<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
THE GOODYEAR TIRE & RUBBER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 34-0253240
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1144 EAST MARKET STREET 44316-0001
AKRON, OHIO (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE)
CELERON CORPORATION
EMPLOYEE SAVINGS PLAN
(FULL TITLE OF THE PLAN)
JAMES BOYAZIS, SECRETARY
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(NAME AND ADDRESS OF AGENT FOR SERVICE)
Telephone number, including area code, of agent for service: (216) 796-2121
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) PER SHARE(3) PRICE(3) FEE
<S> <C> <C> <C> <C>
Common Stock, Without Par Value
(including Preferred Stock 500,000
Purchase Rights)........... shares $44.8125 $22,406,250 $7,726.30
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Celeron Corporation
Employee Savings Plan.
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement shall cover such additional shares as may
hereinafter be offered or issued from stock splits, stock dividends or
similar transactions.
(3) Estimated solely for the purpose of calculating the Registration Fee
pursuant to Rule 457(c), based on the average of the high and low sale
prices per share of Registrant's Common Stock on December 14, 1995, on the
New York Stock Exchange Consolidated Transaction Tape, as reported in the
Wall Street Journal.
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, heretofore or hereafter filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the
Securities Act of 1933, as amended (the "Securities Act"), by The Goodyear Tire
& Rubber Company (the "Registrant") or by the Celeron Corporation Employee
Savings Plan (the "Plan"), are, as of their respective dates, incorporated in
this Registration Statement by reference and made a part hereof:
(1) Registrant's Annual Report on Form 10-K for the fiscal year of
Registrant ended December 31, 1994 (File No. 1-1927).
(2) Registrant's definitive Proxy Statement dated February 27, 1995, for its
Annual Meeting of Shareholders held on April 10, 1995.
(3) Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1995, June 30, 1995 and September 30, 1995.
(4) The description of the Common Stock of Registrant in the Registration
Statement on Form 10 filed pursuant to the Exchange Act, and all
amendments and reports filed for the purpose of updating such
description.
(5) Registrant's Registration Statement on Form 8-A dated July 3, 1986 for
the registration of Preferred Stock Purchase Rights (including the
Rights Agreement, as amended, filed as Exhibit 2(a) thereto by Form 8
dated April 21, 1993).
(6) The Plan's Annual Report on Form 11-K for the fiscal year of the Plan
ended December 31, 1994.
(7) All documents filed by Registrant or the Plan with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Registration Statement on Form S-8 and
prior to the filing of a post-effective amendment to this Registration
Statement on Form S-8 which indicates that all Securities offered
pursuant to this Registration Statement have been sold or which
deregisters all securities remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a
part hereof on and from the date of filing of such documents.
Any statements contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration
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Statement on Form S-8 to the extent that a statement contained herein or
incorporated herein by reference or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement on Form S-8.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERT AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Code of Regulations of Registrant concerns
indemnification of the Registrant's directors and officers and provides as
follows:
INDEMNIFICATION
"The Company shall indemnify each person who is or was a director,
officer or employee of the Company, or of any other corporation which he served
as such at the request of the Company, against any and all liability and
reasonable expense that may be incurred by him in connection with or resulting
from any claim, action, suit or proceeding (whether brought by or in the right
of the Company or such other corporation or otherwise), civil or criminal, or
in connection with an appeal relating thereto, in which he may become involved,
as a party or otherwise, by reason of his being or having been a director,
officer, or employee of the Company or of such other corporation, or by reason
of any past or future action taken or not taken in his capacity as such
director, officer, or employee, whether or not he continues to be such at the
time such liability or expense is incurred, provided such person acted, in good
faith, in what he reasonably believed to be the best interests of the Company
or such other corporation, as the case may be, and, in addition, in any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. As used in this Article, the terms "liability" and
"expense" shall include, but shall not be limited to, counsel fees and
disbursements and amounts of judgments, fines, or penalties against, and
amounts paid in settlement by, a director, officer, or employee, other than
amounts paid to the Company itself or to such other corporation served at the
Company's request. The termination of any claim, action, suit, or proceeding,
civil or criminal, by judgment, settlement (whether with or without court
approval) or conviction or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not create a presumption that a director, officer, or
employee did not meet the standards of conduct set forth in the first sentence
of this Article. Any such director, officer, or employee referred to in this
Article who has been wholly successful, on the merits or otherwise, with
respect to any claim, action, suit or proceeding of the character described
herein shall be entitled
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to indemnification as of right. Except as provided in the preceding sentence,
any indemnification hereunder shall be made at the discretion of the Company,
but only if (1) the Board, acting by a quorum consisting of directors who are
not parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of this
Article, or (2) independent legal counsel (who may be the regular counsel of
the Company) shall deliver to it their written advice that, in their opinion,
such director, officer, or employee has met such standards. Expense incurred
with respect to any such claim action, suit, or proceeding may be advanced by
the Company prior to the final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount unless it
shall ultimately be determined that he is entitled to indemnification under
this Article. The rights of indemnification provided in this Article shall be
in addition to any rights to which any person concerned may otherwise be
entitled by contract or as a matter of law, and shall inure to the benefit of
their heirs, executors, and administrators of any such person."
Indemnification also may be made available by Registrant to its
directors, officers, employees and agents, and may be available as a matter of
right, under Section 1701.13(E) of the Ohio Revised Code. Section 1701.13(E)
of the Ohio Revised Code provides as follows:
"(E)(1) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
if he had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a
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<PAGE> 5
judgment in its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint venture, trust,
or other enterprise, against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court of common pleas or
the court in which such action or suit was brought determines, upon
application, that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit which the only liability asserted against a
director is pursuant to Section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this section,
unless ordered by a court, shall be made by the corporation only as authorized
in the specific case, upon a determination that indemnification of the
director, trustee, officer, employee, member, manager, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in division (E)(1) or (2) of this section. Such determination shall be
made as follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or threatened with
the action, suit, or proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has
II-4
<PAGE> 6
performed services for the corporation or any person to be indemnified within
the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (E)(1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1) or (2)
of this section, the articles or the regulations of a corporation state, by
specific reference to this division, that the provisions of this division do
not apply to the corporation and unless the only liability asserted against a
director in an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of the Revised Code,
expenses, including attorney's fees, incurred by a director in defending this
action, suit, or proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action, suit, or
proceeding, upon receipt of an undertaking by or on behalf of the director in
which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing evidence
in a court of competent jurisdiction that his action or failure to act involved
an act or omission undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best interests of the
corporation;
(ii) Reasonably cooperate with the corporation concerning the action,
suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (E)(1) or (2) of this section, may
be paid by the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer,
II-5
<PAGE> 7
employee, member, manager, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be the
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the articles, the regulations, any agreement, a
vote of shareholders or disinterested directors, or otherwise, both as to
action in their official capacities and as to action in another capacity while
holding their offices or positions, and shall continue as to a person who
ceased to be a director, trustee, officer, employee, member, manager, or agent
and shall inure to the benefit of their heirs, executors, and administrators of
such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section. Insurance may be purchased from or
maintained with a person in which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of expenses
as they are incurred, indemnification, insurance, or other protection that may
be provided pursuant to divisions (E)(5), (6), and (7) of this section.
Divisions (E)(1) and (2) of this section do not create any obligation to repay
or return payments made by the corporation pursuant to division (E)(5), (6), or
(7).
(9) As used in division (E) of this section, "corporation" includes
all constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic
or foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity."
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<PAGE> 8
Registrant maintains and pays the premiums on contracts insuring
Registrant (with certain exclusions) against any liability to directors and
officers it may incur under the above provisions for indemnification and
insuring each director and officer of Registrant (with certain exclusions)
against liability and expense, including legal fees, which he or she may incur
by reason of his or her relationship to Registrant, even if Registrant does not
have the obligation or right to indemnify such director or officer against such
liability or expense.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- -----------
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant,
dated December 20, 1954, and Certificate of Amendment to
Amended Articles of Incorporation of Registrant, dated
April 6, 1993 (two documents comprising Registrant's Articles
of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended
April 5, 1985, April 7, 1980, April 6, 1981 and April 13, 1987.
4.2 Specimen nondenominational Certificate for shares of Common
Stock, without par value, of Registrant, First Chicago
Trust Company of New York as Transfer Agent and Registrar,
effective for issuance of new certificates on or after May 4,
1993.
4.3 Rights Agreement, dated as of July 2, 1986, between Registrant
and Manufacturers Hanover Trust Company, Rights Agent
(originally filed as Exhibit 4(a) to Registrant's Current
Report on Form 8-K dated July 2, 1986 and as Exhibit 2(a) to
Registrant's Registration Statement on Form 8-A dated July 3,
1986, File No. 1-1927), as amended by that certain Amendment
to Rights Agreement dated as of April 6, 1993 between
Registrant and First Chicago Trust Company of New York,
successor Rights Agent.
4.4 The Celeron Corporation Employee Savings Plan (February 1,
1996 Restatement), as amended effective February 1, 1996
(the "Plan").
4.5 Trust Agreement for The Goodyear Tire & Rubber Company
Commingled Trust, dated July 1, 1984, relating to the Celeron
Corporation Employee Savings Plan and to certain other plans of
The Goodyear Tire & Rubber Company, as amended November 1, 1995
(the "Trust Agreement").
II-7
<PAGE> 9
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- -----------
5 a) All shares of the Common Stock of Registrant held in the Plan
Trust were acquired by the Plan Trustee in open market
transactions. No original issue or treasury shares of the
Common Stock of Registrant have been, or are presently intended
to be, issued by Registrant to the Plan. In accordance with
subparagraph (a) of Item 8 to Form S-8, no opinion of counsel
concerning the legality of the securities being registered is
filed herewith. In the event that at a future date Registrant
desires to issue original issue or treasury shares of its Common
Stock to the Plan, Registrant will file a Post-Effective
amendment containing an opinion of counsel regarding the
legality of shares of Registrant's Common Stock issued to the
Plan by Registrant.
5.1 Determination letter issued by the Internal Revenue Service (the
"IRS") dated May 22, 1995 regarding the Plan and a determination
letter issued by the IRS dated May 21, 1986 regarding the Plan
Trust.
b) The Plan, as amended and in effect prior to the amendment
and restatement adopted effective February 1, 1996, is a tax
qualified plan under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the "Code") and the Plan Trust is
exempt from taxation under Section 501(a) of the Code. (See
Undertaking below).
UNDERTAKING
Registrant undertakes to submit the Celeron Corporation Employee
Savings Plan (the "Plan") to the IRS in a timely manner to
obtain a determination letter from the IRS to the effect that
the Plan as amended and restated effective February 1, 1996
remains qualified under Section 401(a) of the Code and that the
Plan Trust remains exempt from taxation under Section 501(a) of
the Code. Registrant also undertakes to make all changes, if
any, required by the IRS in order to obtain IRS determinations
that the Plan remains qualified under Section 401(a) of the Code
and that the Plan Trust remains exempt from taxation under
Section 501(a) of the Code.
15 Not applicable.
24 The consent of Price Waterhouse, independent accountants, to the
incorporation by reference in this Registration Statement on
Form S-8 of their report dated February 8, 1995 appearing
at page 30 of Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994, and of their report dated December
15, 1995, appearing in Annex A to the Celeron Corporation
Employee Savings Plan Annual Report on Form 11-K for the year
ended December 31, 1994.
II-8
<PAGE> 10
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- -----------
25 Power of Attorney, dated December 5, 1995, authorizing Robert W
Tieken, C Thomas Harvie, Richard W Hauman and James
Boyazis to sign this Registration Statement on behalf of the
Registrant and certain of the directors and officers of
Registrant.
28 Not applicable.
99 Not applicable.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof, which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement; and (iii) to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement,
including (but not limited to) any addition or deletion of a managing
underwriter; provided, however, that paragraphs (A)(1)(i) and
(A)(1)(ii) do not apply if the Registration Statement is on Form S-3
or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
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<PAGE> 11
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Akron, State of Ohio, on the 20th day of
December, 1995.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ Richard W Hauman
-------------------------------
Richard W Hauman,
Vice President and Treasurer
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<PAGE> 12
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Stanley C Gault Chairman of the Board, )
Chief Executive Officer )
and Director (Principal )
Executive Officer) )
)
Robert W Tieken Executive Vice President )
(Principal Financial )
Officer) )
) By: /s/ Richard W Hauman
George E Strickler Vice President and ) ------------------------------
Comptroller (Principal ) Richard W Hauman
Accounting Officer) )
John G Breen Director ) Signing as Attorney-in-Fact
William E Butler Director ) for the directors and officers
Thomas H Cruikshank Director ) whose names appear opposite
Samir F Gibara Director )
William J Hudson, Jr Director ) December 20, 1995
Gertrude G Michelson Director )
Steven A Minter Director )
Agnar A Pytte Director )
George H Schofield Director )
William C Turner Director )
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, Celeron
Corporation, in its capacity as Plan Administrator of the Celeron Corporation
Employee Savings Plan, has duly caused this Registration Statement to be signed
on behalf of the Celeron Corporation Employee Savings Plan by the undersigned,
thereunto duly authorized in the City of Akron, State of Ohio, on the 20th day
of December, 1995.
CELERON CORPORATION EMPLOYEE SAVINGS PLAN
BY: CELERON CORPORATION,
THE PLAN ADMINISTRATOR
By: /s/ Richard W Hauman
--------------------------------------------------------------
Richard W Hauman, Assistant Treasurer and Assistant Comptroller
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<PAGE> 13
INDEX OF EXHIBITS
-----------------
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------ ------- -----------
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant,
dated December 20, 1954, and Certificate of Amendment to
Amended Articles of Incorporation of Registrant, dated
April 6, 1993 (two documents comprising Registrant's Articles
of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended
April 5, 1985, April 7, 1980, April 6, 1981 and April 13,
1987.
4.2 Specimen nondenominational Certificate for shares of Common
Stock, without par value, of Registrant, First Chicago Trust
Company of New York as Transfer Agent and Registrar, effective
for issuance of new certificates on or after May 4, 1993.
4.3 Rights Agreement, dated as of July 2, 1986, between Registrant
and Manufacturers Hanover Trust Company, Rights Agent
(originally filed as Exhibit 4(a) to Registrant's Current
Report on Form 8-K dated July 2, 1986 and as Exhibit
2(a) to Registrant's Registration Statement on Form 8-A dated
July 3, 1986, File No. 1-1927), as amended by that certain
Amendment to Rights Agreement dated as of April 6, 1993
between Registrant and First Chicago Trust Company of New
York, successor Rights Agent.
4.4 Celeron Corporation Employee Savings Plan (February 1, 1996
Restatement), as amended effective February 1, 1996
(the "Plan").
4.5 Trust Agreement for The Goodyear Tire & Rubber Company
Commingled Trust, dated July 1, 1984, relating to the Celeron
Corporation Employee Savings Plan and to certain other
plans of The Goodyear Tire & Rubber Company, as amended
November 1, 1995 (the "Trust Agreement").
<PAGE> 14
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------ ------- -----------
5
5.1 Determination letter issued by the Internal Revenue Service
dated May 22, 1995 regarding the Plan and a determination
letter dated May 21, 1986 regarding the Plan Trust.
24 The consent of Price Waterhouse, independent accountants, to the
incorporation by reference in this Registration Statement on
Form S-8 of their report dated February 8, 1995 appearing at
page 30 of Registrant's Annual Report on Form 10-K for the year
ended December 31, 1994, and of their report dated December 15,
1995, appearing in Annex A to the Celeron Corporation Employee
Savings Plan Annual Report on Form 11-K for the year ended
December 31, 1994.
25 Power of Attorney, dated December 5, 1995, authorizing Robert W
Tieken, C Thomas Harvie, Richard W Hauman and James Boyazis to
sign this Registration Statement on behalf of the Registrant and
certain of the directors and officers of Registrant.
<PAGE> 1
CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
E. J. Thomas, President, and Arden E. Firestone, Secretary, of The Goodyear
Tire & Rubber Company, an Ohio corporation, with its principal office located at
Akron, Ohio, do hereby certify that a meeting of the holders of the shares of
Common Stock of said corporation (being the only class of shares outstanding)
entitled to vote on the proposal to adopt the Amended Articles of Incorporation
as contained in the following resolution was duly called and held on the 20th
day of December, 1954, at which meeting a quorum of such shareholders was
present in person or by proxy, and that by the affirmative vote of the holders
of shares entitled under the Articles to exercise at least two-thirds of the
voting power of the corporation on such proposal (the Articles not requiring a
greater proportion of such voting power) the following resolution was adopted:
RESOLVED, That The Goodyear Tire & Rubber Company hereby adopts the
following Amended Articles of Incorporation and that the President or
a Vice President and the Secretary or an Assistant Secretary of this
Corporation are hereby authorized and directed, on behalf of this
Corporation, to sign and file in the Office of the Secretary of State
of the State of Ohio, so as to make such Amended Articles of
Incorporation become effective, a certificate containing a copy of the
resolution adopting such Amended Articles of Incorporation and a
statement of the manner of the adoption thereof:
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
---------------
The Goodyear Tire & Rubber Company, a Corporation for profit heretofore
organized under the General Incorporation Laws of the State of Ohio, adopts
these Amended Articles of Incorporation:
FIRST: The name of said Corporation shall be The Goodyear Tire & Rubber
Company.
SECOND: Said Corporation is to be located at Akron in Summit County,
Ohio, and its principal business there transacted.
THIRD: Said Corporation is formed for the following purposes:
(a) To produce, manufacture, purchase, import, or otherwise acquire,
to own, process, operate, develop and use, to sell, lease, exchange, export or
otherwise dispose of or turn to account, and to generally deal in, and to render
any service in respect of: rubber, both natural and synthetic, compounds
thereof, substitutes therefor, substances having properties or
<PAGE> 2
2
uses similar thereto, and articles produced in whole or in part therefrom,
including without limitation tires and tubes of all types and kinds, belts, and
mechanical goods, cotton, rayon and other fibrous materials and articles of
which cotton, rayon or other fibrous materials are a component part, metals,
rims and automotive parts and accessories, guns, ammunition and other articles
useful in the national defense, aircraft and parts and accessories therefor,
and, in general, goods, commodities, and articles of personal property of
whatever nature, and to carry on and conduct the general business of
manufacturing and merchandising.
(b) To establish, maintain, and operate chemical, physical, and other
laboratories and to carry on chemical, physical, and industrial research of
every kind and character as may be necessary, useful or convenient in connection
with any business of the Corporation, and to produce, manufacture, construct,
import, purchase or otherwise acquire, to own, process, develop and use, to
sell, lease, exchange, export or otherwise dispose of or turn to account and
generally to deal in and with articles or substances invented or developed
thereby.
(c) To manufacture, construct, mine, produce, import, purchase, lease or
otherwise acquire, hold, own, use, process, maintain, operate, export, mortgage,
sell, convey, assign and otherwise dispose of, distribute, deal in and turn to
account machinery, apparatus, tools, implements, equipment, materials, supplies,
and other personal property of every kind and character which can or may be
advantageously used, consumed or dealt in by the Corporation in connection with
any business it is authorized to conduct; and, in general, to buy, sell,
produce, manufacture, process, use, export, import, trade in, deal with and turn
to account goods, wares, and merchandise of every class and description.
(d) To purchase, lease or otherwise acquire, own, hold, use, maintain,
operate, cultivate, develop, sell, lease, convey, exchange or otherwise
dispose of real estate, leaseholds, and other interests in real estate, and to
construct, equip, occupy, improve, use, operate, sell, lease, exchange or
otherwise dispose of buildings, factories, hangars, mills, workshops,
machineshops, laboratories, storehouses, offices, residences, stores, hotels,
facilities, and structures of all kinds, necessary, useful or convenient in
connection with any of the businesses or operations of the Corporation.
(e) To secure, register, purchase, lease, license, or otherwise to acquire,
and to hold, own, use, operate, develop, improve, introduce, grant licenses in
respect of, sell, assign, and otherwise dispose of and turn to account, letters
patent of the United States or any foreign country, patent rights, licenses,
privileges, inventions, devices, improvements, formulas, concessions,
processes, secret or otherwise, copyrights, trademarks, trade names and rights
analogous thereto granted by, recognized or otherwise existing under the laws of
the United States or any foreign country.
(f) To borrow money or otherwise use its credit for its corporate purposes,
to issue bonds, debentures, notes and other obligations, secured or unsecured,
from time to time, for moneys borrowed or for property acquired, or for any
other of the purposes of the Corporation, and to secure the same by mortgage,
deed of trust, pledge, or other lien upon any or all of the properties, rights,
privileges or franchises of the Corporation.
(g) To purchase, by subscription or otherwise, or acquire in any manner,
and to sell, negotiate, guarantee, assign, deal in, exchange, transfer, pledge
or otherwise dispose of, shares of the capital stock, scrip, bonds, coupons,
mortgages, debentures, debenture stock, acceptances, drafts, securities, and any
other evidences of indebtedness of, or interest in, other corporations, joint
stock companies or associations, whether public, private or municipal, or of
any corporate body, domestic or foreign, and while the owner thereof, to
<PAGE> 3
3
possess and exercise in respect thereof all the rights, powers, and privileges
of ownership, including but not limited to the right to vote thereon.
(h) To aid, in any manner whatsoever, any corporation, association,
copartnership or individual in whose business the Corporation may be in any way
interested or any of whose properties, including shares of capital stock, bonds
or other obligations or securities, are held by the Corporation or in which it
is in any way interested, and to do any acts or things which are or which may
appear necessary, useful, convenient or appropriate for the preservation,
protection, improvement or enhancement of the value of any such business or
property, or for the promotion of any interests of the Corporation.
(i) To lend money or credit, with or without security, and to guarantee
and become surety for payment of money and the performance of contracts or
obligations of any and all kinds, provided it shall not carry on the business of
an indemnity or a surety company.
(j) To purchase or otherwise acquire the whole or any part of the property,
assets, business, good will, and rights, and to undertake or assume the whole or
any part of the bonds, mortgages, franchises, leases, contracts, indebtedness,
guarantees, liabilities, and obligations of any person, firm or corporation,
and to pay therefor in whole or in part with shares of its own capital stock,
cash, bonds, debentures, notes or other obligations, or evidences of
indebtedness of the Corporation or otherwise; and to hold or in any manner
dispose of any part or all of the property, assets, business, good will, and
right so acquired, and to conduct in any lawful manner the whole or any part of
the business so acquired, and to exercise all the powers necessary or convenient
in and about the management and conduct of such business.
(k) In general, to carry on any lawful business whatsoever in connection
with or incidental to the foregoing, or which has for its object the
promotion, directly or indirectly, of the general interests of the Corporation,
or the protection, improvement, preservation or enhancement of the value of its
properties and rights, and to do whatever it may deem necessary, convenient or
proper for the accomplishment of any one or more of the purposes of the
Corporation, and, to the same extent and as fully as any natural person might
lawfully or could do, to do all and every lawful act and thing, and to enter
into and perform contracts of every kind and description with any person, firm,
association, corporation, municipality, county, state, body politic or
government, or subdivision thereof, without limitation as to amount, necessary,
suitable or convenient for the accomplishment of any of the purposes of the
Corporation or incident to any of the powers hereinbefore enumerated, the
enumeration of specific powers not being a limitation or restriction in any
manner of the general powers of the Corporation.
(l) To do all or any of such acts and things and exercise any of such acts
in any state of the United States, in any district, territory, colony,
protectorate or possession thereof, and in any and all foreign countries, and
to maintain such offices, branches, plants, properties, plantations, mines,
and establishments in any or all thereof that may be deemed advisable by the
Corporation.
FOURTH: The number of shares which the Corporation is authorized to have
outstanding is 15,000,000, all of which shall be Common Stock with a par value
of $5 each (being the shares heretofore authorized as shares with a par value
of $10 each) having the terms and provisions set forth in these Amended Articles
of Incorporation. Each holder of record of Common Stock shall be entitled to one
vote for each share of said Common Stock standing in his name on the books of
the Corporation.
<PAGE> 4
4
No holder of Common Stock, present, past, or future, shall be entitled as
such as a matter of right to subscribe for or purchase any part of not exceeding
500,000 shares of such Common Stock which may, subsequent to October 31, 1954 be
allotted and sold to employees of the Corporation or any of its subsidiaries,
pursuant to such plan or plans for such allotment and sale as the Board of
Directors has determined or may from time to time determine, whether any such
shares of Common Stock shall be issued for cash, property, services or
otherwise.
FIFTH: The total stated capital of the Corporation at the time of adopting
these Amended Articles of Incorporation is $45,532,000.00.
SIXTH: These Amended Articles of Incorporation supersede and take the
place of the heretofore existing Amended Articles of Incorporation, adopted
March 31, 1952, and filed in the Office of the Secretary of the State of Ohio on
April 3, 1952, including all Certificates of Amendment to Amended Articles of
Incorporation subsequently filed in the Office of the Secretary of the State
of Ohio.
IN WITNESS WHEREOF, said E. J. Thomas, President, and Arden E. Firestone,
Secretary, of The Goodyear Tire & Rubber Company, acting for and on behalf of
said corporation, have hereunto subscribed their names and caused the seal of
said corporation to be hereunto affixed this 20th day of December, 1954.
BY E. J. THOMAS
President
(CORPORATE SEAL)
BY ARDEN E. FIRESTONE
Secretary
UNITED STATES OF AMERICA, )
STATE OF OHIO, )
OFFICE OF THE SECRETARY OF STATE. )
I, , Secretary of State of the State of
Ohio, do hereby certify that the foregoing is an exemplified copy, carefully
compared by me with the original record now in my official custody as Secretary
of State, and found to be true and correct, of the
CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
filed in this office on the 30th day of December A. D. 1954 and recorded in
Volume 696, Page 255, of the Records of Incorporations.
WITNESS my hand and official seal, at
Columbus, Ohio, this
day of A-D.
Secretary of State
<PAGE> 5
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
Hoyt M. Wells, President, and James Boyazis, Secretary, of The Goodyear
Tire & Rubber Company, an Ohio Corporation, with its principal office located at
Akron, Summit County, Ohio, do hereby certify that a meeting of the holders of
the shares of Common Stock of said corporation (being the only class of shares
outstanding) entitling them to vote on the proposal to amend the Amended
Articles of Incorporation thereof, as Contained in the following resolution, was
duly called and held on the 5th day of April, 1993, at which meeting a quorum of
such shareholders was present in person or by proxy, and that by the affirmative
vote of the holders of shares entitled under the Amended Articles of Incorpora-
tion to exercise at least two-thirds of the voting power of the corporation on
such proposal (the Amended Articles of Incorporation not requiring a greater
proportion of such voting power) the following resolution was adopted:
RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the
following amendment to its Amended Articles of Incorporation and that the
President or a Vice President and the Secretary or an Assistant Secretary of
The Goodyear Tire & Rubber Company are hereby authorized and directed to sign
and file in the office of the Secretary of State of the State of Ohio a
certificate containing a copy of the resolution adopting the amendment and a
statement of the manner of its adoption:
The Amended Articles of Incorporation are hereby amended by striking out
in its entirety Article FOURTH and substituting in lieu thereof the
following:
FOURTH: The maximum number of shares which the Corporation is authorized
to have outstanding is 350,000,000, consisting of 300,000,000 shares of
Common Stock without par value (hereinafter referred to as "Common Stock")
and 50,000,000 shares of Preferred Stock without par value (hereinafter
referred to as "Preferred Stock").
The express terms of the shares of each class are as follows:
PART A
EXPRESS TERMS OF THE COMMON STOCK
Section 1. General.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Each share of Common Stock shall be equal to each
other share of Common Stock. Each holder of record of Common Stock shall be
entitled to one vote for each share of said Common Stock standing in his or her
name on the books of the Corporation upon all matters presented to the
shareholders.
Section 2. Preemptive Rights.
No holder of Common Stock, present, past or future, shall be entitled as such
as a matter of right to subscribe for or purchase any part of any new or
additional issue of stock or of securities of the Corporation convertible into
stock of any class whatsoever, whether now or hereafter authorized, and whether
issued for cash, property, services or otherwise.
1
<PAGE> 6
Section 3. Purchase of Shares by Corporation.
The Corporation is authorized to purchase shares of Common Stock at such
times, in such manner, for such reasons and on such terms and conditions as
shall be deemed appropriate by the Board of Directors.
PART B
EXPRESS TERMS OF THE PREFERRED STOCK
Section 1. Series.
The Preferred Stock may be issued from time to time in one or more series.
All shares of Preferred Stock shall be of equal rank and the express terms
thereof shall be identical, except in respect of the terms that may be fixed by
the Board of Directors as hereinafter provided, and each share of each series
shall be identical with all other shares of such series, except as to the date
from which dividends are cumulative. Subject to the provisions of Sections 2
through 8, inclusive, of this Part B, which shall apply to all Preferred Stock,
the Board of Directors is hereby authorized to cause shares of Preferred Stock
to be issued in one or more series and with respect to each such series to
determine and fix:
(a) The designation of the series, which may be by distinguishing number,
letter or title.
(b) The authorized number of shares constituting the series, which number the
Board of Directors may, except to the extent otherwise provided in the creation
of the series, from time to time increase or decrease, but not below the number
of shares thereof then outstanding.
(c) The rate at which dividends shall be payable on shares of such series.
(d) The dates on which dividends, if declared, shall be payable on shares of
such series and the dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any, for shares of the
series.
(f) The amount, terms, conditions and manner of operation of any retirement
or sinking fund to be provided for the purchase or redemption of shares of the
series.
(g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation.
(h) Whether the shares of the series shall be convertible into shares of any
other class or series, and, if so, the specification of such other class or
series, the conversion price or prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and all
other terms and conditions upon which such conversion may be made.
(i) The conditions or restrictions, if any, upon the issue of any additional
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time amendments
to the Amended Articles of Incorporation fixing, with respect to each series,
the matters described in clauses (a) to (i), inclusive, of this Section 1.
Section 1-A. Series A $10.00 Preferred Stock, Without Par Value.
A series of Preferred Stock is hereby created having the following terms:
1. Designation. The shares of such series are designated as: "Series A $10.00
Preferred Stock, without par value."
2
<PAGE> 7
2. Authorized Number of Shares - Fractional Shares. The authorized number
of shares constituting the Series A $10.00 Preferred Stock is 3,000,000. Series
A $10.00 Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A $10.00 Preferred
Stock.
3. Dividends and Distributions. (A) Subject to any prior and superior rights
of the holders of any series of Preferred Stock ranking prior and superior to
the shares of Series A $10.00 Preferred Stock with respect to dividends that may
be authorized by the Amended Articles of Incorporation, the holders of shares of
Series A $10.00 Preferred Stock shall be entitled prior to the payment of any
dividends on shares ranking junior to the Series A $10.00 Preferred Stock to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of January, April, July and October in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A $10.00 Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $10.00 or (b) subject to the
provisions for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A $10.00 Preferred Stock.
In the event the Corporation shall at any time after July 28, 1986 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the Outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A $10.00 Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A
$10.00 Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Payment Date, a dividend of $10.00 per share on the Series A $10.00 Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A $10.00 Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A $10.00 Preferred Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A $10.00 Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date.
3
<PAGE> 8
(D) Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A $10.00 Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A $10.00 Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be no more than 60 days prior to the date fixed for the payment thereof.
(E) Dividends in full shall not be declared or paid or set apart for payment
on the Series A $10.00 Preferred Stock for a dividend period terminating on the
Quarterly Dividend Payment Date unless dividends in full have been declared or
paid or set apart for payment on the Preferred Stock of all series (other than
series with respect to which dividends are not cumulative from a date prior to
such dividend date) for the respective dividend periods terminating on such
dividend date. When the dividends are not paid in full on all series of the
Preferred Stock, the shares of all series shall share ratably in the payment of
dividends, including accumulations, if any, in accordance with the sums which
would be payable on said shares if all dividends were declared and paid in full.
4. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A $10.00 Preferred Stock
unless, prior thereto, the holders of shares of Series A $10.00 Preferred Stock
shall have received $10.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A $10.00
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii) is hereinafter referred to as
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A $10.00 Preferred Stock and Common Stock,
respectively, holders of Series A $10.00 Preferred Stock and holders of shares
of Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A $10.00 Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event, however,
that there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock that were
4
<PAGE> 9
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
5. Conversion on Merger, Consolidation, etc. In case the Corporation shall
enter into any merger, consolidation, combination or other transaction in which
the shares of Common Stock are exchanged or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A $10.00 Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change of
shares of Series A $10.00 Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
6. Redemption. The outstanding shares of Series A $10.00 Preferred Stock
shall not be redeemable.
7. Condition to Issuance of any other Series. The Articles of Incorporation
of the Corporation shall not be further amended to provide for the issuance of
any other series of Preferred Stock without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series A $10.00 Preferred
Stock, voting separately as one voting group.
Section 2. Dividends.
(a) The holders of Preferred Stock of each series, in preference of the
holders of shares of Common Stock and of any other class of shares ranking
junior to the Preferred Stock, shall be entitled to receive out of any funds
legally available and when and as declared by the Board of Directors dividends
in cash at the rate for such series fixed in accordance with the provisions of
Section 1 of this Part B and no more, payable on the dividend payment dates
fixed for such series. Such dividends shall be cumulative, in the case of
shares of each particular series, from and after the date or dates fixed with
respect to such series. No dividend may be paid upon or declared or set apart
for any series of the Preferred Stock at any time unless at the same time a like
proportionate dividend for the dividend periods terminating on the same date or
any earlier date, ratably in proportion to the respective annual dividend rates,
shall have been paid upon or declared or funds therefor set apart for all shares
of Preferred Stock of all series then issued and outstanding and entitled to
receive such dividend.
(b) So long as any Preferred Stock shall be outstanding, no dividend, except
a dividend payable in Common Stock or other shares ranking junior to the
Preferred Stock, shall be paid or declared or any distribution be made except as
aforesaid on the Common Stock or any other shares ranking junior to the
Preferred Stock, nor shall any shares of Common Stock or any other shares
ranking junior to the Preferred Stock be purchased, retired or otherwise
acquired by the Corporation (except out of the proceeds of the sale of Common
Stock or other shares ranking junior to the Preferred Stock received by the
Corporation on or subsequent to the date on which shares of Preferred Stock are
first issued), unless (i) all accrued and unpaid dividends upon all Preferred
Stock then outstanding payable on all dividend payment dates occurring on or
prior to the date of such
5
<PAGE> 10
action shall have been declared and paid or funds sufficient therefor, set
apart, and (ii) at the date of such action there shall be no arrearages with
respect to the redemption of Preferred Stock of any series from any sinking fund
provided for shares of such series in accordance with the provisions of Section
1 of this Part B.
Section 3. Redemption.
(a) Subject to the express terms of each series, the Corporation may from
time to time redeem all or any part of the Preferred Stock of any series at the
time outstanding (i) at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
Section 1 of this Part B or (ii) in fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of Section 1 of this
Part B, together in each case with (1) all then unpaid dividends upon such
shares payable on all dividend payment dates for such series occurring on or
prior to the redemption date, plus (2) if the redemption date is not a dividend
payment date for such series, a proportionate dividend, based on the number of
elapsed days, for the period from the day following the most recent such
dividend payment date through the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to the
holders of record of the Preferred Stock to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days
nor more than 60 days prior to the date fixed for such redemption. At any time
after notice has been given as above provided and before the date of redemption
specified in such notice the Corporation may deposit the aggregate redemption
price of the shares of Preferred Stock to be redeemed, together with an amount
equal to the aggregate amount of dividends payable upon such redemption, with
any bank or trust company in New York, New York, having capital and surplus of
more than $100,000,000, named in such notice, and direct that such deposited
amount be paid to the respective holders of the shares of Preferred Stock so to
be redeemed upon surrender of the stock certificate or certificates held by
such holders. After the mailing of such notice and the making of such deposit
of money, such holders shall cease to be shareholders with respect to such
shares and shall have no interest in or claim against the Corporation with
respect to such shares, except only the right to receive such money from such
bank or trust company without interest or to exercise, before the redemption
date, any unexpired privileges of conversion.
(c) In the event less than all of the outstanding shares of any series of
Preferred Stock are to be redeemed, the Corporation shall select pro rata or by
lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.
(d) If the holders of shares of Preferred Stock which shall have been called
for redemption shall not, within six years after such deposit, claim the amount
deposited for the redemption thereof, any such bank or trust company shall, upon
demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(e) Any shares of Preferred Stock (i) redeemed by the Corporation pursuant
to the provisions of this Section 3, (ii) purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of any series
of Preferred Stock, (iii) converted in accordance with the express terms of any
such series, or (iv) otherwise acquired by the Corporation, shall resume the
status of authorized and unissued shares of Preferred Stock without serial
designation.
Section 4. Liquidation.
(a) The holders of Preferred Stock of any series shall, in case of voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, be
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entitled to receive in full out of the assets of the Corporation, including its
capital, before any amount shall be paid or distributed among the holders of
shares of Common Stock or any other shares ranking junior to the Preferred
Stock, the amounts fixed with respect to shares of such series in accordance
with Section 1 of this Part B, plus an amount equal to (i) all then unpaid
dividends upon such shares payable on all dividend payment dates for such series
occurring on or prior to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up, plus (ii) if such date is not a dividend
payment date for such series, a proportionate dividend, based on the number of
elapsed days, for the period from the day following the most recent such
dividend payment date through such date of payment of the amount due pursuant to
such liquidation, dissolution or winding up. In case the net assets of the
Corporation legally available therefor are insufficient to permit the payment
upon all outstanding shares of Preferred Stock of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding shares of Preferred Stock in proportion to
the full preferential amount to which each such share is entitled.
After payment to holders of Preferred Stock of the full preferential amounts
as aforesaid, holders of Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or the sale, lease
or conveyance of all or substantially all the property or business of the
Corporation shall not be deemed to be a dissolution, liquidation or winding up
for the purposes of this Section 4.
Section 5. Voting.
(a) The holders of Preferred Stock shall not be entitled to vote upon matters
presented to the shareholders, except as provided in this Section 5 or as
required by law.
(b) Whenever, and so long as, the Corporation shall be in default in the
payment of the equivalent of six full quarterly dividends (whether or not
consecutive) on any series of Preferred Stock at the time outstanding, whether
or not earned or declared, the holders of Preferred Stock of all series, voting
separately as a class without regard to series, shall be entitled to elect, as
herein provided, two members of the Board of Directors of the Corporation;
provided, however, that the holders of shares of Preferred Stock shall not have
or exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
a majority of the outstanding shares of Preferred Stock of all series then
outstanding are present in person or by proxy; and provided further that the
special class voting rights provided for in this paragraph, when the same shall
have become vested, shall remain so vested until all accrued and unpaid
dividends on the Preferred Stock of all series then outstanding shall have been
paid, whereupon the holders of Preferred Stock shall be divested of this special
class voting rights in respect of subsequent elections of directors, subject to
the revesting of such special class voting rights in the event of the occurrence
of the default hereinabove specified in this Subsection (b). In the event of a
default entitling the holders of Preferred Stock to elect two Directors as
specified in this Subsection (b), a special meeting of such holders for the
purpose of electing such directors shall be called by the Secretary of the
Corporation upon written request of, or may be called by, the holders of record
of at least 10% of the shares of Preferred Stock of all series at the time
outstanding, and notice thereof shall be given in the same manner as that
required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual
meeting of shareholders shall be held within 120 days after the date of receipt
of the foregoing written request from the holders of Preferred Stock. At any
meeting at which the holders of Preferred Stock shall be entitled to elect
Directors, the holders of a majority of the then outstanding shares of Preferred
Stock of all series, present
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in person or by proxy, shall be sufficient to constitute a quorum, and the vote
of the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members of
the Board of Directors which the holders of Preferred Stock are entitled to
elect as hereinabove provided. Notwithstanding any provision of these Amended
Articles of Incorporation or the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares fixing the number of
Directors of the Corporation, the two Directors who may be elected by the
holders of Preferred Stock pursuant to this Subsection (b) shall serve in
addition to any other Directors then in office or proposed to be elected
otherwise than pursuant to this Subsection (b). Nothing in this Subsection (b)
shall prevent any change otherwise permitted in the total number of Directors of
the Corporation or require the resignation of any Director elected otherwise
than pursuant to this Subsection (b). Notwithstanding any classification of the
other Directors of the Corporation, the two Directors elected by the holders of
Preferred Stock shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(c) The affirmative vote or consent of the holders of at least two-thirds of
the shares of Preferred Stock at the time outstanding, voting or consenting
separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect any one or more of
the following (but so far as the holders of Preferred Stock are concerned, such
action may be effected with such vote or consent):
(1) Any amendment, alteration or repeal of any of the provisions of the
Amended Articles of Incorporation or of the Code of Regulations of the
Corporation which adversely affects the preferences or voting or other
rights of the holders of Preferred Stock; provided, however, that for the
purpose of this Subsection (c) only, neither the Amendment of the Amended
Articles of Incorporation so as to authorize, create or change the
authorized or outstanding amount of Preferred Stock or of any shares of
any class ranking on a parity with or junior to the Preferred Stock nor
the amendment of the provisions of the Code of Regulations so as to
change the number of directors of the Corporation shall be deemed to
affect adversely the preferences or voting or other rights of the holders
of Preferred Stock; and provided further, that if such amendment,
alteration or repeal affects adversely the preferences or voting or other
rights of one or more but not all series of Preferred Stock at the time
outstanding, only the affirmative vote or consent of the holders of at
least two-thirds of the number of the shares at the time outstanding of
the series so affected shall be required;
(2) The purchase or redemption (for sinking fund purposes or otherwise) of
less than all of the Preferred Stock then outstanding except in
accordance with a stock purchase offer made to all holders of record of
Preferred Stock, unless all dividends on all Preferred Stock then
outstanding for all previous dividend periods shall have been declared
and paid for funds therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been complied with; or
(3) The authorization, creation or the increase in the authorized amount of
any shares of any class or any security convertible into shares of any
class, in either case ranking prior to the Preferred Stock.
(d) The affirmative vote or consent of the holders of at least a majority of
the shares of Preferred Stock at the time outstanding, voting or consenting
separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect any one or more of
the following (but so far as the holders of Preferred Stock are concerned, such
action may be effected with such vote or consent):
(1) The sale, lease or conveyance by the Corporation of all or substantially
all of its property or business;
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(2) The consolidation of the Corporation with or its merger into any other
corporation, unless the corporation resulting from such consolidation or
surviving such merger will not have after such consolidation or merger
any class of shares either authorized or outstanding ranking prior to or
on a parity with the Preferred Stock except the same number of shares
ranking prior to or on a parity with the Preferred Stock and having the
same rights and preferences as the shares of the Corporation authorized
and outstanding immediately preceding such consolidation or merger (and
each holder of Preferred Stock immediately preceding such consolidation
or merger shall receive the same number of shares with the same rights
and preferences of the resulting or surviving corporation); or
(3) The authorization of any shares ranking on a parity with the
Preferred Stock or an increase in the authorized number of shares of
Preferred Stock.
(e) Neither the vote, consent nor any adjustment of the voting rights of
holders of shares of Preferred Stock shall be required for an increase in the
number of shares of Common Stock authorized or issued or for stock splits of the
Common Stock or for stock dividends on any class of stock payable solely in
Common Stock; and none of the foregoing actions shall be deemed to affect
adversely the preferences or voting or other rights of Preferred Stock within
the meaning and for the purpose of this Part B.
Section 6. Convertible Series.
If and to the extent that there are created series of Preferred Stock which
are convertible (hereinafter referred to as "convertible series") into shares of
Common Stock or into shares of any other class or series of the Corporation
(hereinafter collectively called "conversion shares"), the following terms and
provisions shall be applicable to all convertible series, except as may be
otherwise expressly provided in the terms of any such series.
(a) The holder of each share of a convertible series may exercise the
conversion privilege in respect thereof by delivering to any transfer agent for
the respective series the certificate for the share to be converted and written
notice that the holder elects to convert such share. Conversion shall be deemed
to have been effected immediately prior to the close of business on the date
when such delivery is made, and such date is referred to in this Section as the
"conversion date". On the conversion date or as promptly thereafter as
practicable, the Corporation shall deliver to the holder of the stock
surrendered for conversion, or as otherwise directed by him in writing, a
certificate for the number of full conversion shares deliverable upon the
conversion of such stock and a check or cash in respect of any fraction of a
share as provided in Subsection (b) of this Section 6. The person in whose name
the stock certificate is to be registered shall be deemed to have become a
holder of the conversion shares of record on the conversion date. No adjustment
shall be made for any dividends on shares of stock surrendered for conversion or
for dividends on the conversion shares delivered on conversion.
(b) The Corporation shall not be required to deliver fractional shares upon
conversion of shares of a convertible series. If more than one share shall be
surrendered for conversion at one time by the same holder, the number of full
conversion shares deliverable upon conversion thereof shall be computed on the
basis of the aggregate number of shares so surrendered. If any fractional
interest in a conversion share would otherwise be deliverable upon the
conversion, the Corporation shall in lieu of delivering a fractional share
therefor make an adjustment therefor in cash at the current market value
thereof, computed (to the nearest cent) on the basis of the closing price of the
conversion share on the last business day before the conversion date.
For the purpose of this Section, the "closing price of the conversion share"
on any business day shall be the last reported sales price regular way per share
on such day, or, in
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case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange, or, if the conversion shares are not then listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the conversion shares are listed or admitted to trading as determined by the
Board of Directors, or if not so listed or admitted, the mean between the
average bid and asked prices per conversion shares in the over-the-counter
market as furnished by any member of the National Association of Securities
Dealers or other nationally recognized organization of securities dealers
selected from time to time by the Board of Directors for that purpose; and
"business day" shall be each day on which the New York Stock Exchange or other
national securities exchange or over-the-counter market used for purposes of
the above calculation is open for trading.
(c) Upon conversion of shares of any convertible series, the stated capital
of the conversion shares delivered upon such conversion shall be the aggregate
par value of the shares so delivered having par value, or, in the case of shares
without par value, shall be an amount equal to the stated capital represented by
each such share outstanding at the time of such conversion multiplied by the
number of such shares delivered upon such conversion. The stated capital of
the Corporation shall be correspondingly increased or reduced to reflect the
difference between the stated capital of the shares of the convertible series so
converted and the stated capital of the shares delivered upon such conversion.
(d) In the event of any reclassification or change of outstanding conversion
shares (except a split or combination, or a change in par value, or a change
from par value to no par value, or a change from no par value to par value),
provision shall be made as part of the terms of such reclassification or change
that the holder of each share of each convertible series then outstanding shall
have the right to receive upon the conversion of such share, at the conversion
rate or price which otherwise would be in effect at the time of conversion, with
substantially the same protection against dilution as is provided in the terms
of such convertible series, the same kind and amount of stock and other
securities and property as he would have owned or have been entitled to receive
upon the happening of any of the events described above had such share been
converted immediately prior to the happening of the event.
(e) In the event the Corporation shall be consolidated with or shall merge
into any other corporation, provision shall be made as a part of the terms of
such consolidation or merger whereby the holder of each share of each
convertible series outstanding immediately prior to such event shall
thereafter be entitled to such rights with respect to securities of the
Corporation resulting from such consolidation or merger so that rights of such
holders as specified in the terms of such convertible series shall not be
substantially prejudiced; provided, however, that the provisions of this
Subsection (e) shall be inapplicable if such consolidation or merger shall be
approved by the holders of two-thirds of the outstanding shares of such
convertible series of Preferred Stock.
(f) The Corporation hereby reserves and shall at all times reserve and keep
available free from preemptive rights, out of its authorized but unissued shares
or treasury shares, for the purpose of delivery upon conversion of shares of
each convertible series, such number of conversion shares as shall from time to
time be sufficient to permit the conversion of all outstanding shares of all
convertible series of Preferred Stock.
Section 7. Preemptive Rights -Purchase of Shares by Corporation.
(a) No holder of Preferred Stock, present, past or future, shall be entitled
as such as a matter of right to subscribe for or purchase any part of any new or
additional stock of any series or class or of securities of the Corporation
convertible into stock of any class whatsoever, whether now or hereafter
authorized, and whether issued for cash, property, services or otherwise.
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(b) The Corporation is authorized to purchase any shares of any series of
Preferred Stock from time to time and at such times, in such manner, for such
reasons and on such terms and conditions as shall be deemed appropriate by the
Board of Directors.
Section 8. Definitions.
For the purpose of this Part B:
Whenever reference is made to shares "ranking prior to the Preferred Stock",
such reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof either as to the payment of dividends
or as to distribution in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation are given preference over the right
of the holders of Preferred Stock; whenever reference is made to shares "on a
parity with the Preferred Stock", such reference shall mean and include all
shares of the Corporation in respect of which the right of the holders thereof
(i) are not given preference over the rights of the holders of Preferred Stock
either as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and (ii) either as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, or as to both, rank on an equality
(except as to the amounts fixed therefor) with the rights of the holders of
Preferred Stock; and whenever reference is made to shares "ranking junior to the
Preferred Stock" such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof both as to
the payment of dividends and as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation are junior
and subordinate to the rights of the holders of the Preferred Stock.
IN WITNESS WHEREOF, said Hoyt M. Wells, President, and James Boyazis,
Secretary, of THE GOODYEAR TIRE & RUBBER COMPANY, acting for and on behalf of
said corporation, have hereunto subscribed their names and caused the seal of
said corporation to be hereunto affixed this 6th day of April, 1993.
By /s/ HOYT M. WELLS
--------------------------------
HOYT M. WELLS, PRESIDENT
[SEAL]
By /s/ JAMES BOYAZIS
--------------------------------
JAMES BOYAZIS, SECRETARY
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================================================================================
THE GOODYEAR TIRE & RUBBER COMPANY
-----------------
CODE OF REGULATIONS
-----------------
ADOPTED NOVEMBER 22, 1955
AS AMENDED APRIL 5, 1965,
APRIL 7, 1980, APRIL 6, 1981
AND APRIL 13, 1987
================================================================================
<PAGE> 2
CODE OF REGULATIONS
ARTICLE I
SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of shareholders of the Company
for the election of directors, the consideration of reports to be laid before
such meeting, and the transaction of such other business as may properly be
brought before such meeting, shall be held at the principal office of the
Company in Akron, Ohio, at ten o'clock a.m., or at such other time as may be
designated by the Board of Directors, by the Chairman of the Board, or by the
President and specified in the notice of the meeting, on the first Monday of
April in each year, unless the Board of Directors by a resolution adopted on or
before the first day of March of any year, shall fix a different date, which
date may be any day, other than a Sunday or a legal holiday, during the period
beginning April 1 and ending April 15 of such year, in which event the meeting
shall be held on the date set by such resolution.
SECTION 2. Special Meetings. Special meetings of the shareholders of the
Company may be held on any business day, when called by the Chairman of the
Board, or by the President, or by a Vice President, or by the Board acting at a
meeting, or by a majority of the directors acting without a meeting, or by the
persons who hold twenty-five per cent of all shares outstanding and entitled to
vote thereat. Upon request in writing delivered either in person or by
registered mail to the President or the Secretary by any persons entitled to
call a meeting of shareholders, such officer shall forthwith cause to be given
to the shareholders entitled thereto notice of a meeting to be held on a date
not less than seven or more than sixty days after the receipt of such request,
as such officer may fix. If such notice is not given within thirty days after
the delivery or mailing of such request, the persons calling the meeting may fix
the time of the meeting and give notice thereof in the manner provided by law or
as provided in these Regulations, or cause such notice to be given by any
designated representative. Each special meeting shall be called to convene
between nine o'clock a.m. and four o'clock p.m. and shall be held at the
principal office of the Company in Akron, Ohio, unless the same is called by the
directors, acting with or without a meeting, in which case such meeting may be
held at any place either within or without the State of Ohio designated by the
directors and specified in the notice of such meeting.
SECTION 3. Notice of Meetings. Not less than seven or more than sixty days
before the date fixed for a meeting of shareholders, written notice stating the
time, place, and purposes of such meeting shall be given by or at the direction
of the Secretary or an Assistant Secretary or any other person or persons
required or permitted by these Regulations to give such notice. The notice shall
be given by personal delivery or by mail to each shareholder entitled to notice
of the meeting who is of record as of the day next preceding the day on which
notice is given or, if a record date therefor is duly fixed, of
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record as of said date; if mailed, the notice shall be addressed to the
shareholders at their respective addresses as they appear on the records of the
Company. Notice of the time, place, and purposes of any meeting of shareholders
may be waived in writing, either before or after the holding of such meeting, by
any shareholder, which writing shall be filed with or entered upon the records
of the meeting.
SECTION 4. Quorum; Adjournment. Except as may be otherwise provided by law
or by the Articles of Incorporation, at any meeting of the shareholders the
holders of shares entitling them to exercise a majority of the voting power of
the Company present in person or by proxy shall constitute a quorum for such
meeting; provided, however, that no action required by law, the Articles, or
these Regulations to be authorized or taken by a designated proportion of the
shares of the Company may be authorized or taken by a lesser proportion; and
provided, further, that the holders of a majority of the voting shares
represented thereat, whether or not a quorum is present, may adjourn such
meeting from time to time; if any meeting is adjourned, notice of such
adjournment need not be given if the time and place to which it is adjourned are
fixed and announced at such meeting.
SECTION 5. Proxies. Persons entitled to vote shares or to act with respect
to shares may vote or act in person or by proxy. The person appointed as proxy
need not be a shareholder.
SECTION 6. Approval and Ratification of Acts of Officers and Board. Except
as otherwise provided by the Articles of Incorporation or by law, any contract,
act, or transaction, prospective or past, of the Company, or of the Board, or of
the officers may be approved or ratified by the affirmative vote at a meeting of
the shareholders, or by the written consent, with or without a meeting, of the
holders of shares entitling them to exercise a majority of the voting power of
the Company, and such approval or ratification shall be as valid and binding as
though affirmatively voted for or consented to by every shareholder of the
Company.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Number and Classification; Authority. The Board of Directors
shall be composed of fifteen members and shall be divided into three classes
(Class I, Class II and Class III), each class to consist of five directors
unless the number of members of the Board of Directors or of any class is
changed by action of the shareholders taken in accordance with the laws of the
State of Ohio, the Articles of Incorporation and these Regulations or by a
resolution adopted by the affirmative vote of a majority of the directors then
in office. The directors may, from time to time, increase or decrease the number
of directors, provided that the directors shall not increase the number of
directors to more than nineteen persons or decrease the number of directors to
less than eleven persons and, provided further, that the directors shall not
decrease the number of directors in any class to fewer than three persons. Any
director's office that is created by an increase in the number of directors
pursuant to action taken by the Board of Directors
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may be filled by the vote of a majority of the directors then in office. In the
event of any increase in the number of directors of any class, any additional
director elected to such class shall hold office for a term which shall coincide
with the unexpired term of such class. No reduction in the number of directors
by action taken by the shareholders or the directors shall, of itself, shorten
the term or result in the removal of any incumbent director. Except where the
law, the Articles of Incorporation or these Regulations require action to be
authorized or taken by the shareholders, all of the authority of the Company
shall be exercised by the directors.
SECTION 2. Election of Directors; Term of Office. At each annual meeting of
shareholders, or at a special meeting called for the purpose of electing
directors, each successor to the directors of the class whose term shall expire
in that year shall be elected for a term of three years and shall hold office
until the third annual meeting of shareholders following his or her election as
a director and until his or her successor is elected and qualified, or until his
or her earlier resignation, removal from office or death. At a meeting of
shareholders at which directors of any class are to be elected, only persons
nominated as candidates shall be eligible for election as directors and the
candidates receiving the greatest number of votes shall be elected. A separate
election shall be held for each class of directors at any meeting of
shareholders at which a member of more than one class of directors is being
elected. Directors elected at the first election for Class I directors shall
hold office for a term of three years; directors elected at the first election
for Class II directors shall hold office for a term of two years; and directors
elected at the first election for Class III directors shall hold office for a
term of one year; and in each instance such directors shall hold office until
their successors are elected and qualified.
SECTION 3. Vacancies; Resignations; Removal of Directors. In the event of
the occurrence of any vacancy or vacancies in the Board, however caused, the
remaining directors, though less than a majority of the whole authorized number
of directors, may, by the vote of a majority of their number, fill any such
vacancy for the unexpired term of the class in which such vacancy occurred. Any
director may resign at any time by oral statement to that effect made at a
meeting of the Board or in a writing to that effect delivered to the Secretary,
such resignation to take effect immediately or at such other time as the
director may specify. All the directors, or all the directors of a particular
class, or any individual director, may be removed from office by the vote of the
holders of shares entitling them to exercise two-thirds of the voting power of
the Company entitled to vote to elect directors in place of the director or
directors to be removed, provided that unless all the directors, or all the
directors of a particular class, are removed, no individual director shall be
removed if the votes of a sufficient number of shares are cast against such
director's removal which, if cumulatively voted at an election of all the
directors, or all of the directors of a particular class, as the case may be,
would be sufficient to elect at least one director; provided further, that, if
shareholders do not have the right to vote cumulatively under the law of Ohio or
the Articles of Incorporation, such directors, class of directors or individual
director may be removed from office by the vote of the holders of shares
entitling them to exercise two-thirds of the voting power of the Company
entitled to vote to elect directors in place of the director or directors to be
removed. In the event of any
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such removal, a new director may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a director to fill the
unexpired term of any director so removed from office shall be deemed to create
a vacancy in the Board of Directors. Notwithstanding Article X of these
Regulations, the provisions of this Section 3 of Article II may be amended,
repealed or supplemented only by the shareholders at a meeting held for such
purpose by the affirmative vote of the holders of shares entitling them to
exercise two-thirds of the voting power of the Company on such proposal.
SECTION 4. Meetings. Immediately after each annual meeting of the
shareholders, the newly elected directors shall hold an organization meeting for
the purpose of electing officers and transacting any other business. Notice of
such meeting need not be given. Other meetings of the Board may be held at any
time within or without the State of Ohio in accordance with the bylaws,
resolutions, or other action by the Board. Unless otherwise expressly stated in
the notice thereof, any business may be transacted at any meeting of the Board.
SECTION 5. Quorum; Adjournment. A quorum of the Board shall consist of a
majority of the directors then in office; provided that a majority of the
directors present at a meeting duly held, whether or not a quorum is present,
may adjourn such meeting from time to time; if any meeting is adjourned, notice
of adjournment need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting. At each meeting of the Board at which a
quorum is present, all questions and business shall be determined by a majority
vote of those present except as in these Regulations otherwise expressly
provided.
SECTION 6. Committees. The Board may from time to time create or appoint an
Executive Committee, a Finance Committee, a combined Executive and Finance
Committee, and any other committee or committees deemed advisable by the Board
for the proper transaction of the Company's business. Any such committee shall
be composed of not less than three directors (not less than five directors in
the case of an Executive and Finance Committee), each of whom shall serve at the
pleasure of, and be subject at all times to the control and direction of, the
Board. Any such committee shall act only in the intervals between meetings of
the Board and shall have such authority as adheres to the committee by virtue of
the provisions of this section or as may, from time to time, be delegated by the
Board, except that no committee shall have authority to fill vacancies in the
Board or in any committee of the Board. Subject to the aforesaid exceptions, and
in the absence of express delegation of authority by the Board, the Executive
Committee may transact all business and do and perform all things which may or
might be transacted or done by the Board, the Finance Committee shall have the
authority usually and ordinarily possessed by finance committees, and the
combined Executive and Finance Committee shall have the aforesaid authority of
the Executive Committee and of the Finance Committee. Subject to the aforesaid
exceptions with respect to the filling of vacancies in the Board or in any
committee, any person dealing with the Company shall be entitled to rely upon
any act of, or authorization of any act by, such committees, to the same extent
as an act or authorization of the Board. Each committee shall keep full and
complete records of all meetings and actions, which shall be open to inspection
6
<PAGE> 6
by the directors. Unless otherwise ordered by the Board, any such committee may
prescribe its own rules for calling and holding meetings, and for its own method
of procedure, and may act by a majority of its members at a meeting or without a
meeting by a writing or writings signed by all of its members. The directors may
appoint one or more alternate members of any such committee to take the place of
any absent member or members at any meeting of such committee and, if permitted
by law, to join in any action of such committee authorized or taken without a
meeting; each such alternate shall serve at the pleasure of, and be subject at
all times to the control and direction of, the Board.
SECTION 7. Bylaws. The Board may adopt bylaws for its own government, not
inconsistent with the Articles of Incorporation or these Regulations.
ARTICLE III
OFFICERS
SECTION 1. Election and Designation of Officers. The Board, at its
organization meeting, may elect a Chairman of the Board and shall elect a
President, a Secretary, a Treasurer, and, in its discretion, at any meeting of
the Board, may elect one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, a Comptroller, one or more
Assistant Comptrollers, and such other officers as the Board may deem necessary.
The Chairman of the Board and the President shall be directors, but no one of
the other officers need be a director. Any two or more of such offices may be
held by the same person, but no officer shall execute, acknowledge, or verify
any instrument in more than one capacity, if such instrument is required to be
executed, acknowledged, or verified by two or more officers.
SECTION 2. Term of Office; Vacancies. The officers of the Company shall
hold office until the next organization meeting of the Board and until their
successors are elected, except in case of resignation, death, or removal. The
Board may remove any officer at any time with or without cause by a two-thirds
vote of the members of the Board then in office. Any vacancy in any office may
be filled by the Board.
SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall
preside at all meetings of shareholders and of the Board and shall have such
authority and perform such duties as the Board may determine.
SECTION 4. President. Except for meetings at which the Chairman of the
Board, if any, presides in accordance with the preceding Section, the President
shall preside at all meetings of shareholders and of the Board. Subject to
directions of the Board, he shall have general executive supervision over the
property, business, and affairs of the Company.
SECTION 5. Vice Presidents. In case of the absence or disability of the
President, or when circumstances prevent the President from acting, the Vice
Presidents of the Company shall perform all the duties and possess all the
authority of the President, and shall have priority in the performance of such
duties and exercise of such authority in the order of their election by the
Board.
7
<PAGE> 7
SECTION 6. Secretary. The Secretary shall keep the minutes of meetings of
the shareholders and of the Board. He shall keep such books as may be required
by the Board, and shall give notices of shareholders' meetings and of Board
meetings required by law, or by these Regulations, or otherwise.
SECTION 7. Treasurer. The Treasurer shall receive and have in charge all
money, bills, notes, bonds, stocks in other corporations, and similar property
belonging to the Company, and shall do with the same as may be ordered by the
Board. He shall keep accurate financial accounts and hold the same open for the
inspection and examination of the directors.
SECTION 8. Comptroller. The Comptroller shall exercise a general check upon
the disbursement of funds of the Company and shall have general charge and
supervision of the preparation of financial reports.
SECTION 9. Other Officers. The Assistant Secretaries, Assistant Treasurers,
and Assistant Comptrollers, if any, in addition to such authority and duties as
the Board may determine, shall have such authority and perform such duties as
may be directed by their respective principal officers.
SECTION 10. Authority and Duties. The officers shall have such authority
and perform such duties, in addition to those specifically set forth in these
Regulations, as the Board may determine. The Board is authorized to delegate the
duties of any officer to any other officer and generally to control the action
of the officers and to require the performance of duties in addition to those
mentioned herein.
ARTICLE IV
COMPENSATION
The Board, by the affirmative vote of a majority of the directors in
office, and irrespective of any personal interest of any of them, shall have
authority to establish reasonable compensation, which may include pension,
disability and death benefits, for services to the Company by directors and
officers, or to delegate such authority to one or more officers or directors.
ARTICLE V
INDEMNIFICATION
The Company shall indemnify each person who is or was a director, officer
or employee of the Company, or of any other corporation which he served as
such at the request of the Company, against any and all liability and
reasonable expense that may be incurred by him in connection with or resulting
from any claim, action, suit, or proceeding (whether brought by or in the
right of the Company or such other corporation or otherwise), civil or
criminal, or in connection with an appeal relating thereto, in which he may
8
<PAGE> 8
become involved, as a party or otherwise, by reason of his being or having been
a director, officer, or employee of the Company or of such other corporation, or
by reason of any past or future action taken or not taken in his capacity as
such director, officer, or employee, whether or not he continues to be such at
the time such liability or expense is incurred, provided such person acted, in
good faith, in what he reasonably believed to be the best interests of the
Company or such other corporation, as the case may be, and, in addition, in any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. As used in this Article, the terms "liability" and
"expense" shall include, but shall not be limited to, counsel fees and
disbursements and amounts of judgments, fines, or penalties against, and amounts
paid in settlement by, a director, officer, or employee, other than amounts paid
to the Company itself or to such other corporation served at the Company's
request. The termination of any claim, action, suit, or proceeding, civil or
criminal, by judgment, settlement (whether with or without court approval) or
conviction or upon a plea of guilty or of nolo contendere, or its equivalent,
shall not create a presumption that a director, officer, or employee did not
meet the standards of conduct set forth in the first sentence of this Article.
Any such director, officer, or employee referred to in this Article who has been
wholly successful, on the merits or otherwise, with respect to any claim,
action, suit, or proceeding of the character described herein shall be entitled
to indemnification as of right. Except as provided in the preceding sentence,
any indemnification hereunder shall be made at the discretion of the Company,
but only if (1) the Board, acting by a quorum consisting of directors who are
not parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of this
Article, or (2) independent legal counsel (who may be the regular counsel of the
Company) shall deliver to it their written advice that, in their opinion, such
director, officer, or employee has met such standards. Expense incurred with
respect to any such claim, action, suit, or proceeding may be advanced by the
Company prior to the final disposition thereof upon receipt of an undertaking by
or on behalf of the recipient to repay such amount unless it shall ultimately be
determined that he is entitled to indemnification under this Article. The rights
of indemnification provided in this Article shall be in addition to any rights
to which any person concerned may otherwise be entitled by contract or as a
matter of law, and shall inure to the benefit of the heirs, executors, and
administrators of any such person.
ARTICLE VI
RECORD DATES
For any lawful purpose, including, without limitation, the determination of
the shareholders who are entitled to:
(1) receive notice of or to vote at a meeting of shareholders,
(2) receive payment of any dividend or distribution,
(3) receive or exercise rights of purchase of or subscription for, or
exchange or conversion of, shares or other securities, subject to contract
rights with respect thereto, or
9
<PAGE> 9
(4) participate in the execution of written consents, waivers, or releases,
the Board may fix a record date which shall not be a date earlier than the
date on which the record date is fixed and, in the cases provided for in
clauses (1), (2), and (3) above, shall not be more than sixty days preceding
the date of the meeting of shareholders, or the date fixed for the payment
of any dividend or distribution, or the date fixed for the receipt or the
exercise of rights, as the case may be. The record date for the purpose of
the determination of the shareholders who are entitled to receive notice of
or to vote at a meeting of shareholders shall continue to be the record date
for all adjournments of such meeting, unless the Board or the persons who
shall have fixed the original record date shall, subject to the limitations
set forth in this Article, fix another date, and in case a new record date
is so fixed, notice thereof and of the date to which the meeting shall have
been adjourned shall be given to shareholders of record as of such date in
accordance with the same requirements as those applying to a meeting newly
called. The Board may close the share transfer books against transfers of
shares during the whole or any part of the period provided for in this
Article, including the date of the meeting of shareholders and the period
ending with the date, if any, to which adjourned.
ARTICLE VII
EXECUTION OF DOCUMENTS
Except as otherwise provided in these Regulations, or by specific or
general resolutions of the Board, all documents evidencing conveyances by or
contracts or other obligations of the Company shall be signed by the Chairman of
the Board, if any, the President, or a Vice President, and attested by the
Secretary or an Assistant Secretary.
ARTICLE VIII
CERTIFICATES FOR SHARES
SECTION 1. Form of Certificates and Signatures. Each holder of shares is
entitled to one or more certificates, signed by the Chairman of the Board or the
President or a Vice President and by the Secretary, an Assistant Secretary, the
Treasurer, or an Assistant Treasurer of the Company, which shall certify the
number and class of shares held by him in the Company, but no certificate for
shares shall be executed or delivered until such shares are fully paid. When
such a certificate is countersigned by an incorporated transfer agent or
registrar, the signature of any of said officers of the Company may be
facsimile, engraved, stamped, or printed. Although any officer of the Company
whose manual or facsimile signature is affixed to such a certificate so
countersigned ceases to be such officer before the certificate is delivered,
such certificate nevertheless shall be effective in all respects when delivered.
10
<PAGE> 10
SECTION 2. Transfer of Shares. Shares of the Company shall be transferable
upon the books of the Company by the holders thereof, in person, or by a duly
authorized attorney, upon surrender and cancellation of certificates for a like
number of shares of the same class or series, with duly executed assignment and
power of transfer endorsed thereon or attached thereto, and with such proof of
the authenticity of the signatures to such assignment and power of transfer as
the Company or its agents may reasonably require.
SECTION 3. Lost, Stolen, or Destroyed Certificates. The Company may issue a
new certificate for shares in place of any certificate theretofore issued by it
and alleged to have been lost, stolen, or destroyed, and the Board may, in its
discretion, require the owner, or his legal representatives, to give the Company
a bond containing such terms as the Board may require to protect the Company or
any person injured by the execution and delivery of a new certificate.
SECTION 4. Transfer Agents and Registrars. The Board may appoint, or revoke
the appointment of, transfer agents and registrars and may require all
certificates for shares to bear the signatures of such transfer agents and
registrars, or any of them. The Board shall have authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
and registration of certificates for shares of the Company.
ARTICLE IX
AUTHORITY TO TRANSFER AND VOTE SECURITIES
The Chairman of the Board, the President, and a Vice President of the
Company are each authorized to sign the name of the Company and to perform all
acts necessary to effect a transfer of any shares, bonds, other evidences of
indebtedness or obligations, subscription rights, warrants, and other securities
of another corporation owned by the Company and to issue the necessary powers of
attorney for the same; and each such officer is authorized, on behalf of the
Company, to vote such securities, to appoint proxies with respect thereto, and
to execute consents, waivers, and releases with respect thereto, or to cause any
such action to be taken.
ARTICLE X
AMENDMENTS
The Regulations of the Company may be amended or new Regulations may be
adopted by the shareholders, at a meeting held for such purpose by the
affirmative vote of the holders of shares entitling them to exercise a majority
of the voting power of the Company on such proposal or, without a meeting, by
the written consent of the holders of shares entitling them to exercise
two-thirds of the voting power on such proposal.
11
<PAGE> 1
[STOCK CERTIFICATE]
COMMON STOCK COMMON STOCK
NUMBER SHARES
/M/ / / /
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
GOODYEAR TIRE & RUBBER COMPANY
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 382550 10 1
This is to Certify that
is the owner of
FULL-PAID AND NON-ASSESSABLE SHARES WITHOUT PAR VALUE OF THE COMMON STOCK OF
THE GOODYEAR TIRE & RUBBER COMPANY, TRANSFERABLE ON THE BOOKS OF THE
CORPORATION IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNTIL
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY
AUTHORIZED OFFICERS.
Dated THE GOODYEAR TIRE & RUBBER COMPANY
[Stamped SPECIMEN]
BY
/s/ James Boyazis /s/ Stanley C. Gault
SECRETARY CHAIRMAN OF THE BOARD
COUNTERSIGNED AND REGISTERED:
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
BY TRANSFER AGENT
AND REGISTRAR,
AUTHORIZED SIGNATURE
<PAGE> 2
THE GOODYEAR TIRE & RUBBER COMPANY
THE GOODYEAR TIRE & RUBBER COMPANY WILL MAIL, WITHOUT CHARGE,
TO THE REGISTERED HOLDER OF THIS CERTIFICATE A COPY OF THE EXPRESS
TERMS (AS SET FORTH IN THE ARTICLES OF INCORPORATION AND THE CODE OF
REGULATIONS OF THE CORPORATION) OF THE SHARES OF THE COMMON STOCK OF
THE CORPORATION AND OF OTHER CLASSES OR SERIES OF SHARES, IF ANY,
WHICH THE CORPORATION IS AUTHORIZED TO ISSUE WITHIN FIVE DAYS AFTER
RECEIPT OF A WRITTEN REQUEST THEREFOR, ADDRESSED TO THE SECRETARY OF
THE CORPORATION, AKRON, OHIO 44316.
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement between The Goodyear Tire & Rubber Company
and Manufacturers Hanover Trust Company, Rights Agent, dated as of July 2, 1986
(the "Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
The Goodyear Tire & Rubber Company. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Goodyear Tire & Rubber
Company will mail to the holder of this certificate a copy of the Rights
Agreement (as in effect on the date of mailing) without charge promptly after
receipt of a written request therefor. Under certain circumstances, Rights
which are or were beneficially owned by Acquiring Persons or their Affiliates or
Associates (as such terms are defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
The Goodyear Tire & Rubber Company appointed, effective May 16, 1990, First
Chicago Trust Company of New York as successor Rights Agent under the Rights
Agreement. The Rights Agreement was amended pursuant to an Amendment to Rights
Agreement dated as of April 6, 1993.
Explanation of Abbreviations:
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
===============================================================================
ASSIGNMENT
For value received, ___________ hereby sell, assign and transfer unto
(Please Print or Type Name and Address of Assignee)
Insert here Social Security or Other
Name Identifying Number of Assignee
------------------------------------
- --------------------------------------------------------------------------------
Street
SHARES
- --------------------------------------------------------------------------------
City, State and Zip Code
================================================================================
(Please Print or Type Name and Address of Assignee)
Insert here Social Security or Other
Name Identifying Number of Assignee
------------------------------------
- --------------------------------------------------------------------------------
Street
SHARES
- --------------------------------------------------------------------------------
City, State and Zip Code
================================================================================
of the capital stock represented by the within Certificate and do hereby
irrevocably constitute and appoint
----------------------------------------------
- --------------------------------------------------------------------------------
Attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Issue certificate to the same owner as shown on the face of
this certificate for any shares not assigned above. ------------
SHARES
------------
------------
Dated
-----------------------
X
---------------------------------------------
(The signature here must correspond with the
name as written upon the face of the
certificate in every particular, without
alteration or enlargement or any change
whatever.)
SIGNATURE GUARANTEED:
<PAGE> 1
- --------------------------------------------------------------------------------
THE GOODYEAR TIRE & RUBBER COMPANY
and
MANUFACTURERS HANOVER TRUST COMPANY, Rights Agent
RIGHTS AGREEMENT
Dated as of
July 2, 1986
-----------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RIGHTS AGREEMENT
Section 1. Certain Definitions.......................................... 2
Section 2. Appointment of Rights Agent.................................. 7
Section 3. Issue of Right Certificates.................................. 7
Section 4. Form of Right Certificates................................... 10
Section 5. Countersignature and Registration............................ 13
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates,
Mutilated, Destroyed, Lost or
Stolen Right Certificates.................................... 14
Section 7. Exercise of Rights; Purchase
Price; Expiration Date of Rights............................. 16
Section 8. Cancellation and Destruction of
Right Certificates........................................... 21
Section 9. Reservation and Availability of
Shares of Capital Stock...................................... 21
Section 10. Preferred Stock Record Date.................................. 24
Section 11. Adjustment of Purchase Price,
Number of Shares or Number of
Rights....................................................... 26
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares.................................... 47
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning
Power........................................................ 48
Section 14. Fractional Rights and Fractional
Shares....................................................... 53
Section 15. Rights of Action............................................. 55
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 16. Agreement of Right Holders................................... 56
Section 17. Right Certificate Holder Not
Deemed a Shareholder......................................... 58
Section 18. Concerning the Rights Agent.................................. 58
Section 19. Merger or Consolidation or Change
of Name of Rights Agent...................................... 59
Section 20. Duties of Rights Agent....................................... 61
Section 21. Change of Rights Agent....................................... 66
Section 22. Issuance of New Right
Certificates................................................. 68
Section 23. Redemption................................................... 68
Section 24. Notice of Certain Events..................................... 71
Section 25. Notices...................................................... 73
Section 26. Supplements and Amendments................................... 74
Section 27. Successors................................................... 75
Section 28. Determinations and Actions by the
Board of Directors, etc...................................... 75
Section 29. Benefits of this Agreement................................... 76
Section 30. Severability................................................. 77
Section 31. Governing Law................................................ 77
Section 32. Counterparts................................................. 78
Section 33. Descriptive Headings......................................... 78
Exhibit A - Form of Articles of Amendment................................ A-1
Exhibit B - Form of Right Certificate.................................... B-1
- Form of Assignment............................................... B-6
- Certificate...................................................... B-7
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
- Notice........................................................... B-7
- Form of Election to Purchase..................................... B-8
- Certificate...................................................... B-9
- Notice........................................................... B-9
Exhibit C - Summary of Rights to Purchase
Preferred Stock.............................................. C-1
</TABLE>
-iii-
<PAGE> 5
RIGHTS AGREEMENT
This Agreement, dated as of July 2, 1986, between The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company"), and Manufacturers Hanover
Trust Company, a national banking association (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend distribution (the "Distribution") of one Right for each
outstanding share of the Common Stock, without par value, of the Company
outstanding on July 28, 1986 (the "Record Date") and has authorized the issuance
of one Right in respect of each share of Common Stock of the Company issued
between the Record Date and the earlier of the Distribution Date, the Expiration
Date or the Final Expiration Date (as such terms are hereinafter defined), and
under certain other circumstances, each Right initially representing the right
to purchase one one-hundredth of a share of Series A $10.00 Preferred Stock of
the Company having the rights, powers and preferences set forth in the Articles
of Amendment attached hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
<PAGE> 6
-2-
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of securities of
the Company constituting a Substantial Block (as such term is hereinafter
defined), but shall not include the Company, any subsidiary of the Company,
any employee benefit plan of the Company or of any subsidiary of the
Company or any Person or entity organized, appointed or established by the
Company or any subsidiary of the Company for or pursuant to the terms of
any such plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
as in effect on the date hereof.
<PAGE> 7
-3-
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person, or any of such Person's Affiliates or
Associates, beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (A) the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing), or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," (1) securities
tendered pursuant to a tender offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for purchase, (2) securities issuable upon exercise of Rights
at any time prior to the occurrence of a Triggering Event or (3)
securities issuable upon exercise of Rights from and after the
<PAGE> 8
-4-
occurrence of a Triggering Event, which Rights were acquired by such
Person or any of such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) hereof ("Original
Rights") or pursuant to Section 11(i) or Section 22 hereof in
connection with an adjustment made with respect to Original Rights; or
(B) the right to vote or dispose of, pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
however, that a Person shall not be deemed the Beneficial Owner of, or
to "beneficially own," any security under this clause (B) if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations of the Exchange Act and (2)
is not then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates
<PAGE> 9
-5-
has any agreement, arrangement or understanding (whether or not in
writing) for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in clause (B) of
subparagraph (ii) of this paragraph (c)) or disposing of any
securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of Ohio are authorized
or obligated by law or executive order to close.
(e) "close of business" on any given date shall mean 5:00 P.M., Akron
time, on such date; provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., Akron time, on the next succeeding Business
Day.
(f) "Common Stock" when used with reference to the Company shall mean
the Common Stock, without par value, of the Company and when used with
reference to any Person other than the Company shall mean the capital stock
with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such Person.
<PAGE> 10
-6-
(g) "Continuing Director" shall mean any individual who is a member
of the Board of Directors of the Company, while such individual is a member
of the Board, who is not an Acquiring Person, or an Affiliate or Associate
of an Acquiring Person, or a representative or nominee of an Acquiring
Person or of any such Affiliate or Associate and was a member of the Board
prior to the Shares Acquisition Date, and any successor of a Continuing
Director, while such successor is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or
representative or nominee of an Acquiring Person or of any such Affiliate
or Associate, and is recommended or elected to succeed the Continuing
Director by a majority of the Continuing Directors.
(h) "Person" shall mean any individual, firm, corporation or other
entity.
(i) "Preferred Stock" shall mean shares of Series A $10.00 Preferred
Stock, without par value, of the Company.
(j) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person
has become such.
<PAGE> 11
-7-
(k) "Substantial Block" shall mean a number of shares of the Common
Stock which equals or exceeds 20% of the number of shares of the Common
Stock then outstanding.
(l) "Triggering Event" shall mean any event described in Section
11(a)(ii)(A), (B) or (C) or Section 13(a).
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the earlier of
(i) the tenth calendar day after the Shares Acquisition Date or (ii) the tenth
calendar day after the date of the commencement of, or first public announcement
of the intent to commence, by any Person (other than the Company, any subsidiary
of the Company, any employee benefit plan of the Company or of any subsidiary of
the Company or any Person or entity organized, appointed or established by the
Company or any subsidiary of the Company for or pursuant to the terms of any
such plan), a tender or exchange offer if, upon
<PAGE> 12
-8-
consummation thereof, such Person would be an Acquiring Person (including any
such date which is after the date of this Agreement and prior to the issuance of
the Rights; the earlier of the dates in subsections (i) and (ii) hereof being
herein referred to as the "Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by the
certificates for the Common Stock registered in the names of the holders of the
Common Stock (which certificates for the Common Stock also shall be deemed to be
Right Certificates) and not by separate Right Certificates, and (y) the right to
receive Right Certificates will be transferable only in connection with the
transfer of the Common Stock. As soon as practicable after the Distribution
Date, the Rights Agent will send, by first-class, insured, postage prepaid mail,
to each record holder of the Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto,
evidencing one Right for each share of the Common Stock so held. As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights
<PAGE> 13
-9-
to Purchase Preferred Stock, in substantially the form attached hereto as
Exhibit C (the "Summary of Rights"), by first-class, postage prepaid mail, to
each record holder of the Common Stock as of the close of business on the Record
Date, at the address of such holder shown on the records of the Company. With
respect to certificates for the Common Stock outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such certificates
for the Common Stock registered in the names of the holders of the Common Stock
with a copy of the Summary of Rights attached thereto. Until the Distribution
Date (or earlier redemption or expiration of the Rights), the surrender for
transfer of any of the certificates for the Common Stock outstanding on the
Record Date, even without a copy of the Summary of Rights attached thereto,
shall also constitute the surrender for transfer of the Rights associated with
the Common Stock represented by such certificate.
(c) Rights shall be issued in respect of all shares of Common Stock
issued after the Record Date but prior to the earlier of the Distribution Date
or the Expiration Date or the Final Expiration Date (as such terms are defined
in Section 7). Certificates representing such shares of Common Stock shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
<PAGE> 14
-10-
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between The Goodyear Tire &
Rubber Company and Manufacturers Hanover Trust Company, Rights Agent, dated
as of July 2, 1986 (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of The Goodyear Tire & Rubber Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Goodyear Tire & Rubber Company will mail to the
holder of this certificate a copy of the Rights Agreement (as in effect on
the date of mailing) without charge promptly after receipt of a written
request therefor. Under certain circumstances, Rights which are or were
beneficially owned by Acquiring Persons or their Affiliates or Associates
(as such terms are defined in the Rights Agreement) and any subsequent
holder of such Rights may become null and void.
Until the Distribution Date, the Rights associated with the Common Stock
represented by certificates containing the foregoing legend shall be evidenced
by such certificates alone, and the surrender for transfer of any of such
certificates shall also constitute the surrender for transfer of the Rights
associated with the Common Stock represented by such certificate.
Section 4. Form of Right Certificates. (a) The Right Certificates
(and the forms of election to purchase shares and of assignment to be printed on
the reverse thereof) shall be substantially the same as Exhibit B hereto and may
have such marks of identification or designation and such
<PAGE> 15
-11-
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage. Subject to the provisions of Section 22 hereof, the Right Certificates,
whenever issued, shall be dated as of the Record Date, and on their face shall
entitle the holders thereof to purchase such number of shares of the Preferred
Stock (or following a Triggering Event, Common Stock, other securities, cash or
other assets as the case may be) as shall be set forth therein at the price per
share set forth therein (the "Purchase Price"), but the number of such shares
and the Purchase Price shall be subject to adjustment as provided herein.
(b) Notwithstanding any other provision of this Agreement, any Right
Certificate issued pursuant to Section 3 or Section 22 hereof that represents
Rights beneficially owned by (i) an Acquiring Person or any Associate or
Affiliate thereof, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
became such, or (iii) a transferee of an
<PAGE> 16
-12-
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, any Right
Certificate issued at any time to any nominee of such Acquiring Person,
Associate or Affiliate, and any Right Certificate issued pursuant to Section 6
or Section 11 upon transfer, exchange, replacement or adjustment of any other
Right Certificate referred to in this sentence, shall contain the following
end:
The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or an
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Right Certificate and the Rights represented
hereby may become null and void in the circumstances specified in Section
7(e) of the Rights Agreement.
<PAGE> 17
-13-
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Company in the manner provided in the Code of
Regulations of the Company for Common Stock certificates. The Right
Certificates shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent, issued and delivered with the same force
and effect as though the person who signed such Right Certificates had not
ceased to be such officer of the Company; and any Right Certificate may be
signed on behalf of the Company by any person who, at the actual date of the
execution of such Right Certificate, shall be a proper officer of the Company to
sign such Right Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at one of its offices in New York, New York, books for registration
and transfer of the Right Certificates issued hereunder. Such books shall show
<PAGE> 18
-14-
the names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates, Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any
time after the close of business on the Distribution Date, and at or prior to
the close of business on the earlier of the Expiration Date or the Final
Expiration Date, any Right Certificate or Certificates may be transferred, split
up, combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one one-hundredths
of a share of Preferred Stock (or, following a Triggering Event, Common Stock,
other securities, cash or other assets, as the case may be) as the Right
Certificate or Right Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Right Certificate shall
make such request in writing delivered to the Rights Agent, and shall surrender
the Right Certificate or Right Certificates to be transferred, split up,
<PAGE> 19
-15-
combined or exchanged at the principal office of the Rights Agent for such
purpose. Neither the Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Right Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and reimbursement to the Company and
the Rights Agent of all reasonable expenses incidental
<PAGE> 20
-16-
thereto, and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent at its office at
450 West 33 Street, New York, New York 10001, together with payment of the
aggregate Purchase Price with respect to the total number of one one-hundredths
of a share of Preferred Stock (or other securities or property, as the case may
be) as to which such surrendered Rights are then exercisable, at or prior to the
close of business on the earlier of (i) July 28, 1996 (the "Final Expiration
Date"), or (ii) the date on which the Rights are redeemed as provided in Section
23 (such earlier date being herein referred to as the "Expiration Date").
<PAGE> 21
-17-
(b) The Purchase Price for each one one-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $100,
shall be subject to adjustment from time to time as provided in Section 11
hereof and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment of the Purchase Price per one one-hundredth of a share of
Preferred Stock (or other shares, securities or property, as the case may be) to
be purchased and an amount equal to any applicable transfer tax in cash, or by
certified check or bank draft payable to the order of the Company, the Rights
Agent shall, subject to Section 20(k) hereof, thereupon promptly (i) requisition
from any transfer agent of the Preferred Stock of the Company certificates for
the total number of one one-hundredths of a share of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, (ii) if the Company shall have elected to deposit
the total number of shares of Preferred Stock issuable upon exercise of the
Rights hereunder with a depositary agent, requisition from the depositary agent
depositary receipts
<PAGE> 22
-18-
representing such number of one one-hundredths of a share of Preferred Stock as
are to be purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the depositary agent to comply
with such request, (iii) when appropriate, requisition from any transfer agent
of the Common Stock of the Company certificates for the total number of shares
of Common Stock to be paid in accordance with Section 11(a)(ii) and 11(a)(iii),
(iv) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section 14, (v)
promptly after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (vi) when appropriate, after receipt promptly deliver such cash to or
upon the order of the registered holder of such Right Certificate. In the event
that the Company is obligated to issue securities, distribute property or pay
cash pursuant to Section 11(a)(iii) hereof, the Company will make all
arrangements necessary so that cash, property or securities are available for
issuance, distribution or payment by the Rights Agent, if and when appropriate.
<PAGE> 23
-19-
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, any
Rights that are or were at any time on or after the earlier of the Distribution
Date or the Shares Acquisition Date beneficially owned by (i) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the
<PAGE> 24
-20-
Company has determined is part of a plan, arrangement or understanding which has
as a primary purpose or effect the avoidance of this Section 7(e), shall become
null and void upon the occurrence of a Triggering Event and no holder of such
Rights shall have any right with respect to such Rights under any provision of
this Agreement from and after the occurrence of a Triggering Event. The Company
shall use all reasonable efforts to insure that the provisions of this Section
7(e) and Section 4(b) hereof are complied with, but shall have no liability to
any holder of Right Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
<PAGE> 25
-21-
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock or its authorized and issued
<PAGE> 26
-22-
Common Stock held in its treasury and/or other securities), the number of shares
of Preferred Stock (and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) that, as provided in this Agreement, will be
sufficient to permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other securities) issuable
and deliverable upon the exercise of Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of a Triggering Event, a registration
statement under the Securities Act of 1933 (the "Act"), with respect to the
Rights and the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the date of the expiration of the Rights. The
<PAGE> 27
-23-
Company will also take such action as may be appropriate under the blue sky laws
of the various states. The Company may temporarily suspend, for a period of
time not to exceed ninety (90) days, the exercisability of the Rights in order
to prepare and file such registration statement. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement and
notice to the Rights Agent at such time as the suspension is no longer in
effect. Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state
<PAGE> 28
-24-
transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Right Certificates or of any one one-hundredths of a share of
Preferred Stock (or Common Stock and/or other securities, as the case may be)
upon the exercise of Rights. The Company shall not, however, be required (a) to
pay any transfer tax which may be payable in respect of any transfer involved in
the transfer or delivery of Right Certificates or the issuance or delivery of
certificates for the one one-hundredths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a name other than that of
the registered holder of the Right Certificate evidencing Rights surrendered for
exercise or (b) to issue or deliver any certificates for a number of one
one-hundredths of a share of Preferred Stock upon the exercise of any Rights
until any such tax shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in whose name
any certificate for a number of one one-hundredths of a share of Preferred
Stock (or shares of Common Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes be deemed to
<PAGE> 29
-25-
have become the holder of record of such fractional shares of Preferred Stock
(or shares of Common Stock and/or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding business day on which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not be entitled to
any rights of a shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
<PAGE> 30
-26-
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER
OF RIGHTS. The Purchase Price, the number of shares covered by each Right and
the number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Stock payable in
shares of the Preferred Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine the outstanding Preferred Stock into a smaller number of
shares or (D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing
corporation), except as otherwise provided in this Section 11(a) and
Section 7(e) hereof, the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate number
and kind
<PAGE> 31
-27-
of shares of Preferred Stock or capital stock, as the case may be, which,
if such Right had been exercised immediately prior to such date and at a
time when the Preferred Stock transfer books of the Company were open, he
would have owned upon such exercise and been entitled to receive by virtue
of such dividend, subdivision, combination or reclassification. If an
event occurs which would require an adjustment under both Section 11(a)(i)
and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to any adjustment required
pursuant to Section ll(a)(ii).
(ii) In the event
(A) any Acquiring Person or any Associate or Affiliate of any
Acquiring Person, at any time after the date of this Agreement,
directly or indirectly, (1) shall merge into the Company or otherwise
combine with the Company, the Company shall be the continuing or
surviving corporation of such merger or combination, and the Common
Stock of the Company shall remain outstanding, (2) shall, in one or
more transactions, transfer any assets to the Company in exchange (in
whole or in part) for shares of the capital stock of the Company or
for securities
<PAGE> 32
-28-
exercisable for or convertible into shares of the capital stock of
the Company or otherwise obtain from the Company, with or without
consideration, any additional shares of the capital stock of the
Company or securities exercisable for or convertible into shares of
the capital stock of the Company (other than as part of a pro rata
distribution to all holders of the Common Stock of the Company), (3)
shall sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise dispose (in one transaction or a series of transactions),
to, from or with, as the case may be, the Company or any of the
Company's subsidiaries, other than incidental to the lines of
business currently engaged in as of the date hereof between the
Company and such Acquiring Person or Associate or Affiliate, assets
having an aggregate fair market value of more than $10,000,000, other
than a transaction set forth in Section 13(a) hereof, (4) shall sell,
purchase, lease, exchange, mortgage, pledge, transfer or otherwise
dispose (in one transaction or a series of transactions), to, from or
with the Company or any of the Company's subsidiaries, assets on
terms and conditions less favorable to the Company than the Company
would be able to obtain through
<PAGE> 33
-29-
arm's-length negotiation with an unaffiliated third party, other than
a transaction set forth in Section 13(a) hereof, (5) shall receive
any compensation from the Company or any of the Company's
subsidiaries other than compensation for full-time employment as a
regular employee at rates in accordance with the Company's (or its
subsidiaries') past practices, or (6) shall receive a direct or
indirect benefit (except proportionately as a shareholder), of any
loans, advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantage provided by the Company or any
of its subsidiaries, or
(B) any Person (other than the Company, any subsidiary of the
Company, any employee benefit plan of the Company or of any
subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company or any subsidiary of the
Company for or pursuant to the terms of any such plan), alone or
together with its Affiliates and Associates, shall become the
Beneficial Owner of 35% or more of the shares of Common Stock then
outstanding (except pursuant to an offer for all outstanding
<PAGE> 34
-30-
shares of Common Stock at a price and upon such terms and conditions
as a majority of the Continuing Directors determine to be in the best
interests of the Company and its shareholders (other than the Person
or any Affiliate or Associate thereof on whose behalf the offer is
being made)) providing the Continuing Directors constitute a majority
of the Board of Directors, or
(C) during such time as there is an Acquiring Person, (1) there
shall be any failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on any
outstanding preferred stock of the Company (except to the extent such
declaration or payment would be prohibited under the laws of the
Company's jurisdiction of incorporation), (2) there shall be any
reduction in the annual rate of dividends paid on the Common Stock
(except to reflect any subdivision of the Common Stock or as required
under the laws of the Company's jurisdiction of incorporation or as
approved by a majority of the Continuing Directors and the Continuing
Directors constitute a majority of the Board of Directors or by the
holders of 66 2/3%
<PAGE> 35
-31-
percent or more of the then outstanding shares of Common Stock
beneficially owned by Persons other than the Acquiring Person or its
Affiliates or Associates), (3) there shall be a failure to increase
the annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock (except to the extent such increase in the rate of dividends
would be prohibited under the laws of the Company's jurisdiction of
incorporation), or (4) there shall be any reclassification of
securities (including any reverse stock split), or recapitalization
of the Company, or any merger or consolidation of the Company with
any of its subsidiaries or any other transaction or series of
transactions to which the Company or any of its subsidiaries is a
party (whether or not with or into or otherwise involving an
Acquiring Person) which has the effect, directly or indirectly, of
increasing by more than 1% the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Company or any of its subsidiaries which is directly or
<PAGE> 36
-32-
indirectly owned by any Acquiring Person or any Associate or
Affiliate of any Acquiring Person,
then, within five (5) days after the date of the occurrence of an event
described in Section 11(a)(ii)(B) hereof and promptly following the occurrence
of any event described in Section 11(a)(ii)(A) or (C) hereof, proper provision
shall be made so that each holder of a Right (except as provided in Section 7(e)
hereof) shall thereafter have a right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this Agreement, in
lieu of shares of Preferred Stock, such number of shares of the Common Stock of
the Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable and dividing that product
by (y) 50% of the current market price per share of the Common Stock of the
Company (determined pursuant to Section 11(d)) on the date on which the first of
the events listed above in this subparagraph (ii) occurs (such number of shares
are hereinafter referred to as the "Adjustment Shares"). For the purposes of
this Section "subsidiaries" shall mean any corporations or other entities of
which a majority of the voting power of the voting equity securities or equity
interests is owned, directly or indirectly, by the Company.
<PAGE> 37
-33-
(iii) In the event that the number of shares of Common Stock which are
authorized by the Company's Amended Articles of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights are not sufficient to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph (ii), the Company
shall (A) determine the excess of (1) the value of the Adjustment Shares
issuable upon the exercise of a Right over (2) the Purchase Price (such
excess, the "Spread"), and (B) with respect to each Right, then the
Company, upon the surrender for exercise of a Right and without requiring
payment of the Purchase Price, shall be obligated to deliver uniformly on a
pro rata basis to all outstanding Rights shares of Common Stock (to the
extent available) and then, if necessary, cash, which shares and/or cash
have an aggregate value equal to the Spread. To the extent that any legal
or contractual restrictions prevent the Company from paying the full amount
of cash payable in accordance with the foregoing sentence, the Company
shall pay to holders of the Rights as to which such payments are being made
all amounts which are not then restricted uniformly on a pro rata basis.
The Company shall continue to make payments on a pro rata basis as funds
become available until such payments have been paid in full.
<PAGE> 38
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(b) In the case the Company shall fix a record date for the issuance
of rights or warrants to all holders of Preferred Stock entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Preferred Stock (or shares having the same rights, privileges and
preferences as the shares of Preferred Stock ("equivalent preferred stock") or
securities convertible into Preferred Stock or equivalent preferred stock) at a
price per share of Preferred Stock or per share of equivalent preferred stock
(or having a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the current market
price (as defined in Section 11(d)) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, of which the numerator shall be the number of shares
of Preferred Stock outstanding on such record date plus the number of shares of
Preferred Stock which the aggregate offering price of the total number of shares
of Preferred Stock and/or equivalent Preferred Stock so to be offered (and/or
the aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and of which the
denominator shall be the number of shares of Preferred Stock
<PAGE> 39
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outstanding on such record date plus the number of additional shares of
Preferred Stock and/or equivalent Preferred Stock to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent. Shares of Preferred Stock owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date has not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than a
regular periodic cash dividend at a rate not in excess of 125% of the rate of
the last cash dividend theretofore paid or
<PAGE> 40
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a dividend payable in Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b)), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the current market price (as defined in Section 11(d)) per share of
Preferred Stock on such record date, less the fair market value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion of
the assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one share of Preferred Stock and
of which the denominator shall be such current market price per share of
Preferred Stock. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation under Section 11(b) or (c)
hereof, the "current market price"
<PAGE> 41
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per, or value of a, share of the Common Stock on any date of determination
shall be deemed to be the average of the daily closing prices per share of
such Common Stock for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER,
that in the event that the current market price (or value) per share of the
Common Stock is determined during the period following the announcement by
the issuer of such Common Stock of (A) a dividend or distribution on such
Common Stock payable in shares of such Common Stock or securities
convertible into shares of such Common Stock, or (B) any sub-division,
combination or reclassification of such Common Stock, and prior to the
expiration of 30 Trading Days, after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market price"
or "value" shall be appropriately adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading
<PAGE> 42
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on the New York Stock Exchange or, if the shares of the Common Stock are
not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the shares of the Common Stock are listed or admitted to trading
or, if the shares of the Common Stock are not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such
other system then in use, or, if on any such date the shares of the Common
Stock are not quoted by such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board of Directors of the
Company. If on any such date no market maker is making a market in the
Common Stock, the fair value of such shares on such date shall be as
determined in good faith by the Continuing Directors if the Continuing
Directors constitute a majority of the Board of Directors or in the event
the Continuing Directors do not constitute a majority of the Board of
<PAGE> 43
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Directors, by an independent investment banking firm selected by the Board
of Directors. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of Common Stock
are listed or admitted to trading is open for the transaction of business
or, if the shares of the Common Stock are not listed or admitted to trading
on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday
or Friday on which banking institutions in the State of Ohio are not
authorized or obligated by law or executive order to close. If the Common
Stock is not publicly held or not so listed or traded, "current market
price" per share shall mean the fair value per share as determined in good
faith by the Continuing Directors of the Company if the Continuing
Directors constitute a majority of the Board of Directors or in the event
the Continuing Directors do not constitute a majority of the Board of
Directors by an independent investment banking firm selected by the Board
of Directors, whose determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "current market
price" per share of Preferred Stock
<PAGE> 44
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shall be determined in the same manner as set forth above for the Common
Stock in clause (i) of this Section 11(d) (other than the last sentence
thereof). If the current market price per share of Preferred Stock cannot
be determined in the manner provided above or if the Preferred Stock is not
publicly held or listed or traded in a manner described in clause (i) of
this Section 11(d), the "current market price" per share of Preferred Stock
shall be conclusively deemed to be an amount equal to 100 (as such number
may be appropriately adjusted for such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock occurring
after the date of this Agreement) multiplied by the current market price
per share of the Common Stock. If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded, "current market
price" per share of the Preferred Stock shall mean the fair value per share
as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes. For all purposes of this
Agreement, the "current market price" of one one-hundredth of a share of
Preferred Stock shall be equal to the "current market price" of one share
of Preferred Stock divided by 100.
<PAGE> 45
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(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share as the case may
be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such adjustment or (ii)
the date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a),
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than Preferred Stock,
thereafter the number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Stock contained in Section 11(a) through (o), inclusive, and the
provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Stock
shall apply on like terms to any such other shares.
<PAGE> 46
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(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
share of Preferred Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Section 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-hundredths of a
share of Preferred Stock (calculated to the nearest one-millionth) obtained by
(i) multiplying (x) the number of one one-hundredths of a share covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of
<PAGE> 47
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Rights, in substitution for any adjustment in the number of one one-hundredths
of a share of Preferred Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredths of a share of Preferred Stock
for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest ten-thousandth) obtained
by dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after the adjustment
of the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14, the additional Rights to which such holders shall be entitled as a
result of
<PAGE> 48
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such adjustment, or, at the option of the Company, shall cause to be distributed
to such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates evidencing
all the Rights to which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at the option of
the Company, the adjusted Purchase Price) and shall be registered in the names
of the holders of record of Right Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-hundredths of a share of Preferred Stock issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price per one one-hundredth of a share and
the number of one one-hundredths of a share which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any, of a
share of Preferred Stock
<PAGE> 49
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issuable upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable one
one-hundredths of a share of such Preferred Stock at such adjusted Purchase
Price.
(1) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
the number of one one-hundredths of a share of Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon such exercise over and
above the number of one one-hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such
<PAGE> 50
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reductions in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that it in its sole discretion
shall determine to be advisable in order that any consolidation or subdivision
of Preferred Stock, issuance wholly for cash of any of the shares of Preferred
Stock at less than the current market price, issuance wholly for cash of the
Preferred Stock or securities which by their terms are convertible into or
exchangeable for Preferred Stock, stock dividends or issuance of rights, options
or warrants referred to hereinabove in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be taxable to such
shareholders.
(n) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Sections 23 and 26 hereof, take (nor
will it permit any of its subsidiaries to take) any action if at the time such
is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the
Rights, unless such action is approved by a majority of the Continuing Directors
and the Continuing Directors constitute a majority of the Board of Directors.
(o) The Company covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate
<PAGE> 51
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with, (ii) merge with or into, or (iii) sell or transfer (or permit any of its
subsidiaries to sell or transfer), in one or more transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the
Company and its subsidiaries (taken as a whole) to, any other Person if at the
time of or immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13, the
Company shall (a) promptly prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) promptly
file with the Rights Agent and with each transfer agent for the Preferred Stock
and the Common Stock a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing shares of Common Stock) in
accordance with Section 25. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained.
<PAGE> 52
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Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event that, following the Distribution Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person, (y) any Person shall consolidate, merge with and
into the Company, the Company shall be the continuing or surviving corporation
of such merger and, in connection with such merger, all or part of the Common
Stock shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its subsidiaries
(taken as a whole) to any other Person, then, and in each such case, proper
provision shall be made so that (i) each holder of a Right, except as provided
in Section 7(e) hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then-current Purchase Price in accordance with the terms
of this Agreement, such number of shares of validly issued, fully paid,
non-assessable and freely tradeable Common Stock of the Principal Party (as
hereinafter defined), not subject to any rights of call or first refusal, as
shall be equal to the result obtained by (1) multiplying the then current
Purchase
<PAGE> 53
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Price by the then number of one one-hundredths of a share of Preferred Stock for
which a Right is then exerciseable and dividing that product by (2) 50% of the
current market price per share of the Common Stock of such Principal Party
(determined in the manner described in Section 11(d)) on the date of
consummation of such consolidation, merger, sale or transfer; (ii) the Principal
Party shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply to such Principal Party; (iv) such
Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock in accordance
with Section 9) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the shares of its Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the first occurrence of any of
the transactions described in Section 13(a) hereof.
<PAGE> 54
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(b) "Principal Party" shall mean
(1) in the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company are converted
in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to the merger or consolidation; and
(2) in the case of any transaction described in (z) of the first
sentence in this Section 13, the Person that is the other party to such
transaction;
provided, however, that in any such case, (x) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Securities Exchange Act of 1934, and
such Person is a direct or indirect subsidiary of another corporation the Common
Stock of which (or the Common Stock of another subsidiary of which) is and has
been so registered, "Principal Party" shall refer to such other corporation; (y)
in case there is more than one such Person referred to in clause (x) of the
proviso of this Section 13(b), or in case there is more than one Person referred
to in Section 13(b)(1) or (2), the Common
<PAGE> 55
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Stocks of all of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common Stock having the
greatest market value of shares held by the public, and (z) in case such Person
is owned, directly or indirectly, by a joint venture formed by two or more
Persons that are not owned, directly or indirectly, by the same Person, the
rules set forth in (x) and (y) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such party were a
"subsidiary" of both or all of such joint venturers and the Principal Parties in
each such chain shall bear the obligations set forth in this Section 13 in the
same ratio as their direct or indirect interests in such Person bear to the
total of such interests.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets mentioned in paragraph (a) of this
Section 13, the Principal Party will
<PAGE> 56
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(i) prepare and file a registration statement under the Securities Act
of 1933, as amended (the "Act") with respect to the Rights and the
securities purchasable upon exercise of the Rights on an appropriate form,
will use its best efforts to cause such registration statement to become
effective as soon as practicable after such filing and will use its best
efforts to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the date
of expiration of the Rights; and
(ii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10 under
the Securities Exchange Act of 1934.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that one of the
transactions described in Section 13(a) hereof shall occur at any time after the
occurrence of a transaction described in Section 11(a)(ii) hereof, the Rights
which have not theretofore been exercised shall thereafter become exercisable in
the manner described in Section 13(a).
<PAGE> 57
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Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities
exchange on which the Rights are listed or admitted to trading or, if the Rights
are not listed or admitted to trading on any national securities exchange, the
last quoted price or,
<PAGE> 58
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if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors of
the Company. If on any such date no such market maker is making a market in the
Rights the fair value of the Rights on such date as determined in good faith by
the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of shares
(other than fractions which are integral multiples of one one-hundredths of a
share of Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares. In lieu of fractional shares
that are not integral multiples of one one-hundredth of a share of Preferred
Stock, the Company may pay to the registered holders of Right Certificates at
the time such Right Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of one one-hundredth
of a share of Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-hundredth of a share of Preferred Stock shall be one
one-hundredth of the closing
<PAGE> 59
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price of a share of Preferred Stock (as determined pursuant to Section
11(d)(ii)) for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall
not be required to issue fractions of shares of Common Stock upon exercise of
the Rights or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the Company may pay
to the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one (1) share of Common Stock. For purposes of this
Section 14(c), the current market value of one share of Common Stock shall be
the closing price of one share of Common Stock (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
such exercise.
(d) The holder of a Right by the acceptance of the Rights expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right.
Section 15. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Right
Certificates (and, prior to the
<PAGE> 60
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Distribution Date the registered holders of the Common Stock); and any
registered holder of any Right Certificate (or, prior to the Distribution Date,
of the Common Stock), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this Agreement and subject to the limitations set forth in
such Right Certificates and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific performance of
the obligations under, and injunctive relief against actual or threatened
violations of, the obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
<PAGE> 61
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(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and certificates
fully executed; and
(c) subject to Section 6(a), Section 7(e) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the Person in whose name the
Right Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on
the Right Certificates or the associated Common Stock certificate made by
anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be required to be affected by any notice to the
contrary.
<PAGE> 62
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Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the number of one
one-hundredths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting shareholders (except
as provided in Section 24), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
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administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or expense,
incurred without negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any Right Certificate or
certificate for the Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which
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it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent shall be
a party, or any corporation, succeeding to the corporate trust business of the
Rights Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21. In case at the time such successor Rights Agent
shall succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in the
Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates
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shall have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with the legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
be proved or established
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by the Company prior to taking or suffering any action hereunder, such fact
or matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by any one of the Chairman of the Board, the President,
any Vice President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due
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execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant
or condition contained in this Agreement or in any Right Certificate; nor
shall it be responsible for any adjustment required under the provisions of
Sections 11 or 13 or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of the Common Stock to be issued pursuant to this Agreement or any
Right Certificate or as to whether any shares of the Common Stock will,
when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or
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performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend interested money to the Company or otherwise act as fully and freely
as though it were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
<PAGE> 69
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(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct
of any such attorneys or agents or for any loss to the Company resulting
from any such act, default, neglect or misconduct, provided reasonable care
was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has
either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take
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any further action with respect to such requested exercise of transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Preferred Stock and Common Stock by registered or
certified mail, and to the holders of the Right Certificates by first class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Preferred Stock and
Common Stock by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any
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Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the State of New
York (or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of New York),
in good standing, having a principal office in the State of New York, which is
authorized under such laws to exercise corporate trust powers and is subject
to supervision or examination by federal or state authority or which has at
the time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent
of the Preferred Stock and Common Stock, and mail a notice thereof in writing to
the
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registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Purchase Price per share and the number or kind or class of
shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to 5:00 P.M., New York City time, on the
earlier of (x) the tenth day following the Shares Acquisition Date, or (y) the
Final Expiration Date, redeem all but not less than all of the then outstanding
Rights at a redemption price of $.05 per Right appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter referred to as
the
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"Redemption Price"), provided, however, that if such redemption occurs on or
after the Shares Acquisition Date the Board of Directors of the Company shall be
entitled to so redeem the Rights only if Continuing Directors constitute a
majority of the Board of Directors at the time of such redemption and such
redemption is approved by a majority of the Continuing Directors; provided,
further, however, that if, following the occurrence of a Shares Acquisition
Date and following the expiration of the right of redemption hereunder but prior
to any Triggering Event, each of the following shall have occurred and remain
in effect: (i) a Person who is an Acquiring Person shall have transferred or
otherwise disposed of a number of shares of Common Stock in a transaction, or
series of transactions, which did not result in the occurrence of a Triggering
Event such that such Person is thereafter a Beneficial Owner of 10% or less of
the outstanding shares of Common Stock, (ii) there are no other Persons,
immediately following the occurrence of the event described in clause (i), who
are Acquiring Persons, and (iii) the transfer or other disposition described
in clause (i) above was other than pursuant to a transaction, or series of
transactions, which directly or indirectly involved the Company or any of its
Subsidiaries; then the right of redemption shall be reinstated and thereafter be
subject to the provisions of this Section 23. Notwithstanding
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anything contained in this Agreement to the contrary, the Rights shall not be
exercisable pursuant to Section 11(a)(ii) prior to the expiration of the
Company's right of redemption pursuant to this Section 23(a) without regard to
the last proviso.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further action
and without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice
to all such holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the Transfer Agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. Neither the Company nor
any of its Affiliates or Associates may redeem, acquire or purchase for value
any Rights at any time in any
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manner other than that specifically set forth in this Section 23, and other than
in connection with the repurchase of Common Stock prior to the Distribution
Date.
Section 24. Notice of Certain Events. In case the Company shall
propose at any time following the Distribution Date (a) to pay any dividend
payable in stock of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than a regular
periodic cash dividend at a rate not in excess of 125% of the rate of the last
cash dividend theretofore paid), or (b) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (c) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of outstanding
Preferred Stock), or (d) to effect any consolidation or merger into or with, or
to effect any sale or other transfer (or to permit one or more of its
subsidiaries to effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the Company and its
subsidiaries (taken as a whole) to, any other Person, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such
case,
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the Company shall give to each holder of a Right, in accordance with Section 25,
a notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or Rights, or the date
on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Preferred Stock, if any such date
is to be fixed, and such notice shall be so given in the case of any action
covered by clause (a) or (b) above at least twenty days prior to the record date
for determining holders of the Preferred Stock for purposes of such action, and
in the case of any such other action, at least twenty days prior to the date of
the taking of such proposed action or the date of participation therein by the
holders of the Preferred Stock, whichever shall be the earlier.
In case any of the events set forth in Section 11(a)(ii) of this
Agreement shall occur, then, in any such case, the Company shall as soon as
practicable thereafter give to each holder of a Right, in accordance with
Section 25, a notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights under Section
11(a)(ii).
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Section 25. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
Attention: General Counsel
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Manufacturers Hanover Trust Company
450 West 33 Street
New York, New York 10001
Attention: Vice President Administration
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
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Section 26. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the approval of any holders of
Right Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provisions herein, or (iii) prior to the Distribution Date, to
change or supplement the provisions hereunder which the Company may deem
necessary or desirable and in the best interests of the holders of the Rights or
(iv) following the Distribution Date, to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person); provided, however, that this Agreement shall not be
supplemented or amended in any way (other than pursuant to clauses (i) and (ii)
above) unless such amendment is approved by a majority of the Continuing
Directors whose determination shall be final and the Continuing Directors
constitute a majority of the Board of Directors. Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this Section
26, the Rights Agent shall execute such supplement or amendment unless the
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Rights Agent shall have determined in good faith that such supplement or
amendment would adversely affect its interests under this Agreement. Prior to
the Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
Section 27. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the provisions of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board of Directors of the Company (and,
where specifically provided for herein, the Continuing Directors) shall have
the exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board, or the Company (or, as
expressly provided, the Continuing Directors), or as may be necessary or
advisable in the
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administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purpose of clause (ii) below, all omissions with
respect to the foregoing) which are done or made by the Board (or, as provided
for, by the Continuing Directors) in good faith, shall (i) be final, conclusive
and binding on the Company, the Rights Agent, the holders of the Right
Certificates and all other parties, and (ii) not subject the Board or the
Continuing Directors to any liability to the holders of the Right Certificates.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates.
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Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such term, provision, covenant or restriction is held by
such court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23
hereof shall be reinstated and shall not expire until the close of business on
the tenth day following the date of such determination by the Board of
Directors.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
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Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[SEAL] THE GOODYEAR TIRE &
RUBBER COMPANY
Attest:
By /s/ F S Meyers By /s/ Tom H Barrett
------------------------------ -------------------------------
[SEAL]
Attest: MANUFACTURERS HANOVER TRUST COMPANY
By /s/ Maria Caracciolo By /s/ Barry A. Shapiro
------------------------------ -------------------------------
Maria Caracciolo Barry A. Shapiro
Assistant Manager Vice President
<PAGE> 83
Exhibit A
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
Tom H Barrett, President, and Fredrick S Myers, Secretary, of The
Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office
located at Akron, Summit County, Ohio, do hereby certify that, pursuant to the
authority conferred upon the Board of Directors of said corporation by Section 1
of Part A of ARTICLE FOURTH of the Amended Articles of Incorporation of the said
corporation and by the Ohio General Corporation Law, at a meeting of the Board
of Directors of said corporation duly called and held on the 2nd day of July,
1986, at which meeting a quorum of the Board of Directors was at all times
present, the Board of Directors duly adopted, without shareholder action, which
shareholder action was not required, the following resolution:
RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the
following amendment to its Amended Articles of Incorporation, as amended to
date, and that the Chairman of the Board, the President or a Vice President and
the Secretary or an Assistant Secretary of said corporation are hereby
authorized and directed to sign and file in the office of the Secretary of State
of the State of Ohio a certificate containing a copy of the resolution adopting
the amendment and a statement of the manner of its adoption:
The Amended Articles of Incorporation of the corporation are hereby
amended to create a new series of Preferred Stock by adding a new Section 1-A to
PART A of ARTICLE FOURTH as follows:
SECTION 1-A. Series A $10.00 Preferred Stock, Without Par Value.
A series of Preferred Stock is hereby created having the following
terms:
1. Designation. The shares of such series is designated as:
"Series A $10.00 Preferred Stock, without par value."
A-1
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2. Authorized Number of Shares - Fractional Shares. The authorized
number of shares constituting the Series A $10.00 Preferred Stock is 3,000,000.
Series A $10.00 Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A $10.00 Preferred
Stock.
3. Dividends and Distributions.
(A) Subject to any prior and superior rights of the holders of any
series of Preferred Stock ranking prior and superior to the shares of Series A
$10.00 Preferred Stock with respect to dividends that may be authorized by the
Amended Articles of Incorporation, the holders of shares of Series A $10.00
Preferred Stock shall be entitled prior to the payment of any dividends on
shares ranking junior to the Series A $10.00 Preferred Stock to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the last day of January,
April, July and October in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A $10.00 Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10.00 or (b) subject to the provisions for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A $10.00 Preferred Stock. In the
event the Corporation shall at any time after July 2, 1986 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A $10.00 Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
A-2
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(B) The Corporation shall declare a dividend or distribution on the
Series A $10.00 Preferred Stock as provided in paragraph (A) above immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10.00 per share on the Series A
$10.00 Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A $10.00 Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series A $10.00
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series A $10.00
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
(D) Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A $10.00 Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A $10.00 Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for the payment
thereof.
(E) Dividends in full shall not be declared or paid or set apart for
payment on the Series A $10.00 Preferred Stock for a dividend period terminating
on the Quarterly Dividend Payment Date unless dividends in full have been
declared or paid or set apart for payment on the Preferred Stock of all series
(other than series with respect to which dividends are not cumulative from a
date prior to such dividend date) for the respective dividend periods
terminating on such dividend date. When the dividends are not paid in full on
all series of the Preferred Stock, the shares of all series shall share ratably
in the payment of dividends, including accumulations, if any,
A-3
<PAGE> 86
in accordance with the sums which would be payable on said shares if all
dividends were declared and paid in full.
4. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to the holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A $10.00 Preferred
Stock unless, prior thereto, the holders of shares of Series A $10.00 Preferred
Stock shall have received $10.00 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference"). Following the
payment of the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A $10.00
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph C below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii) is hereinafter referred to as
the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A $10.00 Preferred Stock and Common Stock,
respectively, holders of Series A $10.00 Preferred Stock and holders of shares
of Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A $10.00 Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding
A-4
<PAGE> 87
Common Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
5. Conversion on Merger, Consolidation, etc. In case the Corporation
shall enter into any merger, consolidation, combination or other transaction in
which the shares of Common Stock are exchanged or changed into other stock or
securities, cash and/or any other property, then in any such case each share
of Series A $10.00 Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A $10.00 Preferred Stock shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
6. Redemption. The outstanding shares of Series A $10.00 Preferred
Stock shall not be redeemable.
7. Condition to Issuance of any other Series. The Articles of
Incorporation of the Corporation shall not be further amended to provide for the
issuance of any other series of Preferred Stock without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Series A $10.00
Preferred Stock, voting separately as one voting group.
A-5
<PAGE> 88
IN WITNESS WHEREOF, said Tom H Barrett, President, and Fredrick S
Myers, Secretary, of The Goodyear Tire & Rubber Company, acting for and on
behalf of said corporation, have hereunto subscribed their names and caused the
seal of said corporation to be hereunto affixed this 2nd day of July, 1986.
By:
-------------------------------
Tom H Barrett, President
[SEAL]
By:
-------------------------------
Fredrick S Myers, Secretary
A-6
<PAGE> 89
Exhibit B
[Form of Right Certificate]
Certificate No. R- Rights
----------
NOT EXERCISABLE AFTER JULY 28, 1996 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.05 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS
AGREEMENT.]*
Right Certificate
This certifies that , or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement dated as of July , 1986 (the "Rights Agreement") between The
Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"), and
Manufacturers Hanover Trust Company, a national banking association (the "Rights
Agent"), to purchase from the
- --------------
* The portion of the legend in brackets shell be inserted only if applicable.
B-1
<PAGE> 90
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M. (Akron time) on July 28, 1996 at the
office of the Rights Agent, or its successors as Rights Agent, in New York, New
York, one one-hundredth of a fully paid non-assessable share of the Series A
$10.00 Preferred Stock, without par value (the "Preferred Stock"), of the
Company, at a purchase price of $100.00 per one one-hundredth of a share (the
"Purchase Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of July 28, 1986,
based on the Preferred Stock of the Company as constituted at such date.
Upon the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined in the Rights Agreement),
(ii) a transferee of any such Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee of a
person
B-2
<PAGE> 91
who, after such transfer, became an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, such Rights shall become null and void and no
holder hereof shall have any right with respect to such Rights from and after
the occurrence of such Triggering Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other securities which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or
B-3
<PAGE> 92
Right Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of one one-hundredths of a share of
Preferred Stock as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.05 per Right.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred Stock which may,
at the election of the Company, be evidenced by depositary receipts), but in
lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Common Stock or
of any other securities of the Company which may at any time be issuable on the
exercise
B-4
<PAGE> 93
hereof, nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action, or, to receive notice of meetings
or other actions affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of , 1986.
ATTEST: THE GOODYEAR TIRE & RUBBER
COMPANY
By
- ----------------------------- --------------------------------
Secretary Title:
Countersigned:
By
-------------------------------
B-5
<PAGE> 94
Authorized Signature
B-6
<PAGE> 95
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificates.)
FOR VALUE RECEIVED hereby sells, assigns and transfers
--------
unto
------------------------------
- -------------------------------------------------------------------------------
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest
- -------
therein, and does hereby irrevocably constitute and appoint
-------------------
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: , 19
----------------- ----
-----------------------------------
Signature
Signature Guaranteed:
B-7
<PAGE> 96
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 19
----------- ---- -----------------------------------
Signature
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
B-8
<PAGE> 97
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To The Goodyear Tire & Rubber Company:
The undersigned hereby irrevocably elects to exercise
----------------
Rights represented by this Right Certificate to purchase the shares of the
Common Stock issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
- -------------------------------------------------------------------------------
(Please print name and address)
- -------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- -------------------------------------------------------------------------------
(Please print name and address)
- -------------------------------------------------------------------------------
Dated: , 19
---------------- ----
-----------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
Signature Guaranteed:
B-9
<PAGE> 98
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: , 19
------------ ----
-----------------------------------
Signature
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change whatsoever.
B-10
<PAGE> 99
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On July 2, 1986, the Board of Directors of The Goodyear Tire & Rubber
Company (the "Company") declared a dividend distribution of one Right for each
outstanding share of Common Stock, without par value (the "Common Stock"), of
the Company. The distribution is payable on July 28, 1986 (the "Record Date")
to the shareholders of record on the Record Date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A $10.00 Preferred Stock, without par value (the "Preferred Stock"), or
in some circumstances, Common Stock, other securities, cash or other assets as
summarized below, at a price of $100.00 (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and Manufacturers Hanover
Trust Company as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) ten days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of the Common Stock or (ii)
ten days following the commencement or announcement of an intention to commence
a tender offer or exchange offer by any person if, upon consummation thereof,
such person would be an Acquiring Person (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced, with respect to any of
the Common Stock certificates outstanding as of the Record Date, by such Common
Stock certificate with a copy of this Summary of Rights attached thereto. The
Rights Agreement provides that, until the Distribution Date, the Rights will be
transferred with and only with the Common Stock. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new issuance of the
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration
of the Rights), the surrender for transfer of any of the Common Stock
certificates outstanding as of the Record Date, even without a copy of this
Summary of Rights attached thereto, will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates")
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<PAGE> 100
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and such separate Right Certificates alone
will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the close of business on July 28, 1996 unless earlier
redeemed by the Company as described below.
The Purchase Price payable, and the number of shares of Preferred
Stock (or Common Stock, other securities, cash or other assets, as the case may
be) issuable upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of the Preferred Stock, (ii) upon
the grant to holders of the Preferred Stock of certain rights or warrants to
subscribe for shares of the Preferred Stock or convertible securities at less
than the current market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends out of earnings or retained
earnings at a rate not in excess of 125% of the rate of the last cash dividend
theretofore paid or dividends payable in the Preferred Stock) or of subscription
rights or warrants (other than those referred to above).
In the event that the Company were acquired in a merger or other
business combination transaction or that 50% or more of its assets or earning
power were sold, proper provision shall be made so that each holder of a Right
other than Rights that were or are beneficially owned by the Acquiring Person
(which will thereafter be void) shall thereafter have the right to receive, upon
the exercise thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company which at the time of
such transaction would have a market value of two times the exercise price of
the Right. In the event that the Company were the surviving corporation in a
merger and its Common Stock were not changed or exchanged, or in the event that
an Acquiring Person engages in one of a number of self-dealing transactions
specified in the Rights Agreement, or, in certain circumstances, an Acquiring
Person becomes the beneficial owner of 35% or more of the outstanding shares of
Common Stock, proper provision shall be made so that each holder of a Right,
other than Rights that were or are beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right to receive
upon exercise that number of shares of the Common Stock having a market value of
two times the exercise price of the Right.
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<PAGE> 101
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares will be issued (other than fractional
shares which are integral multiples of one one-hundredth of a Preferred Share)
and, in lieu thereof, an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date prior to the date of
exercise.
At any time prior to 5:00 P.M. Akron time on the tenth day following
public announcement that a person or group of affiliated or associated persons
has acquired beneficial ownership of 20% or more of the outstanding shares of
the Common Stock of the Company (the "Shares Acquisition Date"), the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.05 per Right (the "Redemption Price") provided that if such
redemption occurs on or after the Shares Acquisition Date the Board shall be
entitled to so redeem the Rights only if such redemption is approved by a
majority of the Continuing Directors (as defined in the Rights Agreement) and
the Continuing Directors constitute a majority of the Board of Directors.
Thereafter, the Company's right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to 10% or less of the outstanding shares
of Common Stock in a transaction or series of transactions not involving the
Company. Immediately upon the action of the Board of Directors of the Company
electing to redeem the Rights, the Company shall make announcement thereof, and
upon such election, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The provisions of the Rights Agreement may be amended by the Board of
Directors in order to cure any ambiguity or correct any defect or inconsistency
and by the Continuing Directors, prior to the Distribution Date, to make changes
deemed to be in the best interests of the holders of the Rights or, after the
Distribution Date, to make such other changes which do not adversely affect the
interests of the holders of the Rights (excluding the interests of any Acquiring
Person and its Affiliates and Associates).
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated July 3, 1986. A copy of the Rights Agreement is available free of charge
from the
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<PAGE> 102
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
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<PAGE> 103
AMENDMENT
TO
RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT, dated as of April 6, 1993 (this
"Amendment Agreement") between The Goodyear Tire & Rubber Company, an Ohio
corporation (the "Company") and First Chicago Trust Company of New York, a
corporation organized under the laws of the State of New York to exercise
corporate trust powers and subject to supervision and examination by Federal and
State of New York Authorities ("FCT" or the "Rights Agent").
WITNESSETH: that,
WHEREAS, the Company is a party to that certain Rights Agreement,
dated as of July 2, 1986, between the Company and FCT (initially with
Manufacturers Hanover Trust Company) as Rights Agent (the "Rights Agreement"),
FCT having been appointed Rights Agent in accordance with Section 21 of the
Rights Agreement pursuant to that certain Appointment of Successor Rights Agent
and Acceptance of Appointment dated March 21, 1990, replacing Manufacturers
Hanover Trust Company as the Rights Agent under the Rights Agreement effective
as of the opening of business on May 16, 1990; and
WHEREAS, the Board of Directors of the Company has authorized and
declared a 2-for-1 split of the Common Stock, without par value, of the Company
(the "Common Stock"), to be effected by the distribution as a stock dividend of
one share of the Common Stock on each share of Common Stock outstanding at April
30, 1993, to be distributed on May 4, 1993 (the "Stock Split"); and
WHEREAS, the Board of Directors of the Company, comprised entirely of
Continuing Directors (as defined in the Rights Agreement) at its meeting duly
convened and held on February 9, 1993, in accordance with the authority
conferred upon it under Section 26 of the Rights Agreement unanimously declared
that in connection with the Stock Split it would be desirable and appropriate
and in the best interests of the holders of the Common Stock and the Rights (as
that term is defined in the Rights Agreement) to amend the Rights Agreement to
adjust the terms of the Rights to reflect the effect of the Stock Split by
providing that each Right outstanding at the close of business on April 30, 1993
and each Right thereafter issued with shares of the Common Stock in accordance
with the Rights Agreement represents the right to purchase one two-hundredth of
a share of Series A $10.00 Preferred Stock of the Company at a purchase price of
$50, thereby making the Rights (after giving effect to this Amendment Agreement)
the economic equivalent of the Rights as in effect prior to the Stock Split in
respect of each holder of the Common Stock and the Rights;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1
<PAGE> 104
1. Unless otherwise expressly defined in this Amendment Agreement or
the context otherwise requires, capitalized and other terms for which meanings
are provided in the Rights Agreement shall have such meanings when used in this
Amendment Agreement.
2. Effective April 30, 1993 and after giving effect to the Stock
Split, the Rights Agreement shall be, and it hereby is, amended by:
(A) Deleting the existing "Whereas" clause set forth immediately
following the Preamble in its entirety and by inserting a new "Whereas" clause
providing in its entirety as follows:
"WHEREAS, the Board of Directors of the Company has authorized
and declared a dividend distribution (the "Distribution") of one Right for
each outstanding share of the Common Stock, without par value, of the
Company outstanding on July 28, 1986 (the "Record Date") and has authorized
the issuance of one Right in respect of each share of Common Stock of the
Company issued between the Record Date and the earlier of the Distribution
Date, the Expiration Date or the Final Expiration Date (as such terms are
hereinafter defined), and under certain other circumstances, each Right
initially representing the right to purchase one two-hundredth of a share
of Series A $10.00 Preferred Stock of the Company having the rights, powers
and preferences set forth in the Articles of Amendment attached hereto as
Exhibit A, upon the terms and subject to the conditions hereinafter set
forth (the "Rights");"
(B) Deleting the existing paragraphs (a), (b) and (c) of Section 7 of
the Rights Agreement in their entirety and inserting in lieu thereof new
paragraphs (a), (b) and (c) of Section 7 of the Rights Agreement providing in
their entirety as follows:
"Section 7. EXERCISE OF RIGHTS, PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS. (a) Subject to Section 7(c) hereof, the registered holder of any
Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form
of election to purchase on the reverse side thereof duly executed, to the
Rights Agent at its office at 30 West Broadway, New York, New York, 10007,
together with payment of the aggregate Purchase Price with respect to the
total number of one two-hundredths of a share of Preferred Stock (or other
securities or property, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the close of business on the
earlier of (i) July 28, 1996 (the "Final Expiration Date"), or (ii) the
date on which the Rights are redeemed as provided in Section 23 (such
earlier date being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one two-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $50,
shall be
2
<PAGE> 105
subject to adjustment from time to time as provided in Section 11 hereof
and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly
executed, accompanied by payment of the Purchase Price per one
two-hundredth of a share of Preferred Stock (or other shares, securities or
property, as the case may be) to be purchased and an amount equal to any
applicable transfer tax in cash, or by certified check or bank draft
payable to the order of the Company, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) requisition from any transfer
agent of the Preferred Stock of the Company certificates for the total
number of one two-hundredths of a share of Preferred Stock to be purchased
and the Company hereby irrevocably authorizes its transfer agent to comply
with all such requests, (ii) if the Company shall have elected to deposit
the total number of shares of Preferred Stock issuable upon exercise of the
Rights hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one two-hundredths of
a share of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with such request, (iii)
when appropriate, requisition from any transfer agent of the Common Stock
of the Company certificates for the total number of shares of Common Stock
to be paid in accordance with Section 11(a)(ii) and 11(a)(iii), (iv) when
appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14, (v)
promptly after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered holder of
such Certificates, registered in such name or names as may be designated by
such holder and (vi) when appropriate, after receipt promptly deliver such
cash to or upon the order of the registered holder of such Right
Certificate. In the event that the Company is obligated to issue
securities, distribute property or pay cash pursuant to Section 11(a)(iii)
hereof, the Company will make all arrangements necessary so that cash,
property or securities are available for issuance, distribution or payment
by the Rights Agent, if and when appropriate."
(C) Deleting the existing paragraph (e) of Section 9 of the Rights
Agreement in its entirety and inserting in lieu thereof a new paragraph (e) of
Section 9 of the Rights Agreement providing in its entirety as follows:
"(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Right
Certificates or of any one two-hundredths of a share of Preferred Stock (or
Common Stock and/or)
<PAGE> 106
other securities, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required (a) to pay any transfer tax which
may be payable in respect of any transfer involved in the transfer or
delivery of Right Certificates or the issuance or delivery of certificates
for the one two-hundredths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) in a name other than that of
the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or (b) to issue or deliver any certificates for a
number of one two-hundredths of a share of Preferred Stock upon the
exercise of any Rights until any such tax shall have been paid (any such
tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's satisfaction
that no such tax is due."
(D) Deleting the first sentence of Section 10 of the Rights Agreement
in its entirety and inserting in lieu thereof a new first sentence of Section 10
of the Rights Agreement providing in its entirety as follows:
"Section 10. Preferred Stock Record Date. Each person in whose name
any certificate for a number of one two-hundredths of a share of Preferred
Stock (or shares of Common Stock and/or other securities, as the case may
be) is issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of such fractional shares of Preferred
Stock (or shares of Common Stock and/or other securities, as the case may
be) represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate is evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Stock (or Common Stock and/or
other securities, as the case may be) transfer books of the Company are
closed, such person shall be deemed to have become the record holder of
such shares (fractional or otherwise) on, and such certificate shall be
dated, the next succeeding business day on which the Preferred Stock (or
Common Stock and/or other securities, as the case may be) transfer books of
the Company are open."
(E) Deleting the clause of subparagraph (a)(ii)(C) of Section 11 of
the Rights Agreement which provides "(x) multiplying the then Current Purchase
Price by the then number of one one-hundredths of a share of Preferred Stock for
which a right is then exercisable and dividing that product by (y)" and
inserting in lieu thereof the following clause:
"(x) multiplying the then Current Purchase Price by the then number of
one two-hundredths of a share of Preferred Stock for which a right is then
exercisable and dividing that product by (y)."
4
<PAGE> 107
(F) Deleting the paragraph (d)(ii) of Section 11 of the Rights
Agreement in its entirety and inserting in lieu thereof a new paragraph (d)(ii)
of Section 11 of the Rights Agreement providing in its entirety as follows:
"(ii) For the purpose of any computation hereunder, the "current
market price" per share of Preferred Stock shall be determined in the same
manner as set forth above for the Common Stock in clause (i) of this
Section 11(d) (other than the last sentence thereof). If the current market
price per share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d), the
"current market price" per share of Preferred Stock shall be conclusively
deemed to be an amount equal to 200 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date
of this Agreement) multiplied by the current market price per share of the
Common Stock. If neither the Common Stock nor the Preferred Stock is
publicly held or so listed or traded, "current market price" per share of
the Preferred Stock shall mean the fair value per share as determined in
good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. For all purposes of this Agreement, the
"current market price" of one two-hundredths of a share of Preferred Stock
shall be equal to the "current market price" of one share of Preferred
Stock divided by 200."
(G) Deleting the existing paragraphs (g), (h), (i), (j), (k) and (l)
of Section 11 of the Rights Agreement in their entirety and inserting in lieu
thereof new paragraphs (g), (h), (i), (j), (k) and (l) of Section 11 of the
Rights Agreement providing in their entirety as follows:
"(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one two-hundredths
of a share of Preferred Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Section 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number
of one two-hundredths of a share of Preferred Stock (calculated to the
nearest one-millionth) obtained by (i) multiplying (x) the number of one
two-hundredths of a share covered by a Right immediately prior to the
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the
5
<PAGE> 108
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one two-hundredths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one two-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price
in effect immediately after the adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or
any day thereafter, but, if the Right Certificates have been issued, shall
be at least 10 days later than the date of the public announcement. If
Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of Right Certificates on
such record date Right Certificates evidencing, subject to Section 14, the
additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one two-hundredths of a share of Preferred Stock issuable
upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price per one
two-hundredth of a share and the number of one two-hundredths of a share
which were expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one two-hundredth of the then par value, if any,
of a share of Preferred Stock issuable upon exercise of the Rights, the
Company shall take
6
<PAGE> 109
any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable one two-hundredths of a share of such Preferred Stock at such
adjusted Purchase Price.
(l) In any case in which Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such record date the
number of one two-hundredths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the number of one two-hundredths of a share of
Preferred Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment."
(H) Deleting the existing paragraph (a) of Section 13 of the Rights
Agreement in its entirety and inserting in lieu thereof a new paragraph (a) of
Section 13 providing in its entirety as follows:
"Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event that, following the Distribution Date,
directly or indirectly, (x) the Company shall consolidate with, or merge
with and into, any other Person, (y) any Person shall consolidate, merge
with and into the Company, the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part
of the Common Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or (z) the
Company shall sell or otherwise transfer (or one or more of its
subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its subsidiaries (taken as a
whole) to any other Person, then, and in each such case, proper provision
shall be made so that (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then-current Purchase Price in accordance with the
terms of this Agreement, such number of shares of validly issued, fully
paid, non-assessable and freely tradeable Common Stock of the Principal
Party (as hereinafter defined), not subject to any rights of call or first
refusal, as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the then number of one two-hundredths of a
share of Preferred Stock for which a Right is then exercisable and dividing
that product by (2) 50% of the current market price per share of the Common
Stock of such Principal Party (determined in the manner described in
Section 11(d) on the date
7
<PAGE> 110
of consummation of such consolidation, merger, sale or transfer; (ii) the
Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply
to such Principal Party; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of
shares of its Common Stock in accordance with Section 9) in connection
with such consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to the shares of its Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of Section 11(a(ii) hereof
shall be of no effect following the first occurrence of any of the
transactions described in Section 13(a) hereof."
(I) Deleting the existing paragraph (b) of Section 14 of the Rights
Agreement in its entirety and inserting in lieu thereof a new paragraph (b) of
Section 14 providing in its entirety as follows:
"(b) The Company shall not be required to issue fractions of shares
(other than fractions which are integral multiples of one two-hundredths
of a share of Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares. In lieu of fractional
shares that are not integral multiples of one two-hundredth of a share of
Preferred Stock, the Company may pay to the registered holders of Right
Certificates at the time such Right Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current
market value of one two-hundredth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value of one
two-hundredth of a share of Preferred Stock shall be one two-hundredth of
the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii)) for the Trading Day immediately prior to the date of
such exercise."
(J) Deleting the existing Section 17 of the Rights Agreement in its
entirety and inserting in lieu thereof a new Section 17 providing in its
entirety as follows:
"Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the number of
one two-hundredths of a share of Preferred Stock or any other securities of
the Company which may at any time be issuable on the exercise of Rights
represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or
8
<PAGE> 111
to give or withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting shareholders (except as provided in
Section 24), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Right Certificate shall have
been exercised in accordance with the provisions hereof."
(K) Deleting the existing Form of Rights Certificate set forth at
Exhibit B (Pages B-1 through B-6, inclusive) to the Rights Agreement in its
entirety and inserting a new Form of Rights Certificate set forth at
Exhibit B providing in its entirety as follows:
Exhibit B
[Form of Right Certificate]
Certificate No. R- Rights
---------------
NOT EXERCISABLE AFTER JULY 28, 1996 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE COMPANY, AT $.05 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT [THE RIGHTS REPRESENTED BY THIS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(c) OF THE RIGHTS AGREEMENT.]"
"The portion of the legend in brackets shall be inserted only if
applicable.
Right Certificate
This certifies that , or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions
of the Rights Agreement dated as of July , 1986 (the "Rights Agreement")
between The Goodyear Tire & Rubber Company, an Ohio corporation (the
"Company"), and Manufacturers
9
<PAGE> 112
Hanover Trust Company, a national banking association (the "Rights Agent"),
to purchase from the Company at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to 5:00 P.M. (Akron
time) on July 28, 1996 at the office of Rights Agent, or its successors as
Rights Agent, in New York, New York, on two-hundredth of a fully paid
non-assessable share of the Series A $10.00 Preferred Stock, without par
value (the "Preferred Stock"), of the Company, at a purchase price of
$50.00 per one two-hundredth of a share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of July 28, 1986, based
on the Preferred Stock of the Company as constituted at such date.
Upon the occurrence of a Triggering Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Right Certificate
are beneficially owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined in the
Rights Agreement), (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances specified in
the Rights Agreement, a transferee of a person who, after such transfer,
became an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, such Rights shall become null and void and no holder hereof shall
have any right with respect to such Rights from and after the occurrence of
such Triggering Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Preferred Stock or other securities which may be
purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening
of certain events.
This Right Certificate is subject to all of the terms, provision and
conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of
the rights, limitation of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the above-
mentioned office of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number
of one two-hundredths of a share of Preferred Stock as the Rights evidenced
by the Right Certificate or Right Certificates surrendered shall have
entitled such holder to
10
<PAGE> 113
purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option
at a redemption price of $.05 per Right.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions
which are integral multiples of one two-hundredth of a share of Preferred
Stock which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Common
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends of subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of , 1986.
ATTEST: THE GOODYEAR TIRE & RUBBER
COMPANY
By
-------------------------- -----------------------
Secretary Title
Countersigned:
By
------------------------
Authorized Signature
11
<PAGE> 114
[Form of Reverse Side of Right Certificate]
[(NOTE: Form of Reverse Side of Right Certificate not
amended and, therefore, not reproduced herein)]
(L) Deleting the existing first, sixth and tenth paragraphs of Exhibit C to
the Rights Agreement and inserting in lieu thereof new first, sixth and tenth
paragraphs as follows:
First paragraph: "On July 2, 1986, the Board of Directors of The
Goodyear Tire & Rubber Company (the "Company") declared a dividend
distribution of one Right for each outstanding share of Common Stock,
without par value (the "Common Stock"), of the Company. The distribution is
payable on July 28, 1986 (the "Record Date") to the shareholders of record
on the Record Date. Each Right entitles the registered holder to purchase
from the Company one two-hundredth of a share of Series A $10.00 Preferred
Stock, without par value (the "Preferred Stock"), or in some circumstances,
Common Stock, other securities, cash or other assets as summarized below,
at a price of $50.00 (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement") between the Company and Manufacturers Hanover
Trust Company as Rights Agent, as amended by that certain Amendment to
Rights Agreement dated as of April 6, 1993 between the Company and First
Chicago Trust Company of New York as successor Rights Agent (the "Rights
Agent")."
Sixth Paragraph: "With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional shares will
be issued (other than fractional shares which are integral multiples of one
two-hundredth of a Preferred Share) and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise."
Tenth Paragraph: "A Copy of the Rights Agreement, as amended by the
Amendment to Rights Agreement dated as of April 6, 1993, has been filed
with the Securities and Exchange Commission as Exhibits to a Registration
Statement on Form 8-A dated July 3, 1986, as amended by a Form 8 dated
April 19, 1993. A copy of the Rights Agreement, as amended, is available
free of charge from the Company. This summary description of the Rights
does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, as amended, which is hereby incorporated
herein by reference."
3. Effective as of April 6, 1993, the following shall be added (as a
separate paragraph) to the end of, and become a part of, the legend set forth at
paragraph (c) of Section
12
<PAGE> 115
3 of the Rights Agreement and shall appear on certificates for Common Stock
issued after April 30, 1993:
"The Goodyear Tire & Rubber Company appointed, effective May 16, 1990,
First Chicago Trust Company, as successor Rights Agent under the Rights
Agreement. The Rights Agreement was amended pursuant to an Amendment to
Rights Agreement dated as of April 6, 1993."
4. For all purposes under the Rights Agreement as amended by this
Amendment Agreement, including specifically Section 25 thereof, any notice or
demand authorized by the Rights Agreement to be given or made by the Company or
any holder of any Right Certificate to or on the Rights Agents shall be to the
address of the Rights Agent for the Company or by the holder of any Right
Certificate is as follows:
First Chicago Trust Company of New York
30 West Broadway
New York, New York 10007
Attention: Tender & Exchange Department
5. Nothing set forth in this Amendment Agreement shall in any manner
be construed to alter the rights of the holders of the Rights or the terms and
conditions of the Rights other than as expressly or by necessary implication set
forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Rights Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
ATTEST THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/James Boyazis By: /s/John M. Ross
--------------------- -----------------------------------
James Boyazis, John M. Ross,
Secretary Vice President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/Joanne Gorostiola
-----------------------------------
Joanne Gorostiola,
Customer Service Officer
13
<PAGE> 1
Exhibit 4.4
CELERON CORPORATION
EMPLOYEE SAVINGS PLAN
(February 1, 1996 Restatement)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C> <C>
I THE PLAN 1
II DEFINITIONS 2
2.1 Meaning of Definitions . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Pronouns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III EMPLOYEE PARTICIPATION 10
3.1 Eligibility and Election to Participate . . . . . . . . . . . . . . 10
3.2 Notification of New Participants . . . . . . . . . . . . . . . . . 10
3.3 Effect and Duration . . . . . . . . . . . . . . . . . . . . . . . . 10
3.4 Changes in Employment Status; Transfers
of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.5 Reemployment of a Participant . . . . . . . . . . . . . . . . . . . 11
IV TAX-DEFERRED CONTRIBUTIONS MADE ON BEHALF
OF PARTICIPANTS 12
4.1 Tax-Deferred Contributions . . . . . . . . . . . . . . . . . . . . 12
4.2 Amount of Tax-Deferred Contributions . . . . . . . . . . . . . . . 12
4.3 Limitation on Tax-Deferred Contributions
of Highly Compensated Employees . . . . . . . . . . . . . . . . . 13
4.4 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Limitation on Employer Contributions . . . . . . . . . . . . . . . 16
4.6 Changes in Compensation Reduction
Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.7 Suspension of Contributions . . . . . . . . . . . . . . . . . . . . 16
V AFTER-TAX CONTRIBUTIONS 17
5.1 After-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . 17
5.2 Amount of After-Tax Contributions . . . . . . . . . . . . . . . . . 17
5.3 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.4 Changes in Payroll Deduction Authorization . . . . . . . . . . . . 17
VI MATCHING EMPLOYER CONTRIBUTIONS 19
6.1 Payment of Contributions . . . . . . . . . . . . . . . . . . . . . 19
6.2 Limitation on Amount . . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Allocation of Matching Employer
Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.4 Prevented Contributions . . . . . . . . . . . . . . . . . . . . . . 21
6.5 Determination of Annual Employer
Contribution Rate . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Determination of Amount of Employer
Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.7 Effect of Plan Termination . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE Page
- ------- ----
<S> <C> <C>
6.8 Limitation on Matching Employer
Contributions and After-Tax
Contributions of Highly Compensated . . . . . . . . . . . . . . . 22
VII DEPOSIT AND INVESTMENT OF CONTRIBUTIONS 25
7.1 Deposit of Contributions . . . . . . . . . . . . . . . . . . . . . 25
7.2 Investment Elections of Participants . . . . . . . . . . . . . . . 25
7.3 Election to Transfer Interest Between
Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.4 Election to Transfer Interest from
Goodyear Stock Fund . . . . . . . . . . . . . . . . . . . . . . . 26
VIII ESTABLISHMENT OF FUNDS AND PARTICIPANTS' ACCOUNTS 27
8.1 Establishment of General Fund . . . . . . . . . . . . . . . . . . . 27
8.2 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.3 Goodyear Stock Fund. . . . . . . . . . . . . . . . . . . . . . . . 29
8.4 Appointment of Investment Managers. . . . . . . . . . . . . . . . . 29
8.5 Income on Trust Funds . . . . . . . . . . . . . . . . . . . . . . . 29
8.6 Separate Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.7 Sub-Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.8 Account Balances . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.9 Funds from Predecessor Plans . . . . . . . . . . . . . . . . . . . 30
IX LIMITATIONS ON ALLOCATIONS TO ACCOUNTS 32
9.1 Limitation on Crediting of Contributions . . . . . . . . . . . . . 32
9.2 Scope of Limitation . . . . . . . . . . . . . . . . . . . . . . . . 37
X VALUATIONS, DIVIDEND REINVESTMENTS, AND VOTING 38
10.1 Valuation of Participant's Interest . . . . . . . . . . . . . . . . 38
10.2 Reinvestment of Dividends . . . . . . . . . . . . . . . . . . . . . 39
10.3 Voting Company Stock . . . . . . . . . . . . . . . . . . . . . . . 39
10.4 Finality of Determinations . . . . . . . . . . . . . . . . . . . . 40
10.5 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
XI WITHDRAWALS WHILE EMPLOYED 41
11.1 Withdrawal of After-Tax Contributions . . . . . . . . . . . . . . . 41
11.2 Withdrawal of Matching Employer
Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.3 Withdrawal of Tax-Deferred Contributions . . . . . . . . . . . . . 41
11.4 Conditions and Limitations on
Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . 42
11.5 Adjustment of Accounts . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
(ii)
<PAGE> 4
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XII TERMINATION OF PARTICIPATION AND DISTRIBUTION 45
12.1 Termination of Participation . . . . . . . . . . . . . . . . . 45
12.2 Vesting of Separate Accounts . . . . . . . . . . . . . . . . . 46
12.3 Distribution . . . . . . . . . . . . . . . . . . . . . . . . . 46
12.4 Required Commencement of Distribution . . . . . . . . . . . . . 47
12.5 Form of Distribution . . . . . . . . . . . . . . . . . . . . . 48
12.6 Election of Former Vesting Schedule . . . . . . . . . . . . . . 48
12.7 Buy Back of Forfeited Amounts . . . . . . . . . . . . . . . . . 49
12.8 Disposition of Forfeited Balances . . . . . . . . . . . . . . . 50
12.9 Effect of Company's Determination . . . . . . . . . . . . . . . 50
12.10 Reemployment of a Former Participant . . . . . . . . . . . . . 51
12.11 Restrictions on Alienation . . . . . . . . . . . . . . . . . . 51
12.12 Facility of Payment . . . . . . . . . . . . . . . . . . . . . . 51
12.13 Distributions to Other Qualified Plans . . . . . . . . . . . . 51
XIII BENEFICIARIES 53
13.1 Designation of Beneficiary . . . . . . . . . . . . . . . . . . 53
13.2 Beneficiary in the Absence of Designation . . . . . . . . . . . 53
XIV ADMINISTRATION 55
14.1 Authority of Company . . . . . . . . . . . . . . . . . . . . . 55
14.2 Action of Company . . . . . . . . . . . . . . . . . . . . . . . 55
14.3 Claims Review Procedure . . . . . . . . . . . . . . . . . . . . 56
14.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 57
14.5 Qualified Domestic Relations Orders . . . . . . . . . . . . . . 57
XV TRUSTEE AND TRUST AGREEMENT 58
XVI AMENDMENT AND TERMINATION 59
16.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
16.2 Limitation on Amendment . . . . . . . . . . . . . . . . . . . . 59
16.3 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 59
16.4 Withdrawal of an Employer . . . . . . . . . . . . . . . . . . . 60
16.5 Corporate Reorganization . . . . . . . . . . . . . . . . . . . 61
XVII ADOPTION BY SUBSIDIARIES; EXTENSION TO NEW
BUSINESS OPERATIONS 62
17.1 Adoption by Subsidiaries . . . . . . . . . . . . . . . . . . . 62
17.2 Extension to New Business Operations . . . . . . . . . . . . . 62
XVIII MISCELLANEOUS PROVISIONS 63
18.1 No Commitment as to Employment . . . . . . . . . . . . . . . . 63
18.2 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
(iii)
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18.3 No Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.5 Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18.6 Duty to Furnish Information . . . . . . . . . . . . . . . . . . . . 63
18.7 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
18.8 Merger, Consolidation, or Transfer
of Plan Assets . . . . . . . . . . . . . . . . . . . . . . . . . 64
18.9 Back Pay Awards . . . . . . . . . . . . . . . . . . . . . . . . . . 64
18.10 Condition on Employer Contributions . . . . . . . . . . . . . . . . 65
18.11 Return of Contributions to Participants . . . . . . . . . . . . . . 65
18.12 Return of Contributions to an Employer . . . . . . . . . . . . . . 65
18.13 Validity of Plan . . . . . . . . . . . . . . . . . . . . . . . . . 66
18.14 Parties Bound . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
XIX TOP-HEAVY PROVISIONS 67
19.1 Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
19.2 Top-Heavy Definitions . . . . . . . . . . . . . . . . . . . . . . . 67
19.3 Accelerated Vesting . . . . . . . . . . . . . . . . . . . . . . . . 69
19.4 Minimum Employer Contribution . . . . . . . . . . . . . . . . . . . 70
19.5 Adjustments to Section 415 Limitations . . . . . . . . . . . . . . 70
19.6 Compensation Taken Into Account . . . . . . . . . . . . . . . . . . 71
XX LOANS 72
20.1 Application for Loan . . . . . . . . . . . . . . . . . . . . . . . 72
20.2 Reduction of Account Upon Distribution . . . . . . . . . . . . . . 73
20.3 Requirements to Prevent a Taxable
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 73
20.4 Administration of Loan Investment Fund . . . . . . . . . . . . . . 74
20.5 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
20.6 Changes in Employment Status and
Transfers of Employment Before Loan
is Repaid in Full . . . . . . . . . . . . . . . . . . . . . . . . 75
XXI ELIGIBLE ROLLOVER DISTRIBUTIONS 76
21.1 Direct Rollover . . . . . . . . . . . . . . . . . . . . . . . . . . 76
21.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
(iv)
<PAGE> 6
CELERON CORPORATION
EMPLOYEE SAVINGS PLAN
ARTICLE I
THE PLAN
This Plan shall be known as the Celeron Corporation
Employee Savings Plan and constitutes a modification, restatement, and
continuation of the Celeron Corporation Employee Savings Plan, as heretofore in
effect, that was originally effective with respect to eligible employees as of
April 1, 1985. The Plan is intended to qualify under Section 401(a) of the
Internal Revenue Code and to be a qualified cash-or-deferred arrangement under
Section 401(k) of the Internal Revenue Code. This restatement shall be
effective as of February 1, 1996.
<PAGE> 7
ARTICLE II
DEFINITIONS
2.1 Meaning of Definitions.
----------------------
As used herein, the following words and phrases shall have the
meanings hereinafter set forth, unless a different meaning is
plainly required by the context:
(a) The "Act" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such
section and any comparable section or sections of any
future legislation that amends, supplements, or
supersedes such section.
(b) An "After-Tax Contribution" shall mean the amount which a
Participant has elected to have deducted from his
Compensation in accordance with the provisions of Section
5.1.
(c) The "Beneficiary" of a Participant, or of a Former
Participant, shall mean the person or persons who, under
the provisions of Article XIII, shall be entitled to
receive distribution hereunder in the event such
Participant or Former Participant dies before his
interest shall have been distributed to him in full.
(d) The "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time. Reference to a section of
the Code shall include such section and any comparable
section or sections of any future legislation that
amends, supplements, or supersedes such section.
(e) The "Company" shall mean Celeron Corporation (a
wholly-owned subsidiary of Goodyear Energy Inc.) for
periods of time prior to July 29, 1985, shall mean
Celeron Oil and Gas Company (a wholly-owned subsidiary of
Goodyear Energy, Inc.) for periods of time on and after
July 29, 1985, and prior to September 1, 1987, and shall
mean Celeron Corporation (a wholly-owned subsidiary of
The Goodyear Tire & Rubber Company), its corporate
successors and any corporation or corporations into or
with which it may be merged or consolidated for periods
of time on or after September 1, 1987; and a "subsidiary
of the Company" shall mean a subsidiary of the Company or
of any of its subsidiaries and shall include any related
corporation.
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<PAGE> 8
(f) The "Company Stock" shall mean common stock of The
Goodyear Tire & Rubber Company.
(g) The "Compensation" of a Participant for any period shall
mean the entire amount of compensation paid, or which
would have been paid except for the provisions of the
Plan, to such Participant during such period by reason of
his employment as an Employee, including payments made
under bonus and profit-sharing plans, commissions,
overtime pay and vacation pay, as recorded in the records
of an Employer or any subsidiary of the Company, but
excluding any imputed income, any supplemental
unemployment benefit payments, any parents under plans
imposed by governments other than the United States, any
payments made for transportation any special allowances,
any incentive compensation relating to oil and gas
operations of any Employer or any subsidiary of the
Company or any adjustments to cover conditions or
circumstances peculiar to service in foreign countries.
The Compensation of a Participant shall not include any
payment made (i) in the Common Stock of the Company or in
any other security issued by the Company under the
Company's Key Personnel Incentive Profit Sharing Plan, or
in cash to cover amounts withheld with respect to any
such payment in Common Stock or other security issued by
the Company; (ii) under the Company's 1982 Employees'
Stock Option Plan, or any similar plan, with respect to
stock options or stock appreciation rights granted
thereunder, whether in the Common Stock of the Company,
any other security issued by the Company, or cash; or
(iii) in the Common Stock of the Company, in any other
security issued by the Company, or in cash under the 1989
Goodyear Performance and Equity Incentive Plan, or any
similar plan or successor plan, whether such payment is
in respect of the grant or exercise of a stock option or
a stock appreciation right, the grant or issuance of
restricted stock, or any other grant or award thereunder.
In addition to other applicable limitations which may be
set forth in the Plan and notwithstanding any other
contrary provision of the Plan, compensation taken into
account under the Plan shall not exceed $150,000,
adjusted for changes in the cost of living as provided in
Section 401(a)(17)(B) and Section 415(d) of the Code, for
the purpose of calculating a Plan participant's accrued
benefit (including the right to any optional benefit
provided under the Plan) for any Plan year commencing
after December 31, 1993. However, the accrued
-3-
<PAGE> 9
benefit determined in accordance with this provision
shall not be less than the accrued benefit determined on
December 31, 1993, without regard to this provision.
In determining the Compensation of a Participant for
purposes of the above compensation limitations, 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 end of the Plan year. If as a result of the
application of such rules the applicable adjusted
compensation limit is exceeded, then the limitation shall
be prorated among the affected individuals in proportion
to each such individual's compensation as determined
under this paragraph (g) prior to the application of the
compensation limitation.
(h) The "Continuous Service" of a Participant shall mean the
period of time (computed to the nearest 1/12th of a year)
between his Employment Commencement Date and his most
recent Severance Date, provided, however, that in the
case of a person who is absent from the service of the
Employer on account of maternity or paternity reasons as
defined in paragraph (bb) of this Section 2.1, the
person's Continuous Service shall not include the period
of absence between the first and second anniversaries of
the first date of such absence.
(i) An "Employee" shall mean a domestic employee or foreign
employee, as hereinafter defined, other than any such
employee (i) who is a "leased employee" (as defined in
Section 414(n)(2) of the Code) or (ii) who is covered by
a collective bargaining agreement unless such agreement
or the Plan specifically provides for coverage by the
Plan; a "domestic employee" shall mean any salaried
employee or officer of an Employer who is located and
serving within the continental United States, Alaska, or
Hawaii; and a "foreign employee" shall mean any salaried
employee or officer of an Employer, if hired while
present in the continental United States, Alaska, or
Hawaii, who is located and serving without the
continental United States, Alaska, and Hawaii. For the
purposes hereof, a "salaried employee" shall include only
an employee who has been designated as such in accordance
with the policy of his Employer, which policy shall be
applied on a uniform and non-discriminatory basis.
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<PAGE> 10
(j) An "Employer" shall mean the Company and any domestic
subsidiary of the Company which adopts the Plan as
hereinafter provided so long as it continues as a
subsidiary of the Company.
(k) The "Employer Contribution Rate" shall mean the
percentage rate to be used by the Employers for a
specific Plan year in determining the amount of Matching
Employer Contribution for such Plan year.
(l) The "Employment Commencement Date" of a Participant shall
mean the date on which he first performed an Hour of
Service with the Company or any subsidiary of the
Company, subject to the following provisions:
(i) If more than 12 months after an employee's
Severance Date occurs, such employee again
performs an Hour of Service, his Employment
Commencement Date shall be advanced by the
period of time between such Severance Date
and the date he again performed an Hour of
Service unless (ii) applies.
(ii) If an employee, who either had been a
Participant for less than three continuous
years or had less than five years of
Continuous Service as of a Severance Date
again performs an Hour of Service more than
12 months after such Severance Date, his
Employment Commencement Date shall be changed
to the date he again performed an Hour of
Service, but only if the period of time
between such Severance Date and the date such
employee again performed an Hour of Service
equals or exceeds the greater of five years
or the period of time between his Employment
Commencement Date and such Severance Date.
(iii) If an employee's Severance Date occurs by
reason of entering active military service
with the armed-forces of the United States
and if he has reemployment rights with his
Employer, his Employment Commencement Date
shall not be advanced so long as he returns
to employment with the Company or any
subsidiary of the Company within the time
prescribed by federal law.
(m) An "Enrollment Date" shall mean the first day of each
month.
-5-
<PAGE> 11
(n) A "Former Participant" shall mean a Participant who has
incurred a Settlement Date but who still has an interest
under the Plan.
(o) The "General Fund" shall mean the common trust fund
established in accordance with the provisions of Section
8.1 as required to hold and administer any assets of the
Trust Fund that are not allocated among any separate
Investment Funds or the Goodyear Stock Fund as may be
provided in the Plan or Trust Agreement. No General Fund
shall be established if all assets of the Trust Fund are
allocated among separate Investment Funds or the Goodyear
Stock Fund.
(p) The "Goodyear Stock Fund" shall mean the common trust
fund established in accordance with the provisions of
Section 8.3.
(q) A "Highly Compensated Employee" shall mean any Employee
who (i) is a 5% owner, as defined in Section
416(i)(1)(A)(iii) of the Code, at any time during the
determination year or the look-back year, (ii) receives
compensation in excess of $75,000 (indexed in accordance
with Section 415(d) of the Code) during the look-back
year, (iii) receives compensation in excess of $50,000
(indexed in accordance with Section 415(d) of the Code)
during the look-back year and is a member of the top-paid
group for the look-back year, (iv) is an officer, within
the meaning of Section 416(i) of the Code, during the
look-back year and who receives compensation in the
look-back year greater than 40% of the dollar limitation
in effect under Section 415(b)(1)(A) of the Code for the
calendar year in which the look-back year begins, or (v)
is both described in (ii), (iii), or (iv) above if the
term "determination year" were substituted for "look-back
year" and one of the 100 employees who receive the most
compensation from an Employer during the determination
year.
(r) An "Hour of Service" with respect to a Participant shall
mean each hour for which he is paid, or entitled to
payment, for the performance of duties for the Company or
any subsidiary of the Company. The rules set forth in
Department of Labor Regulations Section 2530.200b-2 and
Section 2530.200b-3, which relate to determining Hours of
Service attributable to reasons other than the
performance of duties and crediting hours to computation
periods, are hereby incorporated into the Plan by
reference.
-6-
<PAGE> 12
(s) An "Investment Fund" shall mean any separate investment
trust fund established from time to time by the Trustee
as may be provided in Section 8.2 of the Plan to which
assets of the Trust Fund may be allocated and separately
invested.
(t) A "Matching Employer Contribution" shall mean the amount
which the Employers shall be obligated to contribute to
the Plan in accordance with the provisions of Section
6.1.
(u) A "Participant" shall mean an Employee who elects to
participate in the Plan in accordance with the provisions
of Article III, and whose participation has not been
terminated.
(v) The "Plan" shall mean this Employee Savings Plan, as
from time to time in effect.
(w) The "Plan Administrator," which is the administrator for
purposes of the Act and the plan administrator for
purposes of the Code, shall mean the Company.
(x) A "Plan year" shall mean a calendar year.
(y) A "related corporation" shall mean any corporation, other
than an Employer, which is a member of a controlled group
of corporations of which an Employer is a member as
determined under Section 1563(a) of the Code, without
regard to Section 1563(a)(4) and Section 1563(e)(3)(C) of
the Code. Furthermore, the term shall include any trade
or business (whether or not incorporated), other than an
Employer, which is a member of a group under common
control of which an Employer is also a member, as
determined under Section 414(c) of the Code. The term
shall also include each organization, other than an
Employer, that is a member of an affiliated service group
of which an Employer is also a member as determined under
Section 414(m) of the Code and any entity, other than an
Employer, which is required to be aggregated with an
Employer under Section 414(o) of the Code.
(z) A "separate account" shall mean the account maintained by
the Trustee in the name of a Participant that reflects
his interest in the Trust Fund and any sub-accounts
established thereunder, as provided in Article VIII.
(aa) The "Settlement Date" of a Participant shall mean the
date on which a Participant ceases to be a Participant in
accordance with Section 12.1.
-7-
<PAGE> 13
(bb) The "Severance Date" of a Participant shall mean the
earliest of (i) the date on which he retires dies, quits,
or is discharged; or (ii) the date on which he ceases to
accrue continuous service credit in accordance with the
uniform policy adopted by his Employer with respect to
leaves of absence or layoffs, but in no event earlier
than the first anniversary of the first day of a period
in which he remains absent (with or without pay) from the
service of the Company and all subsidiaries of the
Company. Notwithstanding the foregoing, the Severance
Date of a Participant who is absent from the service of
his Employer for maternity or paternity reasons beginning
on or after January 1, 1985, shall be the second
anniversary of the first date of such absence. For
purposes of this paragraph (dd), an absence from
employment for maternity or paternity reasons means an
absence due to (1) the pregnancy of the Employee, (2) the
birth of a child of the Employee, (3) the placement of a
child with the Employee in connection with the adoption
of such child by the Employee, or (4) the provision of
parental care for such child for a period beginning
immediately following such birth or placement. An
absence from work will be treated as an absence for
maternity or paternity reasons only if and to the extent
that the Employee furnishes to the Committee such timely
information as it may reasonably require to establish
that the absence is for one or more of the four maternity
or paternity reasons specified herein and to establish
the number of days of absence attributable to such reason
or reasons.
(cc) The "Tax-Deferred Contribution" with respect to a
Participant shall mean the percentage by which a
Participant has elected to have his Compensation reduced
in accordance with Section 4.1 and which shall be
contributed to the Plan on his behalf by his Employer in
accordance with the provisions of Section 4.4.
(dd) The "Trust Agreement" shall mean the agreement entered
into between the Company and the Trustee, as provided in
Article XV hereof, together with all amendments thereto.
(ee) The "Trustee" shall mean the trustee which at the time
shall be designated, qualified, and acting under the
Trust Agreement.
(ff) The "Trust Fund" shall mean the trust maintained by the
Trustee under the Trust Agreement, which trust
-8-
<PAGE> 14
is called the "Trust Fund for Celeron Corporation
Employee Savings Plan."
(gg) A "valuation date" shall mean each business day of the
Plan year.
2.2 Pronouns.
--------
The masculine pronoun wherever used herein shall include the
feminine in any case so requiring.
-9-
<PAGE> 15
ARTICLE III
EMPLOYEE PARTICIPATION
3.1 Eligibility and Election to Participate.
---------------------------------------
Each Employee who is a Participant under the Plan on February 1,
1996, shall continue as a Participant on and after that date. Each
other Employee shall become a Participant as of the January 1 next
following his Employment Commencement Date or, if later, the
Enrollment Date next following the date on which he completes six
months of Continuous Service, or any subsequent Enrollment Date, if
he has timely filed with the Company an election in the manner and
form as prescribed by the Company. An Employee's election shall
contain (a) his authorization for his Employer to reduce his
Compensation and to make Tax-Deferred Contributions on his behalf
in accordance with the provisions of Sections 4.1 and 4.2, (b) an
authorization for his Employer to make any payroll deductions with
respect to his After-Tax Contributions to the Plan in accordance
with the provisions of Sections 5.1 and 5.2, and (c) his election
as to the investment of his Tax-Deferred Contributions and
After-Tax Contributions in accordance with the provisions of
Section 7.2. An Employee's election to become a Participant under
this Section 3.1 shall be timely only if received by the Company in
the manner and form as prescribed by the Company by the 15th day of
the month prior to the Enrollment Date as of which his
participation is to become effective.
3.2 Notification of New Participants.
--------------------------------
As soon as practicable after each Enrollment Date, each Employer
shall notify the Company of Employees becoming Participants on such
date.
3.3 Effect and Duration.
-------------------
Upon becoming a Participant an Employee shall be entitled to the
benefits and shall be bound by all the terms and conditions of the
Plan and the Trust Agreement. Each Employee who becomes a
Participant shall remain a Participant until his participation is
terminated as provided in Article XII.
3.4 Changes in Employment Status; Transfers of Employment.
-----------------------------------------------------
If an Employee who is a Participant ceases to be an Employee but
continues in the employment of (i) an Employer in some other
capacity or (ii) a related corporation, he shall nevertheless
continue as a
-10-
<PAGE> 16
Participant until his status as a Participant is otherwise
terminated in accordance with the provisions of the Plan. In
either case, such Participant shall share in Matching Employer
Contributions for any payroll period of such participation only to
the extent and on the basis of Tax-Deferred Contributions made on
his behalf for such payroll period and his After-Tax Contributions
made during such payroll period; no Tax-Deferred Contributions
shall be made on behalf of such Participant in accordance with the
terms of his Compensation reduction authorization except on the
basis of his Compensation for services as an Employee; and such
Participant shall not be permitted to make After-Tax Contributions
at any time during which he is employed in any capacity other than
as an Employee. Moreover, if a person is transferred directly from
employment (iii) with an Employer in a capacity other than as an
Employee or (iv) with a related corporation to employment with an
Employer as an Employee he shall become a Participant as of the
date he is so transferred if he had completed six months of
Continuous Service as of the immediately preceding Enrollment Date
and if he makes his election in accordance with the provisions of
Section 3.1.
3.5 Reemployment of a Participant.
-----------------------------
If a retired or Former Participant is reemployed by an Employer or
a related corporation after he incurs a Settlement Date under
Section 12.1, he shall again become a Participant on the date he is
reemployed by an Employer and makes his election in accordance with
the provisions of Section 3.1, unless he is not reemployed as an
Employee, in which case he shall again become a Participant on the
first date thereafter on which he does become an Employee if he has
properly made such election.
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<PAGE> 17
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
MADE ON BEHALF OF PARTICIPANTS
4.1 Tax-Deferred Contributions.
--------------------------
The provisions of this Section 4.1 and Section 4.2 shall be subject
to the provisions of Sections 3.1, 3.4, 4.6, and 4.7. Commencing
with the first payment of Compensation to a Participant on or after
the Enrollment Date occurring on February 1, 1996, or the
Enrollment Date as of which he becomes a Participant, if later,
each Participant shall elect to have Tax-Deferred Contributions
made to the Plan on his behalf by his Employer as hereinafter
provided.
4.2 Amount of Tax-Deferred Contributions.
------------------------------------
The amount of Tax-Deferred Contributions to be made to the Plan on
behalf of a Participant by his Employer shall be an integral
percentage of his Compensation of not less than one percent nor
more than 16 percent and shall not, when aggregated with all other
elective deferrals of the Participant with respect to the Plan
year, exceed $9,500 (or such adjusted amount established by the
Secretary of the Treasury pursuant to Section 402(g)(5) of the
Code). The percentage rate of Tax-Deferred Contributions to be
made on a Participant's behalf, when combined with his percentage
rate of After-Tax Contributions, shall in no event exceed 16
percent of his Compensation. In the event a Participant so elects
to have his Employer make Tax-Deferred Contributions on his behalf
his Compensation shall be reduced for each payroll period by the
percentage he elects to have contributed on his behalf to the Plan
in accordance with the terms of the Compensation reduction
authorization in effect pursuant to Section 3.1 or 4.6, subject,
however, to the $9,500 (or adjusted) annual aggregate limitation on
Tax-Deferred Contributions and other elective deferrals. In the
event that a Participant's aggregate elective deferrals with
respect to a Plan year including his Tax-Deferred Contributions
hereunder, exceed the then applicable annual aggregate limitation
on elective deferrals, the Participant, not later than the first
March 1 following the close of the Plan year, may allocate the
excess deferrals among the plans under which the deferrals occurred
and notify each plan of the portion allocated to it, and the
Company, not later than the first April 15 following the close of
the Plan year, shall distribute to the Participant the annual
amount of the excess deferral allocated to the Plan and any income
allocable thereto, provided, however, that any such distributed
excess deferral shall nevertheless be taken into account
-12-
<PAGE> 18
for purposes of computing deferral percentages for the Plan year
under Section 4.3.
In any case where an excess deferral has been distributed to a
Participant pursuant to this Section 4.2, any Matching Employer
Contributions attributable to such distributed excess deferral (and
the income allocable thereto) shall be forfeited by the Participant
at the time of the distribution and shall be treated as a
forfeiture under the Plan as of the last day of the month in which
the distribution occurs in accordance with the provisions of
Section 12.8. The amount of excess deferrals to be distributed for
a taxable year will be reduced by excess contributions previously
distributed or recharacterized under Section 4.3 for the Plan year
beginning in such taxable year.
4.3 Limitation on Tax-Deferred Contributions of Highly Compensated
--------------------------------------------------------------
Employees.
---------
Notwithstanding anything to the contrary contained in the Plan, no
Tax-Deferred Contributions made with respect to a Plan year on
behalf of eligible Highly Compensated Employees may result in an
average deferral percentage for Highly Compensated Employees that
exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
deferral percentage for all other eligible Employees; or
(b) a percentage that is not more than 200 percent of the
average deferral percentage for all other eligible
Employees and that is not more than two percentage points
higher than the average deferral percentage for all other
eligible Employees.
For the purposes of applying the limitation contained in this
Section 4.3, the Tax-Deferred Contributions of any Employee who is
a family member of any Highly Compensated Employee who (i) is a
five percent owner or (ii) is among the ten Highly Compensated
Employees receiving the greatest compensation for the Plan year
shall be aggregated with the Tax-Deferred Contributions of such
Highly Compensated Employee, and such family member shall not be
considered an Employee for purposes of determining the average
deferral percentage for Employees. A "family member" of a Highly
Compensated Employee means the Highly Compensated Employee's
spouse, his lineal ascendants, his lineal descendants, and the
spouses of such lineal ascendants and descendants. For purposes of
applying the limitation contained in this Section 4.3, the deferral
percentage for any Highly Compensated Employee who is eligible to
have contributions made on his behalf under
-13-
<PAGE> 19
two or more arrangements described in Section 401(k) of the Code
that are maintained by an Employer or a related corporation shall
be determined as if all such contributions and any contributions
described in Section 401(k)(3)(D) of the Code were made under a
single arrangement. The maximum amount permitted to be contributed
to the Plan on a Highly Compensated Employee's behalf under this
Section 4.3 shall be determined by reducing Tax-Deferred
Contributions made on behalf of Highly Compensated Employees in
order of their actual deferral percentages beginning with the
highest of such percentages.
In the event the Tax-Deferred Contributions with respect to a Plan
year for eligible Highly Compensated Employees would otherwise
exceed the limit specified in the preceding paragraph, the
Tax-Deferred Contributions made with respect to a Highly
Compensated Employee that exceed the maximum amount permitted to be
contributed to the Plan on his behalf under this Section 4.3 will
be excess contributions and, along with the income but minus the
loss allocable thereto, shall be distributed to the Highly
Compensated Employees prior to the end of the next following Plan
year, or, alternatively, to the extent provided in regulations,
shall become After-Tax Contributions at the election of the Highly
Compensated Employees and shall be subject to the provisions of the
Plan applicable thereto; provided, however, that excess
contributions will not be recharacterized with respect to a Highly
Compensated Employee to the extent that the recharacterized
amounts, in combination with After-Tax Contributions actually made
by the Highly Compensated Employee, exceed the maximum amount of
After-Tax Contributions (determined prior to applying Section
401(m)(2)(A) of the Code) that the Employee is permitted to make
under the Plan in the absence of recharacterization, and that
recharacterized excess contributions will remain subject to the
nonforfeitability requirements and distribution limitations that
apply to Tax-Deferred Contributions. The amount of excess
contributions to be distributed or recharacterized shall be reduced
by excess deferrals previously distributed under Section 4.2 for
the taxable year ending in the same Plan year. If excess
contributions are attributable to Participants aggregated under the
family aggregation rules described in the preceding paragraph, the
excess shall be allocated among family members in proportion to the
Tax-Deferred Contributions made with respect to each family member.
If such excess contributions are distributed more than 2-1/2 months
after the last day of the Plan year for which the excess occurred,
an excise tax may be imposed under Section 4979 of the Code on the
Employer maintaining the plan with respect to such amounts. If
such excess
-14-
<PAGE> 20
contributions are not distributed by the close of the Plan year
following the Plan year for which the excess occurred, the cash or
deferred arrangement will fail to satisfy the requirements of
Section 401(k)(3) of the Code for the Plan year for which the
excess occurred and for all subsequent years the excess
contributions remain in the Trust. The income allocable to excess
Tax-Deferred Contributions shall be determined by multiplying the
gain or loss allocable for the Plan year to the Tax-Deferred
Contributions by a fraction, the numerator of which is the amount
of the Participant's excess Tax-Deferred Contributions and the
denominator of which is the sum of (i) the balance of the
Participant's sub-accounts reflecting the Tax-Deferred
Contributions as of the beginning of the Plan year, plus (ii) the
Tax-Deferred Contribution made on behalf of the Participant. The
amount eligible to be distributed or alternatively recharacterized
as After-Tax Contributions shall be determined by reducing the
maximum percentage of Tax-Deferred Contributions from sixteen
percent to such smaller percentage that will result in the limits
set forth above not being exceeded, in accordance with procedures
adopted by the Company. Each Highly Compensated Employee affected
by a reduction in the percentage of Tax-Deferred Contributions
being made on his behalf shall be notified by the Company of the
reduction as soon as practicable. For purposes of this Section
4.3, the "deferral percentage" of an Employee for a Plan year shall
be the ratio of his Tax-Deferred Contributions with respect to the
Plan year to his Compensation for such Plan year; an "Eligible
Employee" shall mean an Employee who has met the eligibility
requirements of Section 3.1 to become a Participant, whether or not
he has become a participant; and an "eligible Highly Compensated
Employee shall mean a Highly Compensated Employee who has met the
eligibility requirements of Section 3.1 to become a Participant
whether or not he has become a Participant.
In any case where an amount of Tax Deferred Contributions has been
distributed to a Participant in order to satisfy the limitations of
this Section 4.3, any Matching Employer Contributions attributable
to such distributed Tax-Deferred Contributions (and the income
allocable thereto) shall be forfeited by the Participant at the
time of the distribution and shall be treated as a forfeiture under
the Plan as of the last day of the month in which the distribution
occurs in accordance with the provisions of Section 12.8.
4.4 Administration.
--------------
Each Employer shall cause to be delivered to the Trustee in cash
all Tax-Deferred Contributions made with respect
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<PAGE> 21
to payroll periods ending during each calendar month in accordance
with the provisions of Section 4.2, but not later than the 30th day
of the next succeeding calendar month. Subject to the provisions
of Article X, the Trustee shall credit the amount of Tax-Deferred
Contributions made by each Employer on behalf of each Participant
for each payroll period ending during a calendar month and received
by it to such Participant's separate account no later than the last
day of such month.
4.5 Limitation on Employer Contributions.
------------------------------------
Notwithstanding anything to the contrary contained in the Plan,
each Employer's contribution to the Plan for any Plan year shall be
made only out of the current or net income of such Employer and
shall not exceed the limitation specified in Section 6.2.
4.6 Changes in Compensation Reduction Authorization.
-----------------------------------------------
A Participant may change the percentage of his Compensation that
his Employer contributes on his behalf as a Tax-Deferred
Contribution as of the first day of any calendar month by filing an
amended Compensation reduction authorization with the Company by
the 15th day of the month prior to the date with respect to which
such change is to become effective, in the manner and form, or at
such other time, as prescribed by the Company, except that he shall
be limited to selecting an integral percentage of his Compensation
of not less than zero percent or more than sixteen percent. The
percentage rate of Tax-Deferred Contributions to be made on a
Participant's behalf, when combined with his percentage rate of
After-Tax Contributions, shall in no event exceed sixteen percent
of his Compensation. Tax-Deferred Contributions shall be made on
behalf of such Participant by his Employer, pursuant to his amended
Compensation reduction authorization filed in accordance with the
foregoing provisions of this Section 4.6, commencing with
Compensation paid to such Participant on or after the date with
respect to which such filing is effective, until otherwise altered
or terminated in accordance with the Plan.
4.7 Suspension of Contributions.
---------------------------
A Participant's Tax-Deferred Contributions with respect to a Plan
year shall automatically be suspended on the date that his Tax-
Deferred Contributions for the Plan year first equal or exceed
$9,500 (or such adjusted amount established by the Secretary of the
Treasury pursuant to Section 402(g)(5) of the Code). Any such
automatic suspension shall be in effect only for the remaining
portion, if any, of the then current Plan year.
-16-
<PAGE> 22
ARTICLE V
AFTER-TAX CONTRIBUTIONS
5.1 After-Tax Contributions.
-----------------------
The provisions of this Section 5.1 and Section 5.2 shall be subject
to the provisions of Sections 3.1, 3.4, 5.4, and 5.5. Commencing
with the first payment of Compensation to a Participant on or after
the Enrollment Date as of which he becomes a Participant, each
Participant whose percentage rate of Tax-Deferred Contributions
would otherwise be limited by paragraph (a) or (b) of Section 4.3
may, in addition to any Tax-Deferred Contributions that are being
made on his behalf, make an After-Tax Contribution to the Plan as
hereinafter provided.
5.2 Amount of After-Tax Contributions.
---------------------------------
A Participant may make an After-Tax Contribution to the Plan that
shall be an integral percentage of his Compensation of not less
than one percent or more than 16 percent. The percentage rate of
After-Tax Contributions, when combined with the percentage rate of
Tax-Deferred Contributions to be made on such Participant's behalf,
shall in no event exceed 16 percent of his Compensation. Each
Participant who is contributing under this Section 5.2 shall have
the amount of his After-Tax Contribution deducted from his
Compensation by his Employer no less frequently than once each
calendar month in accordance with the terms of the payroll
deduction authorization in effect for such Participant pursuant to
Section 3.1 or 5.4.
5.3 Administration.
--------------
Each Employer shall cause to be delivered to the Trustee in cash
all After-Tax Contributions deducted from the Compensation of
Participants with respect to each payroll period ending during each
calendar month in accordance with the provisions of Section 5.2,
but not later than the 30th day of the next succeeding calendar
month. Subject to the provisions of Article X, the Trustee shall
credit the amount of After-Tax Contributions made by each
Participant for each payroll period ending during a calendar month
and received by it to such Participant's separate account no later
than the last day of such month.
5.4 Changes in Payroll Deduction Authorization.
------------------------------------------
A Participant may change the percentage of his Compensation that he
contributes to the Plan as his After-Tax Contributions or terminate
such After-Tax Contributions as
-17-
<PAGE> 23
of the first day of any calendar month by providing an amended
payroll deduction authorization by the 15th day of the month prior
to the date on which such change is to become effective, in the
manner and form, or at such other time, as prescribed by the
Company. Furthermore a Participant whose Tax-Deferred
Contributions have in whole or in part been recharacterized as
After-Tax Contributions in accordance with the provisions of
Section 4.3 may change the percentage of his Compensation that he
contributes to the Plan as his After-Tax Contributions as of the
first day of any calendar month by providing an amended payroll
deduction authorization by the 15th day of the month prior to the
date on which such change is to become effective, in the manner and
form, or at such other time, as provided by the Company. In any
such case a Participant shall be limited to selecting an integral
percentage of his Compensation of not less than one percent nor
more than 16 percent. The percentage rate of After-Tax
Contributions when combined with the percentage rate of
Tax-Deferred Contributions to be made on such Participant's behalf
shall in no event exceed ten percent of his Compensation.
After-Tax Contributions shall be made by such Participant and
deducted by his Employer pursuant to his amended payroll deduction
authorization filed in accordance with the foregoing provisions of
this Section 5.4, commencing with Compensation paid to such
Participant on or after the date with respect to which such filing
is effective until otherwise altered or terminated in accordance
with the Plan.
-18-
<PAGE> 24
ARTICLE VI
MATCHING EMPLOYER CONTRIBUTIONS
6.1 Payment of Contributions.
------------------------
Each Employer shall cause to be paid to the Trustee as its Matching
Employer Contribution hereunder for each payroll period an amount
that is equal to the Employer Contribution Rate multiplied by the
aggregate of:
(a) the Tax-Deferred Contribution made by such Employer on
behalf of each Participant with respect to such payroll
period; plus
(b) the After-Tax Contribution made by each Participant
during such payroll period based on Compensation paid by
such Employer during such payroll period;
provided, however, that such aggregate amount shall not include any
portion of the sum of the Tax-Deferred Contributions and After-Tax
Contributions of a Participant with respect to such payroll period
that is in excess of six percent of his Compensation for such
payroll period. In addition to the Matching Employer Contribution
payable pursuant to the immediately preceding sentence, for each
payroll period each Employer shall cause to be paid to the Trustee
a further Matching Employer Contribution (an "additional Matching
Employer Contribution") for the account of each Participant
employed by the Employer who, prior to such payroll period, had all
of his Tax-Deferred Contributions and After-Tax Contributions
suspended (either voluntarily or involuntarily) at a time when the
aggregate of such contributions for the calendar year exceeded six
percent of his Compensation paid during the calendar year and prior
to the suspension. The additional Matching Employer Contribution
payable with respect to a payroll period for the account of a
Participant described in the preceding sentence is to equal the
Employer Contribution Rate multiplied by six percent of the
Compensation paid to him for such payroll period; provided,
however, that such additional Matching Employer Contribution shall
be paid for the account of a Participant only until such time as
the aggregate amount of his Tax-Deferred Contributions and
After-Tax Contributions for the calendar year equals six percent of
the Compensation that has been paid to him with respect to the
calendar year. All Matching Employer Contributions for any payroll
period ending during a calendar month shall be paid in cash or in
Company Stock to the Trustee not later than the 30th day of the
next succeeding calendar month. In any case, the Matching Employer
Contribution for each payroll period ending during a
-19-
<PAGE> 25
calendar month, regardless of when actually paid, shall for all
purposes of the Plan be deemed to have been made no later than the
last day of such month.
6.2 Limitation on Amount.
--------------------
Notwithstanding anything to the contrary contained in the Plan, the
Matching Employer Contributions of the Employers for any Plan year,
when combined with the Tax-Deferred Contributions made by the
Employers for such Plan year, shall be made only out of the current
or accumulated net income of the respective Employers and shall in
no event exceed (i) the maximum amount which will constitute an
allowable deduction for such year to the Employers under Section
404 of the Code, (ii) the maximum amount which may be contributed
by the Employers under Section 415 of the Code, or (iii) the
maximum amount which may be contributed pursuant to any wage
stabilization law, or any regulation, ruling, or order issued
pursuant to law.
6.3 Allocation of Matching Employer Contributions.
---------------------------------------------
The Matching Employer Contributions for each payroll period ending
during a calendar month shall be allocated no later than the last
day of such month among Participants and Former Participants on
whose behalf Tax-Deferred Contributions were made or who made
After-Tax Contributions during such payroll period. The allocation
to be made to each such Participant and Former Participant for such
payroll period shall be an amount equal to the Employer
Contribution Rate multiplied by the aggregate of (a) the amount
contributed to the Plan on his behalf as a Tax-Deferred
Contribution for such payroll period, plus (b) the amount he
contributed to the Plan as an After-Tax Contribution for such
payroll period; provided, however, that such aggregate amount shall
not include any portion of the sum of the Tax-Deferred
Contributions and After-Tax Contributions of the Participant with
respect to a payroll period that is in excess of six percent of his
Compensation for such payroll period. An Employer's Matching
Employer Contribution for a Participant or Former Participant shall
be allocated with respect to the Tax-Deferred Contributions made on
his behalf and his After-Tax Contributions only to the extent that
such Tax-Deferred Contributions and such After-Tax Contributions
are based on Compensation paid, or which would have been paid but
for the provisions of the Plan, by such Employer during such
payroll period. Further, a Participant or Former Participant with
respect to whom an Employer has made an additional Matching
Employer Contribution for a payroll period in accordance with
Section 6.1 shall receive an allocation equal to the amount of such
additional Matching Employer Contribution made for his
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<PAGE> 26
account. Subject to the provisions of Article IX, the Trustee
shall credit the amount so allocated to each such Participant or
Former Participant to his separate account no later than the last
day of the month during which such payroll period ends.
6.4 Prevented Contributions.
-----------------------
The provisions of this Section 6.4 shall be given full force and
effect notwithstanding anything to the contrary, other than Section
6.2, contained in the Plan. In the event that any Employer which
together with any other Employers hereunder constitutes an
affiliated group within the meaning of Section 1504 of the Code is
prevented from paying any part or all of its contribution to be
made for any Plan year hereunder by reason of its having no current
or accumulated net income or because such net income is less than
the contribution which such Employer would otherwise have made,
then the amount thereof so prevented shall be paid by the other
Employers in such affiliated group, in such proportion and to such
extent as prescribed under Section 404(a)(3)(B) of the Code. Such
amount for all purposes of the Plan shall be deemed to be a
contribution made for such Plan year by the Employer on behalf of
which it is made. In the event an Employer which is not a member
of such an affiliated group is prevented from paying all or a part
of its contribution for any Plan year, the amount so prevented
shall not be paid by any other Employer.
6.5 Determination of Annual Employer Contribution Rate.
--------------------------------------------------
The Board of Directors of the Company shall determine the
percentage to be used as the Employer Contribution Rate for each
Plan year. The Employer Contribution Rate for a specific Plan year
shall be announced to Employees by November 15 of the preceding
Plan year.
6.6 Determination of Amount of Employer Contribution.
------------------------------------------------
The Company shall determine the amount to be contributed by each
Employer for each payroll period in accordance with the provisions
of the Plan.
6.7 Effect of Plan Termination.
--------------------------
Notwithstanding anything to the contrary contained in the Plan, any
termination of the Plan shall terminate the liability of the
Employers to make further contributions to the Plan, other than
contributions for any payroll period ended prior to the time of
such termination.
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<PAGE> 27
6.8 Limitation on Matching Employer Contributions and After-Tax
-----------------------------------------------------------
Contributions of Highly Compensated
-----------------------------------
Notwithstanding anything to the contrary contained in the Plan, no
Matching Employer Contributions or After-Tax Contributions made
with respect to a Plan year on behalf of eligible Highly
Compensated Employees may result in an average contribution
percentage for Highly Compensated Employees that exceeds the
greater of
(a) a percentage that is equal to 125 percent of the average
contribution percentage for all other eligible
Employees, or
(b) a percentage that is not more than 200 percent of the
average contribution percentage for all other eligible
Employees and that is not more than two percentage points
higher than the average contribution percentage for all
other eligible Employees.
For purposes of applying the limitation contained in this Section
6.8, the Matching Employer Contributions and After-Tax
Contributions of any Employee who is a family member of a Highly
Compensated Employee who (i) is a five percent owner or (ii) is
among the ten Highly Compensated Employees receiving the greatest
compensation for the Plan year shall be aggregated with the
Matching Employer Contributions and After-Tax Contributions of such
Highly Compensated Employee, and such family member shall not be
considered an Employee for purposes of determining the average
contribution percentage for Employees. A "family member" of a
Highly Compensated Employee means the Highly Compensated Employee's
spouse, his lineal ascendants, his lineal descendants, and the
spouses of such lineal ascendants and descendants.
In the event the Matching Employer Contributions and After-Tax
Contributions with respect to a Plan year for eligible Highly
Compensated Employees would otherwise exceed the limit specified in
the preceding sentence, a certain amount of the Matching Employer
Contributions and After-Tax Contributions, along with the income
but minus the losses allocable thereto, shall be distributed or
forfeited prior to the end of the next following Plan year, with
such certain amount and the treatment thereof to be determined as
follows:
(c) first, the maximum percentage of After-Tax Contributions
shall be reduced, in accordance with procedures adopted
by the Company, from sixteen percent to the greater of
six percent or such percentage that will result in the
average contribution percentage limit specified above not
being exceeded,
-22-
<PAGE> 28
and the excess amount of After-Tax Contributions
attributable to such reduction shall be distributed to
the Highly Compensated Employees who made the excess
contributions;
(d) second, if application of (c) does not cause the Plan to
meet the average contribution percentage limit specified
above, the maximum percentage of After-Tax Contributions
shall be further reduced from six percent to such smaller
percentage that, taking into account the reduction in the
After-Tax Contributions and the loss of the Matching
Employer Contribution related thereto, will result in the
average contribution percentage limit specified above not
being exceeded, and the excess amount of After-Tax
Contributions attributable to such reduction shall be
distributed to the Highly Compensated Employees who made
the excess contributions;
(e) third, if (d) is applicable, and a Highly Compensated
Employee receiving a distribution thereunder of excess
After-Tax Contributions was fully vested in amounts
credited to his Company Stock Fund Account as of the time
such excess contribution occurred, that portion of the
Matching Employer Contribution for such Plan year that
relates to the After-Tax Contributions distributed under
(d) shall also be distributed to the Highly Compensated
Employee; and
(f) fourth, if (d) is applicable but (e) is not applicable,
that portion of the Matching Employer Contribution for
such Plan year that relates to the After-Tax Contribution
distributed under (d) shall be treated as a forfeiture
under the Plan as of the last day of the next following
Plan year.
The income allocable to excess Matching Employer Contributions and
After-Tax Contributions shall be determined in the same manner set
forth in Section 4.3 by substituting "excess Matching Employer
Contributions and After-Tax Contributions" for "excess Tax-
Deferred Contributions." For purposes of this Section 6.8, the
"contribution percentage" of an Employee for a Plan year shall be
the ratio of his aggregate After-Tax Contributions and Matching
Employer Contributions with respect to the Plan year to his
Compensation for such Plan year, except that, to the extent
permitted by regulations to be promulgated by the Secretary of the
Treasury, the Company may elect to take into account in computing
the numerator of each eligible Employee's Contribution percentage
the Tax-Deferred Contribution made on behalf of the eligible
Employee for the Plan year; an "eligible Employee" shall mean an
Employee
-23-
<PAGE> 29
who has met the eligibility requirements of Section 3.1 to become a
Participant, whether or not he has become a Participant; and an
"eligible Highly Compensated Employee" shall mean a Highly
Compensated Employee who has met the eligibility requirements of
Section 3.1 to become a Participant, whether or not he has become a
Participant. The determination hereunder of whether excess
After-Tax Contributions or Matching Employer Contribution have been
made by an eligible Employee with the respect to a Plan year shall
occur after first determining the amount, if any, of that portion
of the Tax-Deferred Contribution of the eligible Employee that is
in excess of the annual aggregate limitation on Tax-Deferred
Contributions and then determining the amount, if any, of Tax-
Deferred Contributions made on behalf of the eligible Employee that
are in excess of the limitations imposed under Section 4.3.
Notwithstanding anything to the contrary contained in the Plan, the
following multiple use limitation as required under Section 401(m)
of the Code shall apply: the sum of the average deferral
percentage and the average contribution percentage for Highly
Compensated Employees may not exceed the aggregate limit. The
aggregate limit is the sum of (g) 125 percent of the greater of the
average contribution percentage or the average deferral percentage
for all other eligible Employees and (h) the lesser of 200 percent
of, or two percentage points plus, the lesser of such average
contribution percentage or such average deferral percentage or, if
it would result in a larger aggregate limit, the sum of (i) 125
percent of the lesser of the average contribution percentage or the
average deferral percentage for all other eligible Employees and
(j) the lesser of 200 percent of, or two percentage points plus,
the greater of such average contribution percentage or such average
deferral percentage. In the event that, after the satisfaction of
the limitations in Section 4.3 and this Section 6.8, it is
determined that contributions under the Plan fail to satisfy this
multiple use limitation, the multiple use limitation shall be
satisfied by further reducing the contribution percentages of
Highly Compensated Employees (beginning with the highest such
percentage) to the extent necessary to eliminate such excess, with
such further reductions to be treated as excess contributions and
disposed of as provided in this Section 6.8.
-24-
<PAGE> 30
ARTICLE VII
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
7.1 Deposit of Contributions.
------------------------
All Tax-Deferred Contributions and After-Tax Contributions shall be
deposited by the Trustee upon receipt in the Investment Funds as
the Company shall direct and all Matching Employer Contributions
shall be deposited by the Trustee upon receipt in the Goodyear
Stock Fund; provided, however, that the Company's directions with
respect to all Tax-Deferred Contributions and After-Tax
Contributions shall be based on the investment election of each
Participant made in accordance with the provisions of Section 7.2.
For all purposes hereunder, Tax-Deferred Contributions, After-Tax
Contributions, and Matching Employer Contributions for each payroll
period ending during a calendar month shall be deemed to have been
deposited no later than the last day of such month. The Trustee
shall have no duty to collect or enforce payment of contributions
or inquire into the amount or method used in determining the amount
of contributions, and shall be accountable only for contributions
received by it.
7.2 Investment Elections of Participants.
------------------------------------
Each Participant shall, upon electing to participate under the Plan
in accordance with the provisions of Section 3.1, make an
investment election in the manner prescribed by the Company,
directing the manner in which his Tax-Deferred Contributions and
After-Tax Contributions shall be deposited and held by the Trustee.
The investment election of a Participant with respect to his
Tax-Deferred Contributions and After-Tax Contributions shall
specify the percentage of such contributions that is to be
deposited in each of the Investment Funds, which percentage amounts
must be whole percentage amounts not in excess in the aggregate of
100%. The investment election by a Participant shall remain in
effect until he ceases to be a Participant in accordance with the
provisions of the Plan; provided, however, that a Participant may
change his investment election, at any time, in the manner and form
as prescribed by the Company by making a new election specifying a
change in his investment election. Any such change must again
specify a percentage of the Tax-Deferred Contributions and
After-Tax Contributions of the Participant that is to be deposited
in each of the Investment Funds, which percentage amounts must be
whole percentage amounts not in excess in the aggregate of 100%,
and shall not affect the amounts credited to any separate account
or sub-account of the Participant or to any Investment Fund
-25-
<PAGE> 31
as of any date prior to the date on which such change is to become
effective.
7.3 Election to Transfer Interest Between Funds.
-------------------------------------------
A Participant who has an interest in an Investment Fund may elect
at any time to transfer all or a portion of such interest to
another Investment Fund. The Participant election must specify the
Investment Fund from which the transfer is to be made, the
Investment Fund to which the transfer is to be made, and a
percentage of the amount eligible for transfer that is to be
transferred, which percentage amount must be an integral multiple
of 1%. Any such transfer election must be made in the manner and
form and at the time prescribed by the Company. Once the election
becomes effective, it shall be irrevocable.
7.4 Election to Transfer Interest from Goodyear Stock Fund.
------------------------------------------------------
A Participant who has attained age 52 and who has an interest in
the Goodyear Stock Fund may elect at any time to transfer all or a
portion of such interest to an Investment Fund. The Participant
election must specify the Investment Fund to which the transfer is
to be made and a dollar amount or percentage of the amount eligible
for transfer that is to be transferred. Any such transfer election
must be made in the manner and form and at the time prescribed by
the Company. Once the election becomes effective, it shall be
irrevocable. At no time may a Participant transfer amounts from an
Investment Fund to the Goodyear Stock Fund.
-26-
<PAGE> 32
ARTICLE VIII
ESTABLISHMENT OF FUNDS AND PARTICIPANTS' ACCOUNTS
8.1 Establishment of General Fund.
-----------------------------
The Trustee shall establish a General Fund as required to hold and
administer any assets of the Trust Fund that are not allocated
among the separate Investment Funds or the Goodyear Stock Fund as
provided in the Plan or the Trust Agreement. The General Fund
shall be held and administered by the Trustee as a separate common
trust fund. The interest of each Participant, Former Participant,
or Beneficiary under the Plan in the General Fund shall be an
undivided interest.
8.2 Investment Funds.
----------------
The Trustee shall establish the following Investment Funds:
(a) A Stable Value Fund which shall be invested primarily in
contracts with banks, insurance companies, or other
financial institutions which provide for rates of return
for particular periods of time. Additionally, the Stable
Value Fund may be invested in investment grade securities
which provide for fixed or determinable rates of return.
The securities may be held directly by the Plan, in group
trusts, or in separate accounts of insurance companies.
(b) An S&P 500 Index Stock Equity Fund which shall be
invested primarily in the 500 stocks that comprise the
S&P 500 Composite Index.
(c) Asset Allocation Funds comprised of the following three
balanced funds:
(i) A Conservative Asset Allocation Fund which
shall be invested primarily in bonds and
stocks with a target allocation of 60% bonds
and 40% United States stocks.
(ii) A Moderate Asset Allocation Fund which shall
be invested primarily in bonds and stock with
a target allocation of 40% bonds and 60%
United States stocks.
(iii) An Aggressive Asset Allocation Fund which
shall be invested primarily in bonds and
stocks with a target allocation of 65% United
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<PAGE> 33
States stocks, 15% international stocks,
and 20% bonds.
(d) A Large Capitalization Stock Equity Fund which shall be
invested primarily in common stocks of medium and large
companies that have better-than-average prospects for
appreciation.
(e) A Small Capitalization Stock Equity Fund which shall be
invested primarily in small company stocks that are
expected to provide long-term capital growth.
(f) An International Stock Equity Fund which shall be
invested primarily in common stocks and debt obligations
of companies and governments outside of the United States
that are expected to produce long-term capital growth.
(g) A Self-Directed Fund Account which the Participant,
Former Participant, or Beneficiary may direct the
investment of all or any part of his separate account
among a list of mutual funds selected by the Company and
the Trustee. The provisions of this paragraph (g) of
Article 8.2 shall be effective only if and to the extent
that the Company, in its discretion, implements them.
(h) If a loan from the Plan to a Participant is approved in
accordance with the provisions of Article XX, the Company
shall direct the establishment and maintenance of a Loan
Investment Fund in the Participant's name.
Notwithstanding any other provision of the Plan to the
contrary, income received with respect to a Participant's
Loan Investment Fund shall be allocated and the Loan
Investment Fund shall be administered as provided in
Article XX.
The Company may determine from time to time to direct (i) the
closing of an Investment Fund or Investment Funds or (ii) the
establishment and maintenance of an additional Investment Fund or
Investment Funds and shall select the investments for such
Investment Fund or Investment Funds. The Company shall communicate
the same and any changes therein in writing to the Plan
Administrator and the Trustee. All assets of each Investment Fund,
except for a Self-Directed Fund Account or a Loan Investment Fund,
shall be held and administered by the Trustee as a separate trust
fund. The interest of each Participant, Former Participant, or
Beneficiary under the Plan in any Investment Fund, other than a
Self-Directed Fund Account or a Loan Investment Fund, and other
than an Investment Fund that consists of a mutual fund, shall be an
undivided
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interest. The interest of each Participant, Former Participant, or
Beneficiary under the Plan in any Investment Fund that consists of
a mutual fund shall be an undivided interest in the units of the
mutual fund held by the Plan. All assets of each Self-Directed
Fund Account and each Loan Investment Fund shall be held and
administered as a separate trust fund.
8.3 Goodyear Stock Fund.
-------------------
The Company shall direct the establishment and maintenance of a
Goodyear Stock Fund to which Matching Employer Contributions shall
be allocated. Subject to the provisions of the Trust Agreement,
the assets of the Goodyear Stock Fund shall be invested by the
Trustee primarily in Company Stock. Assets of the Goodyear Stock
Fund may also be invested by the Trustee in interest-bearing
common, commingled, group, or collective trust funds maintained by
the Trustee exclusively for the short-term investment of assets of
tax-qualified benefit plans. The Trustee may purchase Company
Stock on the open market through a national securities exchange or
in the over-the-counter market through a broker-dealer which is a
member of the National Association of Securities Dealers. In
addition, the Trustee may purchase Company Stock from the Company
in accordance with the requirements of Section 408 of the Act. The
Goodyear Stock Fund shall be held and administered as a separate
common trust fund. The interest of each Participant, Former
Participant, or Beneficiary under the Plan in the Goodyear Stock
Fund shall be an undivided interest.
8.4 Appointment of Investment Managers.
----------------------------------
As provided in the Trust Agreement, the Company may appoint one or
more investment managers (as defined in Section 3(38) of ERISA)
with respect to any portion of any trust fund established under
this Article VIII.
8.5 Income on Trust Funds.
---------------------
Any dividends, interest, distributions, or other income received by
the Trustee in respect of a Fund shall be reinvested by the Trustee
in the respective Fund for which such income was received.
8.6 Separate Accounts.
-----------------
As of the first date a contribution is made by or on behalf of an
Employee, there shall be established a separate account in his name
reflecting his interest in the Trust Fund. Each separate account
shall be maintained and administered for each Participant, Former
Participant,
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<PAGE> 35
and Beneficiary in accordance with the provisions of the Plan.
8.7 Sub-Accounts.
------------
The separate account of each Participant, Former Participant, and
Beneficiary shall be divided into individual sub-accounts
reflecting the portion of such account which is derived from
Matching Employer Contributions, Tax-Deferred Contributions, and
After-Tax Contributions. Each sub-account shall reflect separately
contributions allocated to each Investment Fund and the Goodyear
Stock Fund and the earnings and losses attributable thereto. Such
other sub-accounts may be established as are necessary or
appropriate to reflect the interest of a Participant, Former
Participant, or Beneficiary in the Trust Fund.
8.8 Account Balances.
----------------
For all purposes hereof, the balance of each separate account of a
Participant, Former Participant, or Beneficiary, including sub-
accounts, as of any date shall be the balance of such account or
sub-account after all credits and charges thereto, for and as of
such date, have been made as provided herein.
8.9 Funds from Predecessor Plans.
----------------------------
At the direction of the Company, the Trustee is authorized to
accept the transfer of funds being held by the funding agent for a
predecessor plan (as hereinafter defined) for the benefit of an
eligible Employee, provided that at no time in the course of the
transfer shall such funds be made available to the eligible
Employee. The Trustee shall have no duty to verify whether the
amount of any predecessor plan funds delivered to it is correct and
shall have no duty of inquiry into the administration of any
predecessor plan or of any prior trust or other funding agency for
a predecessor plan. The Trustee shall deposit all funds received
by it from a predecessor plan in the Goodyear Stock Fund and the
Investment Funds in accordance with the directions of the Company,
which shall be based on the investment elections of the eligible
Employees made in the form and manner prescribed by the Company;
provided, however, that no predecessor plan funds may be deposited
in the Goodyear Stock Fund other than funds that were invested in
Company Stock under the predecessor plan immediately prior to the
transfer. The Trustee shall establish and maintain a separate
account and such sub-accounts in the name of an eligible Employee
as are necessary to reflect his interest that is attributable to
predecessor plan funds and to reflect the
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<PAGE> 36
portion of his predecessor plan funds that is attributable to
voluntary after-tax contributions, to contributions made pursuant
to a cash or deferred arrangement qualified under Section 401(k) of
the Code, and to other employer contributions. Each such separate
account shall, upon each valuation date, share in the net increase
or decrease in the value of the assets of the Investment Funds and
the Goodyear Stock Fund maintained under the Plan on the basis of
the balance of such separate account immediately prior to the
valuation date in accordance with Section 10.1, provided, however,
that such balance for this purpose only shall be reduced by the
amount of any funds transferred to the Trustee since the
immediately preceding valuation date. With the exception of funds
transferred from a predecessor plan maintained by an Employer or a
related corporation, which shall be vested in accordance with the
next following sentence of this Section 8.9, all predecessor plan
funds shall at all times be fully vested and nonforfeitable. The
vested interest of a Participant in funds transferred from a
predecessor plan maintained by an Employer or a related corporation
shall be determined as of the date of transfer based on the vesting
provisions of the Plan or, in the event an election under Section
12.6 applies with respect to the Participant, based on the vesting
provisions of the predecessor plan as of the date of transfer.
Predecessor plan funds shall be distributed at such times and
according to such methods as are generally provided under the Plan.
In addition, predecessor plan funds attributable to voluntary,
after-tax contributions made under the predecessor plan shall be
subject hereunder to the withdrawal provisions applicable to
After-Tax Contributions and predecessor plan funds that were
contributed pursuant to a cash or deferred arrangement qualified
under Section 401(k) of the Code shall be subject hereunder to the
withdrawal and distribution provisions applicable to Tax-Deferred
Contributions. For purposes of this Section 8.9, a predecessor
plan shall mean any other defined contribution plan that complies
with the requirements of Section 401(a) of the Code and satisfies
the conditions specified in Section 401(a)(11)(B)(iii) of the Code.
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<PAGE> 37
ARTICLE IX
LIMITATIONS ON ALLOCATIONS TO ACCOUNTS
9.1 Limitation on Crediting of Contributions.
----------------------------------------
Notwithstanding anything to the contrary contained in the Plan the
amount of Matching Employer Contributions, Tax-Deferred
Contributions and After-Tax Contributions which may be credited to
the separate account of any participant or Former participant shall
be subject to the following provisions:
(a) For purposes of this Section 9.1, the "annual addition"
with respect to a Participant or Former participant shall
mean the sum for any Plan year of the following amounts:
(i) Tax-Deferred Contributions, After-Tax
Contributions, and Matching Employer
Contributions that are credited to the
separate account of such Participant or
Former Participant for such Plan year
pursuant to Sections 4.4, 5.3, and 6.4, and
(ii) the amount, if any, of Employer contributions
and forfeitures and employee after-tax
contributions that are credited to the
Participant or Former Participant under any
other qualified defined contribution plan
(whether or not terminated) maintained by an
Employer or a related corporation
concurrently with the Plan.
(b) For purposes of this Section 9.1, the "compensation" of a
Participant or Former Participant shall mean (in contrast
with Compensation as defined in paragraph (g) of Section
2.1) his wages, salaries, and other amounts received for
personal services actually rendered in the course of
employment with an Employer or a related corporation,
excluding, however,
(i) contributions made by an Employer or a
related corporation to a plan of deferred
compensation (including Tax-Deferred
Contributions hereunder) to the extent that,
before the application of the limitations of
Section 415 of the Code to such plan, the
contributions are not includable in the gross
income of the Participant or Former
Participant for the taxable year in which
contributed;
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<PAGE> 38
(ii) contributions made by an Employer or a
related corporation on his behalf to a
simplified employee pension described in
Section 408(k) of the Code;
(iii) any distributions from a plan of deferred
compensation (other than amounts received
pursuant to an unfunded non-qualified plan in
the year such amounts are includable in the
gross income of the Participant or Former
Participant);
(iv) amounts received from the exercise of a
non-qualified stock option or when restricted
stock or other property held by the
Participant or Former Participant becomes
freely transferable or is no longer subject
to substantial risk of forfeiture;
(v) amounts received from the sale, exchange or
other disposition of stock acquired under a
qualified stock option; and
(vi) any other amounts that receive special tax
benefits such as premiums for group term
life insurance (but only to the extent that
the premiums are not includable in the gross
income of the Participant or Former
Participant).
(c) For the Plan year ending December 31, 1985, and each Plan
year thereafter, the annual addition with respect to a
Participant or Former Participant shall not exceed the
lesser of
(i) $30,000 (subject to adjustment annually
pursuant to Internal Revenue Service
regulations and rulings under Section 415 of
the Code), or
(ii) 25 percent of such Participant's compensation
paid for such Plan year.
If as a result of the allocation of forfeitures, a
reasonable error in estimating the Participant's
compensation, a reasonable error in determining the
amount of elective deferrals (within the meaning of
Section 402(g)(3) of the Code) that may be made with
respect to any individual under the limits of Section 415
of the Code, or other reasonable facts and circumstances
that the Commissioner of Internal Revenue finds to
justify the availability of the rules set forth below the
annual addition to the
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<PAGE> 39
separate accounts of a Participant or Former Participant in any
Plan year would exceed the amount that may be applied for his
benefit under the limitation contained in this Section 9.1 absent
such limitation, the amount of his After-Tax Contributions for such
Plan year and of that portion of the Matching Employer
Contributions that would be allocated to such Participant or Former
Participant under Section 6.3 based thereon but that would exceed
the limitation herein, shall be reduced (applying the same
percentage reduction with respect to both such After-Tax
Contributions and Matching Employer Contributions) to the extent
necessary to eliminate such excess. The amount of any such
reduction of After-Tax Contributions shall be returned to such
Participant or Former Participant (plus the earnings, if any,
attributable to such amount), and the amount of any such reduction
of Matching Employer Contributions shall be deemed a forfeiture for
such Plan year and shall be applied against the Company's Matching
Employer Contribution obligation as described below. If the
limitation contained in this Section 9.1 would still be exceeded
after application of the previous sentence, the amount of the
Tax-Deferred Contributions made on behalf of such Participant or
Former Participant for such Plan year and that portion of the
Matching Employer Contribution that would be allocated to such
Participant or Former Participant under Section 6.3 based thereon,
but that would exceed the limitation herein, shall be reduced
(applying the same percentage reduction with respect to both
Tax-Deferred Contributions and Matching Employer Contributions) to
the extent necessary to eliminate such excess. The amount of any
such reduction of Tax-Deferred Contributions shall be applied as
the initial Tax-Deferred Contributions made by the Participant for
the next following limitation year until such amount is exhausted,
unless the Participant is not covered by the Plan as of the end of
the limitation year, in which event such amount shall be deemed a
forfeiture for such Plan year and shall be applied against the
Company's Matching Employer Contribution obligation as described
below. The amount of any such reduction of Matching Employer
Contributions shall be deemed a forfeiture for such Plan year and
shall be applied against the Company's Matching Employer
Contribution obligation as described below. Amounts which are
deemed forfeitures hereunder with respect to the Company for a Plan
year shall be held unallocated in a suspense account established
with respect to the Company and shall for all Plan purposes be
applied
-34-
<PAGE> 40
against the Company's Matching Employer Contribution
obligation for the next following Plan year (and
succeeding Plan years, as necessary). No such suspense
account shall share in any increase or decrease in the
net worth of the Investment Funds and the
Goodyear Stock Fund.
(d) If any Participant or Former Participant in the Plan also
shall be covered by a qualified defined benefit plan
(whether or not terminated) maintained by an Employer or
a related corporation concurrently with the Plan, the sum
of subparagraphs (i) and (ii) below shall in no event
exceed 1.0 in any Plan year where
(i) is the defined benefit plan fraction
(determined as of the close of such Plan
year), the numerator of which is the
projected annual benefit of such Participant
or Former Participant under such plan and the
denominator of which is the lesser of (1) the
product of 1.25 multiplied by the dollar
limitation in effect under Section
415(b)(1)(A) of the Code for such Plan year,
or (2) the product of 1.4 multiplied by the
amount which may be taken into account under
Section 415(b)(1)(B) of the Code with respect
to such Participant or Former Participant for
such Plan year; and
(ii) is the defined contribution plan fraction,
the numerator of which is the sum of the
annual addition to the separate accounts of
such Participant or Former Participant as of
the close of such Plan year and for each
prior year of service with an Employer or a
related corporation and the denominator of
which is the sum of the lesser of the
following amounts determined for such Plan
year and each prior year of service with an
Employer or a related corporation: (1) the
product of 1.25 multiplied by the dollar
limitation in effect under Section
415(c)(1)(A) of the Code for such Plan year
determined without regard to Section
415(c)(6), or (2) the product of 1.4
multiplied by the amount which may be taken
into account under Section 415(c)(1)(B) (or
Section 415(c)(7) or (8) if applicable) with
respect to such Participant or Former
Participant for such Plan year.
In the event the special limitation contained in this
paragraph (d) is exceeded, the benefits
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<PAGE> 41
otherwise payable to the Participant or Former
Participant under any such qualified defined benefit plan
shall be reduced to the extent necessary to meet such
limitation. If the Plan satisfied the applicable
requirements of Section 415 of the Code as in effect for
all limitation years beginning before January 1, 1987, an
amount shall be subtracted from the numerator of the
defined contribution plan fraction (not exceeding such
numerator) as prescribed by the Secretary of the Treasury
so that the sum of the defined benefit plan fraction and
the defined contribution plan fraction computed under
Section 415(e)(1) of the Code, as revised by the Tax
Reform Act of 1986, does not exceed 1.0 for such
limitation year.
(e) In the event that a Participant or Former Participant is
covered by any other qualified defined contribution plan
(whether or not terminated) maintained by an Employer or
a related corporation concurrently with the Plan, the
procedure set forth in paragraph (c) of this Section 9.1
shall be implemented first by returning the contributions
made by the Participant or Former Participant for such
Plan year under all of the defined contribution plans
other than the Plan. If the limitation contained in this
Section 9.1 is still not satisfied after returning all of
the contributions made by the Participant or Former
Participant under all such other plans the procedure set
forth in paragraph (c) of this Section 9.1, without
regard to the foregoing provisions of this paragraph (e),
shall be invoked to eliminate any such excess. If the
limitation contained in this Section 9.1 is still not
satisfied after invocation of the procedure set forth in
paragraph (c) of this Section 9.1, the portion of the
Employer contributions and of forfeitures for the Plan
year under all such other plans, which has been allocated
to such Participant thereunder but which exceeds the
limitation herein, shall be deemed a forfeiture for such
Plan year and shall, subject to the provisions of this
Section 9.1, be reallocated among and credited to the
separate accounts of the remaining Participants and
Former Participants in such other plans who are eligible
to share in such contributions and forfeitures for such
Plan year; provided, however, that the amount of the
Employer contributions and of any forfeitures which is
deemed a forfeiture under this paragraph (e) shall be
effected on a pro rata basis among all of such plans
including the Plan, unless the Participant or Former
Participant is covered by a money purchase pension plan
or a tax credit plan
-36-
<PAGE> 42
meeting the requirements of Section 409 of the Code, in
which event the forfeiture shall be effected first under
the Plan (and any other defined contribution plan which
is not a money purchase pension plan nor a tax credit
plan) and, if the limitation is still not satisfied, then
under such money purchase pension plan, and finally, if
the limitation is still not satisfied, then under such
tax credit plan. In the event that a Participant or
Former Participant is covered by a qualified defined
benefit plan, the procedure set forth in paragraph (d) of
this Section 9.1 shall be implemented prior to effecting
any reduction in the benefit of such Participant or
Former Participant under the defined contribution plans.
(f) In the event that the limitations of paragraph (d) of
this Section 9.1 are applicable, the following
adjustments shall be made for purposes of applying such
paragraph (d):
If, before October 3, 1973, the Participant
or Former Participant was an active
participant in a qualified defined benefit
plan maintained by an Employer and otherwise
satisfies the requirements of Section
2004(d)(2) of the Act, the defined benefit
plan fraction described in subparagraph
(d)(i) shall not exceed 1.0.
(g) For purposes of this Section 9.1. the meaning of "related
corporation" shall be as modified by Section 415(h) of
the Code.
9.2 Scope of Limitation.
-------------------
The limitations contained in this Article IX shall be applicable
only with respect to benefits provided pursuant to the defined
contribution plans and defined benefit plans described in Section
415(k) of the Code.
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<PAGE> 43
ARTICLE X
VALUATIONS, DIVIDEND REINVESTMENTS, AND VOTING
10.1 Valuation of Participant's Interest.
-----------------------------------
As of each valuation date hereunder the Trustee shall adjust each
separate account of each Participant, Former Participant and
Beneficiary, and any sub-account maintained thereunder, to reflect
any increase or decrease in the value of the Trust Fund since the
immediately preceding valuation date in the following manner:
(a) The Trustee shall value all of the assets of the Goodyear
Stock Fund at fair market value.
(b) The Trustee shall value all of the assets of the
Investment Funds with respect to which no investment
manager has been appointed at fair market value and each
investment manager shall value all of the assets of the
Investment Fund with respect to which he has been
appointed at fair market value and shall provide the same
to the Trustee. In valuing the Investment Funds with
respect to which no investment manager has been appointed
that consist of mutual funds, the Trustee may rely on
price data supplied by the mutual fund manager.
(c) The Trustee shall then ascertain the net increase or
decrease in the value of the respective Investment Funds
and the Goodyear Stock Fund which is attributable to net
income, investment management fees, and all profits and
losses, realized and unrealized since the immediately
preceding valuation date on the basis of the valuation
provided under paragraphs (a) and (b) of this Section
10.1, and after making appropriate adjustments for the
amount of all contributions made with respect to the
month in which such valuation date occurs and for any
distributions and withdrawals from the respective
Investment Funds and the Goodyear Stock Fund since such
preceding valuation date and prior to such date.
(d) The Trustee shall then allocate the net increase or
decrease in the value of the respective Investment Funds
and the Goodyear Stock Fund as thus determined among all
Participants, Former Participants, and Beneficiaries who
have an interest in the respective Investment Funds and
the Goodyear Stock Fund, separately with respect to each
of such Investment Funds and the Goodyear Stock Fund, in
the ratio that the balance of each separate account
maintained
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<PAGE> 44
under such Investment Fund or the Goodyear Stock Fund on
the date immediately preceding such valuation date bears
to the aggregate of the balances of all such separate
accounts on the day immediately preceding such valuation
date, and shall credit or charge as the case may be each
such separate account with the amount of its allocated
share. Moreover, the Trustee shall in the same manner
credit or charge any sub-account maintained thereunder
with the amount of its allocated share.
(e) Finally, the Trustee shall then credit to the appropriate
separate account and sub-accounts of each Participant and
Former Participant, as applicable and in accordance with
the provisions of Article VIII, the Tax-Deferred
Contributions made on his behalf, his After-Tax
Contributions, and his share of Matching Employer
Contributions made since the immediately preceding
valuation date.
The Trustee may maintain its records for the Plan on the basis of
unit accounting.
10.2 Reinvestment of Dividends.
-------------------------
Except as may be otherwise directed by the Company all dividends
and other earnings of the Goodyear Stock Fund shall be used by the
Trustee to purchase additional Company Stock.
10.3 Voting Company Stock.
--------------------
At least 30 days prior to each annual or special meeting of the
shareholders of The Goodyear Tire & Rubber Company, the Company
shall cause to be sent to each Participant, and to each Former
Participant and Beneficiary, a copy of the proxy solicitation
material therefor together with a form requesting that each such
Participant, Former Participant, or Beneficiary give to the Trustee
or proxy solicitation and tabulation agent his confidential
instructions with respect to the manner in which his proportionate
interest in the Company Stock held in the Goodyear Stock Fund shall
be voted by the Trustee. Upon receipt of such instructions, the
Trustee shall vote the Company Stock as instructed. Furthermore
the Trustee shall vote the Company Stock with respect to which it
does not receive instructions in the same proportions as it votes
the Company Stock for which it received instructions. Instructions
received from individual participants, Former Participants, and
Beneficiaries by the Trustee shall be held in the strictest
confidence and shall not be divulged or released to any person,
including officers or employees of the Company.
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<PAGE> 45
10.4 Finality of Determinations.
--------------------------
The Trustee shall have exclusive responsibility for determining the
net income, liabilities, and value of the assets of the Goodyear
Stock Fund and for determining the balance of each separate account
and sub-account maintained hereunder. The Trustee shall have
exclusive responsibility for determining the net income,
liabilities, and value of the assets of the Investment Funds with
respect to which no investment manager has been appointed, and each
investment manager shall have exclusive responsibility for
determining the net income, liabilities, and value of the assets of
the Investment Fund with respect to which he has been appointed.
In determining the net income, liabilities, and value of the assets
of the Investment Funds with respect to which no investment manager
has been appointed that consist of mutual funds, the Trustee may
rely on information provided by the mutual fund manager. The
Trustee's and investment managers' determinations thereof shall be
conclusive upon the Employers, and all Participants, Former
Participants, and Beneficiaries hereunder.
10.5 Notification.
------------
As soon as reasonably possible after the end of each Plan year, the
Company shall notify each Participant, Former Participant, and
Beneficiary of the balance of his separate account and sub-accounts
as of the last day of such Plan year.
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<PAGE> 46
ARTICLE XI
WITHDRAWALS WHILE EMPLOYED
11.1 Withdrawal of After-Tax Contributions.
-------------------------------------
A Participant may elect to withdraw in cash an amount equal to all
or any portion of the value of the balance of his sub-account
attributable to his After-Tax Contributions as of the most recent
valuation date. In the event a Participant has more than
Investment Fund in his one sub-account attributable to After-Tax
Contributions and he withdraws only a portion of the balance of
such sub-account, the withdrawal shall be charged to each of the
Investment Funds in the ratio that the balance of the sub-account
invested in the Investment Fund as of the most recent valuation
date bears to the balance of the sub-account as of such date.
11.2 Withdrawal of Matching Employer Contributions.
---------------------------------------------
Prior to his attainment of age 59-1/2, a Participant may not
withdraw amounts attributable to Matching Employer Contributions
unless the Company has made a determination that a hardship exists
and such withdrawal is made in accordance with the provisions of
Section 11.4. A Participant who has attained the age of 59-1/2 may
elect to withdraw in cash an amount equal to all or any portion of
his vested interest in the value of the balance of his sub-account
attributable to Matching Employer Contributions as of the most
recent valuation date. A Participant's vested interest in Matching
Employer Contributions shall be the amount in which he would be
vested under Section 12.2 had he terminated his employment with his
Employer. In the event a Participant has one or more Investment
Funds in his sub-account attributable to Matching Employer
Contributions and he withdraws only a portion of the balance of
such sub-account, the withdrawal shall be charged to each of the
Investment Funds and the Goodyear Stock Fund in the ratio that the
balance of the sub-account invested in the Investment Fund or the
Goodyear Stock Fund as of the most recent valuation date bears to
the balance of the sub-account as of such date.
11.3 Withdrawal of Tax-Deferred Contributions.
----------------------------------------
Prior to his attainment of age 59-1/2, a Participant may not
withdraw amounts attributable to Tax-Deferred Contributions unless
the Company has made a determination that a hardship exists and
such withdrawal is made in accordance with the provisions of
Section 11.4. A Participant who has attained the age of 59-1/2 may
elect to withdraw in cash an amount equal to all or any portion of
the value of
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<PAGE> 47
the balance of his sub-account attributable to his Tax-Deferred
Contributions as of the most recent valuation date. In the event a
Participant has more than one Investment Fund in his sub-account
attributable to Tax-Deferred Contributions and he withdraws only a
portion of the balance of such sub-account, the withdrawal shall be
charged to each of the Investment Funds in the ratio that the
balance of the sub-account invested in the Investment Fund as of
the most recent valuation date bears to the balance of the sub-
account as of such date.
11.4 Conditions and Limitations on Hardship Withdrawals.
--------------------------------------------------
Notwithstanding anything to the contrary contained in this Article
XI, the restrictions imposed in Sections 11.2 and 11.3 which
prohibit withdrawal of amounts attributable to Tax-Deferred
Contributions and Matching Employer Contributions prior to the
attainment of age 59-1/2 shall be inapplicable in any case in which
the Company, with respect to a withdrawal made hereunder, has made
a determination that the withdrawal is necessary to satisfy an
immediate and heavy financial need of the Participant in accordance
with the provisions of this Section 11.4. The Company shall grant
a hardship withdrawal only if it determines that the withdrawal is
necessary to meet an immediate and heavy financial need of the
Participant. An immediate and heavy financial need of the
Participant means a financial need on account of:
(a) medical expenses described in Section 213(d) of the Code
incurred by the Participant, the Participant's spouse, or
any dependent of the Participant (as defined in Section
152 of the Code);
(b) purchase (excluding mortgage payments) of a principal
residence for the Participant;
(c) payment of tuition, related educational fees, and room
and board expenses for the next 12 months of
post-secondary education for the Participant, the
Participant's spouse, or any dependent of the
Participant;
(d) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence; or
(e) funeral expenses of a member of the Participant's family.
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A withdrawal shall be deemed to be necessary to satisfy an
immediate and heavy financial need of a Participant only if all of
the following requirements are satisfied:
(f) the withdrawal is not in excess of the amount of the
immediate and heavy financial need of the Participant.
(g) The Participant has obtained all distributions, other
than hardship distributions, and all non-taxable loans
currently available under all plans maintained by the
Company or any related corporation.
(h) The Participant's Tax-Deferred Contributions and
After-Tax Contributions and the Participant's elective
tax-deferred contributions and employee after-tax
contributions under all other tax-qualified plans
maintained by the Company or any related corporation
shall be suspended for at least 12 months after his
receipt of the withdrawal and he may not have any further
Tax-Deferred Contributions made on his behalf nor shall
he make any further After-Tax Contributions until the
Enrollment Date next following the expiration of 12
months after the effective date of such withdrawal;
provided, however, that this paragraph (h) shall not
apply if the Participant has attained age 59-1/2.
(i) The Participant shall not make Tax-Deferred Contributions
or elective tax-deferred contributions under any other
tax-qualified plan maintained by the Company or any
related corporation for the Participant's taxable year
immediately following the taxable year of the withdrawal
in excess of the applicable limit under Section 402(g) of
the Code for such next taxable year less the amount of
the Participant's Tax-Deferred Contributions and elective
tax-deferred contributions under any other plan
maintained by the Company or any related corporation for
the taxable year of the withdrawal; provided, however,
that this paragraph (i) shall not apply if the
Participant has attained age 59-1/2.
The maximum amount that a Participant may withdraw because of a
hardship is (i) the balance of his sub-account attributable to Tax-
Deferred Contributions, exclusive of any earnings credited to such
amounts after December 31, 1988, except to the extent permitted by
regulations issued under Section 401(k) of the Code, (ii) his
vested interest in his sub-account attributable to Matching
Employer Contributions, and (iii) the balance of his sub-account
attributable to After-Tax Contributions. Hardship with
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<PAGE> 49
drawals shall be made effective as of the date on which the
withdrawal application is filed and shall be paid to the
Participant as soon as practicable thereafter. A Participant shall
not fail to be treated as an eligible Employee for the purposes of
applying the limitations contained in Sections 4.3 and 6.8 of the
Plan merely because his Tax-Deferred Contributions and After-Tax
Contributions are suspended in accordance with this Section 11.4.
11.5 Adjustment of Accounts.
----------------------
The Trustee shall adjust the separate account and sub-accounts of
each Participant who makes a withdrawal under Section 11.1, 11.2,
11.3, or 11.4 to reflect such withdrawal as of the date of such
withdrawal, charging any such withdrawal against the Goodyear Stock
Fund or the Investment Funds, as appropriate.
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ARTICLE XII
TERMINATION OF PARTICIPATION AND DISTRIBUTION
12.1 Termination of Participation.
----------------------------
Each Participant shall cease to be a Participant hereunder on the
first to occur of the following dates:
(a) on the date such Participant's employment with an
Employer or a related corporation is terminated after he
has attained age 65;
(b) on the date such Participant's employment with an
Employer or a related corporation is terminated because
of physical or mental disability preventing his
continuing in the service of such employer, as determined
by the Company upon the basis of a written certificate of
a physician acceptable to it or, if earlier, on the first
anniversary of the first day of a period in which he
remains absent from the service of the Company and all
subsidiaries of the Company because of physical or mental
disability preventing his continuing in the service of
his employer, as determined by the Company upon the basis
of a written certificate of a physician acceptable to it;
(c) on the date such Participant's employment with an
Employer or a related corporation is terminated because
of the death of such Participant;
(d) on the date such Participant's employment with an
Employer or a related corporation is terminated after he
(i) retires under the provisions of the pension
plan maintained by his employer for his
benefit, or
(ii) has completed four years of Continuous
Service; or
(e) on the date such Participant's employment with an
Employer or a related corporation is terminated under any
other circumstances;
provided however, that if any such date shall be a valuation date,
such Participant shall for all purposes hereof cease to be a
Participant upon the next succeeding day. Written notice of a
participant's Settlement Date shall be given promptly by the
Company to the Trustee. Notwithstanding anything to the contrary
contained in the
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<PAGE> 51
Plan, a Participant's right to receive distribution of the balance
of his separate account as of his Settlement Date, in accordance
with the provisions of this Article XII, shall be fully vested and
nonforfeitable upon attainment of age 65.
12.2 Vesting of Separate Accounts.
----------------------------
A Participant's vested interest in his sub-accounts attributable to
Tax-Deferred Contributions and After-Tax Contributions shall be at
all times 100%. As of a Participant's Settlement Date, and after
notice thereof has been given as provided in Section 12.1, the
balance of the Participant's sub-account attributable to Matching
Employer Contributions shall be vested as follows:
(a) In the event such Participant's Settlement Date occurs
under the conditions specified in paragraph (a), (b),
(c), or (d) of Section 12.1, such Participant shall be
100% vested in the entire balance of his sub-account
attributable to Matching Employer Contributions as of
such Settlement Date.
(b) In the event such Participant's Settlement Date occurs
under the conditions stated in paragraph (e) of Section
12.1, such Participant shall have no vested interest in
his sub-account attributable to Matching Employer
Contributions, and he shall in no event receive any
distribution from his sub-account attributable to
Matching Employer Contributions as of such Settlement
Date.
Notwithstanding anything to the contrary contained in
this paragraph (b), in the event such Participant's
Settlement Date occurs as a result of the Company's
reduction in force on August 1, 1991 or the Company's
reduction in force on November 1, 1991, such Participant
shall be 100% vested in the entire balance of each of his
separate account as of such Settlement Date.
12.3 Distribution.
------------
The Trustee shall make distribution to or for the benefit of the
Former Participant or his Beneficiary as the case may be of his
vested interest in his separate account, provided, however, that,
in order to insure that all pre-Settlement Date contributions have
been credited to the separate accounts of the former Participant,
no distribution shall be made prior to the last day of the month in
which the Former Participant's Settlement Date occurs.
Distribution shall be made in a lump-sum payment unless such
Participant's Settlement Date occurred under
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the conditions specified in paragraph (a), (b), (c), or (d)(i) of
Section 12.1, in which event distribution shall be made by such one
or more of the following methods as the Former Participant shall
select:
(a) in a single lump-sum payment; or
(b) in a series of installments over a period not in excess
of the normal life expectancy of the distributee, such
installments to be equal in amount except as necessary to
adjust for any net income of and changes in the market
value of the respective Funds, or by any other method
reasonably calculated to provide a more rapid
distribution of his interest.
Distribution under any such method shall be made or commenced as
soon as reasonably practicable after the Former Participant's
Settlement Date, but in no event later than 60 days after the close
of the Plan year in which the Former Participant terminated
employment after having attained age 65; provided, that the Company
with the consent of a Former Participant whose Settlement Date
occurs under the conditions stated in either paragraph (a) or
(d)(i) of Section 12.1 may defer making or commencing distribution
beyond the date otherwise specified in this sentence until the
Former Participant attains age 70 or dies, or until the Plan is
terminated, whichever first occurs. In the event that the Trustee
is unable to make a distribution to a Former Participant or
Beneficiary within one year of the date distribution is otherwise
to be made in accordance with the provisions of this Section 12.3,
due to its inability to find such Former Participant or
Beneficiary, the entire interest of such Former Participant or
Beneficiary shall be disposed of in accordance with the provisions
of Section 12.8; provided, that in the event such Former
Participant or Beneficiary shall at any time in the future make a
claim for his interest in the Plan, it shall be paid to him as soon
as possible. Notwithstanding the foregoing, if the balance carried
in the separate account of a Former Participant is or ever was in
excess of $3,500 and the Former Participant has not attained age
65, no distribution shall be made to such Former Participant
without his written consent.
12.4 Required Commencement of Distribution.
-------------------------------------
Notwithstanding any other provisions of the Plan to the contrary,
in no event shall the interest attributable to a Participant or
Former Participant be distributed commencing later than the April 1
following the close of the calendar year in which he attains age
70 1/2. In addition, in no event shall such interest be payable
over a period extending beyond the life of the Participant or
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<PAGE> 53
the joint lives of the Participant and his Beneficiary, or,
alternatively, over a period extending beyond the life expectancy
of the Participant or the joint life expectancy of the Participant
and his Beneficiary.
If a Participant or Former Participant dies after distribution of
his entire interest has been commenced, the remaining portion of
his interest under the Plan, if any, shall be distributed to his
Beneficiary at least as rapidly as under the method of distribution
being used at the date of his death. If a Participant or Former
Participant dies before the distribution of his entire interest has
commenced, the entire interest attributable to such Former
Participant must be distributed within 5 years after the date of
his death; except that such 5-year distribution requirement shall
not apply (i) to any portion of such Former Participant's interest
under the Plan that is payable to his Beneficiary over the
Beneficiary's lifetime, or over a period not extending beyond the
life expectancy of his Beneficiary, so long as such distribution
commences no later than one year after the date of such Former
Participant's death (or such later date as may be prescribed by
applicable Treasury Regulations), or (ii) to any portion of such
Former Participant's interest under the Plan that is payable to his
surviving spouse over the surviving spouse's lifetime, or over a
period not extending beyond the life expectancy of such surviving
spouse, so long as the distribution commences no later than the
date on which the Former Participant would have attained age
70 1/2. If a surviving spouse dies before distribution commences
pursuant to the immediately foregoing clause (ii), the 5-year
distribution requirement applies as if the surviving spouse were
the Former Participant.
12.5 Form of Distribution.
--------------------
All distributions under this Article XII with respect to any amount
which is attributable to the interest of a Former Participant shall
be made in the form of cash except that if he is deceased his
Beneficiary so requests the amount attributable to his interest in
the Goodyear Stock Fund shall be paid in the form of Company Stock
with an amount equivalent in value to any fractional share of
Company Stock paid in cash.
12.6 Election of Former Vesting Schedule.
-----------------------------------
In the event the Company adopts an amendment to the Plan that
directly or indirectly affects the computation of a Participant's
nonforfeitable interest attributable to Matching Employer
Contributions any Participant with three or more years of
Continuous Service shall have a right to
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<PAGE> 54
have his nonforfeitable interest in amounts attributable to
Matching Employer Contributions 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 amounts attributable to Matching Employer
Contributions under the Plan, as amended, at any time is not less
than such interest determined without regard to such amendment. An
Employee shall exercise such right by giving written notice of his
exercise thereof to the Company within 60 days after the latest of
(i) the date he received notice of such amendment from the Company,
(ii) the effective date of the amendment, or (iii) the date the
amendment is adopted. Notwithstanding the foregoing provisions of
this Section 12.6, the vested interest of each Participant on the
effective date of such amendment shall not be less than his vested
interest under the Plan as in effect immediately prior to the
effective date thereof.
12.7 Buy Back of Forfeited Amounts.
-----------------------------
A Participant who forfeited all or a portion of the amounts
credited to his sub-account attributable to Matching Employer
Contributions in accordance with the provisions of Section 12.2 and
who is reemployed by an Employer or a related corporation shall
have such forfeited amounts recredited to his sub-account
attributable to Matching Employer Contributions upon his subsequent
reemployment as an Employee, without adjustment for interim gains
or losses experienced by the Trust Fund, if:
(a) he returns to employment with an Employer or a related
corporation before he incurs five consecutive breaks in
service commencing after the later of his Settlement Date
or the date he received distribution of the vested
portion of his separate account;
(b) he resumes employment covered under the Plan before the
end of the five-year period beginning on the date he is
reemployed; and
(c) if he received distribution of the vested portion of his
separate account, he repays to the Plan the full amount
of such distribution before the end of the five-year
period beginning on the date he is reemployed.
Funds needed in any Plan year to recredit the sub-account
attributable to Matching Employer Contributions of such Participant
with the amounts of prior forfeitures in accordance with the
preceding sentence shall first come
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<PAGE> 55
from forfeitures that arise during such Plan year, to the extent
sufficient, next shall be provided by his Employer by way of a
separate Matching Employer Contribution, and shall finally come
from income earned by the Trust Fund in such Plan year.
12.8 Disposition of Forfeited Balances.
---------------------------------
Whenever settlement is made with respect to a Former Participant on
the occurrence of his Settlement Date and if the balance of his
sub-account attributable to Matching Employer Contributions is not
vested, such balance shall be deemed a forfeiture for the month in
which the first anniversary of his Severance Date occurs. If
settlement is not made with respect to a Former Participant on the
occurrence of his Settlement Date and if the balance of his
sub-account attributable to Matching Employer Contributions is not
vested, such balance shall be deemed a forfeiture for the month in
which the fifth anniversary of his Severance Date occurs, unless he
is reemployed as an Employee prior to such date. In either case,
as of the last day of such month, the forfeitures attributable to
each sub-account attributable to Matching Employer Contributions
and to each other separate account shall be applied against the
Matching Employer Contribution obligation of the Company incurred
during such month. Notwithstanding the foregoing, however, should
the amount of all such forfeitures of Matching Employer
Contributions for any Plan year exceed the amount of the Matching
Employer Contribution obligation of the Company for such Plan year,
the excess amount of such forfeitures (together with any such
forfeitures for prior Plan years not theretofore applied against
such a contribution obligation of the Company) shall for all Plan
purposes be applied against the Matching Employer Contribution
obligation of the Company for the next following Plan year.
12.9 Effect of Company's Determination.
---------------------------------
In exercising its authority under this Article XIII the Company
shall act in such manner as it shall in good faith determine will
most adequately and fairly meet the needs of each Former
Participant or Beneficiary, as the case may be. No authority shall
be exercised in such manner as to discriminate between any class or
group of Participants. The Company's determination of all
questions which may arise under this Article XII (if made in
accordance with the standards prescribed herein and in Section
14.1) shall be conclusive upon all persons claiming to have any
interest hereunder. In making any determinations hereunder, the
Company may rely upon any signed statement which the Participant
files with it.
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<PAGE> 56
12.10 Reemployment of a Former Participant.
------------------------------------
Subject to the provisions of Section 3.5 and Section 12.7, in the
event a Former Participant is reemployed by an Employer, he shall
be treated as a new employee for all purposes of the Plan. If he
again becomes a Participant, he shall lose his right to any
distributions or further distributions from the Trust Fund with
respect to the prior termination of his employment, and his
interest in the Trust Fund shall thereafter be treated in the same
manner as that of any other Participant.
12.11 Restrictions on Alienation.
--------------------------
Except as provided in Section 401(a)(13)(B) of the Code relating to
qualified domestic relations orders, no benefit under the Plan at
any time shall be subject in any manner to anticipation,
alienation, assignment (either at law or in equity), encumbrance,
garnishment, levy, execution, or other legal or equitable process;
and no person shall have power in any manner to anticipate,
transfer, assign (either at law or in equity), alienate or subject
to attachment, garnishment, levy, execution, or other legal or
equitable process, or in any way encumber his benefits under the
Plan, or any part thereof, and any attempt to do so shall be void.
12.12 Facility of Payment.
--------------------
In the event that it shall be found that any individual to whom an
amount is payable hereunder is incapable of attending to his
financial affairs because of any mental or physical condition,
including the infirmities of advanced age, such amount (unless
prior claim therefor shall have been made by a duly qualified
guardian or other legal representative) may, in the discretion of
the Company, be paid to another person for the use or benefit of
the individual found incapable of attending to his financial
affairs or in satisfaction of legal obligations incurred by or on
behalf of such individual. The Trustee shall make such payment
only upon receipt of written instructions to such effect from the
Company. Any such payment shall be charged to the sub-accounts
from which any such payment would otherwise have been paid to the
individual found incapable of attending to his financial affairs
and shall be a complete discharge of any liability therefor under
the Plan.
12.13 Distributions to Other Qualified Plans.
--------------------------------------
In the case of a Participant or Former Participant whose vested
interest in his separate account under the Plan has not been fully
distributed and who is eligible to
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participate in another plan that is qualified under Section 401(a)
of the Code, the Company may direct the Trustee to transfer the
amount of such accounts under the Plan to the funding agent for
such plan if the plan to receive the transfer (i) authorizes
acceptance of such transfers, (ii) provides that transferred
amounts shall be held in a separate account, and (iii) provides
that the transferred amounts shall be fully vested and
nonforfeitable, with the exception that in the case of a transfer
of accounts to a plan of an Employer or related corporation, the
Participant's or Former Participant's vested interest in such
transferred accounts shall be determined as of the date of transfer
based on the vesting provisions of the Plan in effect on such date,
and on and after the date of transfer the vested interest shall be
determined based on the vesting provisions of the transferee plan
or, in the event an election of a prior vesting schedule applies
with respect to the Participant or Former Participant, based on the
vesting provisions of the Plan as of the date of transfer.
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ARTICLE XIII
BENEFICIARIES
13.1 Designation of Beneficiary.
--------------------------
In the case of a Participant or Former Participant who is not
married, the Beneficiary to whom distribution shall be made
hereunder in the event such Participant or Former Participant dies
before his interest shall have been distributed to him in full
shall be such person or persons designated by the Participant or
Former Participant. In the case of a Participant or Former
Participant who is married, the Beneficiary to whom distribution
shall be made hereunder in the event such Participant or Former
Participant dies before his interest shall have been distributed to
him in full shall be his surviving spouse, if any, or alternatively
such person or persons designated by the Participant or Former
Participant, provided that such designation has been consented to
by the surviving spouse, if any, of such Participant or Former
Participant in the manner herein specified. A designation of
Beneficiary hereunder may be changed at any time and from time to
time by the Participant or Former Participant, provided that such
change of designation has been consented to by the surviving
spouse, if any, of such Participant or Former Participant in the
manner herein specified. Any such designation or change of
designation, with spousal consent when necessary, shall be made in
writing in the form prescribed by the Company, and shall become
effective only when filed by the Participant or Former Participant
with the Company; provided, however, that any such designation or
change of designation which is received by the Company after the
death of the Participant or Former Participant shall be
disregarded. Spousal consent, where required, shall be effective
only if it is in writing, it includes an acknowledgement of the
effect of the consent being given, and it is witnessed by a Plan
representative or a notary public. Spousal consent shall not be
required if a Plan representative finds that such spouse cannot be
located or because of other circumstances set forth in Section
417(a)(2)(B) of the Code and regulations thereunder. Any consent
by a spouse obtained under this Section 13.1 shall be effective
only with respect to such spouse.
13.2 Beneficiary in the Absence of Designation.
-----------------------------------------
If a deceased Participant or Former Participant has no surviving
spouse and if either no Beneficiary for such Participant or Former
Participant shall have been designated or if all those designated
as his Beneficiary shall die prior to the death of such Participant
or Former Participant, then the Beneficiary shall be one of the
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following: his surviving children per stirpes; if there are no
surviving children, then his surviving parents per stirpes; if
there are no surviving parents, then his surviving brothers and
sisters per stirpes; if there are no surviving brothers or sisters,
then the estate of such Participant or Former Participant. If any
Beneficiary shall die after becoming entitled to receive
distribution hereunder and before such distribution is made in
full, and if no other Beneficiary shall have been designated to
receive the balance of such distribution upon the happening of such
contingency, the estate of such deceased Beneficiary shall become
the Beneficiary as to such balance.
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ARTICLE XIV
ADMINISTRATION
14.1 Authority of Company.
--------------------
The Company shall have all the powers and authority expressly
conferred upon it herein and further shall have the sole right to
interpret and construe the Plan, and to determine any disputes
arising thereunder, subject, however, to the provisions of Section
14.3. In exercising such powers and authority, the Company shall
at all times exercise good faith, apply standards of uniform
application, and refrain from arbitrary action. The Company may
employ such attorneys, agents, and accountants as it may deem
necessary or advisable to assist it in carrying out its duties
hereunder. The Company and the Trustee shall be "named
fiduciaries" as that term is defined in Section 402(a)(2) of the
Act. The Company, by action of its Board of Directors, may:
(a) allocate any of the powers, authority, or
responsibilities for the operation and administration of
the Plan, which are retained by it or to it granted by
this Article XIV, to the Trustee; and
(b) designate a person or persons other than the Company to
carry out any of such powers, authority, or
responsibilities;
except that no power, authority, or responsibility of the Trustee
shall be subject to the provisions of paragraph (b) of this Section
14.1, and except that no allocation or delegation by the Company of
any of its powers, authority, or responsibilities to the Trustee
shall become effective unless such allocation or delegation shall
first be accepted by the Trustee in a writing signed by it and
delivered to the Company.
14.2 Action of Company.
-----------------
Any act authorized, permitted, or required to be taken by the
Company under the Plan, which has not been delegated in accordance
with Section 14.1, may be taken by a majority of the members of the
Board of Directors of the Company, either by vote at a meeting, or
in writing without a meeting. All notices, advice, directions,
certifications, approvals, and instructions required or authorized
to be given by the Company under the Plan shall be in writing and
signed by either (i) a majority of the members of the Board of
Directors of the Company, or by such member or members as may be
designated by an instrument in writing, signed by all the members
thereof, as having authority to
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<PAGE> 61
execute such documents on its behalf, or (ii) a person authorized
to act for the Company in accordance with Section 14.1. Subject to
the provisions of Section 14.3, any action taken by the Company
which is authorized, permitted, or required under the Plan shall be
final and binding upon the Employers, the Trustee, all persons who
have or who claim an interest under the Plan, and all third parties
dealing with the Employers or the Trustee.
14.3 Claims Review Procedure.
-----------------------
Whenever the Company decides for whatever reason to deny, whether
in whole or in part, a claim for benefits filed by any person
(herein referred to as the "Claimant"), the Plan Administrator
shall transmit a written notice of the Company's decision to the
Claimant, which notice shall be written in a manner calculated to
be understood by the Claimant and shall contain a statement of the
specific reasons for the denial of the claim and a statement
advising the Claimant that, within 60 days of the date on which he
receives such notice, he may obtain review of the decision of the
Company in accordance with the procedures hereinafter set forth.
Within such 60-day period, the Claimant or his authorized
representative may request that the claim denial be reviewed by
filing with the Plan Administrator a written request therefor,
which request shall contain the following information:
(a) the date on which the Claimant's request was filed with
the Plan Administrator; provided, however, that the date
on which the Claimant's request for review was in fact
filed with the Plan Administrator shall control in the
event that the date of the actual filing is later than
the date stated by the Claimant pursuant to this
paragraph (a);
(b) the specific portions of the denial of his claim which
the Claimant requests the Plan Administrator to review;
(c) a statement by the Claimant setting forth the basis upon
which he believes the Plan Administrator should reverse
the Company's previous denial of his claim for benefits
and accept his claim as made: and
(d) any written material (offered as exhibits) which the
Claimant desires the Plan Administrator to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section 14.3.
Within 60 days of the date determined pursuant to paragraph (a) of
this Section 14.3, the Plan Administrator shall conduct a full and
fair review of the Company's
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<PAGE> 62
decision denying the Claimant's claim for benefits. Within 60 days
of the date of such hearing, the Plan Administrator shall render
its written decision on review, written in a manner calculated to
be understood by the Claimant, specifying the reasons and Plan
provisions upon which its decision was based.
14.4 Indemnification.
---------------
In addition to whatever rights of indemnification the members of
the Board of Directors of the Company, or any other person or
persons (other than the Trustee) to whom any power authority, or
responsibility of the Company is designated pursuant to paragraph
(b) of Section 14.1, may be entitled under the articles of
incorporation or regulations of the Company, under any provision of
law or under any other agreement, the Company shall satisfy any
liability actually and reasonably incurred by any such member or
such other person or persons, including expenses, attorneys' fees,
judgments, fines, and amounts paid in settlement, in connection
with any threatened, pending or completed action, suit, or
proceeding which is related to the exercising or failure to
exercise by such member or such other person or persons of any of
the powers, authority, responsibilities, or discretion of the
Company as provided under the Plan, or reasonably believed by such
member or such other person or persons to be provided hereunder,
and any action taken by such member or such other person or persons
in connection therewith.
14.5 Qualified Domestic Relations Orders.
-----------------------------------
The Company shall establish reasonable procedures to determine the
status of domestic relations orders and to administer distributions
under domestic relations orders which are deemed to be qualified
orders. Such procedures shall be in writing and shall comply with
the provisions of Section 414(p) of the Code and regulations issued
thereunder. Notwithstanding any other provisions of the Plan to
the contrary, if a qualified domestic relations order so provides,
distribution may be made to an alternate payee pursuant to a
qualified domestic relations order, as defined in Section 414(p) of
the Code, regardless of whether the Participant's Settlement Date
has occurred or whether the Participant is otherwise entitled to
receive a distribution under the Plan.
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ARTICLE XV
TRUSTEE AND TRUST AGREEMENT
The Company has executed a Trust Agreement with the
Trustee, setting forth the terms, provisions, and conditions of a trust for the
Plan, pursuant to which the Trustee shall hold, manage, and administer all
trust property so as to effectuate the provisions of the Plan. The Trust
Agreement is subject to amendment and termination, and the Company may change
the Trustee, all as provided in the Trust Agreement. The terms and provisions
of the Trust Agreement are hereby incorporated by reference.
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ARTICLE XVI
AMENDMENT AND TERMINATION
16.1 Amendment.
---------
Subject to the provisions of Section 16.2, the Company may at any
time and from time to time, by action of its Board of Directors,
amend the Plan, except that the powers and duties of the Trustee
shall not be substantially changed without its approval. Any such
amendment shall be by written instrument executed by the Company
and delivered to the Trustee, and may be made retroactively if in
the opinion of the Company such amendment is necessary to enable
the Plan and Trust Fund to meet the requirements of the Code
(including the regulations and rulings issued thereunder) or the
requirements of any governmental authority.
16.2 Limitation on Amendment.
-----------------------
The Company shall make no amendment to the Plan which shall result
in the forfeiture or reduction of the interest of any Employee,
Participant, Former Participant or person claiming under or through
any one or more of them pursuant to the Plan, except that nothing
herein contained shall restrict the right to amend the provisions
hereof relating to the administration of the Plan and Trust Fund.
Moreover, no such amendment shall be made hereunder of the Trust
Fund which shall permit any part of the property to revert to any
Employer or be used or be diverted to purposes other than the
exclusive benefit of employees, Participants, Former Participants
and Beneficiaries.
16.3 Termination.
-----------
The Company reserves the right, by action of its Board of
Directors, to terminate the Plan as to all Employers at any time,
which termination shall become effective upon notice in writing to
the Trustee (the effective date of such termination being
hereinafter referred to as the "termination date"). The Plan shall
terminate automatically if there shall be a complete discontinuance
of contributions hereunder by all Employers. In the event of the
termination of the Plan, written notice thereof shall be given to
all Participants, Former Participants, and Beneficiaries having an
interest under the Plan and to the Trustee. Upon any such
termination of the Plan, the Trustee, the investment managers, and
the Company shall take the following actions for the benefit of
Participants, Former Participants, and Beneficiaries:
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(a) As of the termination date, the Trustee shall value the
Goodyear Stock Fund and the assets of the Investment
Funds with respect to which no investment manager has
been appointed, and each investment manager shall value
the assets of the Investment Fund with respect to which
he has been appointed. In valuing the Investment Funds
with respect to which no investment manager has been
appointed that consist of mutual funds, the Trustee may
rely on price data supplied by the mutual fund manager.
The Trustee shall then adjust all separate accounts and
sub-accounts in the manner provided in Section 10.1, with
any unallocated contributions being allocated as of the
termination date in the manner otherwise provided in the
Plan. The termination date shall become a valuation date
for purposes of Article X. In determining the net worth
of the Trust Fund hereunder, the Trustee shall include as
a liability such amounts as in its judgment shall be
necessary to pay all expenses in connection with the
termination of the Trust Fund and the liquidation and
distribution of the property of the Trust Fund, as well
as other expenses, whether or not accrued, and shall
include as an asset all accrued income.
(b) The Trustee thereafter shall then dispose of all separate
accounts to or for the benefit of each Participant,
Former Participant, or Beneficiary in accordance with the
provisions of Section 12.3.
Notwithstanding anything to the contrary contained in the Plan upon
any such Plan termination, the interest of each Participant, Former
Participant, and Beneficiary shall be fully vested and
nonforfeitable; and, if there is a partial termination of the Plan,
the interest of each Participant, Former Participant, and
Beneficiary who is affected by such partial termination shall be
fully vested and nonforfeitable. Moreover, no such Plan
termination shall affect the continuance of distributions from any
separate accounts of Former Participants whose Settlement Dates
occurred prior to the termination date in accordance with the
method determined by the Company prior to such date.
16.4 Withdrawal of an Employer.
-------------------------
An Employer other than the Company may, by action of its Board of
Directors, withdraw from the Plan, such withdrawal to be effective
upon notice in writing to the Trustee (the effective date of such
withdrawal being hereinafter referred to as the "withdrawal date"),
and shall thereupon cease to be an Employer for all purposes of the
Plan. An Employer shall be deemed automatically to withdraw from
the Plan in the event of its complete
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discontinuance of contributions, or (subject to Section 16.5) in
the event it ceases to be a subsidiary. The withdrawal of an
Employer shall be treated as a termination of the Plan with respect
to such Employer, and with respect to Participants who at the time
are employed by such Employer. In the event of any such withdrawal
of an Employer, the Trustee, the investment managers, and the
Company shall, as of the withdrawal date, take the action specified
in Section 16.3, as on a termination of the Plan, except that there
shall be a distribution from the separate accounts only in the case
of Participants who are employed solely by the withdrawing
Employer, and who, upon such withdrawal, are neither transferred to
nor continued in employment with any other Employer or a related
corporation. The interest of any Participant employed by such
withdrawing Employer who is transferred to or continues in
employment with any other Employer or a related corporation and the
interest of any Participant employed solely by an Employer other
than the withdrawing Employer, or a related corporation shall
remain unaffected by such withdrawal; no adjustment in his separate
account shall be made by reason of the withdrawal; and he shall
continue as a Participant hereunder subject to the remaining
provisions of the Plan.
16.5 Corporate Reorganization.
------------------------
The merger, consolidation, or liquidation of the Company or any
Employer with or into the Company any other Employer, or a related
corporation shall not constitute a termination of the Plan as to
the Company or such Employer.
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ARTICLE XVII
ADOPTION BY SUBSIDIARIES; EXTENSION
TO NEW BUSINESS OPERATIONS
17.1 Adoption by Subsidiaries.
------------------------
Any subsidiary of the Company which at the time is not an Employer
may, with the consent of the Board of Directors of the Company,
adopt the Plan and become an Employer hereunder by causing an
appropriate written instrument evidencing such adoption to be
executed pursuant to the authority of its board of directors and
filed with the Company and the Trustee.
17.2 Extension to New Business Operations.
------------------------------------
Should any Employer acquire or establish a new plant, division, or
other business operation, such Employer may, by action of its board
of directors, and with the consent of the Chairman of the Board,
the President or an Executive Vice President of the Company, extend
Plan coverage to such plant, division or operation.
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ARTICLE XVIII
MISCELLANEOUS PROVISIONS
18.1 No Commitment as to Employment.
------------------------------
Nothing herein contained shall be construed as a commitment or
agreement upon the part of any Employee hereunder to continue his
employment with an Employer, and nothing herein contained shall be
construed as a commitment on the part of any Employer to continue
the employment or rate of Compensation of any Employee hereunder
for any period.
18.2 Benefits.
--------
Nothing in the Plan nor the Trust Agreement shall be construed to
confer any right or claim upon any person, firm, or corporation
other than the Employers, the Trustee, Participants, Former
Participants, and Beneficiaries.
18.3 No Guarantees.
-------------
No 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 hereunder.
18.4 Expenses.
--------
The expenses of administration of the Plan are considered expenses
of the Plan and shall be paid in total from the Trust Fund and by
the Company. The brokerage expenses of the Goodyear Stock Fund and
the fees of the Trustee shall be paid by the Company. All expenses
of the Investment Funds shall be paid from such Funds.
18.5 Precedent.
----------
Except as otherwise specifically provided, no action taken in
accordance with the Plan by the Employers or the Trustee shall be
construed or relied upon as a precedent for similar action under
similar circumstances.
18.6 Duty to Furnish Information.
---------------------------
Each of the Employers and the Trustee shall furnish to any of the
others any documents reports, returns statements, or other
information that any other reasonably deems necessary to perform
its duties imposed hereunder or otherwise imposed by law.
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18.7 Withholding.
-----------
The Trustee shall withhold any tax which by any present or future
law is required to be withheld, and which the Company notifies the
Trustee in writing is to be so withheld, from any payment to any
Participant, Former Participant, or Beneficiary hereunder.
18.8 Merger, Consolidation, or Transfer of Plan Assets.
-------------------------------------------------
The Plan shall not be merged or consolidated with any other plan
nor shall any of its assets or liabilities be transferred to
another plan, unless, immediately after such merger, consolidation,
or transfer of assets or liabilities, each Participant in the Plan
would receive a benefit under the Plan which is at least equal to
the benefit he would have received immediately prior to such
merger, consolidation, or transfer of assets or liabilities
(assuming in each instance that the Plan had then terminated).
18.9 Back Pay Awards.
---------------
The provisions of this Section 18.9 shall apply only to an Employee
or former Employee who becomes entitled to back pay by an award or
agreement of an Employer without regard to mitigation of damages.
If a person to whom this Section 18.9 applies was or would have
become an Employee after such back pay award or agreement has been
effected, and if any such person who had not previously become a
Participant pursuant to Section 3.1 shall within 30 days of the
date he receives notice of the provisions of this Section 18.9 make
an election to become a Participant in accordance with such Section
3.1 (retroactive to any Enrollment Date as of which he was or has
become eligible to do so), then such Participant may elect that any
Tax-Deferred Contributions not previously made on his behalf but
which, after application of the foregoing provisions of this
Section 18.9, would have been made under the provisions of Article
IV and any After-Tax Contributions which he had not previously made
but which, after application of the foregoing provisions of this
Section 18.9, he would have made under the provisions of Article V,
shall be made out of the proceeds of such back pay award or
agreement. To the extent that any additional Tax-Deferred
Contributions or After-Tax Contributions are made during the month
in accordance with the provisions of the foregoing sentence, his
Employer shall make a Matching Employer Contribution for such month
equal to the amount of the Matching Employer Contribution which
would have been allocated to such Participant under the provisions
of Article VI as in effect during each Plan year to which such
additional contributions relate. The amounts of such
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additional contributions shall be credited to the separate account
of such Participant or Former Participant, as appropriate. Any
additional contributions made by such Participant and by an
Employer pursuant to this Section 18.9 shall be made in accordance
with, and subject to the limitations of the applicable provisions
of Articles IV, V, and VI.
18.10 Condition on Employer Contributions.
-----------------------------------
Notwithstanding anything to the contrary contained in the Plan or
the Trust Agreement, any obligation of an Employer to make any
contribution hereunder hereby is conditioned upon the continued
qualification of the Plan under Section 401(a) of the Code, the
exempt status of the Trust Fund under Section 501(a) of the Code,
and the deductibility of the contribution under Section 404 of the
Code. Except as otherwise provided in this Section 18.10, however,
in no event shall any portion of the property of the Trust Fund
ever revert to or otherwise inure to the benefit of an Employer or
any related corporation.
18.11 Return of Contributions to Participants.
---------------------------------------
Notwithstanding anything to the contrary contained in the Plan or
the Trust Agreement, in the event of the cessation of a
Participant's participation in the Plan, on a day other than the
last day of a month, or in the event of any termination of the
Plan, any After-Tax Contributions which have been deducted from the
Compensation of a Participant and any Tax-Deferred Contributions
which would have reduced his Compensation during such month shall
be returned to such Participant or his Beneficiary, and such
After-Tax Contributions and Tax-Deferred Contributions shall be
treated for all Plan purposes as if they had never been made.
18.12 Return of Contributions to an Employer.
--------------------------------------
The corpus or income of the Trust may not be diverted to or used
for other than the exclusive benefit of the Participants or their
Beneficiaries. Notwithstanding anything to the contrary contained
in the Plan or the Trust Agreement, in the event a Tax-Deferred
Contribution or a Matching Employer Contribution:
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the contribution under
Section 404 of the Internal Revenue Code and such
deduction is disallowed, or
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(c) is conditioned upon the initial qualification of the
Plan, or the continuing qualification of the Plan
following amendment, under Section 401(a) of the Internal
Revenue Code and the Plan does not so qualify,
such a contribution may be returned to the Employer within one (1)
year after the payment of the contribution, the disallowance of the
deduction to the extent disallowed, or the date of denial of the
qualification of the Plan, whichever is applicable.
18.13 Validity of Plan.
----------------
The validity of the Plan shall be determined and the Plan shall be
construed and interpreted in accordance with the laws of the State
of Ohio. The invalidity or illegality of any provision of the Plan
shall not affect the legality or validity of any other part
thereof.
18.14 Parties Bound.
-------------
The Plan shall be binding upon the Employers all Participants,
Former Participants, and Beneficiaries hereunder, and, as the case
may be, the heirs, executors, administrators, successors, and
assigns of each of them.
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ARTICLE XIX
TOP-HEAVY PROVISIONS
--------------------
19.1 Applicability.
-------------
Notwithstanding anything to the contrary contained in the Plan, the
provisions of this Article XIX shall be applicable during any Plan
year in which the Plan is determined to be a top-heavy plan as
hereinafter defined. In the event that the Plan is determined to
be a top-heavy plan and upon a subsequent determination date is
determined to no longer be a top-heavy plan, the vesting provisions
specified in Section 12.2 and the contribution provisions specified
in Section 6.1 shall again become applicable as of such subsequent
determination date; provided however, that in the event such prior
vesting schedule does again become applicable, the provisions of
Section 12.6 shall apply (i) to preserve the nonforfeitable accrued
benefit of any Participant, Former Participant, or Beneficiary and
(ii) to permit any Participant with three years of Continuous
Service to elect to continue to have his nonforfeitable interest in
his Company Stock Fund Account determined in accordance with the
vesting schedule specified in Section 19.3.
19.2 Top-Heavy Definitions.
---------------------
For purposes of this Article XIX, the following definitions shall
apply:
(a) The "determination date" with respect to any Plan year
shall mean the last day of the preceding Plan year (or,
in the case of the first Plan year of the Plan, the last
day of the first Plan year).
(b) The "valuation date" with respect to any determination
date shall mean the most recent revaluation date
occurring within a 12-month period ending on the
determination date.
(c) A "key employee" shall mean any Employee or Former
Employee who is a key employee pursuant to the provisions
of Section 416(i)(1) of the Code and any Beneficiary of
such Employee or Former Employee.
(d) A "non-key employee" shall mean any Employee who is not a
key employee.
(e) A "top-heavy plan" with respect to a particular Plan year
shall mean (i), in the case of a defined contribution
plan, a plan for which, as of the determination date, the
aggregate of the accounts (within
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the meaning of Section 416(g) of the Code and the
regulations and rulings thereunder) of key employees
exceeds 60 percent of the aggregate of the accounts of
all participants under the plan, with the accounts valued
as of the relevant valuation date, (ii), in the case of a
defined benefit plan, a plan for which, as of the
determination date, the present value of the cumulative
accrued benefits payable under the plan (within the
meaning of Section 416(g) of the Code and the regulations
and rulings thereunder) to key employees exceeds 60
percent of the present value of the cumulative accrued
benefits under the plan for all employees, with present
value of accrued benefits to be determined in accordance
with the actuarial assumptions specified in such defined
benefit plan, and (iii) any plan included in a required
aggregation group that is a top-heavy group.
Notwithstanding the foregoing, if a plan is included in a
required or permissive aggregation group that is not a
top-heavy group, such plan shall not be a top-heavy plan.
In the case of a defined benefit plan, the accrued
benefit of a participant other than a key employee shall
be determined under the method, if any, that uniformly
applied for accrual purposes under all defined benefit
plans maintained by the Employer or if there is no such
method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the fractional
rule of Section 411(b)(1)(c) of the Code. For purposes
of this paragraph (e), for any Plan year beginning after
December 31, 1984, the accounts and accrued benefits of
any employee who has not performed an hour of service
during the five-year period ending on the determination
date shall be disregarded.
(f) A "super top-heavy plan" with respect to a particular
Plan year shall mean a plan that, as of the determination
date, would qualify as a top-heavy plan under the
definition in paragraph (e) of this Section 19.2 with "90
percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also
a "super top-heavy plan" if it is part of a super
top-heavy group.
(g) A "required aggregation group" shall include (i) all
plans of each Employer in which a key employee is a
participant, and (ii) all other plans of such Employer,
including any plans terminated during the five-year
period ending in the determination date, which enable a
plan described in (i) to meet the
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requirements of Sections 401(a)(4) or 410 of the Code.
(h) A "permissive aggregation group" shall mean those plans
included in each Employer s required aggregation group
together with any other plan or plans of the Employer, so
long as the entire group of plans would continue to meet
the requirements of Sections 401(a)(4) and 410 of the
Code.
(i) A "top-heavy group"with respect to a particular Plan year
shall mean a required or a permissive aggregation group
if the sum, as of the determination date, of the present
value of the cumulative accrued benefits for key
employees under all defined benefit plans included in
such group and the aggregate of the account balances of
key employees under all defined contribution plans
included in such group exceeds 60 percent of a similar
sum determined for all employees covered by the plans
included in such group.
(j) A "super top-heavy group" with respect to a particular
Plan year shall mean a required or permissive aggregation
group that, as of the determination date, would qualify
as a top-heavy group under the definition in paragraph
(i) of this Section 19.2 with "90 percent" substituted
for "60 percent" each place where "60 percent" appears in
such definition.
19.3 Accelerated Vesting.
-------------------
In the event the Plan is determined to be a top-heavy plan with
respect to any Plan year beginning after December 31, 1983, a
Participant whose Settlement Date occurs during such Plan year
under the conditions specified in paragraph (e) of Section 12.1
shall be vested in a nonforfeitable percentage of the balance of
his sub-account attributable to Matching Employer Contributions
which shall be determined by application of the following vesting
schedule:
<TABLE>
<CAPTION>
Nonforfeitable
Years of Continuous Service Percentage
- --------------------------- --------------
<S> <C>
Less than 2 years 0%
2 years but less than 3 years 25%
3 years but less than 4 years 50%
4 years but less than 5 years 75%
5 years or more 100%
</TABLE>
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<PAGE> 75
19.4 Minimum Employer Contribution.
-----------------------------
In the event the Plan is determined to be a top-heavy plan with
respect to any Plan year beginning after December 31, 1983, the
Employer contributions and forfeitures allocated to the sub-account
attributable to Matching Employer Contributions of each non-key
employee who is a Participant (or who was eligible under Section
3.1 to become a Participant prior to the end of the Plan year but
failed to make the written election described therein) and who is
not separated from service with the Employer as of the end of the
Plan year shall be no less than the lesser of (i) three percent of
his Compensation or (ii) the largest percentage of Compensation
that is allocated for such Plan year to the sub-account
attributable to Matching Employer Contributions of any key
employee; except that, in the event the Plan is part of a required
aggregation group, and the Plan enables a defined benefit plan
included in such group to meet the requirements of Section
401(a)(4) or 410 of the Code, the minimum allocation of Employer
contributions and forfeitures to the sub-account attributable to
Matching Employer Contributions of each such non-key employee shall
be three percent of the Compensation of the non-key employees. Any
minimum allocation to the sub-account attributable to Matching
Employer Contributions of a non-key employee required by this
Section 19.4 shall be made without regard to any social security
contribution made by an Employer on behalf of the non-key employee.
Notwithstanding the minimum top-heavy allocation requirements of
this Section 19.4, in the event that the Plan is a top-heavy plan,
each non-key employee who is a Participant hereunder (or who was
eligible under Section 3.1 to become a Participant prior to the end
of the Plan year but failed to make the written election described
therein) and who is also covered under a top-heavy defined benefit
plan maintained by an Employer will receive the top- heavy benefits
provided under such defined benefit plan in lieu of the minimum
top-heavy allocation under the Plan.
19.5 Adjustments to Section 415 Limitations.
--------------------------------------
In the event that the Plan is a top-heavy plan and an Employer
maintains a defined benefit plan covering some or all of the
Employees that are covered by the Plan, the provisions of
subparagraphs (i) and (ii) of paragraph (d) of Section 9.1 shall be
applied to the Plan by substituting "1.0" for "1.25" each place
where "1.25" appears and Section 415(e)(6)(B)(i) of the Code shall
be applied to the Plan by substituting "$41,500" for "$51,875",
except that such substitutions shall not be applied to the Plan if
(i) the Plan is not a super top-heavy plan, (ii) the Employer
contribution for such Plan year for each non-key
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employee who is to receive a minimum top-heavy benefit hereunder is
not less than four percent of such non-key employee's compensation,
(iii) the minimum annual retirement benefit accrued by a non-key
employee who participates under one or more defined benefit plans
of an Employer or a related corporation is not less than the lesser
of three percent times years of service with an Employer or a
related corporation or thirty percent, and (iv) a non-key employee
who participates under both a defined benefit plan and a defined
contribution plan of an Employer receives an allocation of Employer
contributions and forfeitures equal to at least seven and one-half
percent of his Compensation.
19.6 Compensation Taken Into Account.
-------------------------------
The annual compensation of any Participant to be taken into account
under the Plan during any Plan year in which the Plan is determined
to be a top-heavy plan shall not exceed (a) $200,000 for Plan years
beginning prior to January 1, 1994, or (b) $150,000 for Plan years
beginning on or after January 1, 1994, both subject to adjustment
annually as provided in Section 401(a)(17)(B) and Section 415(d) of
the Code.
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ARTICLE XX
LOANS
20.1 Application for Loan.
--------------------
A Participant may make application to the Company for a loan from
his separate account under the Investment Funds, in accordance with
procedures established by the Company; provided, however, that no
loan in excess of 50% of the Participant's vested interest under
the Plan shall be made hereunder; and, provided further, that the
amount of any loan must be at least $1,000. Loans shall not be
made available to Highly Compensated Employees in an amount greater
than the amount made available to other Employees and shall be
subject to the following additional conditions:
(a) At the time the loan is made, the Participant shall agree
to repay the loan by payroll withholding; provided,
however, that in the event a Participant terminates
employment with the Employer prior to the repayment of
any loan hereunder, such Former Participant may continue
to repay the amount of his loan in monthly payments
forwarded to the Trustee. Any loan may be repaid in
full, without penalty, at any time after the loan has
been in existence for at least three months.
(b) A loan shall not be granted hereunder unless the
Participant consents to the charging of his separate
account in accordance with the provisions of Section 20.5
for unpaid principal and interest in the event the loan
is declared to be in default.
(c) As collateral for a loan granted hereunder, the
Participant shall grant to the Plan a security interest
in such Participant's separate account, which security
interest shall not exceed 50% of such Participant's
vested interest under the Plan, determined as of the date
as of which the loan is made.
(d) A Participant shall not have more than two loans
outstanding at any time from the Plan and all other plans
of the Employer and any related corporation.
(e) Loans shall be made to Participants in accordance with
written procedures established by the Company, which
written procedures are hereby incorporated into and made
a part of the Plan.
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20.2 Reduction of Account Upon Distribution.
--------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
the amount of a Participant's separate account that is
distributable to the Participant or his Beneficiary under the Plan
shall be reduced by the portion of his vested interest that is held
by the Plan as security for any loan outstanding to the
Participant, provided that the reduction is used to repay the loan.
If a distribution is made because of the death of a Participant
prior to the commencement of a distribution of his separate
account, and less than 100% of the Participants vested interest in
his separate account (determined without regard to the preceding
sentence) is payable to such Participant's surviving spouse, then
the balance of the Participant's vested interest in his separate
account shall be adjusted by reducing such Participant's vested
account balance by the amount of the security used to repay the
loan, as provided in the preceding sentence, prior to determining
the amount of the Participant's separate account that is payable to
such Participant's surviving spouse.
20.3 Requirements to Prevent a Taxable Distribution.
----------------------------------------------
Notwithstanding any other provision of the Plan to the contrary,
the following terms and conditions shall apply to any loan made to
a Participant under this Article XX.
(a) The interest rate on any loan made to a Participant
hereunder shall be the "prime rate" (as hereinafter
defined) charged by the Trustee and in effect on the date
the Participant's loan request is made, plus one percent.
For purposes of determining the rate to be used in
calculating the interest charged on loans made hereunder,
the "prime rate" shall be the prime rate set by the
Trustee from time to time as reported by it and as in
effect on the first business day of each month. If the
Trustee does not set a prime rate, the interest rate on
any loan made to a Participant hereunder shall be a
reasonable interest rate commensurate with current
interest rates charged for loans made under similar
circumstances by persons in the business of lending
money.
(b) The amount of any loan to a Participant (when added to
the outstanding balance of all other loans to the
Participant from the Plan and all other plans maintained
by the Employer or a related corporation) shall not
exceed the lesser of:
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(i) $50,000, reduced by the highest outstanding
balance of any other loan to the Participant
from the Plan and all other plans maintained
by the Employer or a related corporation
during the preceding 12-month period; or
(ii) 50% of the vested portion of the
Participant's separate account under the Plan
and his vested interest under all other plans
maintained by the Employer or a related
corporation.
(c) The repayment term of any loan granted to a Participant
hereunder shall be 12, 24, 36, 48 or 54 months, as
specified by the Participant.
(d) Except as otherwise permitted under Treasury regulations,
substantially level amortization shall be required over
the term of the loan with payment being made not less
frequently than quarterly.
20.4 Administration of Loan Investment Fund.
--------------------------------------
Upon approval of a loan to a Participant hereunder, the Company
shall direct the Trustee to establish a Loan Investment Fund in the
name of such Participant, and to transfer to such Loan Investment
Fund such portion of the Participant's separate account invested in
the Investment Funds as shall equal the amount of the Participant's
loan; provided, however, that the portion of the Participant's
investment in the Investment Funds that is to be debited for any
loan to be made to the Participant hereunder shall be in the same
proportion as the Participant's current balance in those Investment
Funds. Any loan approved by the Company shall be made to the
Participant out of the Participant's Loan Investment Fund. All
principal and interest paid by the Participant on a loan made under
this Article XX shall be deposited in his Loan Investment Fund and
shall be transferred, upon receipt, to the Investment Funds in
accordance with the Participant's most recent investment directions
on the date of payment to the Loan Investment Fund. The balance of
the Participant's loan shall be decreased by the amount of
principal payments, and the Loan Investment Fund shall be
terminated when the loan has been repaid in full.
20.5 Default.
-------
If a Participant fails to make, or fails to cause to be made, any
payment required under the terms of the loan within 60 days
following the date on which such payment shall become due, the
Company may direct the Trustee to declare the loan to be in
default, in accordance with the
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provisions of the Plan's written loan procedure, and the entire
unpaid balance of such loan, together with accrued interest, shall
be immediately due and payable. In any such event, if such balance
and interest thereon is not then paid, the Trustee shall charge the
separate account of the borrower with the amount of such balance
and interest as of the earliest date, including the borrower's
Severance Date, if applicable, upon which a distribution may be
made from the Plan to the borrower without adversely affecting
either the tax qualification of the Plan or the qualified status of
the cash or deferred arrangement maintained under the Plan.
20.6 Changes in Employment Status and Transfers of Employment Before
---------------------------------------------------------------
Loan is Repaid in Full.
----------------------
Subject to the provisions of Section 3.4, in the event a
Participant:
(a) ceases to be an Employee but continues in the employment
of (i) an Employer in some other capacity or (ii) a
related corporation, and
(b) becomes a participant in
(i) The Goodyear Tire & Rubber Company Employee
Savings Plan for Salaried Employees,
(ii) The Goodyear Tire & Rubber Company Employee
Savings Plan for Hourly Employees, or
(iii) The Goodyear Tire & Rubber Company Employee
Savings Plan for Bargaining Unit Employees,
his separate account under the Plan and his Loan Investment Fund,
if any, shall be transferred to the savings plan in which he
becomes a participant. Any transfer of his separate account and
Loan Investment Fund made in accordance with the provisions of this
Section 20.6 shall be made as soon as administratively practicable
after the Participant's change in employment status or transfer of
employment, subject to compliance with Section 414(l) of the Code
and the regulations thereunder.
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ARTICLE XXI
ELIGIBLE ROLLOVER DISTRIBUTIONS
21.1 Direct Rollover.
---------------
This Article XXI applies to distributions made on or after January
1, 1993. Notwithstanding any provision of the plan to the contrary
that would otherwise limit a distributee's election under this
Article XXI, 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.
21.2 Definitions.
-----------
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: 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 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: An 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.
-76-
<PAGE> 82
(c) Distributee: A distributee includes an Employee or
former Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as
defined in section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former
spouse.
(d) Direct rollover: A direct rollover is a payment by the
plan to the eligible retirement plan specified by the
distributee.
* * *
EXECUTED at Akron, Ohio, this 15th day of December, 1995.
CELERON CORPORATION
By /s/ R. W. Tieken
-----------------
Vice President
Attest:
/s/ J. Boyazis
- --------------
Assistant Secretary
<PAGE> 1
FOURTH AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this 1st day of November, 1995,
by and between The Goodyear Tire & Rubber Company (the "Company") and The
Northern Trust Company (the "Trustee"),
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company
Commingled Trust (the "Trust Agreement") was entered into as of July 1, 1984,
between the Company and Bankers Trust Company, as Trustee; and
WHEREAS, pursuant to Article 12.4 of that certain Commingled Trust
Agreement dated July 1, 1984, and confirmed by letter dated October 30, 1995,
Company has removed Bankers Trust Company as Trustee under the Commingled
Trust; and
WHEREAS, by letter dated October 30, 1995, Company has appointed The
Northern Trust Company as successor Trustee and The Northern Trust Company by
same letter has accepted such appointment; and
WHEREAS, the Trust Agreement has been amended on three prior occasions;
and
WHEREAS, it is desired hereby to further amend the Trust Agreement;
NOW, THEREFORE, the Trust Agreement is hereby amended, effective as of
November 1, 1995, to provide the following:
Wherever in the Trust Agreement the words "Trustee", "Bankers Trust
Company," or "Bankers" appears, such word shall be deemed to mean "The Northern
Trust Company".
Immediately upon receipt of the Fund, Trustee shall directly, or through
its affiliate
<PAGE> 2
Hazlehurst & Associates ("Recordkeeper"), perform recordkeeping services to be
described in a separate written agreement to be entered into between the
Trustee and the Company. The Company hereby approves Trustee's engagement of
Recordkeeper. Any change of Recordkeeper is subject to Company's prior
written approval in its sole discretion. As described in the separate written
agreement, Trustee shall remain responsible for the performance of the
functions described therein, whether performed directly by it or through
Recordkeeper.
Trustee or Recordkeeper will be providing Company with various
communications materials from time to time including, but not limited to,
printed publications, participant correspondence, videotape and audiotape
presentations, telephonic messages and so forth. In doing so, Trustee or
Recordkeeper will be utilizing certain of Company's and its subsidiary's
names, trademarks, tradenames, service marks, logos and other proprietary
designations. Trustee acknowledges that neither it nor Recordkeeper shall
acquire any right, title or interest in such designations by virtue of their
use hereunder.
The Trust Agreement is hereby further amended effective November 1,
1995 in the following particulars:
I. Section 2.3 shall be amended by adding the following provisions
immediately after the end of the first paragraph of that section:
"The Trustee shall use its best efforts in all cases to move
funds expeditiously, but shall in no event be required to advance its own
funds for such purpose. Pending directions from the Recordkeeper to allocate
contributions among the Discretionary or Directed Funds, the Trustee shall
invest the contributions in short term investments in accordance with Section
4.2 hereof."
To the extent that any portion of the Fund is invested in mutual
fund shares, the
2
<PAGE> 3
Company shall initially select such mutual funds and shall be responsible for
retaining the availability of or terminating the availability of such funds
and such portions shall be considered Directed Funds for purposes of this
Agreement. Trustee shall be responsible for entering into appropriate custody
agreements with the sponsor of a bank commingled fund or such other type of
fund as required.
The Company may authorize an Investment Manager to take such
action with respect to assets of a Directed Fund subject to such Investment
Manager's responsibility as are necessary to transfer assets between
collective, commingled or group trust funds maintained by such Investment
Manager or its bank affiliate. In such event, (i) it shall be the
responsibility of the Company to monitor the actions of such Investment
Manager and to determine whether or not such actions comply with the
authorities delegated to such Investment Manager; and, (ii) the Trustee shall
include the total market value of such Directed Fund as reported to it by such
Investment Manager into the reports required of the Trustee under this
Agreement, as well as reporting the activity between the Fund and the Directed
Fund; however, the Trustee shall have no responsibility to incorporate the
daily Directed Fund transactional activity on the individual assets of such
Directed Fund into such reports. Trustee shall have no responsibility to
report the individual assets held in such Directed Fund. Trustee shall
calculate and report the daily unit values on both the Discretionary and
Directed Funds using valuation methods as described in this Agreement to the
extent applicable."
Further, the next following paragraph in Section 2.3 shall be amended
by adding the following phrase "the Company, with respect to assets for which
it has, or has retained investment responsibility" between "shall mean" and
"an investment adviser".
Section 2.4 shall be amended by deleting from the fourth line of the
first paragraph the
3
<PAGE> 4
words "calendar quarter" and substituting therefor the word "month". In
addition, the fourth sentence of Section 2.4 shall be deleted entirely and
the following substituting therefor:
"Assets shall be valued at their fair market values as the Trustee
shall determine in accordance with methods consistently followed and
uniformly applied at the close of business on the day of valuation;
provided, however, the Trustee shall in good faith rely upon the
determination of the issuing insurance company or other financial institution
with respect to the fair market value of each insurance, investment or
other such type of contract and upon the determination of the Investment
Manager with respect to the fair market value of those assets for which it is
responsible for which the Trustee does not have a readily ascertainable
value."
2. 2.7 Loans to participants as provided in the Plans and
described in the guidelines to be approved by the Company will be
administered by the Recordkeeper pursuant to the recordkeeping agreement. As
directed by the Recordkeeper, the Trustee shall distribute cash to such
participants who are granted loans. Loan payments collected by the Company
shall be forwarded to the Trustee. The amount of such loans shall be carried
by the Trustee as an asset of the Trust equal to the combined unpaid
principal balance of all participants. The Trustee shall have no
responsibility for final approval of the guidelines set forth by the
Company as to granting or administering participant loans, or for the
collection and repayment of a loan.
Section 4.2 of the Trust Agreement as previously amended, is
hereby deleted entirely and the following substituted therefor:
"Section 4.2 Subject to contrary instruction from the
Investment Manager, with respect to cash balances of a Directed Fund and in
its discretion with respect to assets of a Discretionary Fund, the Trustee
may from time to time transfer cash to the Trustee or its affiliate as
Trustee of any collective trust fund which is now or hereafter maintained as a
4
<PAGE> 5
medium for the collective investment of funds of pension, profit sharing or
other employee benefit plans and which is qualified under Section 401(a) and
exempt from tax under Section 501(a) of the Internal Revenue Code of 1986, as
amended, and may withdraw any part or all of the assets so transferred; any
assets deposited with the trustees of a collective trust fund shall be held
and invested by the trustee thereunder pursuant to all the terms and
conditions of the Trust Agreement or Declaration of Trust establishing the
fund which are hereby incorporated herein by reference and shall prevail over
any contrary provision of this Trust Agreement."
3. Section 5.2 shall be amended by adding the following to the
end of that section, that is to the end of the parenthetical material: ",
except in a collective short-term investment fund in which the Trustee shall
invest cash, subject to contrary instructions from the Investment Manager, as
provided under Section 4.2."
Section 5.3 is amended by deleting the word "written" from the
thirteenth and eighteenth lines of that section.
Section 5.4 is amended by inserting the word "bank" on the
eighth line between the words "two" and "business".
4. Section 6.1(c) is amended by inserting "except as provided in
Article XVI," at the beginning thereof. The following provisions shall be
added to Section 6.1:
"(d) To transfer assets of a Directed Fund to a common,
collective or commingled trust fund exempt from tax under the Internal
Revenue Code of 1986, as amended, maintained by an Investment Manager or its
affiliate or by another Trustee who is designated by the Company, to be held
and invested subject to all the terms and conditions thereof;
(e) To invest and reinvest assets in units or participation
in regulated investment companies (including those for which the Trustee or
its affiliate is adviser);
5
<PAGE> 6
(f) To enter into insurance, investment or such other types
of contracts issued by an insurance company or other type of financial
institution and the Trustee shall act with respect to any such contract only
as directed by the Investment Manager."
Further, Section 6.2 shall be added to the Trust Agreement, as
follows:
"(a) The Company has established the Goodyear Stock Fund
which is to be composed of investments in common stock of the Company
("Company Stock"). The Company shall notify the Trustee in writing of the
amount of such fund to be maintained in the collective short term investment
fund. Any cash held by the Trustee from time to time in the Goodyear Stock
Fund may be invested in collective short term investment funds of the Trustee.
The Company may authorize and direct the, Trustee in
writing to seek to obtain settlement for sales of Company Stock on an
expedited basis under certain circumstances in which case the Trustee shall
carry out its responsibilities for execution of Company Stock sale
transactions in accordance with such direction and subject to any limitations
expressed therein.
Except for the short term investment of cash, the
Company has limited the investment power of the Trustee in the Goodyear Stock
Fund to the purchase of Company Stock.
(b) A participant shall be a "named fiduciary" under ERISA
to the extent of the parlicipant's authority to direct the investment in,
voting, tender, exchange or sale of Company Stock allocated to the
participant's account and their proportionate share of unallocated Company
Stock."
6.3 An Investment Manager may direct in writing that the custody
of assets of a Directed Fund (other than those invested in a collective or
group trust fund) be maintained with one or more persons or entities
designated by the Investment Manager to maintain custody of assets of a
Directed Fund ("Custodial Agent"). In such event, the Investment Manager
shall
6
<PAGE> 7
approve, and direct the Trustee to enter into a custody agreement with the
Custodial Agent, which custody agreement may authorize the Custodial Agent to
maintain custody of such assets with one or more subagents, (including a
broker or dealer registered under the Securities Exchange Act of 1934 or a
nominee of such broker or dealer). The Custodial Agent shall have custodial
responsibility for any assets maintained with the Custodial Agent or its
subagents pursuant to the custody agreement. Not withstanding any other
provision of this Agreement, including, but not limited to, Section 15.1, the
Company agrees to indemnify The Northern Trust Company from any liability,
loss and expense, including legal fees and expenses, which The Northern Trust
Company may sustain by reason of acting in good faith, in accordance with any
directions of the Investment Manager pursuant to this Section 6.3.
5. The second paragraph of Section 8.1 is hereby amended by
deleting the last sentence from that paragraph. Further, the third paragraph
of Section 8.1 is deleted and the following substituted therefor:
"To the extent, if any, that the Trustee shall be required to
value the assets of any Directed Fund for any purpose, including any
accounting as hereinabove provided, the Trustee may carry out such valuation
in accordance with the procedures for assessing fair market value as provided
in Section 2.4."
6. Section 10.3 is hereby amended by adding the following to the
end of the third line: "or in such other form, including transmission by
electronic means, as agreed upon by such person or committee and the
Trustee,"
7. Section 12.4 is hereby amended by deleting the parenthetical
information on the third from the last and next to the last lines at the end
of the first paragraph and substituting therefor the following:
7
<PAGE> 8
"(including a collective short term investment fund maintained
by the Trustee)"
8. Section 13.1 shall be amended by deleting the words
"New York" at the end thereof and substituting therefor the word "Ohio".
Section 15.1 is hereby amended by inserting "or upon the direction of
the Company," in (i) of the second paragraph thereof, between "or to appoint
such Investment Manager under such Plans," and "or anything omitted to be done
in good faith,". Section 15.1 is further amended by adding the following to
the end of the second paragraph:
", or (iii) as a direct or indirect result of any act or failure to
act in good faith of the Trustee in connection with the purchase, retention,
voting, tender, exchange or sale of Company Stock, except to the extent such
amounts arise from the Trustee's negligent performance of processing functions
in connection with Company Stock that are expressly allocated to the Trustee
under the terms of this Agreement, or from the Trustee's negligent performance
of trade execution responsibilities with respect to Company Stock
transactions, or from intentional wrongdoing of Trustee."
Article XVI is hereby amended by adding the following Section 16.2
immediately following Section 16. 1:
16.2 At least thirty (30) days prior to each annual or special
meeting of its shareholders, the Company shall cause to be sent to each
participant, and to each former participant and beneficiary, a copy of the
proxy solicitation material therefor together with a form requesting that each
such participant, former participant or beneficiary give to the Trustee (or to
a tabulating agent appointed by the Company, provided, however, the Trustee
reserves the right to appoint the tabulating agent if the Trustee, in the
reasonable exercise of its discretion, determines that such appointment by the
Trustee is necessary for it to fulfill its
8
<PAGE> 9
fiduciary responsibilities) his confidential instructions with respect to the
manner in which his proportionate interest in the Company Stock held in the
Goodyear Stock Fund shall be voted by the Trustee. If the participant, former
participant or beneficiary furnishes such instructions to the Trustee or to the
tabulating agent within the time specified in the notification, the Trustee
shall vote such Company Stock in accordance with such instructions.
Furthermore, the Trustee shall vote the Company Stock with respect to which
it or the tabulating agent does not receive instructions as specified above,
and all unallocated Company Stock held in the Goodyear Stock Fund in the same
proportion as it votes the Company Stock for which it received instructions
as specified above. Instructions received from individual participants,
former participants and beneficiaries by the Trustee or the tabulating agent
shall be held in the strictest confidence and shall not be divulged or
released to the Company, its officers, directors or employees."
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first
entered above.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ James Boyazis
--------------------------------------
Title: Vice President
--------------------------------
Attest: /s/ Patricia A. Kemph
----------------------------------
Title: Assistant Secretary
----------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Peter R. Sparrow
--------------------------------------
Title: Vice President
--------------------------------
Attest: /s/ John H. Torn
----------------------------------
Title: Assistant Secretary
----------------------------
9
<PAGE> 10
THIRD AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this 13TH
day of January, 1994, by and between The Goodyear Tire & Rubber Company
(the "Company") and Bankers Trust Company (the "Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber
Company Commingled Trust (the "Trust Agreement") was entered into as of
July 1, 1984, between the Company and the Trustee;
WHEREAS, the Trust Agreement has been amended on two prior
occasions; and
WHEREAS, it is desired hereby further to amend the Trust
Agreement to provide for an updated list of the eligible Plans of the
Company, its subsidiaries and affiliates;
NOW, THEREFORE, Schedule A of the Trust Agreement is hereby
amended, effective as of January 1, 1994, to provide as follows:
SCHEDULE A
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
The Goodyear Tire & Rubber Company Employee
Savings Plan for Salaried Employees
<PAGE> 11
The Goodyear Tire & Rubber Company Employee
Savings Plan for Bargaining Unit Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan Without Matching Contributions
for Bargaining Unit Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan for Hourly Employees
The Goodyear Tire & Rubber Company Employee
Savings Plan for Salaried Expatriate
Employees
Celeron Corporation Employee Savings Plan
* * *
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their duly authorized officers as
of the day and year first entered above.
THE GOODYEAR TIRE &
RUBBER COMPANY
By /s/ Samil F. Gibara
-------------------------------------
Title: Vice President
------------------------------
Attest
/s/ Patricia A. Kemph
------------------------------
Title:
Assistant Secretary
BANKERS TRUST COMPANY
By
--------------------------------------
Title: Vice President
Attest:
------------------------------
Title:
Vice President
- 2 -
<PAGE> 12
SECOND AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
THIS AMENDMENT, made and entered into this day
of December, 1987, by and between The Goodyear Tire & Rubber
Company (the "Company") and Bankers Trust Company (the
"Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust Agreement for The Goodyear
Tire & Rubber Company Commingled Trust (the "Trust Agreement")
was entered into as of July 1, 1984, between the Company and
the Trustee; and
WHEREAS, it is desired hereby to amend the Trust
Agreement to provide for investment of trust assets in an
equity fund maintained by the Trustee;
NOW THEREFORE, Section 4.2 of the Trust Agreement
is hereby amended, effective as of January 1, 1987, to provide
as follows:
4.2 Any other provisions of this Agreement to the contrary
notwithstanding, the Trustee may in its discretion transfer from time
to time, (a) any part or all of the assets of Part C of the Fund, and
(b) cash balances of Parts A and B of the Fund to the trustee of the
General Employee Benefit Trust (hereinafter referred to as the
"General Trust") created by Bankers Trust Company under Declaration of
Trust dated May 28, 1956, as the same may have heretofore been or may
hereafter be amended, to be held subject to all of the provisions
thereof and to be commingled with the assets of other trusts
participating therein; PROVIDED, HOWEVER, that any assets of the Fund
allocated to a Directed Fund shall be transferred to the General
Trust only upon the direction of the Investment Manager and with the
approval of the Trustee of the General
<PAGE> 13
Trust, and provided, further, that any assets of a Directed Fund or of
Parts A and B of the Fund transferred to the General Trust shall be
invested only in one or more special purpose investment funds
established from time to time for the purpose of providing a vehicle
for short term investment of participating trusts. Upon the direction
of the Investment Manager, the Trustee shall cause the withdrawal of
all or part of the equitable share of the Commingled Trust in the
General Trust, subject to the provisions thereof to the extent that
such equitable share is attributable to assets of a Directed Fund. To
the extent of the equitable share of the Commingled Trust in the
General Trust, the General Trust shall be part of each Plan pursuant
to which the Commingled Trust has been adopted. In the event of
conflict between the provisions of this Agreement and the General
Trust, the provisions of the General Trust shall control.
* * *
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their duly authorized
officers as of the day and year first entered above.
THE GOODYEAR TIRE & RUBBER COMPANY
By /s/ G. R. Heigieries
--------------------------------
Title: Vice President
Attest:
P. A. Kemph
------------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY
By /s/ Robert M. Bynke
--------------------------------
Title: Vice President
Attest:
Ronni E. Weiss
------------------------------
Title: Assistant Vice President
0055P
<PAGE> 14
FIRST AMENDMENT
TO
TRUST AGREEMENT
FOR
THE GOODYEAR TIRE & RUBBER COMPANY
COMMINGLED TRUST
WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber
Company Commingled Trust (the "Trust Agreement"), was entered into as of
July 1, 1984, between The Goodyear Tire & Rubber Company (the "Company")
and Bankers Trust Company; and
WHEREAS, it is desired hereby to amend the Trust Agreement
to provide a procedure for the disposition of the stock of the Company
during a tender offer;
NOW, THEREFORE, the Trust Agreement is hereby amended in
the respects hereinafter set forth:
1. The Trust Agreement is amended by the addition of new
Article XVI at the end thereof to provide as follows:
ARTICLE XVI
-----------
SECTION 16.1. In the event that any
person (other than the Company or any affiliate
thereof) shall make a tender offer for any Company
Stock, the Company undertakes to promptly provide
a copy of the offer, and any other material infor-
mation concerning such offer, to each Plan par-
ticipant who has an account invested in Company
Stock together with a form for furnishing to the
Trustee instructions as to whether Company Stock
credited to such accounts should be tendered.
Each participant may elect that all, but not less
than all, of the Company Stock credited to his
account be tendered by the Trustee on his behalf.
Upon receipt of instructions from a participant
to so tender, the Trustee shall tender all such
<PAGE> 15
Company Stock credited to such participant's
account. Any Company Stock held by the Trustee
as to which it receives no instruction from the
participant to whose account such stock is cred-
ited shall not be tendered. In the event that
the 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 con-
fidential and accurate tabulation and timely
tender by the Trustee. Any securities 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 to take
pursuant to the Plan. Notwithstanding anything
in this Agreement to the contrary, during the
period of any tender offer for Company Stock, the
Trustee shall refrain from making purchases of
Company Stock under this Agreement.
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 16.1.
The Company hereby agrees to hold the
Trustee harmless and to indemnify the Trustee
from and against any and all losses, claims, dam-
ages, liabilities or expenses whatsoever (includ-
ing, but not limited to, any and all expenses
reasonably incurred in investigation, preparing
or defending against any litigation or proceed-
ing, commenced or threatened, or any claim what-
soever), (a) arising out of, relating to or in
connection with any tender offer of the kind
referred to above, whether in respect of the
solicitation of directions from Plan partici-
pants, 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 in-
strument, document or other material furnished
by or through the Company to Plan participants,
or otherwise used by the Company or authorized by
it for use in respect of, any such tender offer
or arising out of or based upon an omission or
alleged omission to state a material fact re-
quired to be stated or necessary to make other
- 2 -
<PAGE> 16
statements made in any such material not mislead-
ing, except, solely in the case of indemnifica-
tion pursuant to clause (a), for a loss, claim,
damage, liability or expense primarily attrib-
utable to the bad faith or negligence of the Trus-
tee. If a claim is made against the Trustee, the
Trustee shall notify the Company of any action
commenced against the Trustee within a reasonable
time after the Trustee shall have been served
with the summons or other first legal process
giving information as to the nature and basis of
the claim. However, failure to so notify the
Company shall not relieve the Company from any
liability which it may have on account of this
indemnity or otherwise of the Trustee shall sus-
tain the burden of proving that the Company has
not been prejudiced in any material respect by
such failure. The Company shall not be liable
for any settlement of any proceeding effected
without its written consent, but if settled with
such consent or if there be a final judgment for
the plaintiff after the Trustee has given the
Company reasonable notice of the proceeding, the
Company agrees to indemnify the Trustee from and
against any loss or liability by reason of such
settlement or judgment. The indemnity agreement
set forth above shall remain operative and in
full force and effect whether or not the Trustee
shall have resigned or been replaced and regard-
less or any termination of the Plan or the Trust
or any investigation made by or on behalf of the
Trustee.
EXECUTED at Akron, Ohio, this 20TH day of
November, 1986.
THE GOODYEAR TIRE & RUBBER
COMPANY
By /s/ James R. Glass
----------------------------------
Attest: Title: Executive Vice President
/s/ John M. Russ
--------------------------
Title: Assistant Secretary
BANKERS TRUST COMPANY
By /s/ Robert M. Bynke
----------------------------------
Title: Vice President
Attest:
/s/ Ronnie E. Weiss
--------------------------
Title: Assistant Vice President
<PAGE> 17
COMMINGLED TRUST AGREEMENT
--------------------------
Agreement and Declaration of Trust made as of
July 1, 1984, by and between THE GOODYEAR TIRE & RUBBER
COMPANY, an Ohio corporation (hereinafter referred to as the
"Company") and BANKERS TRUST COMPANY, a New York Corporation
(hereinafter referred to as the "Trustee").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company desires to establish a commingled
trust known as the The Goodyear Tire & Rubber Company Commingled
Trust (the "Commingled Trust") which will serve as a medium for
commingling the assets of the trusts (the "Trusts") established
under the eligible employee benefit plans of the Company, its
subsidiaries and affiliates (the "Plans");
WHEREAS, the Plans listed on Schedule A, annexed
hereto, are eligible Plans of the Company, its subsidiaries
and affiliates; and
WHEREAS, the trust agreements pursuant to which
Trusts have been established provide that the assets thereof
may be transferred to and held by the Trustee in common with
the assets of trusts established under the Plans.
NOW, THEREFORE, the Company and the Trustee agree as
follows:
ARTICLE I
---------
1.1 The Company hereby establishes with the Trustee
a Commingling Trust consisting of such sums of money and
such property acceptable to the Trustee as shall from time to
<PAGE> 18
2
time be paid or delivered to the Trustee from the Trusts and the
earnings and profits thereon. All such money and property, all
investments made therewith and proceeds thereof and all earnings
and profits thereon, less the payments or other distributions
which, at the time of reference, shall have been made by the
Trustee, as authorized herein, are referred to herein as the "Fund"
and shall be held by the Trustee, IN TRUST, and dealt with in
accordance with the provisions of this Agreement.
ARTICLE II
----------
2.1 The assets of a Trust may be transferred to the
the Commingled Trust and such Trust may become a Participating
Trust thereby only if all of the following conditions have
been met:
(a) The Company, or a subsidiary, or an affiliate
has established the Trust;
(b) It is maintained in connection with a Plan
which is qualified under Section 401(a) of the Internal
Revenue Code of 1954, as amended;
(c) Such Trust is qualified under Section 401(a)
of the Internal Revenue Code of 1954, as amended and exempt
from taxation under Section 501(a) such Code, as amended;
(d) The Trust is authorized by the terms of the trust
agreement (the "Trust Agreement") pursuant to which it has
been established to commingle its assets with assets of other
trusts established under the Plans;
(e) The Commingled Trust is maintained at all times as a
domestic trust in the United States;
<PAGE> 19
3
(f) Bankers Trust Company is trustee of such Trust; and
(g) Such Trust is permitted in its governing trust instrument to
commingle its assets with assets of other trusts through the medium of a common,
collective or commingled trust.
The Trusts established under the Plans listed on Schedule
A annexed hereto shall be deemed Participating Trusts as of the
date first written above without any further action on the part of
any one.
2.2 When the assets of a Participating Trust under
the Plan of any subsidiary or affiliate of the Company are
transferred to the Commingled Trust, such subsidiary or affiliate
shall be bound by the decisions, instructions, actions and
directions of the Company under this Agreement and the Trustee
shall be fully protected by the Company and such subsidiary or
affiliate in relying upon such decisions, instructions, actions
and directions of the Company. The Trustee shall not be
required to give notice to or obtain the consent of any such
subsidiary or affiliate with respect to any action which is
taken by the Trustee pursuant to this agreement, and the
Company shall have the sole authority to enforce this Agreement
on behalf of any such subsidiary or affiliate.
2.3 Responsibility for the management and control of the
assets of Plans utilizing the Commingled Trust (including the power
to acquire or dispose of such assets) may be vested in the discretion
of the Company, in the Trustee and/or in such one or more Investment
Managers appointed by the Company pursuant to the provisions of
such Plans. That portion of the Fund for which the Trustee shall
<PAGE> 20
4
have such responsibility is hereinafter referred to as the "Discretion-
ary Fund". Any portion of the Fund over which an Investment Manager
shall have such responsibility is hereinafter referred to as a
"Directed Fund". Allocation of assets of the Fund between or
among any Discretionary or Directed Funds shall be determined by
the Company. For efficiency or convenience of investment or
administration, the Fund or any such Discretionary or Directed Fund
may be divided into such one or more sub-funds as the Company or
the Trustee may deem advisable.
For the purposes of this Agreement, "Investment Manager"
shall mean an investment adviser registered under the Investment
Advisers Act of 1940, a bank (other than the Trustee) as defined
in that Act, or an insurance company qualified to perform invest-
ment management services under the laws of more than one State,
which shall have acknowledged in writing that it is a fiduciary
with respect to all Participating Plans, and which shall have the
power to manage, acquire and dispose of Plan assets.
2.4 The Trustee shall maintain a separate account
reflecting the equitable share in the Fund of each Participating
Trust. For this purpose, the Trustee shall determine the value of
the assets of the Fund as of the last day of each calendar quarter
and as of such other dates as the Trustee may deem appropriate or
the Company may direct. In addition, for the convenience of the
Company, the Company may request the Trustee to include in such
account assets which do not constitute part of the Fund, for the
purposes of determining the value of all of the assets of such
Participating Trusts. Assets shall be valued at their market
<PAGE> 21
5
values at the close of business on the date of valuation, 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 herein to the contrary
notwithstanding, with respect to assets constituting part of a
Directed Fund hereunder or in the event that assets which do not
constitute part of the Fund are included in such valuation or
account at the request of the Company, the Trustee may rely for all
purposes of this Agreement, including for the purpose of determining
the value of such assets as of any quarterly or other valuation
date, on any certified appraisal or other form of valuation submitted
to it by the Investment Manager or by the person or persons controlling
such assets.
2.5 By entering into this Agreement the Trustee does not
assume any responsibility or undertake any duty to enforce payment
of any contribution to any Plan, any responsibility for the adequacy
of the Fund or the funding standards adopted by the sponsor of any
Plan to meet or discharge any pension or other liabilities under
such plan, or any responsibility under the terms of this Agreement
for the management or control of any Directed Funds. No duties or
obligations shall be imposed upon the Trustee unless they have been
specifically undertaken by the express terms of this Agreement.
2.6 Except as may otherwise be permitted by law, at
no time prior to the satisfaction of all liabilities with respect
to participants and their beneficiaries under any Plan shall any
part of the equitable share of such Plan in the Fund be used for,
<PAGE> 22
6
or diverted to, any purposes other than for the exclusive benefit
of such employees and their beneficiaries, and for defraying
reasonable expenses of administering such Plans.
ARTICLE III
-----------
3.1 The Trustee shall:
(a) hold the assets from time to time constituting the
Fund in its own name or in the name of a nominee under such
conditions of custody and safekeeping as it shall deem appropriate
for the particular type of trust asset, and collect all interest,
dividend and other income thereon;
(b) invest and reinvest the Discretionary Fund as pro-
vided in Article IV;
(c) settle purchases and sales for any Directed Fund
upon the instructions of the Investment Manager as provided in
Article V;
(d) pay monies to or on the order of the
Company in accordance with the provisions of each Participating
Trust including, when the Company shall so order, payments
directly to or for the benefit of the members and their benefici-
aries, or to an insurance company to provide, by the purchase of
an annuity contract, or otherwise, for the payment of benefits;
(e) transfer any portion of the Fund on the order of
the Company to any insurance company, bank, or other financial
institution or other trustee to provide an alternative or additional
funding medium or investment vehicle for the management and/or
control of plan assets; and
<PAGE> 23
7
3.2 Any orders pursuant to subparagraphs (d) and (e) of
Article 3.1 may, but need not specify the application to be made
of monies so ordered, and the Trustee may charge such distribution
against any portion of the Fund, as the Company may direct. The
Trustee may assume that any such orders are not contrary to any
applicable law. The Trustee shall not be responsible in any way
respecting the determination, computation, payment or application
of any benefit, for the form, terms or issuer of any contract
issued by an insurance company, bank or other financial institution
which it is directed to purchase with assets of the Fund (whether
or not such contract is purchased to provide primarily for the
payment of benefits under any Plan or primarily as an investment
vehicle or funding medium), for performing any functions under any
insurance or other contract which it may be directed to purchase
and hold as contract holder thereunder (other than the execution of
any documents incidental thereto on the instructions of the Company)
or for the terms of any trust agreement under which any trustee to
which it shall deliver any assets of the Fund on the order of the
Company is acting, or for any other matter affecting the admin-
istration of a Plan by the Company or any other person or persons
to whom responsibility for Plan administration is allocated or
delegated pursuant to the terms of the Plan.
ARTICLE IV
----------
4.1 The Trustee shall invest and reinvest the Discre-
tionary Fund in accordance with the terms of the Trust Agreement as
a single fund without distinction between principal and income in
<PAGE> 24
8
investments authorized in such Parts as may be established hereunder
pursuant to the terms of the Trust Agreement (and as may from time
to time constitute part of the Discretionary Fund pursuant to the
terms of the Plan) in such shares and proportions in accordance
with the terms of the Plan (as certified to the Trustee by the
Company); except that, to the extent permitted in the Trust Agreement,
the Trustee is authorized to hold in the Discretionary Fund uninvested
cash awaiting investment and such additional cash balances as it
shall deem reasonable or necessary to meet anticipated distributions
from or administrative costs of any Plan or the Fund, without
incurring any liability for the payment of interest on such cash.
The Trustee shall discharge the foregoing powers and
discretions in accordance with the funding policy and, to the
extent the Plans provide, guidelines established by the Company
from time to time and communicated in writing to the Trustee. The
Trustee shall have no responsibility with respect to the formulation
of any funding, investment or diversification policy embodied in
any such direction.
In addition, if the Company has exercised its
discretion to vest responsibility for the management and
control of any portion of the Fund in one or more Investment
Managers or, if the Commingled Trust is not the only funding
medium under a Plan, then the Company shall be responsible
under such Plan and this Agreement for determining the diver-
sification policy with respect to the investment of such Plan
assets (including the Fund) for monitoring adherence to such
policy and for advising the Trustee with respect to its
compliance with any investment limitations on Employer or
<PAGE> 25
9
other securities or property contained in such Plan or imposed
on such Plan by applicable statute.
4.2 The Trustee may in its discretion transfer from
time to time cash balances accumulated pursuant to this Agreement
to the trustee of the General Employee Benefit Trust (hereinafter
referred to as the "General Trust") created by Bankers Trust
Company under Declaration of Trust dated May 28, 1956, as the
same may have heretofore been or may hereafter be amended, to
be held subject to all of the provisions thereof and to be
commingled with the assets of other trusts participating
therein; provided, however, that any assets of the Fund allocated
to a Directed Fund shall be transferred to the General Trust
only upon the direction of the Investment Manager and with the
approval of the Trustee of the General Trust, and provided,
further, that any assets transferred to the General Trust shall
be invested only in one or more special purpose investment
funds established from time to time for the purpose of providing
a vehicle for short term investment of participating trusts.
Upon the direction of the Investment Manager, the Trustee shall
cause the withdrawal of all or part of the equitable share of
the Commingled Trust in the General Trust, subject to the
provisions thereof to the extent that such equitable share is
attributable to assets of a Directed Fund. To the extent
of the equitable share of the Commingled Trust in the General
Trust, the General Trust shall be part of each Plan pursuant to
which the Commingled Trust has been adopted. In the event of
conflict between the provisions of this Agreement and the
General Trust, the provisions of the General Trust, shall control.
<PAGE> 26
10
ARTICLE V
---------
5.1 The investment and reinvestment of any Directed Fund
established under this Agreement shall be under the exclusive management
and control of the Investment Manager appointed by the Company. The Trustee
shall not be a party to any agreement with the Investment Manager, and the
terms and conditions of appointment, authority and retention of the
Investment Manager shall be the sole responsibility of the Company.
The Company shall certify in writing to the Trustee:
(a) that it has appointed an Investment Manager in accordance
with procedures provided in each Plan;
(b) that the Investment Manager is an "Investment Manager"
as such term is defined in Article 2.3 of this Agreement; and
(c) the assets of the Fund to be allocated to the Directed Fund
over which such Investment Manager shall have responsibility.
The Investment Manager shall furnish the Trustee from
time to time with the names and signatures of those persons
authorized to direct the Trustee on its behalf hereunder. The
Trustee shall have the right to request that all directions by
an Investment Manager pursuant to this Agreement be in writing and
shall assume no liability hereunder for failure to act pursuant to
such directions unless and until it shall receive directions in
form satisfactory to it.
5.2 All transactions in or from a Directed Fund related
to the acquisition or disposal of assets, as well as all purchases and
sales of assets, shall be made upon such terms and conditions and from or
through such principals and agents,
<PAGE> 27
11
as the Investment Manager shall direct. No directed transactions
shall be executed through the facilities of the Trustee except in
those instances where the Trustee shall make available its facilities
solely for the purposes of temporary investment of cash reserves of a
Directed Fund. (However, nothing herein shall confer any authority or
obligation upon the Trustee to invest or reinvest the cash balances of
any Directed Fund unless and until it receives directions from the
Investment Manager.)
5.3 Supervision of the Investment Manager shall be the
exclusive responsibility of the Company. Therefore, the Trustee
shall be under no duty or obligation to review or to question any
direction of the Investment Manager, or to review the securities or
other property held in any Directed Fund with respect to prudence,
proper diversification of Fund or Plan assets or compliance with any
limitation on the Investment Manager's authority under the terms of
the Plan, any agreement entered into between the Company and the
Investment Manager or imposed by applicable law, or to make any
suggestions to the Company or the Investment Manager with respect to
the investment and reinvestment of any Directed Fund. The Trustee shall
be fully protected in acting or omitting to act in accordance with or in
the absence of the written directions of the Investment Manager and shall
be under no liability for any loss of any kind which may result by reason
of any action taken or omitted by it in good faith in accordance with any
direction of the Investment Manager or by reason of inaction in the
absence of written directions from the Investment Manager.
<PAGE> 28
12
5.4 The Trustee shall not be deemed to have any responsibility
to manage and control any asset held in a Directed Fund upon the resignation
or removal of an Investment Manager unless and until it has been notified in
writing by the Company that the Investment Manager's authority has terminated
and that such Directed Fund assets are to be integrated with the Discretionary
Fund. Such notice shall not be deemed effective until two business days after
it has been received by the Trustee. In the event that the assets of a
Directed Fund shall become integrated at any time with the Discretionary
Fund, the Trustee shall not be liable for any losses to the Fund resulting
from the disposition of any investment made by an Investment Manager or
for the holding of any illiquid or unmarketable securities or the holding
of any other asset acquired by the Investment Manager if the Trustee is
unable to dispose of such investment because of any Securities Laws
restrictions or if an orderly liquidation of such investment is impractical
under prevailing conditions, or for failure to comply with any investment or
diversification limitations imposed by the Company pursuant to the power
reserved to it under Article 4.1 or for any other violation of the terms
of the Agreement, the Plans or applicable law or laws as a result of the
addition of Directed Fund assets to the Discretionary Fund.
5.5 The Trustee shall not be liable for the acts or omissions of any
Investment Manager unless the Trustee knowingly participates in, or knowingly
undertakes to conceal, an act or
<PAGE> 29
1 3
omission of such Investment Manager knowing such act or omission
constitutes a breach of fiduciary responsibility by the Investment
Manager. If the Trustee has knowledge of a breach committed by
the Investment Manager, it shall notify the Company in writing
thereof, and the Company shall thereafter assume full responsi-
bility to all persons interested in the Plans to remedy such
breach.
5.6 It is understood by the parties hereto that while
the Trustee will perform certain ministerial duties (such as
custodial, reporting, recording, and bookkeeping functions) with
respect to Directed Funds, such duties do not involve the exer-
cise of any discretionary authority or other authority to manage
and control assets of the Directed Funds and will be performed
in the normal course by officers and other employees of the
Trustee who are unfamiliar with investment management. It is
agreed between the parties to this Agreement that the Trustee is
not undertaking any duty or obligation expressed or implied to
review and will not be deemed to have any knowledge of or
responsibility with respect to or to have participated in any
transaction involving the investment of the Directed Funds as a
result of the performance of or information received in the course
of performing such ministerial duties. Therefore, in the event
that "knowledge" of the Trustee shall be a prerequisite to im-
posing a duty upon or determining liability of the Trustee under
any Plan or this Agreement or any statute regulating the conduct
of such Trustee with respect to such Directed Funds as a result
<PAGE> 30
14
of any act or omission of the Investment Manager, or as a result
of any transaction engaged in by the Investment Manager, then the
receipt and processing of investment orders or other documents
relating to plan assets by an officer or other employee of the
Trustee engaged in the performance of purely ministerial functions
referred to in this Article 5.6 shall not constitute "knowledge" of
the Trustee.
ARTICLE VI
----------
6.1 Without in any way limiting the powers and discretions
conferred upon the Investment Manager by the other provisions
of this Agreement or by law, any Investment Manager appointed hereunder
shall have the following powers and discretions with respect to the
Directed Fund subject to its management and control, and, upon the
directions of such Investment Manager, 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
carry out such powers and discretions:
(a) to sell, exchange, convey, transfer or otherwise dispose of
any property constituting the Directed Fund by private contract or at public
auction, and no person dealing with the Investment Manager or the Trustee
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 at any future date
<PAGE> 31
1 5
any property acquired for the Directed Fund or to purchase at a future date
any property which it may be authorized to acquire under this Agreement; and
(c) to vote upon any stocks, bonds or other securities;
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 held in the Directed Fund.
Notwithstanding the powers hereinabove conferred on the Trustee,
the Trustee shall purchase and retain Company Stock as provided in the Trust
Agreement regardless of market fluctuations and, in the normal course, the
Trustee shall sell stock only as permitted in the Trust Agreement.
ARTICLE VII
-----------
7.1 The Trustee, with respect to the Discretionary Fund, shall be
vested with all of the powers and discretions vested in the Investment
Manager by Article 6.1.
7.2 In addition, the Trustee is hereby authorized in
its discretion:
<PAGE> 32
16
(a) to register any securities held in the Fund in its
own name or in the name of a nominee and to hold any investment
in bearer form, and to combine certificates representing such
investments with certificates of the same issue held by the
Trustee in other fiduciary capacities 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 any other
person, or to deposit or arrange for the deposit of any securities
issued by the United States Government, or any agency or instru-
mentality 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 Fund;
(b) to employ suitable agents, depositories and coun-
sel, domestic or foreign, and to charge their reasonable expenses
and compensation against the Fund;
(c) to borrow money, with the consent of the Company,
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 Commingled Trust in
interest bearing account deposits maintained by or savings
certificates issued by the Trustee, in its separate corporate
capacity, or in any other banking institution affiliated with
the Trustee;
<PAGE> 33
17
(e) to organize corporations under the laws of any
state for the purpose of acquiring or holding title to any property for
the Fund or to request the Company to appoint another trustee for such
purpose; and
(f) to make any distribution or transfer of the Discretionary
Fund assets in cash or in kind as the Trustee in its absolute discretion
shall determine and, in furtherance thereof, to value such assets, which
valuation shall be conclusive and binding on all persons;
ARTICLE VIII
------------
8.1 The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements and other transactions
hereunder for the Fund (including any Directed Fund) and all accounts,
books and records relating thereto shall be open to inspection and audit
at all reasonable times by any persons designated by the Company.
In addition, within ninety (90) days following the close of
each fiscal year, and within ninety (90) days after the removal or
resignation of the Trustee, the Trustee shall file with the Company a
written account setting forth all receipts and disbursements of the Fund
and all investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Investment Manager, or the
Company or any Committee as herein provided during the period accounted for.
Within sixty
<PAGE> 34
18
(60) days from the date of filing such annual or other account,
the Trustee, if requested by the Company, will also serve copies
of such account upon any persons designated by the Company as
having administrative responsibility with respect to any Plan.
Upon the expiration of ninety (90) days from the date of filing
such account, the Trustee shall be forever released and discharged
from all liability and accountability to the Company or any
person upon whom the Trustee has served a copy of the account
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 for which it shall be responsible hereunder, except with
respect to any such acts or transactions as to which the Company
or any person upon whom the account has been served shall within
such 90 day period file with the Trustee specific written objections.
To the extent, if any, that the Trustee shall be required
to value the assets of any Directed Fund for any purpose, including
any accounting as hereinabove provided, the Trustee may rely for all
purposes of this Agreement on any certified appraisal or other form
of valuation submitted to it by the Investment Manager or responsible
for the management and control of such Directed Fund.
8.2 Except to the extent that Sections 502 and 504 of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as the same
may be amended from time to time, may provide otherwise, in order to
protect the Trust from the expenses which might
<PAGE> 35
19
otherwise be incurred, no one other than the Company may require the
Trustee to account or may institute an action or proceeding against the
Trustee or the Fund. However, nothing herein shall in any way limit the
Trustee's right to bring any action or proceeding to settle its account
or for such other relief as it may deem appropriate.
8.3 The Trustee may from time to time consult with counsel, who may
be counsel to the Company, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder and the
Trustee shall be fully protected, to the extent permitted by law, in acting
in good faith upon the advice of counsel.
ARTICLE IX
----------
9.1 All taxes (excluding transfer taxes on shares of
Company stock distributed to participants or their beneficiaries
that may be levied or assessed under existing or future laws
upon the Fund or the income thereof shall be paid from the Fund.
All other expenses incurred by the Trustee in connection with its
administration of the Commingled Trust, including fees for legal
services rendered to the Trustee (whether or not rendered in
connection with a judicial or administrative proceeding and whether
or not incurred while it is acting as Trustee), such compensation
to the Trustee as may be agreed upon from time to time between
the Trustee and an officer of the Company, and all other proper
<PAGE> 36
20
charges and disbursements of the Trustee, shall be paid in
accordance with the provisions of the Plans but until paid
shall constitute a charge upon the Fund. Any amount paid
from the Fund which is specifically allocable to a particular
Participating Trust or Plan shall be charged against the
equitable share of such Participating Trust or Plan; any amount
paid from the Fund which is allocable to all of the Participating
Trusts shall be charged against the Fund as a whole.
ARTICLE X
---------
10.1 Whenever the provisions of this Agreement require
or permit any action to be taken by the Company or any subsidiary
or affiliate, such action may be taken by the Board of Directors of
the corporation taking the same or by any person authorized to act
on behalf of such corporation by such Board of Directors. Any re-
solution adopted by the Board of Directors of any participating
corporation shall be certified to the Trustee by the Secretary or
an Assistant Secretary of such corporation under its corporate
seal, and the Trustee may rely upon any resolution so certified
until revoked or modified by a further resolution similarly certified
to the Trustee.
10.2 The Company shall furnish the Trustee from time to
time with a certificate of its Secretary or an Assistant Secretary
as to the names and signatures of all persons designated as members
of any committee, and any other person or persons, authorized
to issue orders, requests, instructions and objections to the
<PAGE> 37
21
Trustee pursuant to the provisions of this Agreement including but
not limited to the persons designated pursuant to the Plans to
direct the Trustee under Article 3.1 (d).
10.3 All orders, requests, instructions and objections
of any of the persons or committees authorized to act in accord-
ance with the provisions of this Agreement shall be in writing,
and the Trustee shall be fully protected in acting in accordance
therewith.
10.4 The Trustee shall have the right to assume in the
absence of written notice to the contrary, that no event consti-
tuting a change in membership or authority of any committee or
terminating any Investment Manager's authority has occurred.
ARTICLE XI
----------
11.1 If Bankers Trust Company is at any time acting as a
successor Trustee or succeeds to responsibilities hereunder for
management of plan assets with respect to the Fund (or any portion
thereof), the Company hereby agrees to hold Bankers Trust Company
harmless from and against all taxes, expenses (including counsel
fees), liabilities, claims, damages, actions, suits or other
charges incurred by or assessed against it as successor Trustee,
as a direct or indirect result of any act or omission of a pre-
decessor trustee or any other person charged under any agreement
affecting Fund assets for investment responsibility with respect
to such assets.
<PAGE> 38
22
ARTICLE XII
-----------
12.1 Upon receipt of notice from the Company of the
termination, the disqualification under Section 401(a), or the
withdrawal from the Commingled Trust, of any Participating
Trust or Plan or any part thereof, the Trustee shall withdraw and
segregate the share of the assets of the Fund allocable to such
Participating Trust or Plan or part thereof and shall either
dispose of such segregated share in accordance with the directions
of the Company or continue to hold such segregated share, IN
TRUST, as a separate trust governed by the same provisions as
this Agreement, except that if such segregated share is equal to
an entire Participating Trust or Plan in the Fund, the company or
successor thereto which had established such Participating Trust
or Plan shall thereafter be deemed to be "the Company" for all
purposes of the Agreement. If such segregated share is less than
the entire equitable share of a Participating Trust or Plan in
the Fund, the Company shall certify to the Trustee, that portion
of the equitable share of such Participating Trust or Plan
attributable to the participants and their beneficiaries on whose
account such assets are to be segregated. The Trustee's valuation
of the assets to be withdrawn for such purpose shall be conclusive
and binding on all persons, corporations or others interested in
the Commingled Trust.
12.2 Subject only to Article 2.6, the Company reserves
the right at any time and from time to time to terminate or 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;
<PAGE> 39
23
provided that, no such amendment which affects the rights, duties
or responsibilities of the Trustee may be made without its consent,
and provided further that, except as may be otherwise provided
under Section 403 (c) of ERISA, no instrument of termination or
amendment shall authorize or permit, at any time prior to the sat-
isfaction of all liabilities with respect to the members and their
beneficiaries under the Plans, any part of the corpus or income
of the Fund to be used for or diverted to purposes other than for
the exclusive benefit of such members and their beneficiaries.
12.3 In the event of the termination of the Commingled
Trust as above provided (or of all the Participating Trusts or
Plans under which it was established), the Trustee shall
continue to administer the Fund as hereinabove provided until
all of the purposes for which it has been established have been
accomplished or dispose of the Fund after the payment or other
provision of all expenses incurred in the administration and
termination of the Commingled Trust (including any compensation
to which the Trustee may be entitled), all in accordance with
the written order of the Company or the Committee or any
successor thereto. Until the final distribution of such Fund,
the Trustee shall continue to have and may exercise all of the
powers and discretions conferred upon it by this Agreement.
12.4 The Trustee may be removed by the Company at any
time upon sixty (60) days' notice in writing to the Trustee and
the Committee. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Company and the Committee. Upon
<PAGE> 40
24
such 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 to such successor
trustee the funds and properties then constituting the Fund, or
the Company shall establish an alternative funding medium and the
Trustee shall assign, transfer and pay over the Fund, as then
constituted, upon the directions of the Company. The Trustee is
authorized, however, to reserve such amount as to it may seem
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 to the successor trustee or alterna-
tive funding medium, as the case may be. Notwithstanding any
provision of the Plans or this Agreement to the contrary, the
Trustee is hereby authorized to invest and reinvest such reserves
in any investment or investment vehicle (including the General
Trust) appropriate for the temporary investment of cash reserves
of trusts.
If for any reason the Company cannot or does not act in
the event of the resignation or removal of the Trustee, as herein-
above provided, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor Trustee. Any ex-
penses incurred by the Trustee in connection therewith shall be
paid from the Fund as an expense of administration.
<PAGE> 41
25
12.5 Anything hereinabove to the contrary notwith-
standing, the Trustee may condition its delivery, transfer or
distribution of any asset under this Article upon the Trustee's
receiving assurances satisfactory to it that the approval of ap-
propriate governmental or other authorities has been secured and
that all notice and other procedures required by applicable law
have been complied with.
ARTICLE XIII
------------
13.1 To the extent that State Law shall not have been
preempted by the provisions of the ERISA of 1974 or any other
laws of the United States heretofore or hereafter enacted, as
the same may be amended from time to time, this Agreement shall
be administered, construed and enforced according to the laws of
the State of New York.
ARTICLE XIV
-----------
14.1 The Company shall provide the Trustee with copies
of all documents constituting the Plans at the time the Agreement
is executed by the Company or adopted under any other plan, as
provided in Article II, and all other documents amending or
supplementing the Plans promptly upon their adoption. The
Trustee shall be entitled to rely upon the Company's attention to
this obligation and shall be under no duty to inquire of the
Company as to the existence of any documents not provided by the
Company hereunder.
<PAGE> 42
26
ARTICLE XV
----------
15.1 The Company recognizes that a burden of litigation
may be imposed upon the Trustee, as a result of some act or trans-
action for which it has no responsbility or over which it has no
control under this Agreement.
Therefore, pursuant to a resolution of its Board of
Directors and in consideration of the Trustee's agreeing to enter
into this Agreement, the Company hereby agrees to hold harmless
Bankers Trust Company, individually and as Trustee under said
Agreement, and Bankers Trust Company's directors, officers, and
employees from and against all amounts, including without limita-
tion taxes, expenses (including reasonable counsel fees), liabili-
ties, claims, damages, actions, suits or other charges, incurred
by or assessed against Bankers Trust Company, individually or as
Trustee, or its directors, officers or employees, (i) as a direct
or indirect result of anything done in good faith, or alleged to
have been done, by or on behalf of Bankers Trust Company in
reliance upon the directions of any Investment Manager appointed
by the Company, or any person or committee authorized to act on
behalf of the Company or to appoint such Investment Manager under
such Plans, or anything omitted to be done in good faith, or
alleged to have been omitted, in the absence of such directions,
or (ii) as a direct or indirect result of the failure of the
Company or such person or committee, as a co-fiduciary under said
Plans, directly or through its agents, to adequately, carefully
and diligently discharge its responsibilities with respect to the
selection, supervision and/or retention of any Investment Manager.
<PAGE> 43
27
Anything hereinabove to the contrary notwithstanding,
the Company shall have no responsibility to Bankers Trust Company
under the foregoing investment manager undertaking if Bankers
Trust Company knowingly participated in or knowingly concealed
any act or omission of any Investment Manager knowing that such
act or omission constituted a breach of such Investment Manager's
responsibilities under said Plan, or if Bankers Trust Company
fails to perform any of the duties specifically undertaken by it
under the provisions of said Agreement, or if Bankers Trust Com-
pany fails to act in conformity with the directions of an
authorized representative of the Investment Manager. PROVIDED,
HOWEVER, Bankers Trust Company shall not be deemed to have "parti-
cipated" in a breach by an Investment Manager for the purposes of
this undertaking as a result of the performance by Bankers Trust
Company or its officers, employees or agents of any custodial,
reporting, recording, and bookkeeping functions with respect to
any assets of any Plan managed by an Investment Manager or as a
result of settling purchase and sale transactions entered into by
the Investment Manager, or to have "knowledge" of any such breach
as a result of the information received by Bankers Trust Company
or its officers, employees or agents in the normal course in per-
forming such functions or settling such transactions.
The Company further agrees that the undertakings made
in this Article of this Agreement shall be binding on its suc-
cessors or assigned and shall survive termination, amendment or
<PAGE> 44
28
restatement of this Agreement, or the resignation or removal of
the Trustee, and that this Article shall be construed as a con-
tract 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.
(Corporate Seal)
THE GOODYEAR TIRE & RUBBER COMPANY
Attest: By /s/ James R. Glass
/s/ John Davies ----------------------------------
Assistant Secretary Executive Vice President (Title)
(Corporate Seal) BANKERS TRUST COMPANY
Attest: By /s/ Robert E. Isaacson
----------------------------------
/s/ J. Torn Vice President
Vice President
<PAGE> 45
29
STATE OF OHIO )
:
COUNTY OF SUMMIT )
On this 28TH day of December, in the year 1984,
before me personally came James R. Glass to me known, who, being by
me duly sworn, did depose and say that he resides at Akron, Ohio
that he is Executive Vice President of The Goodyear Tire & Rubber
Company the corporation described in and which executed the above
instrument; that he 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 signed his name thereto by
like order.
/s/ Linda A. Fleming
-------------------------------------------
Notary Public
LINDA A. FLEMING, Notary Public
Residence-Summit County
State Wide Jurisdiction, Ohio
My Commission Expires May 14, 1986
STATE OF NEW YORK )
:
COUNTY OF NEW YORK)
On this 13th day of August , in the year 1984
before me personally came Robert E. Isaacson to me known, who, being
by me duly sworn, did depose and say that he resides at Valley
Stream, N.Y. that he is Vice President of BANKERS TRUST COMPANY, the
corporation described in and which executed the above in-
strument; that he 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 signed his name thereto by
like order.
/s/ Laura Breen
-------------------------------------------
Notary Public
LAURA BREEN
Notary Public, State of New York
No. 41-4757699
Qualified in Queens County
Commission Expires March 30, 1986
<PAGE> 1
EXHIBIT 5.1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201 Employer Identification Number:
51-0269149
Date: AUG 15, 1995 File Folder Number:
340001449
CELERON CORPORATION Person to Contact:
C/O KENT L. MANN WAFEYA A. MANSY
THOMPSON, HINE & FLORY Contact Telephone Number:
1100 NATIONAL CITY BANK BUILDING (513) 684-3079
CLEVELAND, OH 44114 Plan Name:
CELERON CORPORATION EMPLOYEE
SAVINGS PLAN
Plan Number: 009
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated July 12, 1995. The proposed amendments should
be adopted on or before the date prescribed by the regulations under Code
section 401(b).
This determination is also subject to your adoption of the proposed
amendments submitted in your letter(s) dated August 4, 1995. These proposed
amendments should also be adopted on or before the date prescribed by the
regulations under Code Section 401(b).
This determination letter is applicable for the amendment(s) adopted on
December 21, 1994.
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
Letter 835 (DO/CG)
<PAGE> 2
-2-
CELERON CORPORATION
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan satisfies the nondiscriminatory current availablity require-
ments of section 1.401(a)(4)-4(b) of the regulations with respect to those
benefits, rights, and features that are currently available to all employees in
the plan's coverage group. For this purpose, the plan's coverage group
consists of those employees treated as currently benefiting for purposes of
demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ C. Ashley Bullard
----------------------------
C. Ashley Bullard
District Director
Enclosures:
Publication 794
Letter 835 (DO/CG)
<PAGE> 3
INTERNAL REVENUE SERVICE Department of the Treasury
District P.O. Box 2508, Cincinnati, OH 45201
Director FF-340001449
Goodyear Tire and Rubber Company Person to Contact:
1144 East Market Street Denise McMickens
Akron, Ohio 44114 Telephone Number:
216-522-3295
Refer Reply to:
EP/EO
Date: MAY 21, 1986
Name of Trust:
Commingled Trust
Date Trust was Executed:
July 1, 1984
Dear Sir or Madam:
Based on the information supplied, we find that the master (group) trust is a
pooled fund arrangement as described in Revenue Ruling 81-100, 81-13 I.R.B. 32.
The trust is tax exempt under section 501(a) of the Internal Revenue Code with
respect to the funds that equitably belong to its participating trusts that are
qualified under section 401(a). The trust is also tax exempt under section
408(e) with respect to the funds that equitably belong to its participating
individual retirement accounts that are qualified under section 408.
Participation in the master trust is limited to pension, profit-sharing, and
stock bonus plans that are qualified under Code section 401(a) and are tax
exempt under section 501(a) and individual retirement accounts that are
qualified under section 408 and are tax exempt under section 408(e). The trust
is subject to the provisions of section 502 (relating to feeder organizations),
section 503 (relating to prohibited transactions), and sections 511 to 515
(relating to tax on unrelated business income).
The trustee of the master trust is governed by the fiduciary responsibility
provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and,
subject to the exceptions explained in this Act, has full responsibility for
the investment of assets held by the trust.
The information in this letter relates only to the status of the master trust
under the Internal Revenue Code and not to the effect of any other Federal or
local statutes.
Please keep this determination letter in your permanent records. If you have
any questions concerning this matter, please contact the person whose name and
telephone number are shown above.
Sincerely yours,
/s/ James J. Ryan
---------------------------
James J. Ryan
District Director
Letter 1520(P)
<PAGE> 1
EXHIBIT 24
----------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference of this
Registration Statement on Form S-8 of our report dated February 8, 1995
appearing on page 30 of The Goodyear Tire & Rubber Company's Annual Report on
Form 10-K for the year ended December 31, 1994. We also consent to the
incorporation by reference in the Registration Statement of our report dated
December 15, 1995 appearing at Annex A of the Annual Report on Form 11-K of the
Celeron Corporation Employee Savings Plan for the year ended December 31, 1994.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Cleveland, Ohio
December 20, 1995
<PAGE> 1
EXHIBIT 25
----------
THE GOODYEAR TIRE & RUBBER COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, THE GOODYEAR TIRE
& RUBBER COMPANY, a corporation organized and existing under the laws of the
State of Ohio, and the undersigned directors and officers of THE GOODYEAR TIRE
& RUBBER COMPANY, hereby constitute and appoint Robert W Tieken, C Thomas
Harvie, James Boyazis and Richard W Hauman, and any one or more of them, their
true and lawful attorneys-in-fact and agents, to do any and all of the acts and
things and to execute any and all instruments which said attorneys and agents
or any one of them may deem necessary and advisable to enable the said THE
GOODYEAR TIRE & RUBBER COMPANY to comply with the Securities Act of 1933, as
amended (the "Act"), and any rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") in respect thereof, in
connection with the registration under the Act of (i) up to a maximum of
12,000,000 shares of its Common Stock in connection with the operation of The
Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees
(the "Salaried Plan"), which registration shall also register any interests in
the Salaried Plan required to be registered under the Act and the resale of
such shares by certain participants in the Salaried Plan, (ii) up to a maximum
of 5,000,000 shares of Common Stock in connection with the operation of The
Goodyear Tire & Rubber Company Employee Savings Plan for Bargaining Unit
Employees (the "B-U-E Plan"), which registration shall also register interests
in the B-U-E Plan required to be registered under the Act, (iii) up to a
maximum of 2,000,000 shares of Common Stock in connection with the operation of
The Goodyear Tire & Rubber Company Employee Savings Plan for Hourly Employees
(the "Hourly Plan"), which registration shall also register any interests in
the Hourly Plan required to be registered under the Act, and (iv) up to a
maximum of 1,000,000 shares of Common Stock in connection with the operation of
the Celeron Corporation Employee Savings Plan (the "Celeron Plan"), which
registration shall also register any interests in the Celeron Plan required to
be registered under the Act; including specifically the power and authority to
sign the name THE GOODYEAR TIRE & RUBBER COMPANY and the names of the
undersigned directors and officers in the capacities indicated below (i) to (a)
a Registration Statement on Form S-8 in respect of the Salaried Plan, (b) a
Registration Statement on Form S-8 in respect of the B-U-E Plan, (c) a
Registration Statement on Form S-8 in respect of the Hourly Plan, and (d) a
Registration Statement on Form S-8 in respect of the Celeron Plan, or to one or
more Registration Statements on Form S-8 in respect of any combination of said
Plans, (ii) to any and all amendments to or constituting a part of such
Registration Statements which may from time to time be filed with the
Commission, and (iii) to any and all instruments or documents filed with the
Commission as a part of or in connection with such Registration Statements or
amendments thereto. Each of the undersigned hereby ratifies and confirms all
that the said attorneys-in-fact and agents, or any of one or more them, shall
do or cause to be done by virtue hereof.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned have subscribed or caused to be
subscribed these presents this 5th day of December, 1995.
Attest: THE GOODYEAR TIRE & RUBBER COMPANY
/s/ James Boyazis By /s/ Stanley C Gault
- ---------------------- --------------------------------
James Boyazis, Secretary Stanley C Gault,
Chairman of the Board
and
Chief Executive Officer
Director, Chairman of the
Board and Chief Executive
Officer (principal executive /s/ Stanley C Gault
officer) --------------------------------
Stanley C Gault
Executive Vice President
(principal financial officer) /s/ Robert W Tieken
--------------------------------
Robert W Tieken
Vice President and Comptroller /s/ George E Strickler
(principal accounting officer) --------------------------------
George E Strickler
Director /s/ John G Breen
--------------------------------
John G Breen
Director /s/ William E Butler
--------------------------------
William E Butler
Director /s/ Thomas H Cruikshank
--------------------------------
Thomas H Cruikshank
Director /s/ Samir F Gibara
--------------------------------
Samir F Gibara
<PAGE> 3
Director /s/ William J Hudson, Jr
------------------------------------------------
William J Hudson, Jr
Director /s/ Gertrude G Michelson
------------------------------------------------
Gertrude G Michelson
Director /s/ Steven A Minter
------------------------------------------------
Steven A Minter
Director /s/ Agnar Pytte
------------------------------------------------
Agnar Pytte
Director /s/ George H Schofield
------------------------------------------------
George H Schofield
Director /s/ William C Turner
------------------------------------------------
William C Turner
