre-Tax Contributions 11
4.3 Collection of Pre-Tax Contributions 11
4.4 Change in Pre-Tax Contributions 11
4.5 401(k) Pre-Tax Contributions Limitation 12
4.6Maximum Amount of Participant Pre-Tax Contributions 13
4.7 Direct Rollover Contributions 13
V COMPANY MATCHING CONTRIBUTIONS
5.1 Company Matching Contributions 15
5.2 Time of Contribution 15
5.3 Section 415 Annual Contribution Limitation 15
5.4 Combined Benefit Limitations 16
5.5 Limitation on Allocation of Contributions 16
5.6 Allocation of Earnings to Distributions of
Excess Contributions 17
5.7 Multiple Use of Alternative Limitation 17
5.8 No Interest in Company. 18
VI ACCOUNTS AND CREDITS
6.1 Establishment of Accounts 19
6.2 Crediting Participants' Pre-Tax Contributions 19
6.3 Crediting Matching Contributions 19
6.4 Crediting Rollovers 19
6.5 Charge to Accounts 19
VII INVESTMENT FUNDS AND CREDITING INVESTMENT EXPERIENCE
7.1 Investment Funds 20
7.2 Investment Directions and Transfers Among Funds 20
7.3 Valuation of Assets 21
7.4 Crediting Investment Experience 21
VIII LOANS TO PARTICIPANTS
8.1Plan Administrator Shall Administer the Loan Program 23
8.2 Availability of Loans 23
8.3 Conditions of Loan 23
8.4 Accounting for Loans 25
IX IN-SERVICE WITHDRAWALS
9.1 Withdrawals From Rollover Account 26
9.2 Withdrawals From Pre-Tax Contribution Account 26
9.3 Order of Asset Liquidation for All Withdrawals 27
X DISTRIBUTIONS
10.1 Distributions 28
10.2 Termination of Employment Prior to Retirement
or Death 28
10.3 Reemployment 31
10.4 $3,500 Cash-Out 31
10.5 Required Distribution Date 32
10.6 Distribution Upon Death of a Participant 32
10.7 Rehire Before Distribution 33
10.8 Waiver of 30-Day Notice 33
XI DIRECT ROLLOVERS
11.1 Direct Rollover 34
11.2 Definitions 34
XII AMENDMENT, MERGER AND TERMINATION OF PLAN
12.1 Amendment of Plan 36
12.2 Merger of Plans 36
12.3 Termination 36
12.4 Effect of Termination 36
XIII NAMED FIDUCIARIES
13.1 Identity of Named Fiduciaries 38
13.2Responsibilities and Authority of Plan Administrator38
13.3 Responsibilities and Authority of Trustee 38
13.4 Responsibilities of Amoco 38
13.5 Responsibilities Not Shared 38
13.6 Dual Fiduciary Capacity Permitted 39
13.7 Actions by Amoco. 39
13.8 Advice 39
XIV PLAN ADMINISTRATOR
14.1 Appointment 40
14.2 Notice to Trustee 40
14.3 Administration of Plan. 40
14.4 Reporting and Disclosure 40
14.5 Records 40
14.6 Claims Review Procedure. 40
14.7 Administrative Discretion; Final Authority 41
XV PARTICIPATING EMPLOYERS
15.1 Adoption by Other Employers 42
15.2 Designation of Agent 42
15.3 Employee Transfers 42
15.4 Discontinuance of Participation 42
15.5Participating Employer Contribution for Affiliate 42
XVI MISCELLANEOUS
16.1 Qualified Domestic Relations Orders 44
16.2 Nonalienation of Benefits 44
16.3 Payment of Minors and Incompetents 44
16.4 Current Address of Payee 44
16.5 Disputes over Entitlement to Benefits 45
16.6 Payment of Benefits 45
16.7 Plan Supplements 45
16.8 Rules of Construction 45
16.9 Text Controls 46
16.10 Applicable State Law 46
16.11 Plan Administration Expenses 46
16.12 Voting and Tendering of Amoco Stock 46
16.13 Action by Company 47
SUPPLEMENT A
Special Rules for Top-Heavy Plans A-1
<PAGE>
ARTICLE I INTRODUCTION
1.1 Effective Date. Amoco Fabrics and Fibers Company
established the Amoco Fabrics and Fibers Company 401(k) Savings
Plan as of January 1, 1994. The Amoco Fabrics and Fibers Company
401(k) Savings Plan was amended and restated effective August 15,
1994. Effective January 1, 1996, the Amoco Fabrics and Fibers
Company 401(k) Savings Plan is renamed the Amoco Fabrics and
Fibers Company Hourly 401(k) Savings Plan (the "Plan"), and the
Plan is amended and restated as set forth herein.
1.2 Compliance with Code and ERISA. This Plan is intended
to qualify as a profit-sharing plan under Code Section 401(a) and
a cash or deferred arrangement under Code Section 401(k). It is
also intended to comply with the applicable provisions of ERISA.
The Plan will be interpreted in a manner that comports with these
intentions.
1.3 Exclusive Benefit of Participants. The Plan is for the
exclusive benefit of Participants and their Beneficiaries.
Employer and Participant contributions are made to the Trust Fund
for the purpose of accumulating a fund for distribution to
Participants and their Beneficiaries in accordance with the Plan.
Except as provided in Section 5.6, no part of the Trust Fund or
any distribution therefrom will be used for or diverted to
purposes other than for the exclusive benefit of Participants and
their Beneficiaries and defraying the reasonable expenses of
administering the Plan and Trust Fund not paid by the Employer.
1.4 Limitation on Rights Created by Plan. Nothing
appearing in the Plan will be construed (a) to give any person
any benefit, right or interest except as expressly provided
herein, or (b) to create a contract of employment or to give any
Employee the right to continue as an Employee or to affect or
modify his terms of employment in any way.
1.5 Application of Plan's Terms. The benefits and rights
of a Participant and his Beneficiaries under the Plan will be
determined in accordance with the terms of the Plan that are in
effect on the date that contributions on a Participant's behalf
are made or credited to his Accounts or on the date of the
Participant's retirement, death or other termination of
employment, whichever may be applicable.
1.6 Benefits Not Guaranteed. The Employer and the Trustee
do not guarantee the payment of benefits hereunder. Benefits
will be paid from the assets of the Trust Fund and are limited to
the amount of assets therein.
ARTICLE II DEFINITIONS
This article contains a number of definitions of terms used
in the Plan. Other terms are defined, explained or clarified in
other articles. This is done for convenience of plan
administration. There is no other significance to the location
of a definition.
2.1 "Affiliated Company" means (i) any corporation (foreign
or domestic) controlled by, controlling or under common control
with Amoco Corporation, by ownership, direct or indirect, of more
than eighty percent (80%) of the voting stock thereof, and any of
their respective successors in business; (ii) a trade or business
which is under common control (as defined in Code Section 414(c))
with Amoco Corporation; (iii) a corporation, partnership or other
entity which, together with Amoco, is a member of an affiliated
service group (as defined in Code Section 414(m)); or (iv) an
organization which is required to be aggregated with Amoco
pursuant to regulations promulgated under Code Section 414(o).
2.2 "Amoco" means Amoco Fabrics and Fibers Company, a
Delaware Corporation, or its successor.
2.3 "Amoco Corporation" means Amoco Corporation, an Indiana
Corporation, or its successor.
2.4 "Applicable Compensation" of a Participant means his
total salary, wages and commissions, including forms of base pay
delivered in alternative manners such as piecework and payment by
mileage for drivers; overtime; shift differentials; bonuses,
including bonuses in the form of premium pay for services
rendered outside of normal working hours or conditions; and
variable incentive payments, paid to him for services rendered to
an Employer, before reduction for any pre-tax contributions he
elected under section 4.1 and any Code Section 125 cafeteria
plan, but excluding any compensation for any year in excess of
$150,000 (or such greater amount as may be determined by the
Commissioner of Internal Revenue for that year).
2.5 "Beneficiary" means a person or persons (natural or
otherwise) designated by a Participant in accordance with Section
10.6 (b) to receive any death benefit payable under this Plan, or
if there is no such designation, the person (natural or otherwise
entitled) to receive any death benefit in accordance with Section
10.6 (c).
2.6 "Casual Employee" means a person who is employed for
work which is irregular or occasional in nature, and who works
the schedule of hours (either daily or weekly) in effect at the
place of employment for employees regularly assigned to the same
or similar work.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute enacted in
its place.
2.8 "Employer" means Amoco or any successor organization,
and any other entity of Amoco that adopts the Plan for its
Employees with the consent of Amoco in accordance with Section
15. The term "Employer" may refer to each Employer individually
or to all the Employers collectively, as the context may require.
2.9 "Entry Date" means the date an Employee is eligible to
participate in the Plan pursuant to Section 3.2 and Section 3.4.
2.10 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor
statute enacted in its place.
2.11 "Highly-Compensated Employee" means any present or
former employee who, during the current or immediately preceding
plan year:
(a) was a five percent (5%) owner of the
company at any time during the "determination
year" or "look-back year";
(b) received annual compensation from a
participating Employer of more than $75,000 during
the "look-back year" (or such greater amount as
may be determined by the Commissioner of Internal
Revenue for that year);
(c) received annual compensation during the
"look-back year" from a participating Employer of
more than $50,000 (or such greater amount as may
be determined by the Commissioner of Internal
Revenue for that year) and was in the top-paid
twenty percent (20%) of the employees; or
(d) was an officer of a participating
Employer during the "look-back year" receiving
annual compensation greater than fifty percent
(50%) of the limitation in effect under Section
415(b)(1)(A) of the Internal Revenue Code;
provided, that for purposes of this subparagraph
(d), no more than 50 employees of the company (or
if lesser, the greater of 3 employees or ten
percent (10%) of the employees) shall be treated
as officers.
For purposes of subsection 2.11, 4.5 and 5.5, an employee's
compensation means his total cash compensation for services
rendered to a participating Employer as an employee, determined
in accordance with Section 415(c)(3) of the Internal Revenue Code
and the regulations thereunder, but including Pre-Tax
Contributions he had elected under subsection 4.1 and any Code
Section 125 cafeteria plan.
The term highly-compensated employee also includes employees
who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year"
and the employee is one of the 100 employees who received the
most compensation from a participating Employer during the
determination year. The "look-back year" shall be the calendar
year ending with or within the Plan Year for which testing is
being performed, and the "determination year" (if applicable)
shall be the period of time, if any, which extends beyond the
"look-back year" and ends on the last day of the Plan Year for
which testing is being performed (the "lag period"). If the "lag
period" is less than twelve months long, the dollar threshold
amounts specified in this section shall be prorated based upon
the number of months in the "lag period".
If an employee is, during a determination year or look-back
year, a family member of either a five percent (5%) owner who is
an active or former employee or a highly-compensated employee who
is one of the 10 most highly-compensated employees ranked on the
basis of compensation paid by the employer during such year, then
the family member and the five percent (5%) owner or top-10
highly-compensated employee shall be aggregated. In such case,
the family member and five percent (5%) owner or top-10 highly-
compensated employee shall be treated as a single employee
receiving compensation and plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of
the family member and five percent (5%) owner or top-10 highly-
compensated employee. For purposes of this section, family
member includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such lineal
ascendants and descendants.
2.12 "Hour of Service," for purposes of determining an
Employee's eligibility to participate under Section 3.2 and Year
of Vesting Service under Section 10.2 (b), means any hour for
which an Employee is compensated by an Employer, directly or
indirectly, or is entitled to compensation from an Employer for
the performance of duties and for reasons other than the
performance of duties, and each previously uncredited hour for
which back pay has been awarded or agreed to by an Employer,
irrespective of mitigation of damages. Hours of Service shall be
credited to the period for which duties are performed (or for
which payment is made if no duties were performed), except that
Hours of Service for which back pay is awarded or agreed to by an
Employer shall be credited to the period to which the back pay
award or agreement pertains. The rules for crediting Hours of
Service set forth in paragraphs (b) and (c) of Section 2530.200b-
2 of Department of Labor regulations are incorporated by
reference. References in this section to an Employer shall
include any affiliated or related corporation which is a
controlled group member as defined in the Code.
2.13 "Hourly Employee" means a person who is compensated on
the basis of an hourly rate or rates of pay.
2.14 "Part-Time Employee" means a person who is employed for
work which is irregular or occasional in nature and who works
less than the schedule of hours (either daily or weekly) in
effect at the place of employment for employees regularly
assigned to the same or similar work.
2.15 "Participant" means an Employee or former Employee
whose participation in the Plan has begun and has not yet ended.
2.16 "Plan" means the Amoco Fabrics and Fibers Company
Employee Savings Plan, as set forth in this Plan document, and as
it may be amended from time to time.
2.17 "Plan Year" means the 12-month period beginning on
January 1 and ending on the next following December 31.
2.18 "Pre-Tax Contributions" means contributions by an
Employer on behalf of a Participant in the amount equal to the
amount such Participant elects, in writing filed with his
Employer, which reduces his compensation subject to federal
income taxation.
2.19 "Regular Employee" means a person who is assigned to a
position which requires full-time service as determined by his
Employer, which is established to fill regular and ordinary
employment requirements, and which is expected to continue for an
indefinite period of time.
2.20 "Salaried Employee" means a person who is principally
compensated on the basis of a monthly or annual rate of pay.
2.21 "Spouse" means the person to whom a Participant is
lawfully married (under the law of the state in which the
Participant resides).
2.22 "Temporary Employee" means a person who is assigned to
a position which requires full-time service as determined by his
Employer, which is established due to an unusual circumstance,
and which will continue for a specific period of time or until
the occurrence of a specified event such as the return to work of
a regular employee or the completion of a special assignment or
project.
2.23 "Trust Agreement" means the instrument executed by
Amoco and the Trustee, as amended from time to time, fixing the
rights and responsibilities of each party with respect to the
holding, investment and administration of the Trust Fund.
2.24 "Trust Fund" means the property held by the Trustee for
the purposes of the Plan.
2.25 "Trustee" means the person, individual or corporation,
serving as sole trustee, or the persons serving as co-trustees,
at any time under the terms of the Trust Agreement. Copies of
the Plan and Trust Agreement, and any amendments thereto, will be
on file at Amoco Corporation at 200 East Randolph Drive, Chicago,
Illinois 60601, where they may be examined by any participant or
other person entitled to benefits under the Plan. The provisions
of and benefits under the Plan are subject to the terms and
provisions of the Trust Agreement.
ARTICLE III PARTICIPATION
3.1 Eligible Class. Each Hourly Employee employed by a
participating Employer is in the eligible class, except the
following:
(a) Hourly Employees included in a unit of Employees covered
by a collective bargaining agreement between the employer and
Employee representatives, if retirement benefits were the subject
of good faith bargaining and if two percent or less of the
employees who are covered pursuant to that agreement are
professionals as defined in section 1.410(b)-9 of the Internal
Revenue Service regulations. For this purpose, the term
"Employee representatives" does not include any organization more
than half of whose members are Employees who are owners,
officers, or executives of the employer.
(b) Hourly Employees who are nonresident aliens (within the
meaning of Code Section 7701(b)(1)(B)) and who receive no earned
income (within the meaning of Code Section 911(d)(2)) from the
employer which constitutes income from sources within the United
States (within the meaning of Code Section 861(a)(3)).
(c) Hourly Employees who are leased employees (as defined
below). A "leased employee" means any person who is not an
employee of a participating Employer, but who has provided
services to a participating Employer of a type which have
historically (within the business field of a participating
Employer) been provided by employees, on a substantially full-
time basis for a period of at least one year, pursuant to an
agreement between a participating Employer and a leasing
organization. The period during which a leased employee performs
services for a participating Employer shall be taken into account
for purposes of subsection 3.2 and 10.2 of the Plan if such
leased employee becomes an employee of a participating Employer;
unless (i) such leased employee is a participant in a money
purchase pension plan maintained by the leasing organization
which provides a non-integrated employer contribution rate of at
least ten percent (10%) of compensation, immediate participation
for all employees and full and immediate vesting, and (ii) leased
employees do not constitute more than twenty percent (20%) of a
participating Employer's nonhighly compensated workforce.
3.2 Participation. Participation in the Plan is voluntary
and no Hourly Employee will be required to participate. Subject
to the conditions and limitations of the Plan, each Hourly
Employee of a participating Employer who is a Participant in the
Plan (or eligible to participate) immediately preceding January
1, 1996, will continue as a Participant in the Plan on and after
that date. Each Hourly Employee in the Eligible Class will be
eligible to participate as follows. A Regular or Temporary
Employee in the Eligible Class will be eligible to participate
starting as soon as administratively practicable after the first
day his employment commences with his Employer. A Casual or Part-
Time Employee in the Eligible Class will be eligible to
participate as soon as administratively practicable after the
first day of his payroll cycle starting immediately after he is
credited with 1,000 Hours of Service within the fiscal year
commencing with his date of hire or, if he fails to meet that
requirement, as soon as administratively practicable after the
first day of his payroll cycle starting immediately after he is
credited with 1,000 Hours of Service within any succeeding Plan
Year.
3.3 End of Participation. A Participant's active
participation in the Plan will end upon the termination of his
service as an Hourly Employee in the Eligible Class for any
reason. A Participant's participation in the Plan will end when
he has no further interest under the Plan.
3.4 Reentry of Former Participant. A former Participant
who terminates his service with his Employer and who returns to
service as an Hourly Employee in the Eligible Class will become
an active Participant on his date of rehire and will be eligible
to make Pre-Tax Contributions starting on the first date of his
payroll cycle, of the calendar month, starting immediately on or
after his date of rehire.
ARTICLE IV PRE-TAX CONTRIBUTIONS BY PARTICIPANTS
4.1 Pre-Tax Contributions. Under the terms stated below,
and subject to any limitations contained in the Plan, a
Participant may elect to make Pre-Tax Contributions to the Plan
in integral percentages of his Applicable Compensation from a
minimum of one percent to a maximum of thirteen percent (13%).
4.2 Procedure for Pre-Tax Contributions. A Participant who
wishes to make Pre-Tax Contributions must notify the Plan
Administrator and specify the amount of his Pre-Tax Contributions
and provide such other information as the Plan Administrator may
require. A Participant will be given the opportunity to elect
Pre-Tax Contributions beginning on the first date when he is
eligible to participate in the Plan pursuant to Article III. His
Pre-Tax Contributions will begin on such date provided he gives
the Plan Administrator advance notice in the manner prescribed by
the Plan Administrator by the date required by the Plan
Administrator. If the Participant declines to make Pre-Tax
Contributions initially, he may elect to begin making Pre-Tax
Contributions as of the first day of any of his subsequent
payroll cycles, of the applicable calendar month, provided he
notifies the Plan Administrator by the date required by the Plan
Administrator.
4.3 Collection of Pre-Tax Contributions. The Employer will
collect Participants' Pre-Tax Contributions using payroll
procedures. A Participant's Pre-Tax Contributions shall be
deducted by his Employer from his compensation at the time of
payment of such compensation. Amounts so deducted (or by which a
Participant's compensation has been so reduced) for any
accounting period under the Plan shall be paid to the trustee as
soon as practicable thereafter, but no later than thirty days
after the accounting date which ends that accounting period.
4.4 Change in Pre-Tax Contributions.
(a) Increase or Reduction. A Participant making Pre-
Tax Contributions may increase or reduce the rate of his Pre-Tax
Contributions to any higher or lower rate he elects (subject to
the limitations stated in Section 4.1) by notifying the Plan
Administrator once a calendar month. The new rate will become
effective with his first payroll cycle of the applicable calendar
month after the Plan Administrator has been notified.
(b) Suspension. A Participant may suspend his Pre-Tax
Contributions by notifying the Plan Administrator. The
suspension of Pre-Tax Contributions will become effective with
his first payroll cycle of the applicable calendar month after
notifying the Plan Administrator.
(c) Resumption. A Participant who suspended his Pre-
Tax Contributions may resume such contributions on the first day
of his payroll cycle of the applicable calendar month after
notifying the Plan Administrator by the date required by the Plan
Administrator.
(d) Plan Administrator Rules. The Plan Administrator
may establish such rules and procedures for Pre-Tax Contributions
as the Plan Administrator deems necessary for the efficient
administration of the Plan.
4.5 401(k) Pre-Tax Contributions Limitation.
Notwithstanding the foregoing provisions of this Section 4, in no
event shall the average deferral percentage (as defined below)
for any Plan Year of the highly compensated employees who are
Plan Participants exceed the greater of:
(a) the average deferral percentage of all
other Participants for such Plan Year multiplied
by 1.25; or
(b) the average deferral percentage of all
other Participants for such Plan Year multiplied
by 2.0; provided that the average deferral
percentage of such highly compensated employees
does not exceed that of all other Participants by
more than 2 percentage points.
The "average deferral percentage" of a group of Participants for
a Plan Year means the average of the ratios (determined
separately for each Participant in such group to the nearest one-
hundredth of one percent) of: (i) the Pre-Tax Contributions made
by such Participant for such Plan Year; to (ii) the Participant's
compensation (as defined in subsection 2.11) for such Plan Year.
For purposes of this subsection 4.5, a Participant means any
employee who is eligible to make contributions under the Plan.
The Pre-Tax Contributions made by the highly compensated
employees will be reduced (in the order of their contribution
percentages beginning with the highest percentage) to the extent
necessary to meet the requirements of this subsection 4.5. If,
because of the foregoing limitations, a portion of the Pre-Tax
Contributions made by a highly compensated employee may not be
credited to his account for a Plan Year, such portion (and the
earnings thereon) shall be distributed to such employee within
two and one-half months after the end of that Plan Year.
4.6 Maximum Amount of Participant Pre-Tax Contributions.
In no event shall the amount of Pre-Tax Contributions by a
Participant for any calendar year exceed $9,500 (or such greater
amount as may be determined by the Commissioner of Internal
Revenue for that calendar year). If, because of the foregoing
limitation, a portion of the Pre-Tax Contributions made by a
Participant may not be credited to his account for a calendar
year, such portion (and the earnings thereon) shall be
distributed to the Participant by April 15 of the following
calendar year.
4.7 Direct Rollover Contributions.
(a) With the approval of the Plan Administrator, an
Hourly Employee may make a direct rollover ("Rollover
Contribution") to the Plan in cash in an amount which constitutes
all or part of an "Eligible Rollover Distribution" (as defined in
Section 401(a)(31)(C) of the Code) from a qualified defined
benefit and/or defined contribution plan (except a "Keogh" plan
and/or an Individual Retirement Account) as defined in the Code.
However, a direct rollover to this Plan of accumulated deductible
employee contributions made under another plan will not be
permitted, and a direct or indirect transfer to this Plan from
another qualified plan will not be permitted if such transfer
would subject this Plan to the qualified joint and survivor rules
of Code Section 401(a)(11).
(b) The Employer, the Plan Administrator and the
Trustee have no responsibility for determining the propriety of,
proper amount or time of, or status as a tax-free transaction of,
any transfer under subsection (a) above.
(c) The Plan Administrator shall develop such
procedures, and may require such information from an the
individual who is requesting to make a direct rollover to the
Plan, as necessary or desirable in order to determine that the
proposed rollover will meet the requirements of this Section 4.7.
(d) A direct rollover will be credited to a separate
Rollover Account in the name of the Participant making such
Rollover Contribution. Such account shall be 100% vested in the
Participant.
(e) The Plan Administrator in its discretion may
direct the return to the Participant of any Rollover Contribution
to the extent the Plan Administrator determines that such return
may be necessary to insure the continued qualification of this
Plan under Section 401(a) of the Code or that the holding of such
Rollover Contributions would be administratively burdensome.
ARTICLE V COMPANY MATCHING CONTRIBUTIONS
5.1 Company Matching Contributions. For each Plan Year the
Employer will make a matching contribution ("Company Matching
Contributions") on behalf of each Participant who makes Pre-Tax
Contributions during such Plan Year in accordance with the
following schedule. For each Plan Year the Company Matching
Contributions made on behalf of each Participant will equal fifty
percent (50%) of the sum of such Participant's Pre-Tax
Contributions which are equal to or less than three percent (3%)
of such Participant's Applicable Compensation.
5.2 Time of Contribution. The Employer will make Company
Matching Contributions under Section 5.1 to the Trustee in cash
and will normally make such contributions as soon as practicable
after each payroll cycle. In any event, such contributions will
be made, without interest, to the Trustee no later than the due
date (including extensions) for filing the Employer's federal
income tax return for such year.
5.3 Section 415 Annual Contribution Limitation.
(a) Notwithstanding anything contained herein to the
contrary, the annual additions (Pre-Tax Contributions and Company
Matching Contributions) to a Participant's Accounts for each Plan
Year (which will be the limitation year for purposes of Code
Section 415) may not exceed the lesser of (i) $30,000, as
adjusted periodically for cost-of-living changes in accordance
with Code Section 415 and regulations thereunder, or (ii) twenty-
five percent (25%) of his total Code Section 415 compensation for
such Plan Year. "Code Section 415 compensation" means a
Participant's compensation for services rendered to an Employer
as an employee determined in accordance with Section 415(c)(3) of
the Code and the regulations thereunder.
(b) Annual additions to a Participant's Account for
any Plan Year means the sum of the annual additions (as defined
in Code Section 415(c)(2)) under all qualified defined
contribution plans maintained by Amoco or any Affiliated Company.
(c) If the foregoing limit is applicable to a
Participant for a Plan Year, the Plan Administrator shall reduce
the annual additions to such Participants' Accounts by returning
contributions in the following order of priority:
(i) the Pre-Tax Contributions made on behalf of
the Participant under this Plan; and
(ii) the Company Matching Contributions made on
behalf of the Participant under this Plan.
5.4 Combined Benefit Limitations. If a Participant in this
Plan also is a Participant in a defined benefit plan maintained
by Amoco or a member of Amoco Corporation's controlled group of
corporations, the aggregate benefits payable to, or on account
of, him under both plans will be determined in a manner
consistent with Section 415 of the Code and Section 1106 of the
Tax Reform Act of 1986. Accordingly, there will be determined
with respect to the Participant a defined contribution plan
fraction and a defined benefit plan fraction in accordance with
said Sections 415 and 1106. The benefits provided for the
Participant under the defined benefit plan will be adjusted to
the extent necessary so that the sum of such fractions determined
with respect to the Participant does not exceed 1.0.
5.5 Limitation on Allocation of Contributions.
Notwithstanding the foregoing provisions of this Section 5, in no
event shall the contribution percentage (as defined below) of the
highly compensate employees who are Plan Participants for any
Plan Year exceed the greater of:
(a) the contribution percentage of all other
Participants for such Plan Year multiplied by
1.25; or
(b) the contribution percentage of all other
Participants for such Plan Year multiplied by 2.0;
provided that the contribution percentage of the
highly compensate employees does not exceed that
of all other Participants by more than 2
percentage points.
The "contribution percentage" of a group of Participants for a
Plan Year means the average of the ratios (determined separately
for each Participant in such group) of: (i) the sum of company
matching contributions for such Plan Year; to (ii) the
Participant's compensation (as defined in subsection 2.4) for
such Plan Year. For purposes of this subsection 5.5, a
Participant means any employee who is eligible to receive company
matching contributions. The company matching contributions
allocated to the highly compensated employees will be reduced (in
the order of their contribution percentages beginning with the
highest percentage) to the extent necessary to meet the
requirements of this subsection. If, because of the foregoing
limitations, a portion of the matching contributions allocated to
a highly compensated employee may not be credited to his account
for a Plan Year, such portion (and the earnings thereon) shall be
distributed to such employee within two and one-half months after
the end of that Plan Year.
5.6 Allocation of Earnings to Distributions of Excess
Contributions. The earnings allocable to distributions of Pre-
Tax Contributions exceeding the limits of subsection 4.5 and Pre-
Tax Contributions exceeding the limits of subsection 4.6 shall be
determined by multiplying the earnings attributable to the
Participant's Pre-Tax Contributions for the year by a fraction,
the numerator of which is the applicable excess amount, and the
denominator of which is the balance in the appropriate account of
the Participant on the last day of such year reduced by gains (or
increased by losses) attributable to such account for the year.
The earnings as so determined shall be increased by ten percent
(10%) thereof for each month (or portion thereof in excess of 15
days) between the end of the year and the date of distribution.
5.7 Multiple Use of Alternative Limitation. In accordance
with Treasury regulation 1.401(m)-2(c), multiple use of the
alternative limitation which occurs as a result of testing under
the limitations described in subsections 4.5 and 5.5 will be
corrected in the manner described in Treasury Regulation 1.401(m)-
1(e). The term "alternative limitation" as used above means the
alternative methods of compliance with Sections 401(k) and 401(m)
of the Code contained in Sections 401(k)(3)(A)(ii)(II) and
401(m)(2)(A)(ii) thereof, respectively.
5.8 No Interest in Company. A Participating Employer shall
have no right, title or interest in the trust fund, nor shall any
part of the trust fund revert or be repaid to a Participating
Employer, directly or indirectly, unless:
(a) the Internal Revenue Service initially
determines that the Plan does not meet the
requirements of Section 401(a) of the Code, in
which event the contributions made to the Plan by
a Participating Employer shall be returned to it
within one year after such adverse determination;
(b) a contribution is made by a
Participating Employer by mistake of fact and such
contribution is returned to the Participating
Employer within one year after payment to the
trustee; or
(c) a contribution conditioned on the
deductibility thereof is disallowed as an expense
for federal income tax purposes and such
contribution (to the extent disallowed) is
returned to a Participating Employer within one
year after the disallowance of the deduction.
Contributions may be returned to a Participating Employer
pursuant to the subparagraph (a) above only if they are
conditioned upon initial qualification of the Plan, and an
application for determination was made by the time prescribed by
law for filing Amoco's Federal income tax return for the taxable
year in which the Plan was adopted (or such later date as the
Secretary of the Treasury may prescribe). The amount of any
contribution that may be returned to a Participating Employer
pursuant to subparagraph (b) or (c) above must be reduced by any
portion thereof previously distributed from the trust fund and by
any losses of the trust fund allocable thereto, and in no event
may the return of such contribution cause any Participant's
account balances to be less than the amount of such balances had
the contribution not been made under the Plan.
ARTICLE VI ACCOUNTS AND CREDITS
6.1 Establishment of Accounts. The Plan Administrator will
establish and maintain in the name of each Participant such of
the following accounts as are appropriate for the Participant:
(a) Pre-Tax Contribution Account;
(b) Company Contribution Account; and
(c) Rollover Account.
Credit and charges to such Accounts will be made as provided in
the Plan. A Participant is 100% vested in his Pre-Tax
Contributions Account and Rollover Account at all times.
6.2 Crediting Participants' Pre-Tax Contributions. Pre-Tax
Contributions made by a Participant for a payroll cycle will be
credited to such Participant's Accounts as of the Valuation Date
(as defined in Section 7.3) (as soon as practicable) immediately
following receipt thereof by the Trustee.
6.3 Crediting Matching Contributions. Company Matching
Contributions made pursuant to Section 5.1 for a payroll cycle
will be credited to the Company Contribution Account of those
Participants entitled to a Company Matching Contribution for such
payroll cycle as of the Valuation Date (as soon as practicable)
immediately following receipt thereof by the Trustee.
6.4 Crediting Rollovers. Rollovers will be credited to the
Participant's Rollover Account as of the Valuation Date (as soon
as practicable) immediately following receipt thereof by the
Trustee.
6.5 Charge to Accounts. Any amount distributed, paid or
withdrawn from an Account will be charged against such Account as
of the Valuation Date on which the distribution, payment or
withdrawal occurs.
ARTICLE VII INVESTMENT FUNDS AND CREDITING INVESTMENT EXPERIENCE
7.1 Investment Funds. The Trustee will separate the Trust
Fund into four Investment Funds as follows:
(a) Amoco Stock Fund
(b) Money Market Fund
(c) Equity Index Fund
(d) Balanced Fund
The Plan Administrator will maintain records which reflect
the portion of each Account of a Participant that is invested in
each separate Investment Fund. The existence of such records and
of Participants' Accounts will not be deemed to give any person
any right, title or interest in or to any specific assets or part
of the Trust Fund or any separate Investment Fund.
7.2 Investment Directions and Transfers Among Funds.
(a) Investment of Accounts. Each Participant may
direct the separate Investment Fund or Funds in which his
Accounts will be invested. Once a calendar month, a Participant
may direct investment of his Pre-Tax Contributions to his Account
entirely in one Investment Fund or in a combination of two or
more of the Investment Funds, provided that combinations must be
specified in five percent (5%) increments and the total
combinations must equal 100%. Company Matching Contributions
will be invested initially in the Amoco Stock Fund.
In addition, once a calendar month the Participant may
direct transfers among the Investment Funds, so that his Accounts
are invested entirely in one Investment Fund or in a combination
of two or more of the Investment Funds, provided that
combinations must be specified in five percent (5%) increments
and the total combinations must equal 100%.
The Participant's change in investment direction or
transfer of assets among Investment Funds shall be effective the
first day of the first full payroll cycle following the election.
The Participant will have sole responsibility for the
investment of his Accounts and for transfers among the available
Investment Funds, and no named fiduciary or other person will
have any liability for any loss or diminution in value resulting
from the Participant's exercise of such investment
responsibility. It is intended that Section 404(c) of ERISA will
apply to a Participant's exercise of investment responsibilities
under this subsection.
(b) Manner and Time of Giving Directions. A
Participant's initial directions governing the investment of his
Pre-Tax Contribution Account and Rollover Account must be made by
notifying the Plan Administrator and must be in five percent (5%)
increments. A Participant may change the investment of future
contributions to his Accounts or direct transfers among the
Investment Funds in five percent (5%) increments once a calendar
month by contacting the Plan Administrator in accordance with
uniform rules. If a Participant does not give complete
directions to the Plan Administrator, his Pre-Tax Contributions
or Rollover Contribution will be invested pro rata (rounded to
the applicable five percent (5%) increment) in the Investment
Funds as directed in the incomplete directions. If no directions
are given, all contributions will be invested in the Money Market
Fund.
7.3 Valuation of Assets. As of the last business day of
each calendar month and at any other date ("Valuation Date") that
the Plan Administrator may direct, the Trustee will determine the
fair market value of the assets in each separate Investment Fund
of the Trust Fund, relying upon such evidence of valuation as the
Trustee deems appropriate.
7.4 Crediting Investment Experience. As of each Valuation
Date (before crediting any contributions or making any investment
transfers as of such date), Investment Fund management expenses
not paid directly by the Employer, investment income and gains
and losses in asset values in each separate Investment Fund since
the preceding Valuation Date will be credited or charged to
Participants' Accounts invested in such fund. The allocation of
Investment Fund management expenses and investment results will
be in proportion to the adjusted account balances in such fund as
of each Valuation Date. The adjusted account balance of an
Account invested in a separate Investment Fund is the amount in
such Account as of the close of business on the preceding
Valuation Date, increased by any Pre-Tax Contributions, Company
Matching Contributions and loan repayments credited to such
Account as of the current Valuation Date under Article VI and
Article VIII, decreased by any withdrawals, transfers or
distributions from such Account since the preceding Valuation
Date, and increased or decreased in accordance with uniform rules
established by the Plan Administrator to allocate equitable
expenses and investment results.
ARTICLE VIII LOANS TO PARTICIPANTS
8.1 Plan Administrator Shall Administer the Loan Program.
The Plan Administrator shall administer the loan program in
accordance with the provisions of Article VIII, in a uniform and
nondiscriminatory manner.
8.2 Availability of Loans. Upon application by a
Participant who is an active Employee, the Plan Administrator may
direct the Trustee to make a loan (in increments of $50) to the
Participant from his Accounts.
A Participant may make two loans during a
calendar year. However, he may not have more than two
outstanding loans. Also, a Participant will not be permitted to
make a loan if he previously defaulted on a Plan loan within the
preceding 36 months.
8.3 Conditions of Loan.
(a) Maximum Amount. The loan shall not exceed the
lesser of (A) $50,000 reduced by the highest outstanding loan
balance during the one-year period ending on the day before the
Valuation Date the current loan is made or (B) 50% of the market
value of the Participant's non-forfeitable accrued benefit on the
Valuation Date the loan request from the Participant is processed
by the Plan Administrator.
(b) Minimum Amount. The minimum loan shall be $500.
(c) Repayment Period. The term of the loan shall not
be less than 6 months and not more than 54 months in increments
of 6 months. The payment of interest and principal shall be
amortized in level payments not less frequently than quarterly.
(d) Interest Rate. The interest rate shall equal the
prime rate, as published in the Wall Street Journal, in effect on
the next-to-last business day of the month immediately before the
month in which the loan request is received by the Plan
Administrator and will be fixed for the term of the loan.
(e) Participant Fees. Reasonable fees may be charged
to the borrower for making and administering the loan. Effective
January 1, 1996 this fee shall be $40.
(f) Security for Repayment. Each loan hereunder will
be a Participant-directed investment for the benefit of the
Participant requesting such loan; accordingly, any default in the
repayment of principal or interest of any loan hereunder will
reduce the amount available for distribution to such Participant
(or his Beneficiary). Any loan hereunder will be effectively and
adequately secured by fifty percent (50%) of the non-forfeited
accrued benefit in the Participant's Accounts.
(g) Repayment. Each Participant who requests a loan
from his Accounts will execute an agreement to repay the
principal and interest of the loan through payroll withholding
from his compensation. The Plan Administrator may establish back-
up repayment procedures for Participants on an "authorized leave
of absence." Any loan hereunder may be prepaid in full by
certified or cashier's check at any time after six months since
the first repayment by payroll without penalty. If the automatic
payroll arrangement lapses by the Participant's termination of
employment for any reason or is canceled, and a new arrangement
is not in place before the next payment is due the loan shall be
in default and the entire unpaid principal and interest of any
loan then outstanding to such Participant will become immediately
due and payable.
(h) Action Upon Default. If a Participant defaults on
any payment of interest or principal on a loan hereunder or
defaults upon any other obligation relating to such loan, the
Plan Administrator shall immediately request payment of principal
and interest on the loan, and if not paid within the time
specified in the request for payment, the amount of the loan will
be deemed distributed to him. If the default is by reason of
termination of employment, and the Participant refuses to pay the
entire outstanding principal and interest on the loan in full
within 90 days of the default, the loan will be deemed
distributed to him. However, no foreclosure on the Participant's
loan or attachment of the Participant's Account balances will
occur until a distributable event occurs in the Plan.
(i) Distribution to Participant With Loan. In the
case of any Participant who terminates employment with a loan
outstanding hereunder, the amount available for distribution to
such Participant (or his Beneficiary) will consist of the portion
of his Accounts invested in the Investment Funds of the Trust
Fund. In the case of a Participant dying with an outstanding
loan, such loan will be deemed distributed to his estate upon his
death.
8.4 Accounting for Loans.
(a) Source of Loan. The Plan Administrator shall
liquidate the Participant's Accounts in the following order to
make a loan to him:
Participant Accounts.
(1) Pre-Tax Contribution Account
(2) Rollover Account
(3) Company Contribution Account
The Plan Administrator shall also liquidate the Participant's
Investment Funds pro rata.
(b) Loan Investment Account. The Plan Administrator
will establish and maintain a loan investment account for each
borrowing Participant. The unpaid principal and accrued but
unpaid interest on the loan to a Participant will be reflected
for plan accounting purposes in the Participant's loan account.
Repayments of principal by the Participant will reduce the
Participant's loan account balance and will be credited to the
Participant's other Accounts in the following order:
Participant Accounts.
(1) Company Contribution Account
(2) Rollover Account
(3) Pre-Tax Contribution Account
Repayments will be invested in the Investment Funds according to
a Participant's current investment election.
ARTICLE IX IN-SERVICE WITHDRAWALS
9.1 Withdrawals From Rollover Account. A Participant may
withdraw in cash any portion of his accrued benefit in his
Rollover Account once during a calendar year. Notwithstanding the
foregoing, the minimum amount a Participant may withdraw is $300.
9.2 Withdrawals From Pre-Tax Contribution Account. A
Participant may withdraw in cash from his Pre-Tax Contribution
Account once every calendar year the amount necessary to meet one
of the following immediate and heavy financial needs:
1. Medical expenses described in Code
Section 213(d) previously incurred by the
Participant, his spouse, or any of his dependents
(as defined in Code Section 152) or necessary for
these persons to obtain medical care described in
Code Section 213(d);
2. The purchase (excluding mortgage
payments) of a principal residence for the
Participant;
3. Payment of tuition, housing, and related
educational fees for the next 12 months of post-
secondary education for the Participant, his
spouse, children, or dependents;
4. The need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the Participant's
principal residence; or
5. Other unexpected or unusual expenses
creating a financial need for which withdrawal is
permitted by Code Regulation Section 1.401(k)-1.
The amount of an immediate and heavy financial need
includes any amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to result
from a withdrawal from a Participant's Pre-Tax Contribution
Account. Notwithstanding the foregoing, the amount withdrawn
cannot include the Participant's earnings on all his Pre-Tax
Contributions. In addition, before a Participant makes a
withdrawal from his Pre-Tax Contribution Account he must make a
loan under the Plan for the maximum amount permitted and then
withdraw the maximum amount permitted by the Plan from his
Rollover Account. If a Participant makes a withdrawal from his
Pre-Tax Contribution Account he will be prohibited from making
any Pre-Tax Contributions for the 12-month period commencing with
the first day of his payroll cycle of the calendar month starting
immediately after the distribution of such withdrawal. Finally,
notwithstanding Section 4.6, if a Participant makes a withdrawal
from his Pre-Tax Account, the Code Section 402(g) limitation that
applies to his Pre-Tax Contributions during the Plan Year
immediately after such withdrawal shall be reduced by the total
amount of his Tax-Deferred Contributions during the year of the
withdrawal.
9.3 Order of Asset Liquidation for All Withdrawals. The
Plan Administrator shall liquidate the Investment Funds of the
Account from which the withdrawal is being made pro rata.
ARTICLE X DISTRIBUTIONS
10.1 Distributions.
(a) Amount. A Participant whose employment terminates
as a result of Retirement will receive the total amount in his
Accounts in a single-sum payment as soon as administratively
practicable after the month such separation of service occurs.
If a Participant receives immediate distribution of his Accounts,
his Account balances will be determined as of the Valuation Date
immediately preceding such distribution. If a Participant defers
payment of part or all of his Accounts, his Account balances will
be determined as of the Valuation Date immediately preceding his
subsequent distribution.
(b) Retirement Defined. For purposes of this Plan,
"Retirement" means a Participant's termination of employment on
or after his 65th birthday. A Participant will become fully
vested in his Company Contribution Account balance upon reaching
his 65th birthday (normal retirement age).
(c) Form of Payment. Upon a Participant's termination
of service with his Employer, a distribution of his Accounts will
be paid in a single-sum payment of his entire Account balances at
any time until age 65. All distributions made pursuant to this
subsection shall be made in cash, except that a Participant can
elect to receive Amoco common stock in-kind.
10.2 Termination of Employment Prior to Retirement or Death.
(a) If a Participant's service with an Employer
terminates prior to his attainment of age 65, he shall be 100%
vested in an amount equal to the market value of his Pre-Tax
Contribution Account and Rollover Account. In addition, such
Participant shall acquire a vested interest in his Company
Contribution Account balance in accordance with the following
vesting schedule:
Years of
Vesting Service
Vested
At least But Less Than
Percentage
2 years 0%
2 years 3 years 25%
3 years 4 years 50%
4 years 5 years 75%
5 years 100%
The benefit determined in accordance with the foregoing provision
shall never be adjusted or altered in any fashion on account of
any years of Vesting Service which the Participant might complete
upon reemployment with an Employer, except as otherwise provided
in Section 10.3.
(b) (i) Vesting Service or Period of Vesting
Service. Vesting Service means the aggregate of all years and
fractions of years of an Employee's Periods of Vesting Service
with an Employer and an Affiliated Company. Fractions of years
shall be expressed in terms of months. A period of Vesting
Service shall mean a period beginning on the first day of the
calendar month during which the Employee enters service (or
reenters service) and ending on the termination date (as defined
below) with respect to such period, subject to the following
special rules:
(A) An Employee shall be deemed to enter
service on the date he first completes an Hour of Service.
(B) An Employee shall be deemed to reenter
service on the date following a termination date when he
again completes an Hour of Service.
(C) The termination date of an Employee
shall be the last day of the calendar month during which the
earlier of the following occurs: (i) the date he quits, is
discharged, retires or dies, or (ii) except as provided
below, the first anniversary of the date he is absent from
service for any other reason (including, but not limited to,
vacation, holiday, leave of absence, and layoff). If an
Employee, absent from service under circumstances described
in (ii), quits, is discharged, retires or dies before the
first anniversary of commencement of said absence, his
termination date shall be the date he quits, is discharged,
retires or dies. An absence described in (ii) shall be
deemed to commence with respect to an Employee on the date
he is terminated as an Employee on the payroll records of
the Employer and members of Amoco Corporation's controlled
group of corporations. An Employee shall be deemed to have
continued in service (and thus not to have incurred a
termination date) for the following periods:
i) any period for which he
shall be required to be given credit for service
under any laws of the United States; and
ii) any period for which he is
on an approved "leave of absence".
(D) All periods of service of an Employee
shall be aggregated in determining his Vesting Service.
(E) If an Employee shall be absent from
work because he quits, is discharged or retires, and he
reenters service before the first anniversary of the date of
such absence, such date shall not constitute a termination
date and the period of such absence shall be included as
service.
(ii) Month of Vesting Service. A Month of
Vesting Service means a calendar month during any part of which
an Employee was credited with an Hour of Service as defined in
Section 2.12.
(iii) Year of Vesting Service. A Year of Vesting
Service means 12 Months of vesting service, whether or not
consecutive.
(iv) One-Year Break In Service. A One-Year
Break In Service means a Period of twelve consecutive calendar
months during which the Employee is not credited with one month
of Vesting Service.
(c) Form of Payment. A Participant whose service
terminates with his Employer will be paid a distribution of his
vested Account balances in a single-sum payment as soon as
administratively practicable after the month such separation of
service occurs, unless he elects to defer receipt of his
distribution until a date not later than his attainment of age
65.
A single-sum payment made pursuant to this subsection shall be
made in cash, unless the Participant elects to receive Amoco
common stock in kind.
(d) If a Participant receives immediate distribution
of his Accounts, his Account balances will be determined as of
the Valuation Date immediately preceding such distribution. If a
Participant defers payment of his Accounts, his Account balances
will be determined as of the Valuation Date immediately preceding
his subsequent distribution.
(e) The determination of the amount to which such
terminated Participant is entitled in accordance with the
foregoing rules shall be made by the Plan Administrator.
(f) Any amount of a Participant's Company
Contribution Account to which he is not entitled at the time of
his termination of employment shall be forfeited by him when his
service terminates with his Employer. As soon as practicable
after such forfeiture occurs it shall be used to reduce Company
Matching Contributions or pay Plan administration expenses in
accordance with Section 16.11.
10.3 Reemployment. If a terminated Participant is reemployed
by an Employer, he shall again become a Participant upon
reemployment pursuant to Section 3.4. All future Company
Matching Contributions shall be credited to his Company
Contribution Account, and his prior Period(s) of Vesting Service
shall be restored for the purpose of calculating the vested
portion of such Account. Also, the portion of his Company
Contribution Account that has been forfeited shall be restored
without interest to his Company Contribution Account.
10.4 $3,500 Cash-Out. If the value of the nonforfeitable
portion of the Participant's Accounts does not exceed $3,500 as
of the Valuation Date immediately following his termination of
service for any reason, the Plan Administrator shall distribute
in cash and in a single-sum payment the entire balance in his
Accounts as soon as administratively practicable.
10.5 Required Distribution Date. Distribution to any
Participant must be made no later than April 1 following the
calendar year in which he reaches age 70-1/2 in annual payments
based on such Participant's life expectancy as of the date he
attained age 70-1/2 in accordance with the minimum distribution
rules of Section 401(a)(9) of the Code and the regulations
promulgated thereunder.
10.6 Distribution Upon Death of a Participant.
(a) In General. If Participant dies while employed
by the Employer with a balance in any Account under the Plan, his
Beneficiary will receive 100% of the amount in his Accounts.
Such amount will be determined as of the Valuation Date
immediately preceding the date when the Plan Administrator makes
such distribution. After the Plan Administrator identifies the
Beneficiary, he shall distribute to such Beneficiary in cash, the
remaining amount in the deceased Participant's Accounts as soon
as administratively practicable.
(b) Designation of Beneficiary. A Participant may
designate one or more Beneficiaries and may revoke or change such
designation at any time. If the Participant names two or more
Beneficiaries, distribution to them will be in such proportions
as the Participant designates or, if the Participant does not so
designate, in equal shares pro rata from such Participant's
Accounts. If the Participant designates one or more
Beneficiaries and one the Beneficiaries predeceases the
Participant, then the deceased Beneficiary's share will be
distributed pro rata in accordance with the Participant's
beneficiary election as to the other Beneficiary(ies). Any
designation of Beneficiary will be in writing on such form as the
Plan Administrator may prescribe and will be effective upon
filing with the Plan Administrator.
Notwithstanding the preceding paragraph, the sole
Beneficiary of a married Participant will be the Participant's
spouse unless the spouse consents in writing to the designation
of another person as beneficiary. The spouse's consent must
acknowledge the effect of such consent and be witnessed by a
notary public.
(c) No Designation. Any portion of a distribution
payable upon the death of a Participant which is not disposed of
by a designation of Beneficiary for any reason whatsoever will be
paid to the Participant's spouse if living at his death,
otherwise to the Participant's estate.
(d) Payment Under Prior Designation. Amoco may
direct the Plan Administrator to make payment in accordance with
a prior designation of Beneficiary (and will be fully protected
in so doing) if such direction (i) is given before a later
designation is received, or (ii) is due to Amoco's inability to
verify the authenticity of a later designation. Such a
distribution will discharge all liability therefor under the
Plan.
10.7 Rehire Before Distribution. If a former Participant is
rehired by an Employer or an Affiliated Company, before
distribution of his Accounts has been made, such distribution
will be deferred until his subsequent termination of employment.
10.8 Waiver of 30-Day Notice. If a distribution is one to
which Code Section 401(a)(11) and 417 do not apply, such
distribution may commence less than 30 days after the notice
required under Regulation 1.411(a)-11(c) is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not
to elect a distribution (and, if applicable, a particular
distribution option), and (2) the Participant, after receiving
the notice, affirmatively elects a distribution.
ARTICLE XI DIRECT ROLLOVERS
11.1 Direct Rollover. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a distributee's
election under this section, a distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have
any portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a
direct rollover.
11.2 Definitions.
(a) "Eligible Rollover Distribution" is any
distribution provided for in this Plan of all or any portion of
the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of
any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) "Eligible Retirement Plan" is an individual
retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of the Code, or
a qualified trust described in section 401(a) of the Code that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) "Distributee" includes a Participant, the
Participant's surviving spouse and the Participant's spouse who
is the alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code.
(d) "Direct Rollover" is a payment by the Plan to the
eligible retirement plan specified by the distributee.
ARTICLE XII AMENDMENT, MERGER AND TERMINATION OF PLAN
12.1 Amendment of Plan. At any time and from time to time,
Amoco may amend or modify any or all of the provisions of the
Plan without the consent of any person, provided that no
amendment will reduce any Participant's nonforfeitable Account
balance as of the date such amendment is adopted (or its
effective date if later) or eliminate an optional form of
benefit, and provided further that no amendment will permit any
part of the Trust Fund to revert to the Employer or be used for
or diverted to purposes other than for the exclusive benefit of
Participants or their Beneficiaries, except as provided in
Section 5.6.
12.2 Merger of Plans. A merger or consolidation with, or
transfer of assets or liabilities to, any other plan will be
permitted only if the benefit each Participant would receive if
such plan were terminated immediately after the merger,
consolidation or transfer is not less than the benefit he would
have received if this Plan had terminated immediately before the
merger, consolidation or transfer.
12.3 Termination. Amoco has established the Plan and is
maintaining the Plan with the bona fide expectation and intention
that it will continue the Plan indefinitely, but Amoco will not
be under any obligation or liability whatsoever to maintain the
Plan for any particular length of time. Notwithstanding any
other provision hereof, Amoco may terminate this Plan at any
time. There will be no liability to any Participant, Beneficiary
or other person as a result of any such discontinuance or
termination.
The Employer's failure to make contributions in any year or
years will not operate to terminate the Plan in the absence of
formal action by Amoco to terminate the Plan.
12.4 Effect of Termination. Upon complete discontinuance of
contributions or termination or partial termination of the Plan,
the Pre-Tax and Rollover Accounts of affected Participants will
remain nonforfeitable and their Company Contribution Account will
become nonforfeitable. After termination of the Plan, no
Employee will become a Participant and no further Pre-Tax
Contributions or Company Matching Contributions will be made
hereunder on behalf of Participants.
The Trustee will continue to hold the assets of the Trust Fund
for distribution as directed by the Plan Administrator. The Plan
Administrator directs the Trustee to disburse the Plan's assets
as immediate benefit payments, to retain and disburse them in the
future, or to follow any other procedure which it deems
advisable.
ARTICLE XIII NAMED FIDUCIARIES
13.1 Identity of Named Fiduciaries.
(a) Named Fiduciaries. Amoco, the Plan
Administrator, the Trustee and any investment manager appointed
by Amoco will be the named fiduciaries under the Plan and will
control and manage the Plan and its assets to the extent and in
the manner indicated in the Plan and in the Trust Agreement. Any
responsibility assigned to a named fiduciary will not be deemed
to be a duty of a "fiduciary" (as defined in ERISA) solely
because of such assignment.
(b) Plan Administrator. Amoco Corporation is the
"Plan Administrator" as defined in ERISA.
13.2 Responsibilities and Authority of Plan Administrator.
The Plan Administrator will have the responsibilities and
authority with respect to control and management of the Plan and
its assets as set forth in detail in various articles of the Plan
including Article XIII.
13.3 Responsibilities and Authority of Trustee. The Trustee
will manage and control the assets of the Plan, except to the
extent that such responsibilities are specifically assigned
hereunder or under the Trust Agreement to Amoco, or the
Participants, or are delegated to one or more investment managers
by Amoco. The responsibilities and authority of the Trustee are
set forth in detail primarily in the Trust Agreement.
13.4 Responsibilities of Amoco. Amoco will have the
responsibilities and authority to appoint, remove and replace the
Trustee and to amend and terminate the Plan and Trust. The
responsibilities and authority of Amoco are set forth in further
detail in the various articles of the Plan and in the Trust
Agreement.
13.5 Responsibilities Not Shared. Except as otherwise
provided herein or required by law, each named fiduciary will
have only those responsibilities that are specifically assigned
to it hereunder, in the Administrative and Recordkeeping Services
Agreement, and in the Trust Agreement, and no named fiduciary
will incur liability because of improper performance or
nonperformance of responsibilities assigned to another named
fiduciary.
13.6 Dual Fiduciary Capacity Permitted. Any person or group
of persons may serve in more than one fiduciary capacity.
13.7 Actions by Amoco. Wherever the Plan specifies that Amoco
is required or permitted to take any action, such action will be
taken by its board of directors, or by a duly authorized
committee thereof, or by one or more directors, officers,
employees or other persons duly authorized to do so by the board
of directors.
13.8 Advice. A named fiduciary may employ or retain such
attorneys, accountants, investment advisors, consultants,
specialists and other persons or firms as it deems necessary or
desirable to advise or assist it in the performance of its
duties. Unless otherwise provided by law, the fiduciary will be
fully protected with respect to any action taken or omitted by
him or it in reliance upon any such person or firm rendered
within his or its area of expertise.
ARTICLE XIV PLAN ADMINISTRATOR
14.1 Appointment. Amoco is the Plan Sponsor and retains the
authority to appoint a Plan Administrator. Any notice or
document required to be given to or filed with the Plan
Administrator will be properly given or filed if delivered or
mailed, by registered mail, postage prepaid, to the Plan
Administrator, in care of Amoco Corporation at 200 East Randolph
Drive, Chicago, Illinois 60601.
14.2 Notice to Trustee. Amoco will notify the Trustee in
writing of the appointment, and the Trustee may assume such
appointment continues in effect until written notice to the
contrary is given by Amoco.
14.3 Administration of Plan. The Plan Administrator and Amoco
will have all powers and authority necessary and appropriate to
carry out its responsibilities as provided in the Plan. All
determinations and actions of the Plan Administrator will be
conclusive and binding upon all persons, except as otherwise
provided herein or by law, and except that the Plan Administrator
may revoke or modify a determination or action previously made in
error. The Plan Administrator will exercise all powers and
authority given to it in a nondiscriminatory manner.
14.4 Reporting and Disclosure. The Plan Administrator will
prepare, file, submit, distribute or make available any plan
descriptions, reports, statements, forms or other information to
any government agency, Employees, former Employees, or
Beneficiary as may be required by law or by the Plan.
14.5 Records. The Plan Administrator will record its acts and
decisions, and keep all data, records, books of account and
instruments pertaining to plan administration. The Employer will
supply all information required by the Plan Administrator to
administer the Plan, and the Plan Administrator may rely upon the
accuracy of such information.
14.6 Claims Review Procedure. Any request for benefits (the
"claim") by a Participant or his Beneficiary (the "claimant")
will be filed in writing with the Plan Administrator. Within a
reasonable period after receipt of a claim, the Plan
Administrator will provide written notice to any claimant whose
claim has been wholly or partly denied, including: (a) the
reasons for the denial, (b) the Plan provisions on which the
denial is based, (c) any additional material or information
necessary to perfect the claim and the reasons why it is
necessary, and (d) the Plan's claims review procedure. The
claimant will be given a full and fair review in writing within a
reasonable period after notification of the denial. The claimant
may review pertinent documents and may submit issues and comments
orally, in writing, or both. The Plan Administrator will render
its decision or review properly and in writing and will include
specific reasons for the decision and reference to the Plan
provisions on which the decision is based. The Participant may
appeal the Plan Administrator's decision by making such appeal in
writing filed with Amoco Corporation (Director, Qualified Plans -
Human Resources) within 60 days after his receipt of the Plan
Administrator's decision.
14.7 Administrative Discretion; Final Authority.
(a) The Plan Administrator shall have the exclusive
discretionary authority to interpret the provisions of, and make
factual determinations under, the Plan and to decide any and all
matters arising hereunder, including without limitation the right
to remedy possible ambiguities, inconsistencies, or omissions by
general rule or particular decision; provided that all such
interpretations and decisions shall be applied in a uniform and
nondiscriminatory manner to all Participants and beneficiaries
who are similarly situated. The Plan Administrator shall
determine conclusively for all parties all questions arising out
of the interpretation or administration of the Plan.
(b) The Plan Administrator may delegate authority
with respect to certain matters, and the Plan Administrator may
allocate its responsibilities among Amoco employees.
(c) To the extent that the Plan Administrator
properly delegates or allocates administrative powers or duties
to any other individual or entity, such individual or entity
shall have exclusive discretionary authority, as described in
subsection 14.7(a), to exercise such powers or duties.
ARTICLE XV PARTICIPATING EMPLOYERS
15.1 Adoption by Other Employers.
Notwithstanding anything herein to the contrary, with the
consent of Amoco, any other entity may adopt this Plan and all of
the provisions hereof, and participate herein and be known as a
participating Employer, by a properly executed Participation
Agreement evidencing said intent and will of such participating
Employer. A Participation Agreement may contain terms and
conditions approved by Amoco that apply only to such
participating Employer and shall constitute an amendment of the
Plan.
15.2 Designation of Agent. Each participating Employer shall
be deemed a part of this Plan; provided, however, that with
respect to all of its relations with the Trustee and Plan
Administrator for the purpose of this Plan, each participating
Employer shall be deemed to have designated irrevocably Amoco as
its agent.
15.3 Employee Transfers. It is anticipated that an Employee
may be transferred between participating Employers and non-
participating Affiliated Companies. No such transfer shall
effect a termination of employment hereunder for purposes of
Section 10.
15.4 Discontinuance of Participation. Any participating
Employer shall be permitted to discontinue or revoke its
participation in the Plan with a properly executed document filed
with Amoco and with the consent of Amoco.
15.5 Participating Employer Contribution for Affiliate. If
any participating Employer is prevented in whole or in part from
making a contribution to the Trust Fund which it would otherwise
have made under the Plan for any reason, then, pursuant to Code
Section 404(a)(3)(B), so much of the contribution which such
participating Employer was so prevented from making may be made,
for the benefit of the participating Employees of such
participating Employer, by the other participating Employers who
are members of the same affiliated group within the meaning of
Code Section 1504.
ARTICLE XVI MISCELLANEOUS
16.1 Qualified Domestic Relations Orders.
(a) A Qualified Domestic Relations Order (QDRO) is a
judgment, decree, or order which meets the requirements of Code
Section 414(p). An alternate payee is an individual named in the
QDRO who is to receive some or all of the Participant's benefits.
(b) A payment to an alternate payee shall be in cash
and in a single sum.
16.2 Nonalienation of Benefits. No benefit, right or interest
hereunder of any person will be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
charge, or to seizure, attachment or other legal, equitable or
other process, or be liable for, or subject to, the debts,
liabilities or other obligations of such person, except that the
Plan Administrator may prescribe rules for the payment of
benefits in accordance with Qualified Domestic Relations Orders
as defined in Section 16.1.
16.3 Payment of Minors and Incompetents. If the Plan
Administrator deems any person incapable of giving a binding
receipt for benefit payments because of his minority, illness,
infirmity or other incapacity, it may direct payment directly for
the benefit of such person, or to any person selected by Amoco to
disburse it. Such payment, to the extent thereof, will discharge
all liability for such payment under the Plan.
16.4 Current Address of Payee. Any person entitled to
benefits is responsible for keeping Amoco informed of his current
address at all times. The Plan Administrator, the Trustee and
Amoco have no obligation to locate such person, and will be fully
protected if all payments and communications are mailed to his
last known address, or are withheld pending receipt of proof of
his current address and proof that he is alive. If payments are
withheld and after reasonable efforts, the Plan Administrator
cannot locate a former Participant (or Beneficiary) within a
reasonable time, but in any event not later than four (4) years,
the amount of the Participant's Accounts shall be forfeited and
shall be reapplied in such a way as to reduce succeeding Company
Matching Contributions under the Plan; provided, however, that if
such former Participant (or Beneficiary) subsequently files a
valid claim for benefits with the Plan Administrator or Amoco
with respect to his Account balances under the Plan, his Accounts
shall be restored to the value previously forfeited (and without
interest) from such Accounts.
16.5 Disputes over Entitlement to Benefits. If two or more
persons claim entitlement to payment of the same benefit
hereunder, the Plan Administrator may withhold payment of such
benefit until the dispute has been determined by a court of
competent jurisdiction or has been settled by the persons
concerned.
16.6 Payment of Benefits. Unless he elects otherwise, a
Participant's benefit payments under the Plan will begin no later
than 60 days after the close of the Plan Year in which the latest
of the following dates occurs: (a) the date he terminates
service with his Employer; (b) his 65th birthday; or (c) the
tenth anniversary of the year in which he began participating in
the Plan.
16.7 Plan Supplements. The provisions of the Plan may be
modified by supplements to the Plan. The terms and provisions of
each supplement are a part of the Plan and supersede the
provisions of the Plan to the extent necessary to eliminate
inconsistencies between the Plan and the supplement.
16.8 Rules of Construction.
(a) A word or phase defined or explained in any
section or article has the same meaning throughout the Plan
unless the context indicates otherwise.
(b) Where the context so requires, the masculine
includes the feminine, the singular includes the plural, and the
plural includes the singular.
(c) Unless the context indicates otherwise, the words
"herein," "hereof," "hereunder," and words of similar import
refer to the Plan as a whole and not only to the section in which
they appear.
16.9 Text Controls. Headings and titles are for convenience
only and the text will control in all matters.
16.10 Applicable State Law. To the extent that state
law applies, the provisions of the Plan will be construed,
enforced and administered according to the laws of the State of
Georgia.
16.11 Plan Administration Expenses. All reasonable Plan
administration expenses shall be paid out of the Trust Fund;
provided that the obligation of the Trust Fund to pay such
expenses shall cease to exist to the extent such expenses are
paid by an Employer or are paid to the Trust Fund as a
reimbursement by an Employer. This provision shall be deemed to
apply to any contract or arrangement to provide for expenses of
plan administration without regard to whether or not the
signatory or party to such contract or arrangement is, as a
matter of administrative convenience, an Employer. Any
reasonable plan administration expense paid to the Trust Fund by
an Employer as a reimbursement shall not be considered an
Employer contribution and shall not be credited to Participants'
Accounts. The Plan Administrator shall only direct the Trustee
to pay Plan administration expenses from the Trust Fund upon the
written direction of Amoco.
16.12 Voting and Tendering of Amoco Stock.
(a) For the purposes of voting or responding to bona
fide offers with respect to the Amoco Corporation Stock held by
the Plan, each Participant and Beneficiary of a deceased
Participant whose Accounts are invested in whole or in part in
the Amoco Stock Fund shall be a "named fiduciary" within the
meaning of Section 403(a)(1) of ERISA. The Trustee shall follow
the proper instructions, which instructions shall be held by the
Trustee in strict confidence, of the Participants and
Beneficiaries with respect to such Amoco Corporation stock in the
manner described in this Section 16.
(b) Before each annual or special meeting of Amoco
Corporation, there shall be sent to each Participant or
Beneficiary to whom Amoco Corporation stock is allocated a copy
of the proxy solicitation material for the meeting, together with
a form requesting instructions to the Trustee on how to vote the
Amoco Corporation stock allocated to his Accounts. Upon receipt
of such instructions, the Trustee shall vote the Amoco
Corporation stock as instructed.
(c) The Trustee shall vote Amoco Corporation stock
for which no voting instructions are timely received to the
extent required by law in its uncontrolled discretion.
(d) In the event that a bona fide offer (such as a
tender offer or exchange offer) shall be made to acquire any
Amoco Corporation Employer stock held by the Trustee, each
Participant or Beneficiary of a deceased Participant shall be
entitled to direct the Trustee as to the disposition of the Amoco
Corporation stock (including fractional shares) allocated to his
Accounts, and to direct the Trustee to take other solicited
action on his behalf (including the voting of such Stock) with
respect to the Amoco Corporation stock allocated to this account.
Amoco, with the cooperation of the Trustee, shall use its best
efforts to provide each Participant or Beneficiary to whom this
paragraph may apply with a copy of any offer solicitation
material generally available to members of the public who hold
the Amoco Corporation stock affected by the offer, or with such
other written information as the offeror may provide. Such
material shall be provided with a form requesting instructions to
the Trustee as to the disposition under the offer of the Amoco
Corporation stock allocated to each Account. Upon receipt of
such instructions from the Participant or Beneficiary, the
Trustee shall respond to the offer in accordance with such
instructions with respect to the Amoco Corporation stock
allocated to the Account.
(e) The Trustee shall respond to an offer described
in subsection (d) with respect to Amoco Corporation stock for
which no instructions are timely received to the extent required
by law in its uncontrolled discretion.
16.13 Action by Company. Any action required or
permitted to be taken by Amoco (or a participating Employer)
under the Plan shall be by resolution of its Board of Directors,
by resolution of a duly authorized committee of its Board of
Directors, or by a person or persons authorized by resolution of
its Board of Directors or such committee.
SUPPLEMENT A
Special Rules for Top-Heavy Plans
A-1. Purpose and Effect. The purpose of this Supplement A is
to comply with the requirements of Section 416 of the Internal
Revenue Code. The provisions of this Supplement A shall be
effective for each Plan Year in which the Plan is a "top-heavy
plan" within the meaning of Section 416(g) of the Internal
Revenue Code.
A-2. Top-Heavy Plan. In general, the Plan will be a top-heavy
plan for any Plan Year if, as of the last day of the preceding
Plan Year (the "determination date"), the aggregate account
balances of Participants who are key employees (as defined in
Section 416(i)(1) of the Internal Revenue Code) exceed 60 percent
of the aggregate account balances of all Participants. In making
the foregoing determination, the following special rules shall
apply:
(a) A Participant's account balances
shall be increased by the aggregate
distributions, if any, made with respect to
the Participant during the 5-year period
ending on the determination date.
(b) The account balances of a Participant
who was previously a key employee, but who is
no longer a key employee, shall be
disregarded.
(c) The accounts of a beneficiary of a
Participant shall be considered accounts of
the Participant.
(d) The account balances of a Participant
who did not perform any services for the
company during the 5-year period ending on the
determination date shall be disregarded.
A-3. Key Employee. In general, a "key employee" is an
employee who, at the time during the 5-year period ending on the
determination date, is:
(a) an officer of Amoco receiving annual
compensation greater than 50% of the
limitation in effect under Section
415(b)(1)(A) of the Internal Revenue Code;
provided, that for purposes of this
subparagraph (a), no more than 50 employees of
Amoco (or if lesser, the greater of employees
or 10 percent of the employees) shall be
treated as officers;
(b) one of the ten employees receiving
annual compensation from Amoco of more than
the limitation in effect under Section
415(c)(1)(A) of the Internal Revenue Code and
owning both more than 1/2 percent interest and
the largest interest in Amoco;
(c) a 5 percent owner of Amoco; or
A-1
(d) a 1 percent owner of Amoco receiving
annual compensation from Amoco of more than
$150,000.
A-4. Minimum Vesting. For any Plan Year in which the Plan is
a top-heavy plan, a Participant's vested percentage in his
company contribution account shall not be less than the
percentage determined under the following table:
Years of Service Vested Percentage
Less than 2 0
2 20
3 40
4 60
5 80
6 or more 100
If the foregoing provisions of this paragraph A-4 become
effective, and the Plan subsequently ceases to be a top-heavy
plan, each Participant who has then completed three or more years
of service may elect to continue to have the vested percentage of
his company contribution account determined under the provisions
of this paragraph A-4.
A-5. Minimum Company Contribution. For any Plan Year in which
the Plan is a top-heavy plan, the company contributions, if any,
credited to each Participant who is not a key employee shall not
be less than three percent of such Participant's compensation for
that year. In no event, however, shall the company contributions
credited in any year to a Participant who is not a key employee
(expressed as a percentage of such Participant's compensation)
exceed the maximum company contribution and remainders credited
in that year to a key employee (expressed as a percentage of such
key employee's compensation up to $150,000).
A-6. Maximum Earnings. For any Plan Year in which the Plan is
a top-heavy plan, a Participant's earnings in excess of $150,000
(or such greater amount as may be determined by the Commissioner
of Internal Revenue for that Plan Year) shall be disregarded for
purposes of subsection 5.5 of the Plan.
A-7. Aggregation of Plans. In accordance with Section
416(g)(2) of the Internal Revenue code, other plans maintained by
Amoco may be required or permitted to be aggregated with this
Plan for purposes of determining whether the Plan is a top-heavy
plan.
A-8. No Duplication of Benefits. If Amoco maintains more than
one plan, the minimum company contribution otherwise required
under the paragraph A-5 above may be reduced in accordance with
regulations of the Secretary of the Treasury to prevent
inappropriate duplication of minimum contributions or benefits.
A-2
A-9. Adjustment of Combined Benefit Limitations. For any Plan
Year in which the Plan is a top-heavy plan, the determination of
the defined contribution plan fraction and defined benefit plan
fraction under subsection 5.4 of the Plan shall be adjusted in
accordance with the provisions of Section 416(h) of the Internal
Revenue Code.
A-10. Use of Terms. All terms and provisions of the
Plan shall apply to this Supplement A, except that where the
terms and provisions of the Plan and this Supplement A conflict,
the terms and provisions of this Supplement A shall govern.
A-3
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
December 6, 1995
Action by Consent of Directors, Amoco Fabrics and Fibers
Company, (the Company) effective December 6, 1995.
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and do
hereby consent to, confirm and verify the following corporate
action pursuant to authority vested by Delaware General
Corporation Law, Section 141(f):
1.WHEREAS, the Company maintains the Amoco Fabrics and
Fibers Company 401(k) Savings Plan ("Plan"); and
WHEREAS, amendment and reinstatement of the Plan,
effective January 1, 1996, is now considered desirable;
NOW, THEREFORE, BE IT
RESOLVED, that the Plan as presented to the Board of
Directors, be and is hereby amended and restated as of
January 1, 1996, and is hereinafter known as the Amoco
Fabrics and Fibers Company Hourly 401(k) Savings Plan;
and
FURTHER RESOLVED, that the proper officers of the Company
should be, and hereby are, authorized and directed in the
name of and for the Company to take any action that they
deem proper, necessary, or advisable to carry out the
purposes of these resolutions.
2.WHEREAS, the Company considers it desirable to establish
a qualified Internal Revenue Code Section 401(k) Savings
Plan titled the Amoco Fabrics and Fibers Company Salaried
401(k) Savings Plan ("Plan") for its salaried employees
effective January 1, 1996; and
WHEREAS, the Company considers it appropriate that
Bankers Trust Company should be appointed trustee,
investment manager, and record keeper of the Plan
effective January 1, 1996;
NOW, THEREFORE, BE IT
P
a
g
e
2
RESOLVED, that the Plan as presented to the Board of
Directors, be and is hereby approved effective
January 1, 1996; and
FURTHER RESOLVED, that the Company approves the
appointment of Bankers Trust Company as the trustee,
investment manager, and record keeper of the Plan
effective January 1, 1996; and
FURTHER RESOLVED, that the proper officers of the
Company should be, and hereby are, authorized and
directed in the name of and for the Company to take
any action that they deem proper, necessary, or
advisable to carry out the purposes of these
resolutions.
F. G. Andrusko
B. J. Armistead
R. J. Stover
I do hereby certify that the signatories to the above
instrument are, as of the date hereof, all of the Directors
of the Company.
Assistant Secretary
<PAGE>
AMOCO FABRICS AND FIBERS COMPANY
CONSENT ACTION OF THE
BOARD OF DIRECTORS
October 15, 1996
Action by Consent of Directors, Amoco Fabrics and
Fibers Company, ("the Company") effective October 15, 1996.
We, the undersigned, being all of the Directors of the
Company, do hereby waive call, notice, meeting and vote and
do hereby consent to, confirm and verify the following
corporate action pursuant to authority vested by Delaware
General Corporation Law, Section 141(f):
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
WHEREAS, Amoco Fabrics and Fibers Company maintains
the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan ("Plan"); and
WHEREAS, the first amendment of the Plan as Amended
and Restated effective January 1, 1996 is now
considered desirable;
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved the
Company under subsection 12.1 of the Plan, the Plan is
hereby amended, effective November 1, 1996, as
reflected on Attachment A.
FURTHER RESOLVED, that the officers of the Company be
and they hereby are authorized to take such actions as
they may deem necessary or appropriate to carry out
the intent and purpose of the foregoing resolution.
Amoco Fabrics and Fibers Company
Salaried 401(k) Savings Plan
WHEREAS, Amoco Fabrics and Fibers Company maintains
the Amoco Fabrics and Fibers Company Salaried 401(k)
Savings Plan ("Plan"); and
WHEREAS, the first amendment of the Plan is now
considered desirable;
Amoco Fabrics and
Fibers Company
Page 2
NOW, THEREFORE, BE IT
RESOLVED, that pursuant to the power reserved the
Company under subsection 12.1 of the Plan, the Plan is
hereby amended, effective November 1, 1996, as
reflected on Attachment B.
FURTHER RESOLVED, that the officers of the Company be
and they hereby are authorized to take such actions as
they may deem necessary or appropriate to carry out
the intent and purpose of the foregoing resolution.
F. G. Andrusko
B. J. Armistead
J. Stover
The undersigned Assistant Secretary does hereby
certify that the signatories to the above instrument are, as
of the date hereof, all of the Directors of the Company.
Assistant Secretary
<PAGE>
Attachment A
Amendment to
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
1. By substituting for Section 2.4 of the Plan the following
new Section 2.4:
"2.4 "Applicable Compensation" means amounts paid
by Amoco or an Affiliated Company to an Employee who is
eligible to participate as (i) basic salary and wages,
including forms of base pay delivered in alternative
forms such as piecework, payment by mileage for
drivers; overtime; and shift differentials, (ii) pay-in-
lieu of vacation, (iii) commissions, (iv) variable
incentive payments, (v) bonuses in the year received
while an Employee, including foreign service premium
payments made prior to January 1, 1997, (vi) lump sum
performance awards, and (vii) amounts contributed on
behalf of the Employee to a cafeteria plan or a cash or
deferred arrangement and not included in the Employee's
gross income for federal income tax purposes under
Section 125 or 402(e)(3) of the Code, but excluding (i)
sign-on, retention, severance and separation payments,
(ii) reward and recognition payments, (iii)
remuneration received attributable to moving and
educational expenses, (iv) expense allowances and
reimbursement for federal income tax purposes, and (vi)
any other items of remuneration.
For any Plan Year beginning on or after January 1,
1994, the amount of Applicable Compensation taken into
account under the Plan for any Participant will not
exceed $150,000 or such greater amount as may be
determined by the Commissioner of Internal Revenue for
that year. In determining the compensation of a
Participant for purposes of this limitation, the rules
of section 414(q)(6) of the Code shall apply, except in
applying such rules, the term "family" shall include
only the spouse of the Participant and any lineal
descendants of the Participant who have not attained
age 19 before the close of the year. If as a result of
the application of such rules the adjusted annual
compensation limitation is exceeded, then the
limitation shall be prorated among the affected
individuals in proportion to each such individual's
compensation as determined under this section prior to
the application of this limitation.
If compensation for any prior determination period is
taken into account in determining a Participant's
allocations for the current Plan Year, the compensation
for such prior determination period is subject to the
applicable annual compensation limit in effect for that
prior period. For this purpose in determining
allocations in Plan Years beginning on or after January
1, 1994, the annual compensation limit in effect for
determination periods beginning before that date is
$150,000 (as adjusted in accordance with Code Section
401(a)(17))."
2. By adding the following new Section 2.26 immediately
after Section 2.25:
"2.26 "Employee" means a person who is an
employee of Amoco or an Affiliated Company."
3. By substituting for Section 3.1 of the Plan the following
new Section 3.1:
"3.1 Eligible Class. Each Hourly Employee
employed by an Employer who is remunerated in U. S.
Currency through an Employer's payroll system, who is
classified as an employee by an Employer and who has
not been specifically excluded pursuant to his
Employer's participation agreement is in the eligible
class, except the following:
(a) an Hourly 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 Hourly Employee shall participate in
the Plan; or
(b) an Hourly Employee who is a nonresident
alien (within the meaning of Code Section 7701(bXl)(B))
and who receives no earned income (within the meaning
of Code Section 911 (d) from the Employer which
constitutes income from sources within the United
States (within the meaning of Code Section 861(a)(3));
or
(c) an Hourly Employee who is employed by an
Employer pursuant to an agreement that provides that
the individual shall not be eligible to participate in
the Plan."
4. By adding the following new Section 16.14 immediately
after Section 16.13:
" 16.14 Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA") .
Notwithstanding any provision of the Plan to the
contrary, any Participant or Eligible Employee who is
reemployed by an Employer after serving in the United
States military within the time period prescribed by
USERRA on or after December 12, 1994 shall be treated
as not having incurred a break in service due to
military service. Such reemployed individual shall
have up to three times his period of military service
to make missed Participant contributions, not to
exceed five years. The Employer will make the
applicable Company Matching Contributions with respect
to any Participant contributions made pursuant to this
Section. No interest will be charged on either the
Participant and Company Matching Contributions, and
the Participant will not be credited with interest or
earnings that would have been earned on such
contributions. "
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
<PAGE>
Attachment B
Amendment to
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
1. By substituting for Section 2.4 of the Plan the following
new Section 2.4:
"2.4 "Applicable Compensation" means amounts paid
by Amoco or an Affiliated Company to an Employee who is
eligible to participate as (i) basic salary and wages,
including forms of base pay delivered in alternative
forms such as piecework; payment by mileage for
drivers; overtime; and shift differentials, (ii) pay-in-
lieu of vacation, (iii) commissions, (iv) variable
incentive payments, (v) bonuses in the year received
while an Employee, including foreign service premium
payments made prior to January 1, 1997, (vi) lump sum
performance awards, and (vii) amounts contributed on
behalf of the Employee to a cafeteria plan or a cash or
deferred arrangement and not included in the Employee's
gross income for federal income tax purposes under
Section 125 or 402(e)(3) of the Code, but excluding (i)
sign-on, retention, severance and separation payments,
(ii) reward and recognition payments, (iii)
remuneration received attributable to moving and
educational expenses, (iv) expense allowances and
reimbursement for federal income tax purposes, and (vi)
any other items of remuneration.
For any Plan Year beginning on or after January 1,
1994, the amount of Applicable Compensation taken into
account under the Plan for any Participant will not
exceed $150,000 or such greater amount as may be
determined by the Commissioner of Internal Revenue for
that year. In determining the compensation of a
Participant for purposes of this limitation, the rules
of section 414(q)(6) of the Code shall apply, except in
applying such rules, the term "family" shall include
only the spouse of the Participant and any lineal
descendants of the Participant who have not attained
age 19 before the close of the year. If as a result of
the application of such rules the adjusted annual
compensation limitation is exceeded, then the
limitation shall be prorated among the affected
individuals in proportion to each such individual's
compensation as determined under this section prior to
the application of this limitation.
If compensation for any prior determination period is
taken into account in determining a Participant's
allocations for the current Plan Year, the compensation
for such prior determination period is subject to the
applicable annual compensation limit in effect for that
prior period. For this purpose in determining
allocations in Plan Years beginning on or after January
1, 1994, the annual compensation limit in effect for
determination periods beginning before that date is
$150,000 (as adjusted in accordance with Code Section
401(a)(17))."
2. By adding the following new Section 2.26 immediately
after Section 2.25:
"2.26 "Employee" means a person who is an
employee of Amoco or an Affiliated Company."
3. By substituting for Section 3.1 of the Plan the following
new Section 3.1:
"3.1 Eligible Class. Each Hourly Employee
employed by an Employer who is remunerated in U. S.
Currency through an Employer's payroll system, who is
classified as an employee by an Employer and who has
not been specifically excluded pursuant to his
Employer's participation agreement is in the eligible
class, except the following:
(a) an Salaried 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 Salaried Employee shall participate
in the Plan; or
(b) an Salaried Employee who is a nonresident
alien (within the meaning of Code Section
7701(b)(1)(B)) and who receives no earned income
(within the meaning of Code Section 911(d)(2)) from the
Employer which constitutes income from sources within
the United States (within the meaning of Code Section
861(a)(3)); or
(c) an Salaried Employee who is employed by an
Employer pursuant to an agreement that provides that
the individual shall not be eligible to participate in
the Plan."
4. By adding the following new Section 16.14 immediately
after Section 16.13:
" 16.14 Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA") .
Notwithstanding any provision of the Plan to the
contrary, any Participant or Eligible Employee who is
reemployed by an Employer after serving in the United
States military within the time period prescribed by
USERRA on or after December 12, 1994 shall be treated
as not having incurred a break in service due to
military service. Such reemployed individual shall
have up to three times his period of military service
to make missed Participant contributions, not to
exceed five years. The Employer will make the
applicable Company Matching Contributions with respect
to any Participant contributions made pursuant to this
Section. No interest will be charged on either the
Participant and Company Matching Contributions, and
the Participant will not be credited with interest or
earnings that would have been earned on such
contributions. "
Amoco Fabrics and Fibers Company
Hourly 401(k) Savings Plan
<PAGE>
SECOND AMENDMENT OF
AMOCO FABRICS AND FIBERS COMPANY
HOURLY 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan (the "Plan"); and
WHEREAS, Amoco Corporation ("Amoco") has entered into a Plan
and Agreement of Merger dated August 11, 1998, and amended
as of October 22, 1998 (the "Merger Agreement") by and among
The British Petroleum Company ("BP"), Eagle Holdings, Inc.,
a subsidiary of BP, and Amoco providing for the merger
("Merger") of Eagle Holdings, Inc. with and into Amoco,
resulting in, among other items (1) Amoco being a wholly
owned subsidiary of BP, (2) Amoco changing its name to BP
Amoco Corporation, and BP changing its name to BP Amoco
p.l.c., and (3) Amoco's outstanding common stock being
converted into ordinary shares of BP Amoco p.l.c. in the
form of American Depositary Shares ("ADSs"); and
WHEREAS, the Plan has previously been amended and further
amendment of the Plan is now considered desirable in
connection with the Merger;
NOW, THEREFORE, pursuant to the power reserved to the
Company in Article XII of the Plan and delegated to the
President of the Company, the Plan is hereby amended,
effective as of the close of the Merger, as follows:
1.By substituting the following for Section 2.3 of the
Plan:
"2.3 'BP Amoco' means BP Amoco Corporation, an
Indiana corporation, and any successor thereto."
2.All references to the "Amoco Stock Fund" on and
after the Merger will be to the "BP Amoco Stock
Fund" and all references to "Amoco Corporation" on
and after the Merger will be to "BP Amoco."
Notwithstanding the foregoing, in the context of any
Plan provision where BP Amoco refers to the issuer
of common stock, "BP Amoco" will mean BP Amoco
p.l.c., or any successor thereto.
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendment of
the Amoco Fabrics and Fibers Company Hourly 401(k) Savings
Plan.
Dated this ____ day of January, 1999.
President
Amoco Fabrics and Fibers Company
<PAGE>
THIRD AMENDMENT OF
AMOCO FABRICS AND FIBERS COMPANY
HOURLY 401(k) SAVINGS PLAN
(Effective as of January 1, 1996)
WHEREAS, Amoco Fabrics and Fibers Company (the "Company")
maintains the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan (the "Plan"); and
WHEREAS, certain amendments of the Plan are now considered
desirable;
NOW, THEREFORE, pursuant to the power reserved to the
Company in Article XII of the Plan, the Plan is hereby
amended as follows:
1. Effective as of April 1, 1999, by substituting the
following for the second sentence of subsection 8.3(g)
of the Plan:
"The Plan Administrator may establish back-up
repayment procedures for any Participant who is
on an 'authorized leave of absence' or who files
a petition in bankruptcy or becomes the subject
of a wage earning plan under federal or state
bankruptcy insolvency laws."
2. Effective as of January 1, 1998, by substituting
the following for Section
10.4 of the Plan:
"10.4 $5,000 Cash-Out. Effective as of January
1, 1998, if the value of the nonforfeitable
portion of a Participant's Account is $5,000 or
less (or such higher amount as may be permitted
under applicable law) as of the Valuation Date
immediately following his termination of
employment for any reason, the Plan Administrator
shall direct that the Participant's Account be
paid as soon as practicable in a single sum."
3. Effective as of April 1, 1999, by adding the
following new sentence to the
end of Section 10.4 of the Plan:
"If a Participant's employment was terminated for
any reason prior to January 1, 1998, and the value
of his Account as of April 1, 1999 is $5,000 or
less, the Plan Administrator shall direct that the
Participant's Account as of April 1, 1999 be
distributed as soon as practicable in a single
sum."
4. Effective as of April 1, 1999, by adding the
following new Supplement B
immediately after Supplement A of the Plan:
"SUPPLEMENT B
Direct Transfer from the Amoco Performance
Share Plan
Upon the termination of the Amoco
Performance Share Plan (the 'APSP'), the
APSP account balance of each Hourly
Employee described in Section 3.1 who
was a participant in the APSP (a
'Supplement B Participant') shall be
transferred to the Plan. Each Supplement
B Participant who had not previously
become a Participant in the Plan shall
become a Participant in the Plan on the
date of the transfer. The amounts so
transferred shall be credited to each
Supplement B Participant's Rollover
Account which will be established in
accordance with Section 6.4 as of the
Valuation Date (as defined in Section
7.3) immediately following receipt by
the Trustee. The transferred portion of
a Supplement B Participant's Rollover
Account will be invested in the Money
Market Fund until the Participant
directs otherwise in accordance with
Section 7.2.
Except as otherwise provided in the
preceding paragraph, all terms and
conditions of the Plan shall apply to
amounts transferred from the APSP to the
Plan."
I, William S. Johnson, President of Amoco Fabrics and Fibers
Company, hereby approve and adopt the foregoing amendment of
the Amoco Fabrics and Fibers Company Hourly 401(k) Savings
Plan.
Dated , 1999.
President
Amoco Fabrics and Fibers Company
<PAGE>
<PAGE>
Exhibit 4.7
Agreement and Declaration of Trust made as of this 14th day
of December, 1995, by and between Amoco Fabrics and Fibers
Company, a Delaware corporation, and BANKERS TRUST COMPANY, a New
York banking corporation.
W I T N E S S E T H:
WHEREAS, Amoco Fabrics and Fibers Company wishes to
establish a master trust to serve as a funding medium for Amoco
Fabrics and Fibers Company Hourly 401(k) Savings Plan, Amoco
Fabrics and Fibers Company Salaried 401(k) Savings Plan, and
other eligible employee benefit plans of Amoco Fabrics and Fibers
Company and its subsidiaries and affiliates, and
WHEREAS, Bankers Trust Company is willing to act as trustee
of such trust upon all of the terms and conditions hereinafter
set forth.
NOW, THEREFORE, Amoco Fabrics and Fibers Company and
Bankers Trust Company declare and agree that Bankers Trust
Company wilI receive, hold and administer all sums of money and
such other property acceptable to Bankers Trust Company as shall
from time to time be contributed, paid or delivered to it
hereunder, IN TRUST, upon all of the following terms and
conditions:
ARTICLE I
Title-Purpose-Policy-Effect
1.1. Name. The master trust established hereunder shall be
known as the Amoco Fabrics and Fibers Company Master Trust and is
sometimes hereinafter referred to as the "Trust"
1.2 Definitions. Where used in this Agreement and Declaration
of Trust, unless the context otherwise requires or unless
otherwise expressly provided:
(b) "Account Party" shall mean the Person designated by the
Company to represent the Company for this prupose, the Named
Fiduciary and any Person to whom the Trustee shall be instructed
by the Named Fiduciary to deliver its annual or other periodic
account under Section 8.2 or Section 8.3, except, that with
respect to any filings, notices, reports or accountings required
to be given under the General Trust, "Account Party" shall be
limited to that officer designated herein to represent the
Company.
(c) "Accounting Period" shall mean either the twelve consecutive
month period conincident with the calendar year or, if different,
the common fiscal year of the Participating Plans or the shorter
period in any year in which the Trustee accepts apointment as
Trustee hereunder or, with respect to any Participating Plan or
Plans, ceases to act as Trustee for any reason.
(d) "Administrative Committee" shall mean, with respect to each
Participating Plan, the Committee or other Person responsible for
benefit administration under such Participating Plan, including
any representative (designated in writing as such) or designee
thereof authoirzed to act on behalf of such Committee.
(e) "Agreement" shall mean all of the provisions of this
instrument and of all other written instruments amendatory
hereof.
(f) "Asset Manager" shall mean the Trustee (other than for
purposes of Article VI), Named Fiduciary or Investment Manager,
individually or colletively as the context shall require, with
respect to those assets held in any Investment Fund established
hereunder over which it exercises, or to the extent it is
authorized to exercise, discretionary investment authority or
control.
(g) "Bank business day" shall mean a day on which the Trustee is
open for business.
(h) "Bankers" shall mean Bankers Trust Company.
(i) "Board of Directors" shall mean the board of directors of
the Company.
(j) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(k) "Common Stock Fund" shall mean an Investment Fund consisting
of common stock of the Company.
(l) "Company" shall mean Amoco Fabrics and Fibers Company or any
successor thereto.
(m) "Company Stock" shall mean the common stock of Amoco
Corporation.
(n) "Directed Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of
the Named Fiduciary or any Investment Manager, other than the
Trustee.
(o) "Discretionary Fund" shall mean any Investment Fund, or part
thereof, subject to the discretionary management and control of
the Trustee.
(p) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
(q) "General Trust" shall mean the BT Pyramid Trust created by
Bankers Trust Company under Declaration of Trust effective June
30, 1991, as heretofore or hereafter amended.
(r) "Insurance Contract" shall mean any contract or policy
(including any annuity contract) of any kind issued by an
insurance company, whether or not providing for the allocation of
amounts received by the insurance company thereunder solely to
the general account or solely to one or more separate accounts
(including separate accounts maintained for the collective
investment of qualified retirement plans), or a combination
thereof, and whether or not any such allocation may be made in
the discretion of the insurance company.
(s) "Investment Fund" shall mean each pool of assets established
for investment purposes pursuant to Section 5.1 in the Trust in
which one or more Participating Plans has an interest during an
Accounting Period. The term shall also include for all purposes
hereof any sub-fund or account into which an Investment Fund
shall be divided from time to time at the direction of the Named
Fiduciary.
(t) "Investment Manager" shall mean a bank, insurance company or
investment adviser satisfying the requirements of Section 3(38)
of ERISA.
(u) "Investment Vehicle" shall mean any common, collective or
commingled trust (other than the General Trust or an Investment
Fund), investment company, corporation functioning as an
investment intermediary, Insurance Contract. partnership, joint
venture or other entity or arrangement to which, or pursuant to
which, assets of an Investment Fund within the Trust may be
transferred or in which the Trust has an interest, beneficial or
otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(v) "Master Fund" shall mean all cash and other property
contributed, paid or delivered to the Trustee hereunder, all
investments made therewith and proceeds thereof and all earnings
and profits thereon, less payments, transfers or other
distributions which, at the time of reference, shall have been
made by the Trustee, as authorized herein. The Master Fund shall
include each Investment Fund and all evidences of ownership,
interest or participation in an Investment Vehicle, but shall
not, solely by reason of the Master Fund's investment therein',
be deemed to include any assets of such Investment Vehicle.
(w) "Named Fiduciary" shall mean the Person or its designee with
respect to a Participating Plan, who, within the meaning of
Section 402(a)(2), 402(c)(3) or 403(a)(1) of ERISA, has the
authority to perform the separate functions allocated to that
"Named Fiduciary" under this Agreement. Unless otherwise
specifically provided to the contrary, the Named Fiduciary shall
mean the Administrative Committee appointed pursuant to the
Participating Plans.
(x) "Participating Plan" shall mean any employee benefit plan
which meets the requirements for eligibility specified in Section
2.1. [All Participating Plans are listed on Appendix A attached
hereto.]
(y) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock
company, unincorporated organization, association, partnership,
joint venture, employee organization, committee, board,
participant, beneficiary, trustee, partner, or venturer acting in
an individual, fiduciary or representative capacity, as the
context may require.
(z) "Section" shall mean any Section of this Agreement.
(aa) "Share" shall mean the interest of any Participating
Plan in the Master Fund, and where appropriate any Investment
Fund, the accounting for which will be maintained by the Trustee
in a manner agreed upon between the Company and the Trustee and
may be expressed in "units".
(bb) "Trustee" shall mean Bankers Trust Company, as Trustee
of the Trust.
(cc) "Valuation Date" shall mean the last day of the
Accounting Period, calendar quarter or any more frequent date for
reporting and/or investment purposes agreed to by the Trustee.
The plural of any term shall have a meaning corresponding
to the singular thereof as so defined and any neuter pronoun used
herein shall include the masculine or feminine, as the context
may require.
1.3. Purpose. The Trust is established to fund the benefits
payable to participants and their beneficiaries under each
Participating Plan.
1.4 Exclusive Benefit. Except as may otherwise be permitted
by law and the terms of the Participating Plan, at no time prior
to the satisfaction of all liabilities with respect to
participants and their beneficiaries under any Participating Plan
shall any part of the Share of such Participating Plan be used
for, or diverted to, any purposes other than for the exclusive
benefit of such participants and their beneficiaries, and for
defraying the reasonable expenses of administering such Plan. No
provision herein designed to provide for the pooling of assets of
Participating Plans for investment purposes shall be deemed or
construed to authorize the utilization of the assets of any
Participating Plan to discharge the obligations and liabilities
of any other Plan.
1.5. Effect. All Persons at any time interested in any
Participating Plan shall be bound by the provisions of this
Agreement and, in the event of any conflict between this
Agreement and the provisions of a Participating Plan or any
instrument or agreement forming part of such Plan other than this
Agreement, the provisions of this Agreement shall control
1.6. Domestic Trust The Trust shall at all times be
maintained as a domestic trust in the United States
1.7. Trustee Not Responsible for Enforcing Contributions or
for Sufficiency. The Trustee shall have no responsibility for
enforcing payment of any contribution to any Participating Plan,
for the timing or amount thereof, or for the adequacy of the
Master Fund or the funding standards adopted for any
Participating Plan to meet or discharge any pension or other
liabilities of such Plan.
ARTICLE II
Participation
2.1. Eligibility. Any employee benefit plan established by
the Company, or a subsidiary or an affiliate of the Company, may
be funded, in whole or in part, through the Trust if (i) the plan
is qualified under Section 401 (a) of the Code, (ii) the Trust is
exempt from taxation under Section 501(a) of the Code, and (iii)
this Agreement has been duly adopted as the trust under the Plan
by the Board of Directors or by the board of directors of a
subsidiary or affiliate of the Company and, in the case of such
subsidiary or affiliate, the Company has consented thereto.
2.2. Effect on Adopting Company. When the Master Trust has
been adopted by any subsidiary or affiliate of the Company, such
subsidiary or affiliate shall be bound by the decisions,
instructions, actions and directions of the Company, the
Administrative Committee or the Named Fiduciary under or
affecting this Agreement, and the Trustee shall be fully
protected by the Company and such subsidiary or affiliate in
relying upon the decisions, instructions, actions and directions
of the Company, the Administrative Committee or the Named
Fiduciary. Except as may be hereafter specifically provided, the
Trustee shall not be required to give notice to or to obtain the
consent of any subsidiary or affiliate with respect to any action
to be taken by the Trustee pursuant to this Agreement, and the
Company shall have the sole authority to enforce this Agreement
on behalf of any subsidiary or affiliate.
2.3. Shares. The Trustee shall maintain a separate account
and such sub-accounts as it and the Company shall deem advisable
to reflect the Share of each Participating Plan, or part thereof
The Named Fiduciary shall provide the Trustee with current
information in order that the Trustee may determine such Shares.
An Investment Fund may be divided into such one or more sub-funds
or accounts or described in a different manner on any books kept
or reports rendered by the Trustee without in any way affecting
the duties or responsibilities of the Trustee under the
provisions of this Agreement; provided, however the books and
records of the Trustee shall at all times be maintained so that
the interest of each Participating Plan may be determined.
2.4. Valuations. The Trustee shall determine the value of
the assets of the Master Fund and each Investment Fund as of each
Valuation Date. Except in the case of an Investment Fund in which
amortized cost is the valuation method designated, assets will be
valued at their market values at the close of business on the
Valuation Date, or, in the absence of readily ascertainable
market values, at such values as the Trustee shall determine in
accordance with methods consistently followed and uniformly
applied. Anything in this Agreement to the contrary
notwithstanding, with respect to assets constituting part of a
Directed Fund, the Trustee may rely for all purposes of this
Agreement on the latest valuation and transaction information
submitted to it by the Person responsible for the investment of
such assets even if such information predates the Valuation Date.
The Named Fiduciary will cause such Person to provide the Trustee
with all information needed by the Trustee to discharge its
obligations to value such assets and to account under this
Agreement.
2.5. Participant Records and Accounts. The Trustee shall
maintain separate accounts for each Participant to which shall be
credited units of participation in the Master Fund in accordance
with the provisions of the Participating Plan. The Trustee shall
render a statement to each Participant at least annually, or more
often if requested by the Committee. with respect to such
accounts in accordance with the Plan. The Committee shall direct
the Trustee as to the names of Participants, the respective
contributions to be credited to the account of each, the
directions of Participants, beneficiaries or legal
representatives, and other data required by the Trustee to
maintain a record of the accounts of Participants, to determine
the amounts to be invested in the respective Investment Fund, and
to make distributions therefrom. The Trustee may rely on
directions received by facsimile transmission, or other
teleprocess or electronic transmission acceptable to it and which
it believes in good faith to have been given by an authorized
person or persons. The Trustee may rely absolutely on all
directions by the Committee. The Trustee shall be under no duty
or obligation to question such direction or to verify the
accuracy of such direction by reference to to records of the
Company or Committee.
The undertaking of the foregoing administrative functions
by the Trustee is neither intended to nor shall be inferred to
confer any other power or responsibility, discretionary or
otherwise, upon the Trustee, or upon any employee of the Trustee
with respect to the administration of the Participating Plan by
the Administrative Committee, the determination of any
Participants rights thereunder, or the investment of any
Participant's account by an Investment Manager.
ARTICLE III
Administration of Participating Plans
3.1. Payment of Benefits. On the direction of the
Administrative Committee, the Trustee shall pay moneys out of the
share of a Participating Plan directly to or for the benefit of
participants in such Plan and their beneficiaries, or to an
insurance company to provide for the payment of such benefits by
the purchase of an Insurance Contract, or to a paying or
disbursing agent (which may be the Administrative Committee). Any
assets disbursed or paid over by the Trustee pursuant to this
Section 3.1 shall no longer be part of the Master Fund.
3.2. Reliance on Administrative Committee. Any directions
pursuant to Section 3.1 may, but need not. specify the
application to be made of moneys so ordered. The Trustee shall
charge such transfer against the Share of such one or more of the
Participating Plans as the Administrative Committee shall direct.
Each direction to the Trustee under Section 3.1 shall constitute
a certification by the Administrative Committee that such
direction is in accordance with applicable law, the terms of any
relevant Participating Plan and the terms of this Agreement, and
the Trustee shall have no duty to make any independent inquiry or
investigation as to any of the foregoing before acting upon such
direction, or to see to the application of any moneys paid over.
3.3. Trustee Not Responsible for Plan Administration. The
Trustee shall not be responsible under this Agreement, or
otherwise, in any way respecting the determination, computation,
payment or application of any benefit, for the form, terms,
payment provisions or issuer of any Insurance Contract which it
is directed to purchase to provide for the payment of benefits
under any Participating Plan, for performing any functions under
any such Insurance Contract which it may be directed to purchase
and/or hold as contract holder thereunder (other than the
execution of any documents incidental thereto and transfer or
receipt of funds thereunder), or for any other matter affecting
the administration of a Participating Plan, by the Company or the
Administrative Committee or any other Person to whom such
responsibility is allocated or delegated pursuant to the terms of
the Participating Plan.
ARTICLE IV
Investment of Trust Assets
4.1. Asset Managers. Discretionary authority for the
management and control of assets of a Participating Plan from
time to time held in the Master Fund may be retained, allocated
or delegated. as the case may be, for one or more purposes, to
and among the Asset Managers by the Named Fiduciary, in its
absolute discretion. The terms and conditions of appointment,
authority and retention of any Asset Manager shall be the sole
responsibility of the Named Fiduciary. The Named Fiduciary shall
promptly notify the Trustee in writing of the appointment or
removal of an Asset Manager. Any notice of appointment pursuant
to this Section 4.1 shall constitute a representation and
warranty that the Asset Manager has been appointed in accordance
with the provisions of the, Participating Plan and that any Asset
Manager (other than the Trustee or the Named Fiduciary) is an
Investment Manager.
4.2. Investment Discretion. Subject to Section 5.1, the
assets of the Trust shall be invested and reinvested, without
distinction between principal and income, at such time or times
in such investments and pursuant to such investment strategies or
courses of action and in such shares and proportions, as the
Asset Managers, in their sole discretion, shall deem advisable.
4.3. Limitations on Investment Discretion. In addition to
the limitations imposed by Section 5.1, the Named Fiduciary may
limit, restrict or impose guidelines affecting the exercise of
the discretion hereinabove conferred on any Asset Manager. Any
limitations, restrictions or guidelines applicable to the
Trustee, as Asset Manager, shall be communicated in writing to
the Trustee. The Trustee shall have no responsibility with
respect to the formulation of any funding policy or any
investment or diversification policies embodied therein. The
Named Fiduciary shall be responsible for communicating, and
monitoring adherence to, any limitations or guidelines imposed on
any other Asset Manager by Section 5.1 or Section 7.3 or the
guidelines described above.
4.4. Responsibility for Diversification. The Named
Fiduciary shall be responsible for determining the
diversification policy (if required) of the Master Fund, for
monitoring adherence by the Asset Managers to such policy, and
for advising the Asset Managers with respect to limitations on
employer or other securities or property contained in any
Participating Plan or imposed on such Plan by applicable law or
by the Named Fiduciary.
ARTICLE V
Investment Funds Within the Master Fund
5.1. Participating investment Funds. At the direction of
the Named Fiduciary, the interest of a Participating Plan in the
Master Fund may be allocated and held and invested in one or more
Investment Funds established hereunder by the Named Fiduciary as
required or permitted by the terms of each Participating Plan. As
of the date hereof, the Master Fund shall be hold and invested in
the Investment Funds listed and described in [Appendix B]
attached hereto. The Named Fiduciary, to the extent permitted by
a Participating Plan, may establish additional Investment Funds,
or freeze, terminate or modify the description of any Investment
Fund. The determination of the Named Fiduciary of investments
eligible for inclusion in any Investment Fund shall be conclusive
and binding on all Persons interested in the Participating Plans.
Such Investment Funds shall include. where applicable, a Common
Stock Fund which shall consist of Company Stock. The income of
each Investment Fund shall be accumulated and invested in such
Fund. To the extent that any cash shall be allocated to the
Common Stock Fund, the Trustee shall regularly purchase the
Company Stock on the open market or, if the Plan so provides,
from the Company or in private transactions, in accordance with a
non-discretionary purchasing program.
The Trustee shall have no authority or obligation to invest
or reinvest cash balances of any Directed Fund in the General
Trust or otherwise pursuant to this Agreement unless and until it
receives appropriate directions from the Asset Manager. Cash
balances (including interim investment thereof) in the Common
Stock Fund shall be limited to the administrative needs of such
Investment Fund. For the purpose of this Section 5.1 and Section
5.2., "administrative needs" shall mean needs consistent with the
Trustee's implementation of the regular purchasing program
described herein, anticipated distributions and withdrawals from
such Investment Fund, and transfers among the Investment Funds at
the election of participants. Any investment limitation affecting
Company securities shall not be applicable to the extent any
Investment Fund is invested in units of the General Trust.
5.2. The Company Stock Fund. Notwithstanding the
unrestricted powers conferred on the Trustee in this Agreement,
the Trustee shall purchase and retain the Company Stock in the
Common Stock Fund regardless of market fluctuations and, subject
to Article XVI, the Trustee shall sell such stock only to meet
administrative needs of the Participating Plan. The Company shall
undertake the responsibility to inform Participating Plan
participants of the unique nature of the Common Stock Fund.
ARTICLE VI
Responsibility for Directed Funds
6.1. Responsibility for Selection of Agents. All
transactions of any kind or nature in or from a Directed Fund
shall be made upon such terms and conditions and from or through
such brokers, dealers and principals and other agents as the
Asset Manager shall direct. No such transactions shall be
executed through the facilities of the Trustee except where the
Trustee shall make available its facilities solely for the
purpose of temporary investment of cash reserves of a Directed
Fund. However, nothing in the preceding sentence shall confer any
authority upon the Trustee to invest the cash balances of any
Directed Fund unless and until it receives directions from the
Asset Manager.
6.2. Trustee Not Responsible for Investments in Directed
Funds. The Trustee shall be under no duty or obligation to review
or to question any direction of any Asset Manager, or to review
securities or any other property held in any Directed Fund with
respect to prudence or proper diversification or compliance with
any limitation on the Asset Managers authority under this
Agreement or the terms of a Participating Plan, any agreement
entered into between the Company or the Named Fiduciary and the
Asset Manager or imposed by applicable law, or to make any
suggestions or recommendation to the Company, the Named Fiduciary
or the Asset Manager with respect to the retention or investment
of any assets of any Directed Fund, and shall have no authority
to take any action or to refrain from taking any action with
respect to any asset of a Directed Fund unless and until it is
directed to do so by the Asset Manager.
6.3. Investment Vehicles. Any Investment Vehicle, or
interest therein, acquired by or transferred to the Trustee upon
the directions of the Asset Manager shall be allocated to a
designated Directed Fund, and the Trustee's duties and
responsibilities under this Agreement shall not be increased or
otherwise affected thereby. The Trustee shall be responsible
solely for the safekeeping of the physical evidence, if any, of
the Trust's ownership of or interest or participation in such
Investment Vehicle.
6.4. Reliance on Asset Manager . The Trustee shall be
required under this Agreement to execute documents, to settle
transactions, to take action on behalf of or in the name of the
Trust and to make and receive payments on the direction of the
Asset Manager. Any direction of the Asset Manager shall
constitute a certification to the Trustee (i) that the
transaction will not constitute a prohibited transaction under
ERISA or the Code, (ii) that the investment is authorized under
the terms of this Agreement and any other agreement or law
affecting the Asset Manager's authority to deal with the Directed
Fund, (iii) that any contract. agency, joinder, adoption,
participation or partnership agreement, deed. assignment or other
document of any kind which the Trustee is requested or required
to execute to effectuate the transaction has been reviewed by the
Asset Manager and, to the extent it deems advisable and prudent,
its counsel, (iv) that such instrument or document is in proper
form for execution by the Trustee, (v) that, where appropriate,
insurance protecting the Trust against loss or liability has been
or will be maintained in the name of or for the benefit of the
Trustee, and (vi) that all other acts to perfect and protect the
Trust's rights have been taken, and the Trustee shall have no
duty to make any independent inquiry or investigation as to any
of the foregoing before acting upon such direction. In addition,
the Trustee shall not be liable for the default of any Person
with respect to any Investment Vehicle or any investment in a
Directed Fund or for the form, genuineness, validity, sufficiency
or effect of any document executed by, delivered to or held by it
for any Directed Fund on account of such investment, or if, for
any reason (other than the negligence or willful misconduct of
the Trustee) any rights of the Trust therein shall lapse or shall
become unenforceable or worthless.
6.5. Merger of Funds. The Trustee shall not have any
discretionary responsibility or authority to manage or control
any asset held in a Directed Fund upon the resignation or removal
of an Asset Manager unless and until it has been notified in
writing by the Named Fiduciary that the Asset Manager's authority
has terminated and that such Directed Fund's assets are to be
integrated with the Discretionary Fund. Such notice shall not be
deemed effective until two bank business days after it has been
received by the Trustee. The Trustee shall not be liable for any
losses to the Master Fund resulting from the disposition of any
investment made by the Asset Manager or for the retention of any
illiquid or unmarketable investment or any investment which is
not widely publicly traded or for the holding of any other
investment acquired by the Asset Manager if the Trustee is unable
to dispose of such investment because of any restrictions imposed
by the Securities Act of 1933 or other Federal or state law, or
if an orderly liquidation of such investment is impractical under
prevailing conditions, or for failure to comply with any
investment limitations imposed pursuant to Section 4.3 or 5.1, or
for any other violation of the terms of this Agreement, the
Participating Plans or applicable law as a result of the addition
of Directed Fund assets to the Discretionary Fund.
6.6. Notification of Named Fiduciary in Event of Breach. If
the Trustee has knowledge of a breach committed by an Asset
Manager, it shall notify the Named Fiduciary thereof, and the
Named Fiduciary shall thereafter assume full responsibility to
all Persons interested in the Participating Plans to remedy such
breach.
6.7. Definition of Knowledge. The parties hereto
acknowledge that while the Trustee will perform certain duties
(such as custodial, reporting, recording, valuation and
bookkeeping functions) with respect to Directed Funds, such
duties will not involve the exercise of any discretionary
authority to manage or control the assets of the Directed Funds
and will be the responsibility of officers or other employees of
the Trustee who are unfamiliar with and have no responsibility
for investment management Therefore, in the event that knowledge
of the Trustee shall be a prerequisite to imposing a duty upon or
to determining liability of the Trustee under this Agreement or
any statute regulating the conduct of the Trustee with respect to
such Directed Funds or relieving the Company of its undertakings
under Section 16.2, the Trustee will not be deemed to have
knowledge of, or to have participated in, any act or omission of
an Asset Manager involving the investment of assets allocated to
the Directed Funds as a result of the receipt and processing of
information in the course of performing such duties.
6.8. Duty to Enforce Claims The Trustee shall have no duty
to commence or maintain any action, suit or legal proceeding on
behalf of the Trust on account of or growing out of any
investment made in or for a Directed Fund unless the Trustee has
been directed to do so by the Asset Manager or the Named
Fiduciary and unless the Trustee is either in possession of funds
sufficient for such purpose or has been indemnified to its
satisfaction for counsel fees, costs and other expenses and
liabilities to which it, in its sole judgment. may be subjected
by beginning or maintaining such action, suit or legal
proceeding.
6.9. Restrictions on Transfer. Nothing herein shall be
deemed to empower any Asset Manager to direct the Trustee to
transfer any asset of a Directed Fund to itself except for
purposes enumerated in paragraph (j), (l) or (m) of Section 7.1.
ARTICLE VII
Powers of Asset Managers
7.1. General Powers. Without in any way limiting the powers
and discretions conferred upon any Asset Manager by the other
provisions of this Agreement or by law, each Asset Manager shall
be vested with the following powers and discretions with respect
to the assets of the Trust subject to its management and control,
and, upon the directions of to Asset Manager of a Directed Fund,
the Trustee shall make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to enable such
Asset Manager to carry out such powers and discretions:
(a) to sell, exchange, convey, transfer or otherwise
dispose of any property by private contract or at public auction,
and no person dealing with the Asset Manager shall be bound to
see to the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or other
disposition;
(b) to enter into contracts or to make commitments
either alone or in company with others to sell or acquire
property;
(c) to purchase or sell, write or issue, puts, calls or
other options, covered or uncovered. to enter into financial
futures contracts, forward placement contracts and standby
contracts. and in connection therewith, to deposit, hold (or
direct Bankers, as Trustee or in its individual capacity, to
deposit or hold) or pledge assets of the Master Fund;
(d) to purchase part interests in real property or in
mortgages on real property, wherever such real property may be
situated;
(e) to lease to others for any term without regard to
the duration of the Trust any real property or part interest in
real property;
(f) to delegate to a manager or the holder or holders
of a majority interest in any real property or mortgage on real
property or in any oil, mineral or gas properties, the management
and operation of any part interest in such property or properties
(including the authority to sell such part interests or otherwise
carry out the decisions of such manager or the holder or holders
of such majority interest);
(g) to vote upon any stocks, bonds or other securities
(but subject to the suspension of any voting rights as a result
of any broker loan or similar agreement and subject further with
respect to the voting of Company Stock, to the provisions of any
Participating Plan); to give general or special proxies or powers
of attorney with or without power of substitution; to exercise
any conversion privileges, subscription rights or other options
and to make any payments incidental thereto; to consent to or
otherwise participate in corporate reorganizations or other
changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers
of an owner with respect to stocks, bonds, securities or other
property;
(h) to organize corporations under the laws of any
state for the purpose of acquiring or holding title to property
(or, in the case of a Directed Fund, to direct the Trustee to
organize such corporations or to appoint an ancillary trustee
acceptable to the Trustee for such purpose),
(i) to invest in a fund consisting of securities.
issued by corporations and selected and retained solely because
of their inclusion in, and in accordance with, one or more
commonly used indices of such securities, with the objective of
providing investment results for the fund which approximate the
overall performance of such designated index;
(j) to enter into any partnership, as a general or
limited partner, or joint venture;
(k) to purchase units or certificates issued by an
investment company or pooled trust or comparable entity;
(l)to transfer money or other property to an insurance
company issuing an Insurance Contract;
(m) to transfer assets of a Discretionary or Directed
Fund to a common, collective or commingled trust fund exempt from
tax under the Code maintained by an Asset Manager or an affiliate
of an Asset Manager or by another trustee who is designated by
the Named Fiduciary, to be hold and invested subject to all of
the terms and conditions thereof, and such trust shall be deemed
adopted as part of the Trust and the Participating Plans to the
extent that assets of the Trust are invested therein; provided,
however, that any transfer from a Directed Fund to the General
Trust may be made only with the prior approval of the Trustee and
shall be invested only in one or more short term investment funds
or other special purpose funds established from time to time
thereunder; and
(n) to be reimbursed for the expenses incurred in
exercising any of the foregoing powers or to pay the reasonable
expenses incurred by any agent, manager or trustee appointed
pursuant hereto.
7.2. Additional Powers of Trustee. In addition, the Trustee
is hereby authorized:
(a) to register any securities held in the Master Fund
in its own name or in the name of a nominee and to hold any
securities in bearer form, and to combine certificates
representing such securities with certificates of the same issue
held by the Trustee in other fiduciary or representative
capacities or as agent for customers, or to deposit or to arrange
for the deposit of such securities in any qualified central
depository even though, when so deposited, such securities may be
merged and held in bulk in the name of the nominee of such
depository with other securities deposited therein by other
depositors, or to deposit or arrange for the deposit of any
securities issued by the United States Government, or any agency
or instrumentality thereof, with a Federal Reserve Bank, but the
books and records of the Trustee shall at all times show that all
such investments are part of the Master Fund;
(b) to employ suitable agents, depositories and
counsel, domestic or foreign, and to charge their reasonable
expenses and compensation against the Master Fund, and to confer
upon any such depository the powers conferred upon the Trustee by
paragraph (a) of this Section 7.2 as well as the power to appoint
subagents and depositories, wherever situated, in connection with
the retention of securities or other property;
(c) to borrow money from any source as may be necessary
or advisable to effectuate the purposes of the Trust on such
terms and conditions as the Trustee, in its absolute discretion,
may deem advisable;
(d) to deposit any funds of the Trust in accounts or
savings certificates, which bear a reasonable rate of interest,
issued or maintained by Bankers Trust Company, in its separate
corporate capacity, or in any other institution affiliated with
Bankers Trust Company;
(e) to compromise, compound, submit to arbitration or
settle any debt or obligation owing to or from or otherwise
adjust all claims in favor of or against the Master Fund other
than claims solely affecting the right of any Person to benefits
under a Participating Plan; to reduce or increase the rate of
interest or extend, or otherwise modify, foreclose upon default.
or enforce any such debt or obligation; to sue or defend suits or
legal proceedings to protect any interest in the Trust and to
represent the Trust in all suits or legal proceedings in any
court or before any other administrative agency, body or
tribunal;
(f)to make any distribution or transfer of assets as of
a Valuation Date authorized under Article X or X1 or to
effectuate participants' rights under a Participating Plan in
cash or in kind, or partly in cash or kind, and, in furtherance
thereof, to value such assets, which valuation shall be
conclusive and binding on all Persons;
(g) upon the direction of the Named Fiduciary, to
maintain and operate one or more market inventory funds as a
vehicle to exchange securities among Discretionary and Directed
Funds without alienating the property from the Trust;
(h) with the consent of the Named Fiduciary, to loan
securities held in the Master Fund to brokers or dealers or other
borrowers under such terms and conditions as the Trustee, in its
absolute discretion, deems advisable, to secure the same in any
manner permitted by law and the provisions of this Agreement, and
during the term of any such loan, to permit the loaned securities
to be transferred into the name of and voted by the borrowers or
others, and, in connection with the exercise of the powers
hereinabove granted, to hold any property deposited as collateral
by the borrower pursuant to any master loan agreement in bulk,
either as provided in paragraph (a) of this Section 7.2 or
otherwise, together with the unallocated interests of other
lenders, and to retain any such property upon the default of the
borrower, whether or not investment in such property is
authorized under this Agreement, and to receive compensation
therefor out of any amounts paid by or charged to the account of
the borrower;
(i) to enroll the Master Fund in a program maintained
by Bankers to permit customer's accounts to participate in
dividend reinvestment plans offered by issuers of securities held
in accounts, such as the Master Fund, in order to realize upon
the discount from market value offered shareholders without
impact on the managed assets in the Master Fund. and to receive
compensation therefor (including reimbursement for certain of its
out-of-pocket costs associated therewith) out of the income
received by the Master Fund from participation in such program;
(j) to hold uninvested cash awaiting investment and
such additional cash balances as it shall deem reasonable or
necessary, without incurring any liability for the payment of
interest thereon; and
(k) generally, consistent with the provisions of this
Agreement to perform all acts (whether or not expressly
authorized herein) which it may deem necessary and prudent for
the protection of the assets of the Trust.
7.3. Limitation of Powers. The foregoing provisions of this
Article V11 shall not be deemed to expand the permissible
investments for any Investment Fund under Section 5.1 or to limit
the Named Fiduciary's power to restrict the exercise of such
powers by an Asset Manager as provided in Section 4.3. In
addition, any powers conferred on the Trustee or any other Asset
Manager thereunder may be suspended or revoked at any time by the
Named Fiduciary upon notice to the Asset Manager or the Trustee,
as the case may be. Any oral notice hereunder shall be promptly
confirmed in writing to the Trustee and the Asset Manager, but
the Trustee shall have no responsibility hereunder unless and
until it has received notice in accordance with Section 15.6.
ARTICLE VIII
Records and Accounts of Trustee
8.1. Records The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other
transactions in the Master Fund and all accounts, books and
records relating thereto shall be open to inspection and audit at
all reasonable times during normal business hours by any Person
designated by the Named Fiduciary.
8.2. Annual. Within ninety (90) days following the close of
each Accounting Period, the Trustee shall file with the Account
Party, in accordance with Section 15.6, a written account setting
forth the receipts and disbursements of the Master Fund and the
investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Person as herein
provided during the Accounting Period.
8.3. Periodic Account. If so required by the terms of any
Participating Plan and agreed to by the Trustee, within thirty
(30) days following the close of each calendar month, calendar
quarter or other time period (but not more frequently than
monthly) the Trustee shall provide the Account Party with, in
accordance with Section 15.6, a written account for any such
Participating Plan, setting forth the receipts and disbursements
of the Master Fund and the investments and other transactions
effected by it upon its own authority or pursuant to the
directions of any Person as herein provided during such period;
provided, however, that such written account shall be limited to
an accounting of investments and transactions in the Master Fund
and shall not affect the responsibilities of the parties, if any,
under Section 2.5 herein.
8.4. Account Stated. Upon the expiration of ninety (90)
days from the date of filing its annual account with the Account
Party, the Trustee shall be forever released and discharged from
all liability and further accountability to the Company, the
Account Party or any other Person with respect to the accuracy of
such accounting and the propriety of all acts and failures to act
of the Trustee reflected in such account, except with respect to
any such acts or transactions as to which the Account Party
shall, within such 90-day period, file with the Trustee specific
written objections.
8.5. Judicial Accountings Nothing herein shall in any way
limit the Trustee's right to bring any action or proceeding in a
court of competent jurisdiction to settle its account or for such
other relief as it may deem appropriate.
8.6. Necessary Parties Except to the extent that Sections
502 and 5D4 of ERISA may provide otherwise, in order to protect
the Master Fund from the expense of litigation, no Person other
than the Company shall be a necessary party in any proceeding
under Section 8.5 or may require the Trustee to account or may
institute any other action or proceeding against the Trustee or
the Trust.
ARTICLE IX
Compensation. Taxes and Expenses
9.1. Compensation and Expenses. Any expenses incurred by
the Trustee in connection with its administration of the Master
Trust including, but not limited to, fees for legal services
rendered to the Trustee (whether or not rendered in connection
with a judicial or administrative proceeding), such compensation
to the Trustee as shall be agreed upon from time to time between
the Trustee and an officer of the Company, and all other proper
charges and disbursements of the Trustee, shall be paid from the
Master Fund, unless paid by the Company. Anything in the
preceding sentence to the contrary notwithstanding, the Company
shall reimburse the Trustee for any such fees and expenses if for
any reason such expenses are not paid out of the Master Fund. The
Trustee's entitlement to reimbursement hereunder shall not be
affected by the resignation or removal of the Trustee or by the
termination of the Trust. The Named Fiduciary may direct the
Trustee to pay from the Master Fund any other administration
expenses of a Participating Plan Each direction to the Trustee
under this Section and Section 9.3 shall constitute a
certification by the Named Fiduciary that such direction is in
accordance with applicable law, the terms of any relevant
Participating Plan and the terms of this Agreement, and the
Trustee shall have no duty to make any independent inquiry or
investigation as to any of the foregoing before acting upon such
direction, or to see to the application of any moneys paid over.
9.2. Taxes. All taxes of any and all kinds whatsoever that
may be levied or assessed under existing or future laws, domestic
or foreign, upon the Master Fund or the income thereof shall be
paid from the Master Fund.
The Trustee shall notify the Named Fiduciary of any taxes
that may be assessed. In the event that the Named Fiduciary shall
determine that the taxes are not lawfully assessed, it may elect
to direct the Trustee at the expense of the Trust, or may itself,
contest such assessment.
9.3. Allocation. Any tax or expense paid from the Master
Fund hereunder which is determined by the Named Fiduciary to be
specifically allocable to one or more Investment Funds or
Participating Plans, as the case may be, shall be charged against
such Investment Funds or the Share of such Participating Plan or
Plans, in such proportions as the Named Fiduciary shall direct
the Trustee. Any expense which is allocable to all of the
Investment Funds or all of the Participating Plans shall be
charged against the Master Fund as a whole.
ARTICLE X
Resignation or Removal of Trustee
10.1. Resignation or Removal. The Trustee may be removed by
the Company at any time upon ninety (90) days' notice in writing
to the Trustee. The Trustee may resign at any time upon ninety
(90) days' notice in writing to the Company.
10.2. Designation of a Successor. Upon the removal or
resignation of the Trustee, the Company shall either appoint a
successor trustee who shall have the same powers and duties as
those conferred upon the Trustee hereunder, and upon acceptance
of such appointment by the successor trustee, the Trustee shall
assign, transfer and pay over the Master Fund to such successor
trustee, or the Company shall direct the Trustee to assign.
transfer and payover the Master Fund to one or more insurance
companies pursuant to insurance contracts issued to the
Participating Plans. If, for any reason, the Company cannot or
does not act promptly to appoint a successor trustee or designate
an insurance company in the event of the resignation or removal
of the Trustee, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor trustee. Any
expenses incurred by the Trustee in connection therewith -shall
be charged to and paid from the Master Fund as an expense of
administration.
10.3 Reserve for Expenses. The Trustee is authorized to
reserve such amount as to it may doom advisable for payments of
its fees and expenses in connection with the settlement of its
account or otherwise, and any balance of such reserve remaining
after the payment of such fees and expenses shall be paid over in
accordance with the directions of the Company under 10.2. The
Trustee is authorized to invest such reserves in any investment
authorized under the terms of this Agreement appropriate for the
temporary investment of cash reserves of trusts.
ARTICLE X1
Withdrawal of Participating Plans
11.1. Event of Withdrawal. Upon receipt of notice from the
Company of the termination (including any partial termination)
and distribution of the assets of a Participating Plan or of the
withdrawal of any Participating Plan, or part thereof, from the
Trust, the Trustee shall segregate the share of the assets of the
Master Fund allocable to such Participating Plan, or part
thereof, and shall dispose of such assets in accordance with the
directions of the Company.
11.2. Disqualification. The Company shall promptly notify
the Trustee if any Participating Plan has been or is likely to be
disqualified under Section 401 of the Code. In that event, the
Share of such Participating Plan shall be treated as a Plan
withdrawn pursuant to Section 11 1
11.3. Approval of Appropriate Agencies. The Trustee may, in
its absolute discretion, condition delivery, transfer or
distribution of any assets withdrawn from the Master Fund under
this Article XI upon the Trustee's receiving assurances
satisfactory to it that any notice which may be required to be
given under ERISA or the Code to any Person, the Department of
Labor or the Internal Revenue Service has been given, or that any
filing which is required to be made to determine that a
termination has not affected the qualification of a Participating
Plan has been made, and that any plan to which such assets are to
be transferred is a qualified plan under Section 401 (a) of the
Code. The Trustee shall not be responsible under any
Participating Plan to give any such notice or make any such
filings or maintain any records required under ERISA or the Code,
all of which, for purposes of this Agreement, shall be the
responsibility of the Company.
ARTICLE XII
Amendment or Termination
12. 1. Amendment. Subject to Section 1.4, the Company
reserves the right at any time and from time to time to amend, in
whole or in part, any or all of the provisions of this Agreement
by notice thereof in writing delivered to the Trustee; provided,
however, no amendment which affects the rights, duties or
responsibilities of the Trustee may be made without its prior
written consent.
12.2. Termination Subject to Section 1.4, the Company
reserves the right to terminate this Agreement by notice in
writing thereof delivered to the Trustee. In the event of
termination, the Trustee shall dispose of the Master Fund, after
the payment of or other provision for all of its expenses
(including any compensation to which the Trustee may be
entitled). all in accordance with the written directions of the
Company. In the event that termination results from the removal
of the Trustee or the withdrawal of all of the Participating
Plans. then such disposition shall be implemented in accordance
with the provisions of Article X or Article XI as the case may
be.
12.3. Trustee's Authority to Survive Termination. Until the
final distribution of the Master Fund, the Trustee shall continue
to have and may exercise all of the powers and discretions
conferred upon it by this Agreement.
ARTICLE XIII
Tender Offers
13.1. In General. In the event that any person (other than
the Company or any affiliate thereof) shall make a public offer
for Company Stock held in the Common Stock Fund, the Company
undertakes to provide promptly a copy of the offer, and any other
material information concerning such offer, to each Participating
Plan participant (including, for the purposes of this Article
XIII, any beneficiary of a deceased participant) who has an
interest in the Common Stock Fund with a form for furnishing to
the Trustee timely instructions as to whether the Company Stock
allocated to participants' accounts for purposes of this Article
XIII should be tendered. Each participant may elect that all, but
not less than all, of the Company Stock allocated to his account
be tendered by the Trustee on his behalf. Upon timely receipt of
instructions from a participant to so tender, the Trustee shall
tender all such Company Stock allocated to such participant's
account. Any Company Stock held by the Trustee as to which it
receives either no instruction or incomplete instructions from a
participant to whose account such stock is allocated shall not be
tendered. In the event that participants' instructions cannot
otherwise be returned to the Trustee in a timely fashion, the
Company agrees to collect and tabulate such instructions in a
manner that will assure a confidential and accurate tabulation
and timely tender by the Trustee. Any securities or other
property received by the Trustee as a result of having tendered
Company Stock, as hereinabove provided, shall be held, and any
cash so received shall be invested in short term investments,
pending any further action which the Trustee may be required or
directed to take pursuant to the Plan. Notwithstanding anything
in this Agreement to the contrary, during the period of any
public offer for Company Stock, the Trustee shall refrain from
making purchases of Company Stock under this Agreement. In
addition to any compensation or expenses provided under Section
9.1, the Trustee shall be entitled to reasonable compensation and
reimbursement for its out-of-pocket expenses for any services
attributable to the duties and responsibilities described in this
Section 13. 1.
13.2. Trustee's Indemnification. In addition to any other
claims the Trustee may have under this Agreement or by law, the
Company hereby agrees to hold the Trustee harmless and to
indemnify the Trustee from and against any and all losses,
claims, damages, liabilities or expenses whatsoever (including,
but not limited to, any and all expenses reasonably incurred in
investigating, preparing or defending against any litigation or
proceeding, commenced or threatened, or any claim whatsoever),
(a) arising out of, relating to or in connection with any public
offer of the kind referred to above, whether in respect of the
solicitation of directions from Participating Plan participants,
or tabulating, reporting or acting upon such directions or
otherwise, or (b) arising out of or based upon any untrue
statement or alleged untrue statement contained in any
instrument, document or other material furnished by or through
the Company to Participating Plan participants, or otherwise used
by the Company or authorized by it for use in respect of, any
such public offer or arising out of or based upon an omission or
alleged omission to state a material fact required to be stated
or necessary to make other statements made in any such material
not misleading, except, solely in the case of indemnification
pursuant to clause (a), for a loss, claim, damage, liability or
expense primarily attributable to the bad faith or gross
negligence of the Trustee.
ARTICLE XIV
Authorities
14. 1. Company. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by "the
Company", such action must be authorized by the Board of
Directors. Any resolution adopted by the Board of Directors or
other evidence of such authorization shall be certified to the
Trustee by the Secretary or an Assistant Secretary of the Company
under corporate seal, and the Trustee may rely upon any
authorization so certified until revoked or modified by a further
action of the Board of Directors similarly certified to the
Trustee.
14.2. Subsidiary or Affiliate. Any action required or
permitted to be taken under this Agreement by a subsidiary or
affiliate of the Company shall be given by the Board of Directors
thereof in the manner described in Section 14.1.
14.3. Named Fiduciary and Committee. The Company shall
furnish the Trustee from time to time with a list of the names
and signatures of all Persons (other than the Company) authorized
hereunder (i) to receive accountings under Section 1.2(a); (ii)
to act as a Named Fiduciary-, (iii) as members of the
Administrative Committee; or (iv) in any manner authorized to
issue orders, notices, requests, instructions and objections to
the Trustee pursuant to the provisions of this Agreement. Any
such list and the form of the instructions shall be certified to
the Trustee by the Secretary or an Assistant Secretary of the
Company (or by the Secretary or an Assistant Secretary of any
subsidiary or affiliate of the Company which, in the opinion of
counsel to the Company, has not delegated that authority to the
Company) and may be relied upon for accuracy and completeness by
the Trustee Each such Person shall thereupon furnish the Trustee
with a list of the names and signatures of those individuals, if
any, who are authorized, jointly or severally or otherwise, to
act for such Person hereunder, and the Trustee shall be fully
protected in acting upon any notices or directions received from
any of them.
14.4. Investment Manager . The Named Fiduciary shall cause
each Investment Manager to furnish the Trustee from time to time
with the names and signatures of those persons authorized to
direct the Trustee on its behalf hereunder.
14.5. Form of Communications. Any agreement or
understanding between the Company and any Person (including an
Investment Manager) or any other provision of this Agreement to
the contrary notwithstanding, all notices, directions and other
communications to the Trustee shall be in writing or in such
other form, including transmission by electronic means through
the facilities of third parties or otherwise, specifically agreed
to in writing by the Trustee. The Trustee shall be fully
protected in acting in accordance therewith, but shall not
thereby assume responsibility for the failure or breakdown of any
such means of communication not due to its own negligence or
willful misconduct.
14.6. Continuation of Authority. The Trustee shall have the
right to assume, in the absence of written notice to the
contrary, that no event constituting a change in the composition
or authority of the Named Fiduciary or membership of the
Administrative Committee or terminating the authority of any
Person, including any Investment Manager, has occurred
14.7. No Obligation to Act on Unsatisfactory Notice. The
Trustee shall incur no liability under this Agreement for any
failure to act pursuant to any notice, direction or any other
communication from any Asset Manager, the Company, the Named
Fiduciary, the Administrative Committee, or any other Person or
the designee of any of them unless and until it shall have
received instructions in form specified in this Article XIV.
ARTICLE XV
General Provisions
15.1 Governing Law. To the extent that state law shall not
have been preempted by the provisions of ERISA or any other law
of the United States heretofore or hereafter enacted, this
Agreement shall be administered, construed and enforced according
to the laws of the State of New York.
15.2. Entire Agreement. The Trustee's duties and
responsibilities to any Participating Plan or any Person
interested therein shall be limited to those specifically set
forth in this Agreement. No amendment to any Participating Plan
or agreement or instrument affecting any Participating Plan or
any other document shall affect the Trustee's duties or
responsibilities hereunder without its prior written consent.
15.3. Mistake. No mistake made in good faith and in the
exercise of due care in connection with the administration of the
Master Fund shall be deemed to be a breach of the Trustee's
duties if, promptly after discovery of the mistake, the Trustee
takes whatever action may be practicable in the circumstances to
remedy the mistake.
15.4. Reliance on Experts. The Trustee may consult with
experts (who may be experts employed by the Company) including
legal counsel, appraisers, pricing services, accountants or
actuaries, selected by it with due care with respect to the
meaning and construction of this Agreement or any provision
hereof, or concerning its powers and duties hereunder, and shall
be protected for any action taken or omitted by it in good faith
pursuant to or on the basis of the opinion of any such expert.
15.5. Successor to the Trustee. Any successor, by merger or
otherwise, to substantially all of the trust business of Bankers
shall automatically and without further action become the Trustee
hereunder, subject to all the terms and conditions and entitled
to all the benefits and immunities hereof.
15.6. Notices. All notices, reports. annual accounts and
other communications from the Trustee to the Company. the Named
Fiduciary, Administrative Committee, Investment Manager, or any
other Person shall be deemed to have been duly given if mailed,
postage prepaid. or delivered in hand to such Person at its
address appearing on the records of the Trustee, which address
shall be filed with the Trustee at the time of the establishment
of the Trust and shall be kept current thereafter by the Named
Fiduciary. All directions, notices, statements, objections and
other communications to the Trustee shall be deemed to have been
given when received by the Trustee at its offices in the form
provided in Article XIV.
15.7. Plan Documents. The Named Fiduciary shall provide the
Trustee with complete, current copies of all Participating Plans
and the most recent tax qualification letters relative thereto.
The Trustee shall be entitled to rely upon the Named Fiduciary's
attention to this obligation and shall be under no duty to
inquire of any Person as to the existence of any documents not
provided hereunder.
15.8. No Waiver Reservation of Rights. The rights,
remedies, privileges and immunities expressed herein are
cumulative and are not exclusive, and the Trustee shall be
entitled to claim all other rights, remedies, privileges and
immunities to which it may be entitled under applicable law.
15.9 Descriptive Headings. The captions in this Agreement
are solely for convenience of reference and shall not define or
limit the provisions hereof.
15.10 Spendthrift Provision. Except as may be required by
law, no interest or claim of interest of any kind of any
participant in any Participating Plan under the provisions of
this Trust is assignable, nor may any such interest or claim be
subject to garnishment, attachment, execution or levy of any
kind, and no attempt to transfer, assign, pledge or otherwise
encumber or dispose of such interest by act of the Person
involved or by operation of law will be recognized.
ARTICLE XVI
Undertaking by Company
16.1. Undertaking In consideration of Bankers' agreeing to
enter into this Agreement, the Company hereby agrees to hold
harmless Bankers, individually and as Trustee, and Bankers'
directors, officers, and employees, from and against all amounts,
including without limitation taxes, expenses (including
reasonable counsel fees), liabilities, Claims, damages, actions,
suits or other charges, incurred by or assessed against Bankers,
individually or as Trustee, or its directors, officers or
employees (i) as a direct or indirect result of any act or
omission of any predecessor trustee or fiduciary appointed under
any Participating Plan; (ii) as a direct or indirect result of
anything done in good faith, or alleged to have been done, by or
on behalf of Bankers in reliance upon the directions of any
Investment Manager, the Administrative Committee, the Company, or
the Named Fiduciary, or anything omitted to be done in good
faith, or alleged to have been omitted, in the absence of such
directions; or (iii) as a direct or indirect result of the
failure of the Company, the Administrative Committee, or the
Named Fiduciary, directly or indirectly, to adequately, carefully
and diligently discharge its fiduciary responsibilities with
respect to the Participating Plans.
16.2. Limitation on Undertaking. Anything hereinabove to
the contrary notwithstanding, the Company shall have no
responsibility to Bankers under Section 16.1 (ii) or (iv) if
Bankers knowingly participated in or knowingly concealed any act
or omission of any Person described therein knowing that such act
or omission constituted a breach of such Person's fiduciary
responsibilities, or if Bankers fails to perform any of the
duties specifically undertaken by it under the provisions of this
Agreement in the manner herein provided, or if Bankers fails to
act in conformity with duly given and authorized directions
hereunder
16.3. Waiver of Defense The Company expressly waives and
shall be forever estopped from asserting as a defense against
Bankers, or any of its directors, officers or employees, in any
action to enforce this undertaking that any one of them failed to
discharge any obligation he, she or it may have or to be deemed
to have had under any statute governing the conduct of
fiduciaries in following the directions of the Company, the Named
Fiduciary or Administrative Committee, the Investment Manager or
any Person duly authorized to act for any of them under Article
XIV.
16.4. Survival of Undertakings. The Company further agrees
that the undertakings made in this Article XVI shall be binding
on its successors or assigns and shall survive termination,
amendment or restatement of this Agreement, or the resignation or
removal of the Trustee, and that this Article shall be construed
as a contract between the Company and the Trustee according to
the laws of the State of New York in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized and their corporate seals to be hereunto affixed
and attested to as of the day and year first above written.
AMOCO FABRICS AND FIBERS COMPANY
By_________________________________
(Title)
BANKERS TRUST COMPANY
By_________________________________
(Title)
STATE OF NEW YORK ,
)SS.
COUNTY OF NEW YORK)
On the _____ day of _________, in the year two thousand, before
me personally came ________________________ to me known , who
being by me duly sworn, did depose and say:that he/she resides
in__________ that he/she is the ____________ of BANKERS
TRUST COMPANY, the corporation described in and which executed
the above instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he/she signed his/her
name thereto by like order.
Notary Public
APPENDIX A .
Participating Plans in the Amoco Fabrics and Fibers Company
Master Trust:
1. Amoco Fabrics and Fibers Company Hourly 401 (k) Savings Plan
2. Amoco Fabrics and Fibers Company Salaried 401(k) Savings Plan
APPENDIX B
Investment funds the Master Fund is held and invested in:
1. Bankers Trust Company's Money Market Fund
2. Bankers Trust Company's Balanced Fund
3. Bankers Trust Companys Equity Index Fund
4. A fund consisting of the Common Stock of Amoco
Corporation purchased by the Trustee or distributed by
the Company to the extent permitted by the Participating
Plans.
<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. 333-9798) 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. 333-9798) pertaining to the BP Amoco Employee
Savings Plan (formerly Amoco Employee Savings Plan), the
Amoco Fabrics and Fibers Company Salaried 401(k) Savings
Plan, and the Amoco Fabrics and Fibers Company Hourly 401(k)
Savings Plan (collectively , the "Plans") of our reports
dated July 15, 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>
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 our reports dated June
15, 1998, appearing on page 4 of the Annual Report of the
Amoco Employee Savings Plan on Form 11-K for the year ended
December 31, 1998, on page 4 of the Annual Report of the
Amoco Fabrics and Fibers Company Salaried 401(k) Savings
Plan on Form 11-K for the year ended December 31, 1998, and
on page 4 of the Annual Report of the Amoco Fabrics and
Fibers Company Hourly 401(k) Savings Plan on Form 11-K for
the year ended December 31, 1998 and 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
