As filed with the Securities and Exchange Commission on March 11, 1994
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
HERCULES INCORPORATED
A DELAWARE CORPORATION
I.R.S. EMPLOYER IDENTIFICATION NO. 51-0023450
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894
TELEPHONE: 302-594-5000
------------
GLOBAL ENVIRONMENTAL SOLUTIONS, INC.
RETIREMENT SAVINGS PLAN
------------
THOMAS A. CICONTE
Vice President and Controller
HERCULES INCORPORATED
HERCULES PLAZA
1313 NORTH MARKET STREET
WILMINGTON, DELAWARE 19894
TELEPHONE: 302-594-5000
(Agent for service)
------------
Approximate date of commencement of proposed sales to the public: As soon as
practicable after the effective date of this Registration Statement.
All or part of the securities being registered on this Form are to be offered
on a delayed or a continuous basis pursuant to Rule 415 under the Securities
Act of 1933.
------------
<TABLE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------
<CAPTION>
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Offering Regisatration
be Registered Registered(1) per Share(2) Price(2) Fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hercules Incorporated
Common Stock
$25/48 stated value 10,000 shares $114.50 $1,145,000 $394.83
- -------------------------------------------------------------------------------------------------------
</TABLE>
(1) The number of shares being registered represents the maximum number of
shares that may be acquired by the Trustee under the Plan until a new
Registration Statement becomes effective. In addition, pursuant to Rule
416 (c) under the Securities Act of 1933, this Registration Statement
also covers an indeterminate amount of interests to be offered or sold
pursuant to the Plan described herein.
(2) Based on the average of the high (115) and low (114) prices paid for a
share of Common Stock of Hercules as reported on the New York Stock
Exchange Composite Tape on March 7, 1994, in accordance with Rule 457 (c)
under the Securities Act of 1933.
- -------------------------------------------------------------------------------
This Registration Statement, including exhibits, consists of 132 sequentially
numbered pages.
The Exhibit Index is located at page 9.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference
The following documents heretofore filed by the Registrant (File No.
1-496) with the Securities and Exchange Commission are incorporated herein by
this reference and made a part hereof:
(1) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1992; and
(2) Registrant's Quarterly Report on Form 10-Q for the quarterly
periods ended March 31, June 30 and September 30, 1993; and
(3) Description of Common Stock of the Registrant contained in
Registrant's Restated Certificate of Incorporation (dated July 6, 1988) filed
as an exhibit to Registrant's Annual Report on Form 10-K for the year ended
December 31, 1992.
All documents filed by Hercules pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment that indicates that all of the securities offered
hereby have been sold or that deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers
Under the provisions of the By-Laws of the Registrant, each person
who is or was a director or officer of the Registrant shall be indemnified by
the Registrant as of right to the full extent permitted or authorized by the
Delaware General Corporation Law.
Under such law, to the extent that such a person is successful on the
merits or otherwise in defense of any action, suit or proceeding brought
against him by reason of the fact that he is a director or officer of the
Registrant, he shall be indemnified against expenses (including attorneys'
fees) reasonably incurred in connection therewith.
If unsuccessful in defense of a third-party civil suit or a criminal
suit, or if such a suit is settled, such a person shall be indemnified under
such law against both (1) expenses (including attorneys' fees) and (2)
judgments, fines and amounts paid in settlement if he acted in good faith and
<PAGE>
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and with respect to any criminal action, had no
reasonable cause to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
the Registrant, or if such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) incurred in
the defense or settlement of such 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 Registrant, except that if such person is adjudged to be liable in such
a suit for negligence or misconduct in the performance of his duty to the
Registrant, he cannot be made whole even for expenses unless the court
determines that he is fairly and reasonably entitled to indemnity for such
expenses.
In addition, the Registrant has entered into separate indemnification
agreements with each of its directors and with certain of its executive
officers pursuant to which the Registrant has agreed to indemnify, and advance
expenses to, each of its directors and executive officers to the full extent
provided by applicable law and the Registrant's By-Laws as currently in effect.
More specifically, the agreements provide that directors and officers will be
promptly indemnified against expenses (including judgments, fines, penalties
and amounts paid in settlement) incurred in connection with their service to,
or status with, the Registrant or any other corporation, employee benefit plan
or other entity with whom such person is serving at the express written request
of the Registrant. The agreements also set forth the procedures for
determining entitlement to indemnification, the manner of the advancement of
expenses, remedies of the indemnity and certain other matters of a similar
nature.
Under provisions of the Registrant's Restated Certificate of
Incorporation, a director of the Registrant shall have no personal liability to
the Registrant or its stockholders for monetary damages for breach of his
fiduciary duty of care as a director to the full extent permitted by the
Delaware General Corporation Law, as it may be amended from time to time.
The Registrant also maintains insurance policies pursuant to which
directors and officers are insured against certain liabilities, including
certain liabilities arising under the Securities Act of 1933 (the "Securities
Act"), which might be incurred by them in such capacities and against which
they cannot be indemnified by the Registrant.
The foregoing summaries are necessarily subject to the complete text
of Section 145 of the Delaware General Corporation Law that provides for
indemnification of directors and officers in certain circumstances and to the
Restated Certificate of Incorporation, which is included in Hercules current
report on Form 8-K dated May 27, 1987, and incorporated herein by reference,
and are qualified in their entirety by reference thereto.
<PAGE>
Item 8. Exhibits
A complete listing of exhibits required is given in the Exhibit Index
that precedes the exhibits filed with this Registration Statement. An opinion
of counsel (Exhibit Number 5) is not being filed since the securities being
registered are not original issue securities and Registrant undertakes to
submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and will make all changes required by the IRS in
order to qualify the Plan.
Item 9. Undertakings
Registrant hereby undertakes:
1. (a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution not
previously disclosed in this Registration Statement or
any material change to such information in this
Registration Statement;
(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) 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.
2. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of Registrant pursuant to
the foregoing provisions, or otherwise, Registrant has been
<PAGE>
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 Registrant of
expenses incurred or paid by a director, officer or
controlling person of 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, Registrant will, unless in
the opinion of its counsel the matter has been settled by
the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on the 11th day of March, 1994.
By: /s/ Norman F. Whiteley
----------------------------------
Chairman
Management Committee
Global Environmental Solutions, Inc.
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wilmington, State of Delaware, on this 11th
day of March, 1994.
HERCULES INCORPORATED
By: /s/ Thomas L. Gossage
----------------------------------
Thomas L. Gossage
Director, Chairman of the Board,
President and Chief Executive
Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on March 11, 1994.
Signature Capacity
- --------- --------
/s/ Thomas L. Gossage Principal Executive Officer
- -------------------------------------- and Director (Chairman of the
Thomas L. Gossage Board, President and Chief
Executive Officer)
/s/ R. Keith Elliott Principal Financial Officer and
- --------------------------------------- Director (Senior Vice President
R. Keith Elliott and Chief Financial Officer)
/s/ Thomas A. Ciconte Principal Accounting Officer
- --------------------------------------- (Vice President and Controller)
Thomas A. Ciconte
___________________*___________________ Director
Manfred Caspari
___________________*___________________ Director
Richard M. Fairbanks, III
___________________*____________________Director
Edith E. Holiday
___________________*___________________ Director
Robert G. Jahn
___________________*___________________ Director
Gaynor N. Kelley
___________________*___________________ Director
Ralph L. MacDonald, Jr.
___________________*___________________ Director
H. Eugene McBrayer
/s/ Richard Schwartz Director
- ---------------------------------------
Richard Schwartz
___________________*___________________ Director
Lee M. Thomas
*Michael B. Keehan, by signing his name hereto, does hereby sign this document
pursuant to powers of attorney duly executed by the persons named, filed with
the Securities and Exchange Commission as an exhibit to this document, on
behalf of such persons, all in the capacities and on the date stated.
By: /s/ Michael B. Keehan
----------------------------------
Michael B. Keehan
(Attorney-in-Fact)
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibits Numbered Page
4.1 Restated Certificate of Incorporation of the
Registrant (previously filed as an exhibit to
the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1992,
and incorporated herein by reference)
4.2 By-Laws of the Registrant, as revised and
amended (previously filed as an exhibit to the
Registrant's Annual Report in Form 10-K for
the year ended December 31, 1991 (No. 1-496
and incorporated herein by reference)
4.3 Global Environmental Solutions, Inc. 11
Retirement Savings Plan
4.4 Global Environmental Solutions, Inc. 79
Retirement Savings Plan Related Trust
Agreement
4.5 Noble Lowndes Corrections Plan 94
Administration Services Agreement
24 Consent of Independent Accountants 119
25 Powers of Attorney (authorizing execution 121
of Registrant's Registration Statement on
Form S-8 on behalf of certain directors of
Registrant)
Incorporated herein by Reference
Incorporated herein by Reference
GLOBAL ENVIRONMENTAL SOLUTIONS, INC.
RETIREMENT SAVINGS PLAN
ARTICLE I
INTRODUCTION AND EFFECTIVE DATE
1.1 Purpose of Plan. The Global Environmental Solutions, Inc. Retirement
Savings Plan, the terms of which are herein set forth as the same is now in
effect or as hereafter amended from time to time, the Plan"), has been
established by Global Environmental Solutions, Inc., a Delaware Corporation
(the Company"), for the benefit of its eligible employees. The purposes of the
Plan are to foster thrift on the part of the eligible employees by affording
them the opportunity to make regular savings and investments through payroll
deductions in order to provide the opportunity for additional security at
retirement. As an incentive, the Company and its participating related
companies will match a portion of such savings by regular contributions as
provided in the Plan.
Since the Company is a recently created subsidiary of Hercules
Incorporated ("Hercules"), many of the employees of the Company will be
transferees from Hercules. On the Plan Effective Date, all assets and
liabilities of the Hercules Savings and Investment Plan attributable to
Participants in such plan who are employed by the Company on the Plan Effective
Date will be transferred to this Plan and its related Trust. The assets and
liabilities of future employees of the Company who were participants in the
Hercules Savings and Investment Plan shall also be transferred to this Plan as
such participants become employees of the Company.
1.2 Plan and Trust Intended to Qualify. The Plan and the trust created
thereby are for the exclusive benefit of participating employees and their
beneficiaries. They are designed to comply with the Employee Retirement Income
Security Act of 1974, as amended, and to qualify under Section 401(a) of the
Internal Revenue Code of 1986, as amended, as a profit-sharing plan with cash
or deferred arrangement as defined in Section 401(k)(2) of the Internal Revenue
Code. Except as provided in the Plan, in no manner shall any assets held in
trust under the Plan for the benefit of Plan participants revert to the
Company.
1.3 Effective Date. Except as otherwise provided, this Plan, as amended
and restated herein, is effective for payroll periods beginning on or after
January 1, 1994 (the "Plan Effective Date").
<PAGE>
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. The following words and phrases when used in this Plan
with an initial capital letter, unless their context clearly indicates to the
contrary, shall have the respective meanings set forth below in this Section
2.1:
(a) Account. A memorandum account established and maintained by the
Trustee for a Participant pursuant to Section 6.1, in which is reflected the
value of a Participant's entire interest in all assets held in trust under the
Plan.
(b) Actual Contribution Percentage. For the Highly Compensated
Eligible Employees and all other Eligible Employees for a Plan Year, the
average of the Actual Contribution Ratios, expressed as a percentage and
calculated separately for each person in each such group, of the amount of
After-Tax Contributions made by such Eligible Employee for such Plan Year to
the Eligible Emp)oyee Compensation for such Plan Year, determined after any
adjustments made pursuant to Sections 13.2 and 13.5. The Actual Contribution
Percentage of each Eligible Employee shall be rounded to the nearest 1OOth of
1% of such Eligible Employee's Compensation.
(c) Actual Contribution Ratio. An Eligible Employee's Actual
Contribution Ratio is the sum of the After-Tax Contributions and Company
Matching Contributions allocated to the Eligible Employee's account for the
Plan Year, divided by the Eligible Employee's Compensation for the Plan Year.
If an Eligible Employee makes no After-Tax Contributions and receives no
Matching Contributions, the Actual Contribution Ratio of the Eligible Employee
is zero.
(d) Actual Deferral Percentage. For the Highly Compensated Eligible
Employees and all other Eligible Employees for a Plan Year, the average of the
Actual Deferral Ratios, expressed as a percentage and calculated separately for
each person in each such group, of (i) Before-Tax Contributions actually made
by a Participating Company on behalf of an Eligible Employee's Compensation for
such Plan Year, and amounts treated as Before-Tax Contributions for such Plan
Year, determined after any adjustments made pursuant to Section 13.2. The
Actual Deferral Percentage of each Eligible Employee shall be rounded to the
nearest 100th of 1% of such Eligible Employee's Compensation. The Actual
Deferral Percentage of an Eligible Employee who makes no Before-Tax
Contributions is zero.
(e) Actual Deferral Ratio. An Eligible Employee's Actual Deferral
Ratio for the Plan Year is the sum of the Eligible Employee's Before-Tax
Contributions and amounts treated as Before-Tax Contributions for the Plan
Year, divided by the Eligible Employee's Compensation taken into account for
<PAGE>
the Plan Year. If an Eligible Employee makes no Before-Tax Contributions, the
Actual Deferral Ratio of the employee is zero.
(f) Affiliated Company. The Company and any corporation which is a
member of a controlled group of corporations (as defined in Code section
414(b)) which includes the Company; any trade or business (whether or not
incorporated) which is under common control (as defined in Code section 414(c))
with the Company; (c) any organization (whether incorporated or not) which is a
member of an affiliated service group (as defined in Code section 414(m) which
includes the Company; and any other entity required to be aggregated with the
Company pursuant to regulations under Code section 414(o).
(g) Affiliated Employer. Any corporation or other entity within the
meaning set forth in section 1.415-8(c) of the Income Tax Regulations.
(h) After-Tax Contribution. A Participant's contribution to the Plan
pursuant to the Participant's election (provided for in Sections 4.1 and 4.2)
to have a specified percentage of his Benefits Base deducted from pay and
contributed to the Plan as an After-Tax Contribution on his behalf. After-Tax
Contributions are intended to constitute employee contributions within the
meaning of Code section 414(h)(1).
(i) Annual Addition. As defined in Section 14.2. With respect to
each Plan Year, the aggregate amounts credited to a Participant's Account from
Company Matching Contributions, After-Tax Contributions and Before-Tax
Contributions.
(j) Base Pay. The regular monthly salary due to a Participant from a
Participating Company on December 1 of the previous calendar year; in the case
of an hourly paid Participant, the regular basic hourly rate applied to a 173-
hour month (before the application of any Before-Tax Contributions or any
before-tax contributions pursuant to Code section 125 to a welfare benefit
plan, but after any deduction for any other deferred compensation or any
benefits paid under a deferred compensation plan).
For Participants in the Hercules Incorporated Annual Management
Incentive Compensation Plan (MCIP), the computation of Earnings that shall be
used for contribution calculation purposes for the months of January and
February of any year shall be the same as computed for the month of December in
the preceding calendar year. Commencing with the month of March, Benefits Base
shall be computed as defined in the preceding paragraph.
(k) Before-Tax Contribution. A Participating Company's contribution
to the Plan on a Participant's behalf pursuant to an election by the
Participant under Sections 4.1 and 4.2 to defer a designated portion of the
Participant s Benefits Base.
<PAGE>
(l) Beneficiary. Any person, estate or trust who by operation of
law, or under the terms of the Plan, or otherwise, is entitled to receive the
amount, if any, payable under the Plan upon the death of such Participant. A
"designated Beneficiary" is any individual designated or determined in
accordance with Section 17.1, except that it shall not include any person who
becomes a Beneficiary by nature of the laws of inheritance or intestate
succession.
(m) Benefits Base. With respect to each Participant, such
Participant's Base Pay or one-twelfth (1/12) of Earnings for the preceding
calendar year, whichever is greater; provided, however, that for each Plan Year
commencing on or after January 1, 1994, such amount shall not exceed $150,000
(as may be adjusted from time to time in accordance with Code section
401(a)(17)).
(n) Board. The Board of Directors of the Company.
(o) Code. The Internal Revenue Code of 1986, as now in effect or as
hereafter amended from time to time. References to any section or subsection of
the Code are to such section or subsection as the same may from time to time be
amended or renumbered and/or any comparable or succeeding provisions of any
legislation that amends, supplements or replaces such section or subsection.
(p) Committee. The Named Fiduciary appointed by the Board to
administer the Plan. The Committee shall be authorized to delegate some or all
of its nondiscretionary responsibilities for the administration of the Plan to
a third party recordkeeper ("Recordkeeper"). Reference in the Plan to the
Committee shall also mean Recordkeeper to the extent that the Committee has
delegated its duties to the Recordkeeper.
(q) Common Stock. The stock of Hercules Incorporated held in a
Participant's Account.
(r) Company Matching Contribution. A contribution made to the Plan
by a Participating Company pursuant to Section 5.1 which is based upon
Participant Contributions.
(s) Compensation. For each Plan Year, all compensation paid or
payable in cash to a Participant for services performed for any and all
Participating Companies while an Employee and a Participant during that Plan
Year that is currently includable in gross income, unless specifically
excluded. Compensation shall include amounts contributed to the Trust Fund
pursuant to the Plan as Before-Tax Contributions, but shall not include amounts
paid or contributed to any group insurance plan or other employee benefit plan,
if any, established or maintained by the employer of an individual, and
excludable from his gross income, and any compensation paid as a special bonus
or award. The annual Compensation of a Participant taken into account under
the Plan for any Plan Year shall not exceed $150,000, as adjusted from time to
time by the Treasury Secretary in accordance with Code section 401(a)(17). In
<PAGE>
determining the Compensation of a Participant for purposes of the $150,000
limitation, the rules of Code section 414(q)(6) shall apply, except that in
applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the Plan Year. If the $150,000 Compensation
limitation, as adjusted, applies to the combined Compensation of the
Participant and one or more family members, the contribution and allocation
provisions of Article 13.7(b) will be applied by prorating the $150,000
limitation, as adjusted, among the Participant and his family members in
proportion that each such individual's Compensation determined prior to the
application of this limitation bears to the total Compensation of all such
individuals determined prior to the application of this limitation.
(t) Defined Benefit Plan Fraction. For purposes of Section 14.4, the
Defined Benefit Plan Fraction for any year is a fraction, the numerator of
which is the sum of the Participant's projected annual benefits under all the
defined benefit plans (whether or not terminated) maintained by an Affiliated
Employer and the denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect for the limitation year under Section 415(b)(1)(A)
of the Code or (ii) 140 percent of average Section 415 Compensation (as
determined pursuant to Sections 415(b)(1)(B) and 415(b)(3) of the Code).
(u) Defined Contribution Plan Fraction. For purposes of Section
14.4, the Defined Contribution Plan Fraction for any year is a fraction, the
numerator of which is the sum of the annual additions to the Participant's
account under all the defined contribution plans (whether or not terminated)
maintained by an Affiliated Employer for the current and all prior Limitation
Years (including the annual additions as defined in Section 415(c)(2)
attributable to the Participant's nondeductible employee contributions to this
and all other defined benefit plans (whether or not terminated) maintained by
an Affiliated Employer), and the denominator of which is the sum of Maximum
Aggregate Annual Additions for the current and all prior Limitation Years of
service with an Affiliated Employer (regardless of whether a defined
contribution plan was maintained by an Affiliated Employer).
(v) Earnings. The regular salary or wages paid or payable to a
Participant for services rendered to a Participating Company, including
payments for overtime, shift premiums, holidays, vacations taken by employees,
commissions (on a uniform basis as determined by the Board), bonuses or other
performance based compensation awarded under a Participating Company bonus plan
for service rendered during 1969 and thereafter (such bonus awards to be
applied to the years in which they were earned), and Nonoccupational and
Temporary Occupational Disability Benefits and any other form of income, except
as specifically excluded below, for services rendered to the Qualifying
Employer as approved by the Committee. Earnings shall be determined prior to
any deduction for Before-Tax Contributions or before-tax contributions pursuant
<PAGE>
to Code section 125 to a welfare benefit plan. Back-pay payments made as a
result of a back-pay award or agreement shall be applied to the period of such
award or agreement. Earnings shall not include, without limitation, the
following: (i) an amount equal to any deduction for any other deferred
compensation (including any MCIP bonuses deferred) or any benefits paid under a
deferred compensation plan; (ii) the value of any award, transfer or payment
under any restricted stock plan, phantom stock plan, unit incentive plan, stock
option plan or other equity-based compensation plan; (iii) any expatriate or
foreign service allowances, including cost of living adjustments; (iv) any
relocation expense payments or reimbursements; (v) any payments for unused
benefit credits under a plan maintained pursuant to Code section 125; or (vi)
any amounts imputed as income under Code sections 61, 132 or 7872.
(w) Employee. An employee of a participating Company who is:
(i) an individual employed on a full time basis by a
Participating Company at locations to which this Plan has been extended by the
Board, or is extended by the Board from time to time, including employees who
are officers or directors;
(ii) an individual employed full time by any Affiliated Company
of the Company that has elected or later elects, with the permission of the
Company, to adopt this Plan;
(iii) A United States citizen or resident locally employed by a
foreign subsidiary or foreign affiliated company of Company (collectively,
"Foreign Affiliates"), provided the following conditions are met:
(1) The citizen or resident is not represented by a union.
(2) Company owns at least 10% of the voting stock or has an
interest in not less than 10% of the profit of the Foreign
Affiliate employing such citizen or resident, or Company
owns at least 10% of the voting stock of a Foreign
Affiliate or has an interest in not less than 10% of the
profit of the Foreign Affiliate which, in turn, owns at
least 50% of the voting stock of the Foreign Affiliate
which employs such citizen or resident;
(3) Company has entered into an agreement with the United
States Treasury Department to cover for Social Security
purposes all United States citizens or residents employed
by such Foreign Affiliate;
(4) The United States citizen or resident employed by such
Foreign Affiliate is not a participant in any other funded
<PAGE>
pension, profit-sharing, stock bonus or other plan of
deferred compensation whether or not qualified for tax
exemption under the Code, to which someone or some
organization other than Company contributes with respect to
the compensation such citizen or resident receives from the
Foreign Affiliate.
(iv) A United States citizen or resident employed abroad by a
domestic subsidiary corporation of which Company owns 80% or more of the voting
stock, provided the following conditions are met:
(1) The domestic subsidiary corporation of Company:
a. Derives 95% or more of its gross income for the
taxable year and for the two (2) prior taxable years
from sources without the United States and
b. Derives 90% or more of its gross income for the
taxable year and for the two (2) prior taxable years
from the active conduct of a trade or business: and
(2) The United States citizen or resident employed abroad
by such domestic subsidiary corporation is not a
participant in any other funded pension, profit-sharing,
stock bonus or other plan of deferred compensation, whether
or not qualified for tax exemption under the Code, to which
someone or some organization other than Company contributes
with respect to the compensation such citizen or resident
receives from such domestic subsidiary.
(v) a former employee of a Participating Company who, at such
Participating Company's request, is placed on a temporary leave of absence for
purposes of employment by an Affiliated Employer, such temporary leave of
absence not to exceed a period of five (5) years; provided, however, this
subparagraph shall apply only to those individuals who were employed at the
Wilmington, Delaware, office of Company immediately prior to the temporary
leave of absence being granted.
The term "employed full time" shall mean working at least 37.5 hours
per week on a regular basis.
(x) Employee Contributions. Any contribution to the Plan that is
treated at the time the contribution is made as an After-Tax Contribution.
<PAGE>
(y) ERISA. The Employee Retirement Income Security Act of 1974, as
now in effect or as hereafter amended from time to time. References to any
section or subsection of ERISA are to such section or subsection as the same
may from time to time be amended or renumbered and/or any comparable or
succeeding provisions of any legislation that amends, supplements or replaces
such section or subsection.
(z) Excess Aggregate Contributions. With respect to any Plan Year,
the excess of the aggregate amount of the After-Tax and Matching Contributions
actually made on behalf of Highly Compensated Employees for the Plan Year, over
the maximum amount of contributions permitted under the limitations of Section
13.6 of the Plan. For purposes of this paragraph, qualified matching
contributions treated as elective contributions in accordance with
Section 1.401(k)-1(b)(5) are disregarded.
(aa) Excess Amount. The excess of the Participant's Annual Additions
for the Limitation Year over the Maximum Permissible Amount.
(bb) Excess Contributions. With respect to a Plan Year, the excess
of the Elective Contributions on behalf of Eligible Highly Compensated
Employees for the Plan Year over the maximum amount of the contributions
permitted under Section 13.5 of the Plan.
(cc) Excess Deferrals. The excess of a Participant's Elective
Deferrals in a taxable year over the applicable limitation under Section
13.2(a) of the Plan for the taxable year.
(dd) Fair Market Value. The value of an asset as determined in good
faith in accordance with Sections 3(18) and 408 of ERISA (and the regulations
issued thereunder by the Secretary of Labor) and Section 401(a)(28) of the Code
(and any regulations issued thereunder by the Secretary of the Treasury).
(ee) Highly Compensated Participant or Hiqhly Compensated Eligible
Employee. With respect to a Plan Year, any Eligible Employee who is a "highly
compensated employee" within the meaning of Code section 414(q) and the
Regulations thereunder, and generally means an Employee who performed services
for a Participating Company during the 'determination year' and is in one or
more of the following groups:
(i) Employees who at any time during the 'determination year' or
'look-back year' were five percent owners of a Participating Company. 'Five
percent owner' means any person who owns (or is considered as owning within the
meaning of Code Section 318) more than five percent of the outstanding stock of
a Participating Company or stock possessing more than five percent of the total
combined voting power of all stock of a Participating Company or, in the case
of an unincorporated business, any person who owns more than five percent of
<PAGE>
the capital or profits interest in a Participating Company. In determining
percentage ownership hereunder, employers that would otherwise be aggregated
under Code Sections 414(b), (c), (m) and (o) shall be treated as separate
employers.
(ii) Employees who received '415 Compensation' during the 'look-
back year' from a Participating Company in excess of $75,000.
(iii) Employees who received '415 Compensation' during the
'look-back year' from a Participating Company in excess of $50,000 and were in
the Top Paid Group of Employees for the Plan Year.
(iv) Employees who during the 'look-back year' were officers of
a Participating Company (as that term is defined within the meaning of the
Regulations under Code Section 416) and received '415 Compensation' during the
'look-back year' from a Participating Company greater than 50 percent of the
limit in effect under Code Section 415(b)(1)(A) for any such Plan Year. The
number of officers shall be limited to the lesser of (i) 50 employees; or (ii)
the greater of 3 employees or 10 percent of all employees. For the purpose of
determining the number of officers, Employees described in Section 1.59(a),
(b), (c) and (d) shall be excluded, but such Employees shall still be
considered for the purpose of identifying the particular Employees who are
officers. If a Participating Company does not have at least one officer whose
annual '415 Compensation' is in excess of 50 percent of the Code Section
415(b)(1)(A) limit, then the highest paid officer of a Participating Company
will be treated as a Highly Compensated Employee.
(v) Employees who are in the group consisting of the 100
Employees paid the greatest '415 Compensation' during the 'determination year'
and are also described in (b), (c) or (d) above when these paragraphs are
modified to substitute 'determination year' for 'look-back year'.
The 'determination year' shall be the Plan Year for which testing is
being performed, and the 'look-back year' shall be the immediately preceding
twelve-month period.
For purposes of this Section, the determination of '415 Compensation'
shall be made by including amounts that would otherwise be excluded from a
Participant's gross income by reason of the application of Code Sections 125,
402(a)(8), 402(h)(1)(B) and, in the case of Employer contributions made
pursuant to a salary reduction agreement, by including amounts that would
otherwise be excluded from a Participant's gross income by reason of the
application of Code Section 403(b). Additionally, the dollar threshold amounts
specified in (b) and (c) above shall be adjusted at such time and in such
manner as is provided in Regulations. In the case of such an adjustment, the
dollar limits which shall be applied are those for the calendar year in which
the 'determination year' or 'look-back year' begins.
<PAGE>
In determining who is a Highly Compensated Employee, Employees who
are non-resident aliens and who received no earned income (within the meaning
of Code Section 911(d)(2) from a Participating Company constituting United
States source income within the meaning of Code Section 861(a)(3) shall not be
treated as Employees. Additionally, all Affiliated Employers shall be taken
into account as a single employer and Leased Employees within the meaning of
Code Section 414(n)(2) and 414(o)(2) shall be considered Employees unless such
Leased Employees are covered by a plan described in Code Section 414(n)(5) and
are not covered in any qualified plan maintained by a Participating Company.
The exclusion of Leased Employees for this purpose shall be applied on a
uniform and consistent basis for all of a Participating Company's retirement
plans. Highly Compensated Former Employees shall be treated as Highly
Compensated Employees without regard to whether they performed services during
the 'determination year'.
'Highly Compensated Former Employee' means a former Employee who had
a separation year prior to the 'determination year' and was a Highly
Compensated Employee in the year of separation from service or in any
'determination year' after attaining age 55. Notwithstanding the foregoing, an
Employee who separated from service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year
preceding the separation year) or any year after the Employee attains age 55
(or the last year ending before the Employee's 55th birthday), the Employee
either received '415 Compensation' in excess of $50,000 or was a 'five percent
owner'. Highly Compensated Former Employees shall be treated as Highly
Compensated Employees. The method set forth in this Section for determining
who is a 'Highly Compensated Former Employee' shall be applied on a uniform and
consistent basis for all purposes for which the Code Section 414(q) definition
is applicable.
'Highly Compensated Participant' means any Highly Compensated
Employee who is eligible to participate in the Plan.
(ff) Inactive Participant. A former Employee who (i) is receiving
long-term disability benefits under long-term disability plan of a
Participating Company, (ii) is on temporary leave of absence approved by a
Participating Company (other than an Employee described in subsection 2.1(w))
and returns to employment by a Participating Company upon the expiration of
such temporary leave of absence, (iii) has transferred employment to another
entity, whether incorporated or not, in which Company owns directly or
indirectly at least a 20% equity interest, (iv) is on a temporary leave due to
military service, or (v) is subject to an election to defer distribution of his
Account pursuant to Section 8.5, or (b) an Employee who is a member of a
collective bargaining unit and is excluded from participation in the Plan
pursuant to Section 3.1.
<PAGE>
(gg) Investment Manager. Shall mean a bank, insurance company or
investment advisor satisfying the requirements of Section 3(38) of ERISA.
(hh) Key Employee. Any Employee or former Employee who at any time
during the Plan Year or any of the four (4) preceding Plan Years is:
(i) an officer of a Participating Company having an annual
compensation greater than fifty percent (50%) of the amount in effect under
I.R.C. Section 415(b)(1)(A) for any such Plan Year.
(ii) one (1) of the ten (10) Employees having annual
compensation from a Participating Company of more than the limitation in effect
under I.R.C. Section 415(c)(1)(A) and owning (or considered as owning within
the meaning of I.R.C. Section 381) both more than one-half percent (1/2%)
interest and the largest interests in a Participating Company. If two (2)
Employees own identical interests in a Participating Company, the Employee with
the greater annual compensation, from a Participating Company, will be
considered to own the larger interest.
(iii) a five percent (5%) owner of a Participating Company.
"Five percent owner" means any person who owns (or is considered as owning
within the meaning of Code Section 318) more than five percent (5%) of the
outstanding stock of a Participating Company or stock possessing more than five
percent (5%) of the total combined voting power of all stock of a Participating
Company or, in the case of an unincorporated business, any person who owns more
than five percent (5%) of the capital or profits interest in a Participating
Company. In determining percentage ownership hereunder, employers that would
otherwise be aggregated under Code Section 414(b), (c), (m) and (o) shall be
treated as separate employers.
(iv) a one percent (1%) owner of a Participating Company having
an annual compensation from a Participating Company of more than $150,000.
"One percent owner" means any person who owns (or is considered as owning
within the meaning of Code Section 318) more than one percent (1%) of the
outstanding stock of a Participating Company or stock possessing more than one
percent (1%) of the total combined voting power of all stock of a Participating
Company or, in the case of an unincorporated business, any person who owns more
than one percent (1%) of the capital or profits interest in a Participating
Company. In determining per centage ownership hereunder, employers that would
otherwise be aggregated under Code Section 414(b), (c), (m) and (o) shall be
treated as separate employers. However, in determining whether an individual
has "415 Compensation" of more than $150,000, "415 Compensation" from each
employer required to be aggregated under Code Sections 414(b), (c), (m) and (o)
shall be taken into account.
<PAGE>
For purposes of this Section, the determination of "415 Compensation" shall be
made by including amounts that would otherwise be excluded from a Participant's
gross income by reason of the application of Code Section 125, 402(a)(8),
402(h)(1)(B) and, in the case of Employer contributions made pursuant to a
salary reduction agreement, by including amounts that would otherwise be
excluded from a Participant's gross income by reason of the application of Code
Section 403(b). In addition, inherited benefits should retain the character of
the benefits of the Employee who performed the services.
(ii) Limitation Year. The calendar year. All qualified plans
maintained by Company use the same Limitation Year. If the Limitation Year is
amended to a different 12-consecutive month period, the new Limitation Year
must begin on a date within the Limitation Year in which the amendment is made.
(jj) Maximum Aggregate Annual Additions. The maximum aggregate
Annual Additions ("Maximum Aggregate Annual Additions") in any Limitation Year
is the lesser of 125% of the dollar limitation in effect under Section
415(c)(1)(A) of the Code or 25% of the Participant's Section 415 Compensation
for such year.
(kk) Matured Funds. Amounts contributed to the After-Tax
Contributions Account and the Company Contributions Account of a Participant
relevant to such After-Tax Contributions that have been in the Plan for more
than 24 months, plus earnings on all amounts held in the After-Tax
Contributions Account and the Company Contributions Account of the Plan.
(ll) Month of Service. A calendar month during any part of which an
Employee accrues Earnings from an Affiliated Company without regard to the
amount of the Earnings. Service shall be governed by the Rules of Service set
forth in this section of the Plan.
(mm) Nonoccupational and Temporary Occupational Disability Benefits.
The amount of regular salary or wages, excluding premium pay for overtime, a
Participant would have received from the Participating Company if not disabled,
computed at the Participant's regular rate of pay for the number of hours or
period he would normally have been expected to work were it not for the
disability. Such computation shall be limited, however, to the period benefits
would have been paid under a participating Company disability plan.
(nn) Participant. An Employee who has met all the requirements for
participation in this Plan and has enrolled in this Plan in accordance with the
provisions of Section 3.2.
(oo) Participant Contributions. With respect to a particular
Participant, his Before-Tax Contributions and After-Tax Contributions.
<PAGE>
(pp) Participatinq Companv. The Company or any Affiliated Company of
the Company, the board of directors or equivalent governing body of which shall
adopt this Plan and the Trust Agreement by appropriate action with the consent
of the Board. Where the context clearly indicates, "Participating Company"
shall also include a foreign affiliate described in Section 2.1(w)(iii)(2) or a
domestic subsidiary described in Section 2.1(w)(iv)(1). Any such affiliated
company which so adopts this Plan shall be deemed thereby to appoint the
Company, the Committee and the Trustee its exclusive agents to exercise on its
behalf all of the power and authority conferred hereby, or by said Trust
Agreement, upon the Company, and also shall be deemed thereby to accept such
terms of service and other conditions as the said Board may from time to time
determine. The authority of the Company, the Committee and the Trustee to act
as such agents shall continue until the Plan is terminated as to the affiliated
company and the relevant portion of the Trust Fund has been distributed by the
Trustee as provided in Article VIII below.
(qq) Permissive Aggregation Group. The Required Aggregation Group of
plans plus any other plan or plans of the Affiliated Companies which, when
considered as a group with the Required Aggregation Group, would continue to
satisfy the requirements of Code sections 401(a)(4) and 410.
(rr) Plan Year. The 12-month period beginning each January 1 and
ending on the next following December 31.
(ss) Qualified Domestic Relations Order. A qualified domestic
relations order within the meaning of Section 401(a)(13) of the Code.
(tt) Regulations. The applicable regulations issued under the Code,
ERISA or other applicable law, by the Internal Revenue Service, the Labor
Department or any other governmental authority and any proposed or temporary
regulations or rules promulgated by such authorities pending the issuance of
such regulations.
(uu) Required Aggregation Group. Each qualified plan of the
Affiliated Companies in which at least one Key Employee participates, and any
other qualified plan of the Affiliated Companies which enables a plan described
in (1) to meet the requirements of Code sections 401(a)(4) or 410, including
any such plan that has terminated within the prior five Plan Years.
(vv) Retirement. Termination of Employment of a Participant on his
Normal or Deferred Retirement Date.
(i) "Normal Retirement Date" shall be the date on which a
Participant attains age 65.
<PAGE>
(ii) "Deferred Retirement Date" shall be the first day of any
month subsequent to the Participant's Normal Retirement Date.
(ww) Section 415 Compensation. With respect to any Participant for a
Limitation Year, Participant's earned income, wages, salaries and fees for
professional services and other amounts received for personal services actually
rendered in the course of employment with any Affiliated Company (including,
but not limited to, commissions, compensation for services on the basis of a
percentage of profits, bonuses, incentive compensation, imputed income, taxable
moving expenses) which is actually paid or includible in gross income during
such year and excluding: (1) employer contributions to a plan of deferred
compensation which are not includible in the Participant's gross income for the
taxable year in which contributed, or employer contributions under a simplified
employee pension plan to the extent such contributions are deductible by the
Participant, or any distributions from a plan of deferred compensation; (2)
amounts realized from the exercise of a nonqualified stock option, or when
restricted stock (or property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (3)
amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; (4) other amounts which received special tax
benefits, or contributions made by an Affiliated Company (whether or not under
a salary reduction agreement) towards the purchase of an annuity described in
Code section 403(b) (whether or not the amounts are actually excludable from
the gross income of the Participant). Notwithstanding the preceding sentence,
Section 415 Compensation for a Participant who is permanently and totally
disabled (as defined in Code section 37(e)(3)) is the Section Section 415
Compensation such Participant would have received for the Limitation Year if
the Participant had been paid at the rate of Section 415 Compensation paid
immediately before becoming permanently and totally disabled; such imputed
Section 415 Compensation for the disabled Participant may be taken into account
only if the Participant is not an officer, a director or highly compensated,
and contributions made on behalf of such Participant are nonforfeitable when
made.
(xx) Termination of Employment or Terminated Employment. A
separation from service as an employee of a Participating Company or an
Affiliated Company without continuing employment by any other Participating
Company or Affiliated Company, or the disposition of the Company's direct or
indirect ownership interest in an employee's employer that is a Participating
Company or Affiliated Company before the disposition but is not after the
disposition.
(yy) Top-Heavy Plan. This Plan will be deemed to be a Top-Heavy Plan
for any Plan Year if' (i) the Plan is not included in any Required Aggregation
Group or Permissive Aggregation Group and the Top-Heavy Ratio (as defined
below) for the Plan exceeds sixty percent (60%): or (ii) the plan is included
in a Required Aggregation Group but not a Permissive Aggregation Group and the
<PAGE>
Top-Heavy Ratio for the Required Aggregation Group exceeds sixty percent (60%);
or (iii) the Plan is included in a Required Aggregation Group and a Permissive
Aggregation Group and the Top-Heavy Ratio for the Permissive Aggregation Group
exceeds sixty percent (60%).
(zz) Top-Heavy Ratio. The determination of the Top-Heavy Ratio shall
be calculated in accordance with the rules set forth in Code section 416. For
such purpose, the "determination date" and the "valuation date" for each Plan
Year shall be the last day of the preceding Plan Year immediately preceding the
date as to which such determination is made and the present value of a
Participant's accrued benefits under any defined benefit plan shall be
determined using the actuarial assumptions then in use for the purpose of
determining the employer's contribution to such plan.
(aaa) Trust or Trust Fund. One or more trusts or funds established
pursuant to Article VI to which contributions under the Plan will be made and
out of which benefits will be paid to Participants as provided in the Plan,
together with any trust instruments executed in connection therewith.
(bbb) Trust Assets. All assets held in trust pursuant to this Plan
for the exclusive benefit of participating employees and their beneficiaries.
(ccc) Trustee. The Trustee(s) of the Trust Fund(s) established
pursuant to this Plan, including any successor Trustee(s).
(ddd) Valuation Date. The date as of which the total full shares of
Common Stock, cash and other property, if any, credited to a Participant's
Accounts in the Plan are valued. The Valuation Date shall be each business day
of the Plan Year as determined by the Wall Street Investors Services and/or the
New York Stock Exchange.
(eee) Value of Account. A Participant's Account shall be valued on
each Valuation Date. The Participant's Account shall be adjusted on the
Valuation Date to reflect interest, dividends and other distributions, expenses
or similar charges and increases or decreases in the market value of one or
more portfolios chosen by the Participant from those available in the Plan.
The market value (except that of Common Stock) shall be computed based upon
unit values, share prices or other recognized methods of determining market
values of similarly situated assets in employee benefit trust funds. Such
methods of valuation shall be audited by the Committee's designee from time to
time.
The market value of the Participants' Common Stock Account shall be
determined using the closing price on the Valuation Date. However, the Market
Value of Common Stock when sold at the direction of the Participant shall be
the value at which the Common Stock was sold.
<PAGE>
(fff) Voice Technology System or Customer Service Representative.
(i) Voice Technology System (VTS). The interactive voice
communications system maintained by the Recordkeeper and utilized by the
Participants and the Committee in facilitating investment fund changes,
withdrawal and loan requests and benefit payments, and for requesting general
plan information.
(ii) Customer Service Representative (CSR). The individual(s)
designated by the Recordkeeper and utilized by the Participants and the
Committee in facilitating investment fund changes, withdrawal and loan requests
and benefit payments, and for requesting general plan information.
(ggg) Service.
(i) All periods of employment with a Participating Company.
Service shall also include all periods of employment with Hercules
Incorporated, or any other Affiliated Company.
A period of employment begins as of the date the Employee first
completes an Hour of Employment for a Participating Company and ends on the
earlier of the date the Employee resigns, is discharged, retires or dies or, if
the Employee is absent for any other reason, on the first anniversary of the
first day of such absence (with or without pay) from a Participating Company.
If an Employee is absent for any reason and returns to the employ of a
Participating Company before incurring a Break-in-Service, as provided in
Subsection (b), he shall receive credit for his period of absence up to a
maximum of 12 months. Service subsequent to a Break-in-Service will be
credited as a separate period of employment.
(ii) Break-in-Service. A period of 12-consecutive months during
which an Employee fails to accrue an Hour of Employment with a Participating
Company. Such period begins on the earlier of the date the Employee resigns, is
discharged, retires or dies or, if the Employee is absent for any other reason,
on the first anniversary of the first day of such absence (with or without pay)
from a Participating Company. If an Employee is absent by reason of (i) the
pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the
placement of a child with the Employee in connection with an adoption of such
child by such Employee, or (iv) caring for such child immediately following
such birth or placement, such Employee will not be treated as having retired,
resigned or been discharged and the period between the first and second
anniversary of the first day of such absence shall not be deemed a Break-in-
Service.
(iii) Year of Service. Unless otherwise indicated, 12 Months of
Service.
(iv) Hour of Employment.
<PAGE>
(1) For an Employee paid on an hourly basis or for whom
hourly records of employment are required to be maintained,
each hour for which the person is directly or indirectly
paid or entitled to payment for the performance of duties
or for the period of time when no duties are performed,
irrespective of whether the employment relationship has
terminated, such as vacation, holiday or illness.
(2) For an Employee paid on a non-hourly basis or for whom
hourly records of employment are not required to be
maintained, each week for which the person is directly or
indirectly paid or entitled to payment shall be equal to 45
Hours of Employment.
(3) A person shall receive an Hour of Employment for each
hour for which back pay has been awarded or agreed to
irrespective of mitigation of damages, provided that each
such hour shall be credited to the Applicable Computation
Period to which it pertains, rather than the Applicable
Computation Period in which the award or agreement is made,
and further provided that no such award or agreement shall
have the effect of crediting an Hour of Employment for any
hour for which the person previously received credit under
(1) or (2) above.
(4) Notwithstanding the foregoing, Hours of Employment
shall be computed and credited in accordance with
Department of Labor Regulation 2530.200b-2, Subparagraphs
(b) and (c).
(v) An Employee shall receive credit for the period of his
employment with another business entity to which he had
been transferred by the Company solely for purposes of
determining his vested interest in accordance with Article
IX.
2.2 Construction. Whenever any words are used herein in the masculine
gender, they shall be construed as though they were also used in the feminine
gender in all cases where they would so apply, and wherever any words are used
herein in the singular form they shall be construed as though they were also
used in the plural form in all cases where they would so apply. Headings of
sections and subsections of this Plan are inserted for convenience of
reference, are not a part of this Plan, and are not to be considered in the
construction hereof. The words "hereof," "herein," "hereunder," and other
similar compounds of the word "here" shall mean and refer to the entire Plan,
and not to any particular provision or section. All references herein to
specific Sections or Subsections shall mean Sections or Subsections of this
document unless otherwise qualified.
<PAGE>
ARTICLE III
ELIGIBILITY AND ENROLLMENT
3.1 Eligibility.
(a) Conditions of Eligibility. Every Employee (including officers
and directors who are also Employees) at locations to which this Plan has been
extended by the Board (or is hereafter extended by the Board) shall be eligible
to participate in the Plan as follows:
(i) Each Eligible Employee on January 1, 1994 who was a
participant of the Hercules Savings and Investment Plan shall continue as a
Participant of this Plan as of such date. Subsequently, all Eligible Employees
who were employees of Hercules and were participants in the Hercules Savings
and Investment Plan shall become Participants in this Plan on their first day
of Employment with the Company.
(ii) Each other Eligible Employee shall become a Participant as
of the later of (i) the Effective Date; or (ii) the first day of the month
coincident with or next following the later of the date he completes one Year
of Service or attains age 21.
(iii) If a former Participant is reemployed, he shall be
eligible to resume his participation as of the date of his reemployment or the
first day of any subsequent month.
The Committee shall determine the eligibility of each Employee for
participation in the Plan based upon information furnished by his Employer.
Except as next provided, such determination shall be conclusive and
binding upon all persons, as long as the same shall be made pursuant to the
Plan and ERISA. Such determination shall be subject to review by the Fiduciary
Committee.
(b) Excluded Employees. Notwithstanding the provisions of Subsection
3.1.(a), a "leased employee" (within the meaning of Code section 414(n)(2)) and
Employees who are members of a collective bargaining unit that has bargained in
good faith for separate and alternative retirement benefits (or where such
bargaining has resulted in no pension plan coverage) are not eligible to
participate in this Plan, except as otherwise provided in Article XX unless
such collective bargaining agreement provides for participation in this Plan.
3.2 Enrollment. Participation in this Plan is entirely voluntary. In
order to become a Participant under the Plan, an Employee who is eligible to
participate as provided in Section 3.1 shall make application to his Employer
<PAGE>
by completing and filing, at least thirty (30) days prior to his becoming a
Participant (or such shorter period as the Committee may from time to time
approve), the prescribed enrollment form. Each such enrollment form shall
contain the authorizations, designations and other items as are specified in
Subsection 4.2(a). By signing the enrollment form, an Employee agrees to be
bound by the terms and conditions of the Plan.
3.3 Effective Date of Participation. Once an Employee shall have
satisfied the enrollment requirements of Section 3.2, he shall become a
Participant effective as of the date specified on the enrollment form
("Participation Effective Date").
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.1 Rate of Contributions. A Participant may contribute monthly to the
Trust, by payroll deductions, an amount (rounded to the nearest full dollar)
equal to from one percent (1%) to fifteen percent (15%), in whole percents, of
his Benefits Base for such period. Such contributions shall be invested for
the Participant by the Trustee in accordance with the provisions of Article VI.
As provided below in this Article IV, election of the amount of Contribution by
a Participant shall be made upon enrollment in this Plan, and may be changed to
be effective upon the first day of the next succeeding calendar month following
the Administrator's receipt of the change.
4.2 Contribution Elections.
(a) General. As required by Section 3.2, to participate an Employee
must file a completed enrollment form with the Company. Each such enrollment
form shall (i) specify (in whole percents) his elections as to the percentages
of his Benefits Base to be contributed to the Trust Fund as Before-Tax
Contributions and/or After-Tax Contributions; (ii) authorize payroll deductions
of such Before-Tax Contributions and/or After-Tax Contributions; (iii)
designate his investment election under the provisions of Section 6.2; (iv)
designate one or more Beneficiaries pursuant to the provisions of Article XVII,
and (v) contain such other designations, authorizations, declarations and
undertakings as the Committee shall from time to time require. Any election
made under an earlier version of the Plan that was in effect immediately before
the Effective Date shall remain in effect thereafter, except as otherwise
provided in Subsection 4.2(c).
(b) Before-Tax Contributions. Pursuant to a Participant s election
and authorization as provided in Subsection 4.2(a), and subject to the
limitations set forth in Section 4.3, the Company shall contribute monthly to
the Trust on behalf of each Participant who is an employee thereof an amount
equal to the amount designated by the Participant in the authorization
delivered pursuant to Subsection 4.2(a). Contributions made pursuant to this
<PAGE>
Section shall be transferred to the Trust and, as provided in Section 7.2,
shall be credited to the Participant's Before-Tax Contributions Accounts.
(c) Effectiveness Of Election. A Participant's contribution election
may be made prior to and effective upon his becoming a Participant, and shall
remain in effect until the Participant (i) changes or suspends the election as
provided in Subsections 4.2(c) and (d), or (ii) the Participant withdraws any
amount pursuant to Section 11.2(b). If a Participant ceases to be an Employee,
his contribution election will be terminated, and no further Before-Tax and
After-Tax Contributions will be made to this Plan unless and until he again
becomes an Employee and a new enrollment becomes effective.
(d) Automatic Adjustment of Contributions. In the event of an
adjustment in Base Pay, the amount of contributions shall thereafter be
automatically adjusted in accordance with the percentage set forth in the
contribution election which is in effect at the time the adjustment in Base Pay
is made.
(e) Changes in Contribution Rate. At any time after enrollment, a
Participant may change, as of the first day of the next succeeding calendar
month, his designated rate of contribution for Before-Tax Contributions and/or
After-Tax Contributions, upward or downward within the limits specified in
Section 4.1; provided, however, that no Participant shall be entitled to make
more than one such change in any calendar month. A contribution rate, so
modified, shall thereafter remain in effect as provided in Subsection 4.2(b).
(f) Suspension of Contributions by Participant. A Participant may
suspend Before-Tax Contributions and/or After-Tax Contributions, but only
pursuant to the procedures and subject to the conditions described in Section
10.1. Such a participant may resume contributions only as provided in Section
10.2.
(g) Automatic Discontinuance of Contributions. If a Participant
ceases to be an Employee, he shall no longer be permitted to make Before-Tax or
After-Tax Contributions and all Company Matching Contributions shall be
automatically discontinued as of the date on which such Participant no longer
receives Compensation from the Company. If a Participant elects to withdraw an
amount from his Account pursuant to the provisions of Subsection 11.1(b), such
Participant Contributions shall be automatically discontinued effective for
payments of Base Pay occurring or arranged for (determined by taking into
account the various pay periods and the various administrative procedures
utilized by the Company in the production and distribution of paychecks for
their employees) after the date on which such withdrawal is effective under the
provisions of Article XI.
(h) Status of Funds Upon Suspension or Discontinuance. In the event
that Participant Contributions are suspended pursuant to the provisions of
<PAGE>
Section 10.1 or discontinued under Subsection 4.2(e), funds allocated to the
Participant's Account shall be retained in the Trust. Participants who have
suspended under Section 10.1 may exercise any options available under this Plan
by following applicable procedures for election of such options. Funds
remaining in the Plan shall be subject to the availability for withdrawal as
specified under Article XI. In the event of Termination of Employment, the
provisions of Section 6.6 and Article VIII shall apply.
(i) Termination of Contributions by Participant. Any Participant who
has elected to make Participant Contributions may terminate his authorization
for such contributions at any time by filing a notice with his Employer on
forms provided by such Employer for this purpose. Such notice shall take
effect as soon as administratively feasible after filing of such notice by the
Participant.
(j) Payment of Contributions. Any Participant Contributions made
pursuant to a Participant's Contribution election shall be paid by a
Participating Company into the Trust Fund, for investment according to the
investment options selected by the Participant under Article VI, as soon as
reasonably practicable after the close of each month, but no later than thirty
(30) days after the end of the calendar month in which the contributions are
deducted. The Company shall not have any liability for the payment of interest
on any Participant Contributions.
4.3 Statutory Limits. Before-Tax and After-Tax Contributions by or on
behalf of a Participant are subject to the statutory limitations set forth in
Articles XIII, XIV and XV. Accordingly, the Committee may, in accordance with
Articles XIII, XIV, and XV and applicable provisions of ERISA and the Code,
impose from time to time separate maximum dollar limits on Before-Tax
Contributions and After-Tax Contributions and apply from time to time different
maximum contribution limits to different groups of Participants on the basis of
their Compensation in the immediately preceding and/or current Plan Year. In
this connection, the Company may limit, revoke or amend its commitment to make
Participant Contributions under Section 4.1 on behalf of any Participant at any
time, but only if the Committee determines that such limitation, revocation or
amendment is necessary under one of the following circumstances:
(i) in the case of a Participant's Before-Tax Contributions, to
insure that the dollar limitation specified in Section 13.2 is not exceeded, or
to insure that the nondiscrimination requirements specified in Section 13.5 are
met for such Plan Year; or
(ii) in the case of a Participant's After-Tax Contributions, to
insure that the nondiscrimination requirements of Code section 40!(m) of the
Code specified in Section 13.6 are met for such Plan Year, or to insure that
<PAGE>
special limitation of Section 13.5 is met for such Plan Year; or
(iii) to insure deductibility for federal income tax purposes of all
contributions to this Plan by a Participating Company, as such limit is set
forth in Section 13.4;
(iv) to insure that allocations to a Participant's Account for any
calendar year will not exceed the annual additions limitation specified in
Section 14.2.
4.4 Nonforfeitability and Distribution of Participant Contributions.
As provided in Article IX, for all purposes of this Plan a
Participant shall have at all times a nonforfeitable interest in his
Participant Contributions credited to his Account. Except as otherwise
provided in Article XI, the amount of Participant Contributions credited to a
Participant's Account shall be paid from the Trust Fund to the Participant or
his Beneficiary at the time and in the manner specified in Article VIII.
4.5 Rollovers from Qualified Plans.
(a) General. Without regard to any limit on contributions to this
Plan or allocations to a Participant's account, an Employee eligible to
participate in the Plan, regardless of whether he has satisfied the service
requirements of section 3.1, may be permitted to transfer to the Trust Fund all
or any portion of an eligible rollover distribution, as defined in section
402(c)(4) of the Code and Temporary Treasury Regulations 1.402(c)-2T, Q&A 3 and
4. Such a transfer ("Rollover Contribution") will only be allowed if each of
the following conditions is met:
(i) the contribution occurs on or before the 60th day following
the Participant's receipt of the distribution;
(ii) the amount contributed is not in excess of the cash and
property received in such distribution, less any part thereof attributable to
employee contributions to such plan;
(iii) the contribution is in the form of cash only; and
(iv) the contribution, in the opinion of Company's legal
counsel, will not jeopardize the tax exempt status of the Plan or Trust or
create adverse tax consequences for the Company.
(b) Vesting and Investment. A Participant's interest in his Rollover
Contribution shall be fully vested and nonforfeitable at all times. The
Rollover Contribution shall be invested pursuant to Section 6.2. and shall be
affected by any investment gains or losses. For all other purposes of the Plan
(including provisions relating to withdrawal), amounts credited with respect to
<PAGE>
the Rollover Contributions shall be treated in the same manner as amounts
credited to the After-Tax Contributions Account.
(c) Determination of Requirements Satisfaction. The Committee shall
develop such procedures, and may require such information from an Employee
desiring to make such a transfer, as it deems necessary or desirable to
determine that the proposed transfer will meet the requirement of this Section.
4.6 Plan-to-Plan Asset Transfers. Without regard to any limit on
contributions to the Plan or allocations to a Participant's Account, this Plan
may receive direct asset transfers for the benefit of Participants from any
qualified Code section 401(a) plan, except a plan described in Code section
401(a)(11)(B), which are made in accordance with Code section 414(1) and the
applicable Treasury Regulations promulgated thereunder. Such amounts shall be
transferred only in the form of cash or Hercules Incorporated Common Stock.
Such amounts shall be held in the Trust and a separate accounting shall be made
for them to the extent required by law. Such amounts shall be invested
pursuant to Section 6.2. All such amounts shall be fully vested and their
value shall be paid to the Participant in addition to any other benefits under
this Plan in the manner and at the time specified under the applicable
withdrawal and distribution provisions of the Plan. For all purposes of the
Plan (including provision relating to withdrawal) such amounts shall be treated
entirely or in part in the same manner as either After-Tax Contributions,
Before-Tax Contributions or Company Matching Contributions, as the Committee
shall determine, based on the nature of the amounts transferred. At the sole
discretion of the Committee, the Plan may transfer Trust assets to any
qualified Code section 401(a) plan in which the Participant participates. The
Plan may execute a plan-to-plan transfer only if the transfer does not
discriminate in favor of Highly Compensated Participants and the transfer, in
the opinion of the Company's legal counsel, will not jeopardize the tax exempt
status of this Plan or create adverse tax consequences for the Participation
Company by which the affected Participant is employed.
4.7 Committee Discretion. The Committee shall have sole and absolute
discretion to determine whether a proposed rollover contribution or plan-to-
plan asset transfer meets the requirement of this Article IV and therefore
shall be permitted. Nothing herein shall compel the Committee to allow a
specific rollover contribution or plan-to-plan asset transfer; provided,
however, that any denial of the right to make such a rollover or transfer shall
be pursuant to a uniform policy that does not discriminate in favor of Highly
Compensated Participants.
ARTICLE V
COMPANY MATCHING CONTRIBUTIONS
5.1 Company Matching Contributions.
<PAGE>
(a) Basis of Contributions. Subject to the rights of the Company
under Article XX, and to the conditions and limitations set forth below in this
Article V, the Company shall contribute monthly to the Trust on behalf of each
Participant, an amount equal to fifty percent (50%) of the Participant
Contributions made by or on behalf of such Participant for such month;
provided, however, that the contributions of each Participant in excess of six
percent (6%) of the Participant's Benefits Base for that period shall not be
considered for the purpose of this Section 5.1.
(b) Timing and Payment of Contributions. Company Matching
Contributions shall be remitted to the Trust as soon as practicable after the
close of each month, but no later than thirty (30) days after the end of each
calendar month in which contributions are made, and shall be in cash.
5.2 Investment of Company Matching Contributions. Each Participant's
Company Matching Contributions shall be invested solely in Hercules
Incorporated Common Stock.
5.3 Conditions to Company Matching Contributions.
(a) Reversion to the Company Under Certain Circumstances. All
Company Matching Contributions made hereunder are conditioned upon their
deductibility by the Participating Company for income tax purposes and
continued qualification of this Plan under the Code. A contribution to the
Plan may be returned to the Participating Companies if (i) the contribution is
conditioned on the qualifications of the Plan under the Code, the Company
submits an application for determination within the time prescribed by law for
filing the Company's tax return for the taxable year in which the Plan is
adopted, or such later date as the Secretary of the Treasury may prescribe, and
the Plan does not so qualify; (ii) the contribution is conditioned on its
deductibility by the Participating Company for income tax purposes under Code
section 404 and applicable Treasury Regulations thereunder and the deduction is
disallowed; or (iii) the contribution is made by reason of a mistake of fact.
(b) Return Requirement. The return to the Company must be made
within one (1) year of the date of denial of qualification, the date of
disallowance of the deduction or the mistaken payment of the contribution, as
the case may be.
(c) Income and Losses. Income attributable to the excess
contribution may not be returned to the Participating Company, but losses
attributable thereto shall reduce the amount to be returned.
(d) No Reduction in Accounts. Company Matching Contributions may be
returned even if such contributions have been allocated to the Account of a
Participant which is fully or partially nonforfeitable and it is necessary to
adjust said Account to reflect the return of the Company Matching
Contributions.
<PAGE>
5.4 Substitute Contributions. If a Participating Company is unable to
make its contribution, then so much of the contribution which such
Participating Company is unable to make may be made for the benefit of
Participants employed by such Participating Company by one or more of the other
Participating Companies to the extent and in the amounts permitted by Code
section 404(a)(3)(B). Any such contribution made for a Participating Company
by one or more of the other Participating Companies shall be considered for all
provisions of this Plan, unless otherwise provided in the Code, to have been
made by the Participating Company for whose benefit it was made.
5.5 Statutory Limits. Company Matching Contributions are subject to the
statutory limitations set forth in Articles XIII, XIV and XV. Accordingly, the
Committee may, in accordance with Articles XIII, XIV and XV and applicable
provisions of ERISA and the Code, apply from time to time different maximum
contribution limits to different groups of Participants on the basis of their
Compensation in the immediately preceding and/or current Plan Year. In this
connection, any Participating Company may limit, revoke or amend their
commitment to make Company Matching Contributions under Section 5.1 on behalf
of any Participant at any time, but only if the Committee determines that such
limitation, revocation or amendment is necessary to insure that the Company
Matching Contributions and Before-Tax Contributions for a taxable year shall in
no event exceed (i) the maximum amount of contributions permitted by tax law as
a tax-deductible expense to the Participating Company for such taxable year
under Code section 404, or under any other applicable provisions of the Code,
or (ii) the amount allowable under the nondiscrimination requirements under the
Code and applicable Treasury Regulations thereunder.
5.6 Forfeited Contributions. Company Matching Contributions that are
forfeited upon the termination of employment of a Participant may be used by
the Company to reduce its Matching Contribution obligation or to pay Plan
expenses, as determined by the Committee.
ARTICLE VI
THE TRUST FUND, TRUST AGREEMENT
AND INVESTMENT OF TRUST ASSETS
6.1 General. All Participant Contributions and Company Matching
Contributions shall be delivered to the to the Trust, and together with the
income therefrom, shall constitute the Trust Fund. The Company shall enter
into a written trust agreement ("Trust Agreement") with the Trustee. The Trust
Agreement shall provide that, subject to the provisions of this Article VI, all
cash, securities or other property delivered to the Trustee in trust shall be
held, invested and reinvested, together with the income therefrom, on behalf of
the Participants in accordance with the provisions of this Plan, the Trust
Agreement and any agreement with an insurance company or other financial
institution constituting a part of the Plan and the Trust. It shall also
<PAGE>
provide that the Trustee shall make distributions from the Trust Fund at such
time or times, to such person or persons and in such amounts as the Committee
shall direct in accordance with the Plan. The Trust Agreement shall further
provide that the Trustee shall invest and reinvest on behalf of the
Participants the principal and income of the Trust Fund and keep the Trust Fund
invested, without distinction between principal and income, in such investment
media or funds as from time to time may be authorized by the Committee and
directed by the Participants, including, but not limited to, equity, fixed
income and money market funds. Except that no part of the Trust Fund, either by
reason of any amendment, or otherwise, shall ever by used for or diverted to
purposes other than for the exclusive benefit of Participants and Beneficiaries
and the payment of Plan expenses, the Trust Agreement shall provide that it may
be amended in whole or in part by the Company at any time or from time to time
and in any manner. The Trust Agreement shall be deemed to form a part of the
Plan, and any and all rights or benefits which may accrue to any person under
this Plan shall be subject to all the provisions of the Trust Agreement. The
Committee shall have absolute discretion to change the investment options at
any time and from time to time and may direct the removal of all funds from a
deleted option without the consent of the Participants and Beneficiaries.
6.2 Participant Investment Directions.
(a) Initial Investment Direction. At the time of his enrollment,
each Participant must elect the investment media or funds in which all
Participant Contributions which are made by him or on his behalf under this
Plan, together with the income therefrom, are to be invested. Investment
choices shall be designated on such form as may be prescribed by the Committee
from time to time. An investment direction by a Participant must be at a
monthly rate (in whole percents) for each investment medium or fund, as the
case may be, in such percentages as the Trustee and Committee may agree.
Company Matching Contributions shall be invested solely in Hercules
Incorporated Common Stock.
(b) Change in Investment Direction as to Future Contributions. An
investment directive given by a Participant shall be deemed to be a continuing
direction until explicitly changed. Each month, or at such other frequency as
the Committee may by uniform rule permit, a Participant may change an
investment direction as to future Participant Contributions in increments of
one percent (1%). Such change shall become effective as of the first payroll
period of the month following the date such election is made through VTS or
CSR. All Participant Contributions of such Participant that are paid to the
Trust after such notice becomes effective shall be invested in accordance with
such changed direction. Notwithstanding the foregoing, future Company Matching
Contributions will always be invested in Hercules Incorporated Common Stock.
<PAGE>
(c) Transfer Between Investment Media or Funds. A Participant may
elect a change in investment funds applicable to his then existing Accounts,
excluding his Matching Contribution Account, as of any date, provided such
change (i) results in multiples of 1% in any one investment fund and a combined
total of 100% in the fund(s) selected; (ii) is applied to the ending balance
determined as of the applicable Valuation Date; and (iii) is applicable equally
to each of the Participant's Accounts.
Any funds invested in Hercules Common Stock in a Participant's
Matching Contributions Account as of April 30, 1993 under the Hercules Savings
and Investment Plan are eligible for the Transfer Election as described above.
However, amounts contributed to a Participant's Matching Contribution Account
after April 30, 1993 are not eligible for the Transfer Election and must remain
invested in Hercules Common Stock.
6.3 Investment Procedures.
(a) Investment of Income Received. Subject to Subsection 6.3(e),
income or distributions received on investment media shall be held or invested
or reinvested in the same investment media, respectively, from which they were
derived. Dividends received on Common Stock shall be reinvested in Common
Stock when there are sufficient funds, considering both dividends and
contributions, to purchase whole shares of stock. Any other income shall be
invested as determined by the Trustee. Each Participant's Account shall be
credited with his proportion of any accrued income on such investment. No
income shall accrue to a Participant s Account on uninvested funds.
(b) Purchase of Other Investments. As soon as practicable following
the receipt of Participant Contributions made under this Plan, such
Contributions shall be used to purchase, or direct investments, and each
Participant's Account in the Plan shall be credited with his proportion of
those purchases made in the investment media or funds which he has selected.
(c) Responsibility for Timinq. Neither the Company nor the Committee
nor any Trustee shall have any responsibility or duty to time any transaction
involving securities in order to anticipate market conditions or changes in
securities value, nor shall any such person have any responsibility or duty to
sell securities held in the Trust Fund (or otherwise to provide investment
management for securities held in the Trust Fund) in order to maximize return
or minimize loss.
(d) Cash Balances. Nothing provided herein shall prevent the Trustee
or an Investment Manager, if any, from maintaining in cash or short-term
securities such part of the assets of each investment medium as in its sole
discretion it shall deem necessary or desirable to accomplish the purposes of
this Plan.
<PAGE>
(e) Certain Expenses. Brokerage fees, transfer taxes and any other
expenses incident to the purchase or sale of securities by the Trustee shall be
deemed to be part of the cost of such securities, or deducted in computing the
proceeds therefrom, as the case may be. Taxes, if any, of any and all kinds
whatsoever which are levied or assessed or any assets held or income received
by the Trustee shall be allocated to and deducted from the Accounts of
Participants by the Committee in accordance with the provisions of Section 7.3.
6.4 Statement of Accounts. The Committee, or the Recordkeeper, shall
furnish each Participant a quarterly statement setting forth the total amount
of cash, securities and other property credited to his Account. Such statement
shall set forth in detail the manner and extent to which such accounts have
been allocated to an investment medium or fund. Upon termination of
participation in this Plan, a final statement shall be given to the terminating
Participant and the Trustee shall make final distribution as provided herein.
Such statements shall be deemed to have been accepted as correct for all
purposes unless written notice to the contrary is received by the Company
within thirty (30) days after the mailing of such statement to the Participant.
6.5 Investment Managers. At the direction of the Committee, the Company
may enter into a written agreement with or direct a Trustee to enter into an
agreement with one or more investment managers to manage the investments of one
or more of the investment media or funds. At the direction of the Committee,
the Company may, from time to time, remove any such investment manager or any
successor investment manager, or direct a Trustee to do so, and any such
investment manager may resign. The Company may, upon removal or resignation of
an investment manager, provide for the appointment of a successor investment
manager.
6.6 INVESTMENT RISK AND RATE OF RETURN. EACH PARTICIPANT, INACTIVE
PARTICIPANT AND BENEFICIARY IS SOLELY RESPONSIBLE FOR THE SELECTION OF HIS
INVESTMENT MEDIA OR FUNDS AND SHALL ASSUME ALL RISK IN CONNECTION WITH ANY
DECREASE IN THE VALUE OF THE TRUST ASSETS AND THE PARTICIPANT'S ACCOUNT.
NEITHER THE TRUSTEE, THE COMPANY, THE COMMITTEE NOR ANY OFFICERS, DIRECTORS,
EMPLOYEES, MEMBERS OR AGENTS OF ANY OF THE FOREGOING SHALL BE LIABLE OR
RESPONSIBLE FOR ANY SUCH DECREASE, AND NONE OF THE FOREGOING ARE EMPOWERED TO
ADVISE A PARTICIPANT, INACTIVE PARTICIPANT OR BENEFICIARY AS TO THE MANNER IN
WHICH ANY ACCOUNT SHALL BE INVESTED. THE FACT THAT A SECURITY IS AVAILABLE TO
PARTICIPANTS FOR INVESTMENT UNDER THE PLAN SHALL NOT BE CONSTRUED AS A
RECOMMENDATION FOR THE PURCHASE OF THAT SECURITY, NOR SHALL THE DESIGNATION OF
ANY INVESTMENT MEDIUM OR FUND IMPOSE ANY LIABILITY ON THE COMPANY, ITS
DIRECTORS, OFFICERS OR EMPLOYEES, THE TRUSTEE OR THE COMMITTEE.
6.7 Adoption of Rules and Procedures. The Committee shall adopt such
rules and procedures as it deems advisable with respect to all matters relating
to the selection and use of the investment media and funds, provided that all
<PAGE>
participants are treated uniformly. If there is any inconsistency between such
rules and any provisions above, the above provisions shall be disregarded.
6.8 Legal Limitation. The Committee shall not be required to engage in
any transaction which it determines in its sole discretion might tend to
subject itself, its members, the Plan, the Company or any Participant to a
liability under federal or state laws.
ARTICLE VII
PARTICIPANT ACCOUNTS AND ALLOCATIONS
OF CONTRIBUTIONS AND EARNINGS
7.1 Maintenance of Accounts. The Committee shall establish and maintain
or cause to be established and maintained in respect of each Participant,
Inactive Participant and Beneficiary an Account showing his interest under this
Plan and in the Trust Fund. Credits and charges shall be made to such Account
in the manner herein described. When appropriate, a Participant shall have
three separate sub-accounts: an After-Tax Contributions Account which shall
include all After-Tax Contributions contributed before January 1, 1988 and
income thereon; an After-Tax Contribution Account which shall include all
amounts contributed after December 31, 1987 and income thereon; a Company
Matching Contributions Account which shall include all amounts contributed
before, May 1, 1993 and income thereon; a Company Matching Contribution Account
which shall include Company Matching Contributions made After April 30, 1993
and income thereon; a Before-Tax Contribution Account which shall include all
Before-Tax Contributions and income thereon; and a Rollover Account and all
income thereon. If it deems it necessary, the Trustee may create and maintain
on its books additional sub-accounts for Participants. Unless otherwise
required by applicable law, the maintenance of all Accounts (and sub-accounts)
shall be for bookkeeping purposes only and no segregation of Trust Assets among
separate Accounts (and/or sub-accounts) shall be required. The establishment
and maintenance of, or allocations and credits to, a Participant's Account
(and/or sub-accounts) shall not vest in the Participant any right, title or
interest in and to any Trust Assets or benefits except at the time or times and
upon the terms and conditions and to the extent expressly set forth in this
Plan and in accordance with the terms of the Trust Agreement.
7.2 Allocation of Contributions. The Company shall provide all
information necessary to make a proper allocation of the various contributions
by or on behalf of the Participant for each Plan Year. Within a reasonable
period of time after the date of receipt of such information, contributions
shall be allocated as follows: (i) Participant's After-Tax Contributions made
pursuant to Section 4.2 shall be credited to such Participant's After-Tax
Contributions Account; and (ii) Participant's Before-Tax Contributions made
pursuant to Section 4.2 and Company Matching Contributions made pursuant to
<PAGE>
Article V shall be credited to such Participant's Before-Tax Contributions
Account.
7.3 Account Adjustments. As of each Valuation Date the Committee shall
adjust the Account of each Participant, Inactive Participant and Beneficiary to
reflect, with respect to each investment medium or fund in which such Account
is invested to reflect (i) his proportionate share (based on the prior value of
his Account in the applicable investment medium or fund) of income, expenses
(if any) payable from the Trust Fund and any increase or decrease in the fair
market value of the Trust Assets since the preceding Valuation Date; (ii) the
contributions made by him or on his behalf, including for this purpose
contributions made after such Valuation Date but credited as of such Valuation
Date; (iii) withdrawals; (iv) distributions and (v) transfers between
investment medium or funds.
7.4 Inactive Participant's Accounts. An Inactive Participant may
maintain his Account in this Plan as an Inactive Participant until the month
following the earlier of (i) the date he ceases to be an Inactive participant
or (ii) the attainment of age 65. Anything in the Plan to the contrary
notwithstanding, the amount credited to his Account shall continue to share the
earnings and losses of each investment medium or fund for which such Inactive
Participant has a sub-account and such Inactive Participant shall continue to
be governed by the provisions of the Plan and Trust including, without
limitation, Articles VI, XI, XII, XVIII and XIX. An Inactive Participant's
Account may be charged a reasonable fee to reimburse the Company for
administrative costs incurred by the Company in maintaining such Account, as
determined by the Committee.
ARTICLE VIII
DISTRIBUTIONS
8.1 Circumstances of Distributions. Distributions hereunder shall be
made to Participants or in the event of their death, to their properly
designated beneficiaries, or in the absence of such designations, their estates
or the persons or entities legally entitled thereto, only on the following
events and only as herein provided: (i) death of Participant; (ii) Retirement
of Participant; (iii) disability of a Participant or (v) other Termination of
Employment.
8.2 Distributions Upon Termination of Employment for Reasons Other Than
Retirement, Death or Disability. Upon Termination of Employment for reasons
other than Retirement death or disability, a Participant shall be entitled to
receive the vested portion of his Account, determined in accordance with
Article IX hereof, in a single lump sum payment. In such a case, the
Participant shall receive his distribution by delivery to him of the full
shares of Common Stock and by payment in cash, of an amount equal to the then
current value of all cash and other property credited to his Account in the
Trust. Notwithstanding the preceding sentence and the provisions of Section
<PAGE>
6.2(c), the Participant may elect, at such time and in such manner as
determined by the Committee, to receive the value of all or a portion of the
Common Stock by payment in cash. Shares may be issued in the name of the
Participant, his designated Beneficiary or Beneficiaries, or legal
representative. If the Participant's consent is not obtained, the
Participant's Account shall be maintained in the Plan until the month following
the Participant's attaining age 65, at which time payment will be made in the
same manner as stated in the previous sentence. Distributions made pursuant to
this Section 8.2 shall be made as soon as administratively practicable, but no
sooner than thirty (30) days following the date that the Participant's final
Contributions are deposited into the Trust, and after the Participant has
completed all of the necessary forms and documentation required by the
Committee.
Notwithstanding the foregoing or anything else in this Plan to the
contrary, if the Account balances of a Participant who has terminated
employment never exceeded $3,500, such Participant's Account will be
distributed to the Participant or the Participant's Beneficiary thirty (30)
days following the date that the Participant's last Contributions were
deposited in the Trust.
8.3 Distributions Due to Death, Disabilitv or Retirement. Upon
Termination of Employment due to Retirement, death or disability, a Participant
shall become 100% vested in his Account. The Participant, or in the case of
his death, his properly designated beneficiary, or in the absence of such
designation, his estate or the person(s) or entity legally entitled thereto,
shall be entitled to receive from the Trust Fund the full value of his Account
in a single lump sum payment as soon as administratively practicable (but no
later than sixty (60) days after the end of the month of Termination of
Employment), unless an election pursuant to Section 8.5 or 8.6 has been
exercised by the participant; provided, however, that if the amount
distributable under this Section 8.3 cannot be ascertained by such date, such
payment shall be made no later than sixty (60) days after the date on which
such amount can be ascertained. Notwithstanding the preceding sentence, in the
event of the Participant's death, his properly designated Beneficiary, or in
the absence of such designation, his estate or the person(s) or entity legally
entitled thereto may elect, at such time and in such manner as determined by
the Committee, to defer distribution of the full value of the Account until any
date up to five (5) years after the date of death of the Participant. When no
such elections are made, the Participant shall receive his distribution by
delivery to him of the full shares of Common Stock and by payment, in cash, for
the current value of the balance credited to his Account. Notwithstanding the
preceding sentence and the provisions of Section 6.2(c), the Participant may
elect, at such time and in such manner as determined by the Committee, to
receive the value of all or a portion of the Common Stock by payment in cash.
Shares may be issued in the name of the Participant, his designated Beneficiary
or Beneficiaries, or legal representative. Cash, including the cash value of
<PAGE>
any fractional share of Common Stock, shall be distributed by check payable to
the Participant, his designated beneficiary or beneficiaries, or legal
representative.
For purposes of this Section, in determining the existence of a
Participant's Disability, the Committee may select a physician to examine such
Participant and render a medical opinion. The final determination shall be
made by the Committee on the basis of the evidence requested and made
available.
8.4 Valuation of Accounts - Distributions. As of each Valuation Date,
following the occurrence of any of the events described in Section 8.1, and at
such other date or dates deemed necessary by the Committee, the net worth of
the Trust assets comprising the Participant's Account as it exists on that date
shall be determined. In determining such net worth, the assets comprising the
Participant Account shall be valued at their fair market value as of the
Valuation Date in accordance with Section 2.1(eee), and shall, if otherwise
applicable, deduct a proportionate share of all expenses which have not yet
been reimbursed by the Participating Company or the Trust Fund.
For purposes of the elections provided in Sections 8.2 and 8.3, the
value of shares of Common Stock shall be the sales price when sold and
distributed in the form of cash, or the closing price on the distribution date
when distributed in kind.
8.5 Optional Valuation Date. Notwithstanding the provisions of Section
8.4, a Participant retiring from active employment with a Company pension, if
he so elects by the first of the month of the effective date of retirement, may
have the valuation of the full shares of Common Stock, cash and other
appropriate property credited to his Account determined as of the Valuation
Date on which the Participant elects distribution following his or her actual
retirement. However, distributions must commence no later than April 1 of the
year following the year in which the Participant attains age 70-1/2 and will be
made pursuant to Section 8.6 below. Notwithstanding the preceding sentence and
the provisions of Section 6.2(c), the Participant may elect, at such time and
in such manner as determined by the Committee, to receive the value of all or a
portion of the Common Stock by payment in cash.
8.6 Extended Payment Option.
(a) Extended Payment Election. A Participant entitled to a single
lump sum payment in full discharge of an obligation under this Plan may, in
lieu of such lump sum, elect to receive his distribution in a series of annual
payments with a maximum duration of ten (10) years. Such election shall be
exercised on a form prescribed by the Committee from time to time not later
than the first of the month in the month of distribution. The amount of
payment is determined by dividing the remaining balance of the Account by the
<PAGE>
remaining years on the extended payment option. Distributions under this
provision shall commence no later than
the last day of the month preceding the month in which a Participant attains
age 70.
(b) Loan Restriction. Anything in this Plan to the contrary
notwithstanding, during the period an extended payment election pursuant to
Subsection 8.6.(a) is in effect, the Participant shall not be eligible for
loans as set forth in Article XII.
(c) Cancellation of Election. A Participant may cancel an election
for extended payment at any time and the balance of his Account shall be
distributed as soon as administratively possible, but no later than sixty (60)
days following the end of the month the cancellation is received by the
Committee.
(d) Investment During Extended Payment Period. Participants who elect
the Extended Payment Period shall direct the investment of their Accounts
pursuant to Section 6.2(c) of the Plan in the same manner as all other
Participants.
(e) Distribution After Death of Participant. In the event of the
death of a Participant after installment payments have begun, but prior to
completion of such payments, the full amount of such unpaid benefits shall
continue to be paid in the form of the previously established installments
except that the Beneficiary may request that the remaining balance of his
Account be paid in a single lump sum.
In the event of the death of the Participant prior to the start of
any payments of his Account, distributions shall be made in the form and at the
time or times selected by the Beneficiary provided however, that the method of
distribution selected by the Beneficiary conforms with the distribution
requirements of Section 401(a)(9) of the Code, and the regulations thereunder,
the provisions of which are incorporated herein by reference.
(f) Distribution After Death of Beneficiary. In the event of the
death of a Beneficiary (or a contingent Beneficiary, if applicable) prior to
the completion of payment of benefits due the Beneficiary from this Plan, the
full amount of such unpaid benefits shall at once vest in and become the
property of the estate of said Beneficiary.
8.7 Advance Prior to Final Distribution. The Committee, in its sole
discretion, may direct the Trustee to make one or more advances from the Trust
Fund to a terminated Participant, Beneficiary or Participant's estate prior to
the date upon which final distribution would otherwise be made. Such advances
shall be based upon the Committee's estimate of the benefit amount which would
be payable, and shall reduce the amount which becomes payable as of the date of
such final distribution.
<PAGE>
8.8 Company Not Responsible for Adequacy of Trust Assets. The total
amount accumulated in a Participant's Account shall be based solely on his
vested interest in his Account and shall be paid only from Trust Assets.
Neither the Company, the Board, the Committee nor the Trustee, nor any officer,
director, employee or member of any of the foregoing, shall have any duty or
liability to furnish this Plan with any funds, securities or other assets,
except as expressly provided in the Plan, and neither the Company, the Board,
the Committee nor the Trustee, nor any officer, director, employee or member of
any of the foregoing, shall be responsible (except as required by applicable
law) for the adequacy of the Plan to meet and discharge Plan liabilities.
8.9 Withholding. If income tax withholding on any distribution is
required by Code section 3405 or by any other provisions of law, the Trustee
shall be authorized to sell, if necessary, a portion of the Common Stock (i) in
negotiated transactions or (ii) on an established securities exchange to the
extent necessary to provide the funds to pay such withholding tax. All such
sales of Common Stock shall be made at a price or prices which in the judgment
of the Committee are not less than the fair market value of such shares. Any
commission or other expenses of such sale shall be charged to the Account of
the Participant with respect to whom such withholding is required.
8.10 Direct Rollover to Eligible Retirement Plans.
(a) Notwithstanding any provisions of the Plan to the contrary that
would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.
(b) Definitions
(i) Eligible Rollover Distribution
An Eligible Rollover Distribution is any distribution of all or
any portion of the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include: (A) any distribution that is
one of a series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the
Distributee's designated Beneficiary, or for a specified period of ten years or
more; (B) any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code; and (C) the portion of any distribution that is
not includable in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to Employer securities).
(ii) Eligible Retirement Plan
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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.
(iii) 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, are Distributees with regard
to the interest of the spouse or former spouse.
(iv) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee.
ARTICLE IX
VESTING
9.1 Upon Termination of Emplovment for Other Than Death, Disabilitv or
Retirement.
(a) Upon the termination of the employment of a Participant who was
not employed by Hercules immediately before commencing employment with the
Company for reasons other than Retirement, disability or death, the following
provisions for vesting shall be applicable:
(i) Such Participant shall have a 100% vested interest in his
Before-Tax and After-Tax Contributions and Rollover Accounts.
(ii) Such Participant's vested interest in his Company Matching
Contribution Account shall be determined in accordance with the following
schedule on the basis of such Participant's full Years of Service.
Number of Years Percentage of Account
Less than 1 full year 0%
1 full year 20%
2 full years 40%
3 full years 60%
4 full years 80%
5 or more full years 100%
<PAGE>
(b) The portion of a Participant's Account which is not vested shall
be forfeited on the earlier of the date on which the Participant receives a
distribution of his vested benefits or the date on which such Participant
incurs five consecutive Breaks-in-Service. If a Participant does not have a
vested interest in his Account, he shall be deemed to have received an
immediate distribution as of the date on which such Participant terminated
employment.
That portion of the Participant's Account which is not vested shall
be used to reduce the Company's contributions in accordance with Section 5.6 or
to pay plan expenses as determined by the Committee.
(c) A Participant who worked for Hercules immediately before
commencing employment with the Company and who was a Participant in the
Hercules Savings and Investment Plan shall be at all times 100% vested in his
Accounts.
9.2 Upon Retirement, Death or Disability. A Participant shall become
100% vested in his Company Matching Contribution Account upon:
(a) attaining Normal Retirement Age;
(b) becoming disabled before termination of employment; or
(c) his death prior to termination of employment.
9.3 Reemplovment and Repayment of Benefits.
(a) If a Participant is reemployed by a Participating Company prior
to incurring five consecutive Breaks-in-Service, the dollar amount which was
subject to forfeiture in accordance with Subsection 6.04(b) will be restored to
the Participant's Account if the Participant repays the amount distributed, if
any, from Elective Deferral Contribution, Matching Contribution, Qualified
Matching Contribution and Qualified Nonelective Contribution Accounts. Such
amounts must be repaid to the Trust Fund in a lump sum within five years from
the date such Participant resumes his employment with a Participating Company.
If a Participant who is deemed to receive a distribution is reemployed by a
Participating Company prior to incurring five consecutive Breaks-in-Service,
the dollar amount which was subject to forfeiture in accordance with such
Subsection will be restored to the Participant's Account. The funds required
for the restoration of such Account will be paid by the Company.
Such repaid amounts shall be credited to the Participant's Accounts
as determined by the Committee, taking into account the applicable vesting
schedules, amounts subject to special tax treatment and withdrawal rules.
Additional Accounts will be established, if required, to accommodate these
<PAGE>
objectives. Amounts repaid and restored in accordance with this Subsection
will not be treated as annual additions.
(b) Notwithstanding the above, no restoration shall be made to a
Participant's Account and no repayment will be permitted with respect to funds
accumulated prior to reemployment in the case of
(i) any Participant who was fully vested, or
(ii) any Participant who is reemployed after incurring five
consecutive Breaks-in-Service.
ARTICLE X
SUSPENSION OF PARTICIPANT CONTRIBUTIONS
10.1 Voluntary Suspension of Participant Contributions. A Participant at
any time may suspend temporarily Participant Contributions by giving written
notice thereof to the Participating Company that employs him in the form
prescribed by the Committee. The full amount of such Participant's Account
shall be retained by the Trustee subject to the provisions of this Plan. Such
suspension shall be effective for the first payroll period which is at least
twenty days after the Participant's notice has been received by his employer,
or, if the notice specifies a later payroll period, the first day of such later
payroll period.
10.2 Resumption of Contributions After Suspension. In the event Participant
Contributions are suspended pursuant to Section 10.1, a Participant who is
eligible to participate under the provisions of Article III may elect to resume
contributions on his behalf pursuant to Section 4.2 after suspension thereof
only by delivering written instructions to the Committee on a form prescribed
by the Committee. Such instructions shall be delivered at least thirty (30)
days prior to the date such contributions are to be resumed, which may be at
any time following suspension of participation.
ARTICLE XI
WITHDRAWALS
11.1 After-Tax and Company Contributions Accounts Withdrawals.
(a) Partial Withdrawal - Matured Funds Only.
(i) Application. A Participant may withdraw without penalty all
or any part of the value of his vested Matured Funds at any time, but not more
frequently than once in each Plan Year (or at such other frequency as the
Committee may determine) upon written application to the Committee (on forms
provided by the Committee for such purpose) no later than the first of the
month in which the withdrawal is to be made. The withdrawal may be made from
investment media or funds designated by the Participant in a specific dollar or
share amount and shall be available as soon as administratively possible (but
no later than sixty (60) days after receipt of the withdrawal application).
<PAGE>
(ii) Withdrawal Limitation. In the event a Participant elects a
withdrawal from an investment medium or fund in which sufficient funds are not
available, the withdrawal shall be limited to the amount available in that
investment medium or fund and shall be available as soon as administratively
possible.
(b) Total Withdrawal. A Participant shall be entitled to withdraw
the entire balance of his After-Tax Contributions Account, whenever
contributed, Rollover Account, and Company Matching Contributions Account, if
the Participant is 100% vested in his Company Matching Contributions Account
after attaining age 59-1/2, at any time by giving written notice to a
Participating Company. The age 59-1/2 rule shall not apply if the Participant
makes the withdrawal on account of hardship in accordance with Section 11.2(b).
Upon such withdrawal, a Participant shall receive, in cash, the full value of
all cash or other property, if any, then credited to his After-Tax
Contributions Account and Company Contributions Account. Such cash shall be
available as soon as administratively possible (but no later than sixty (60)
days after receipt of the withdrawal application).
11.2 Before-Tax Contributions Withdrawals. Except as provided in
Subsections 11.2(a) or 11.2(b), no withdrawals are allowed from a Participant's
Before-Tax Contributions Account prior to his retirement, death or other
Termination of Employment.
(a) Withdrawals After Age 59-1/2. Once a Participant reaches age 59-
1/2, contributions allocated to his Before-Tax Contributions Account may be
withdrawn in part or in full by giving written notice, no later than the first
of the month in which the withdrawal is to be made, to his Employer. Such
withdrawals are limited to once in any Plan Year (or on such other frequency as
the Committee may determine).
(b) Hardship Withdrawals. A special hardship withdrawal of a
Participant's Before-Tax Contributions Account may be made if a Participant has
not reached age 59-1/2, subject to the following conditions:
(i) A hardship withdrawal is permitted only if, in accordance
with the then applicable Internal Revenue Service Regulations exclusive of safe
harbor provisions, (i) the withdrawal is made on account of an immediate and
heavy financial need of the Participant and (ii) the withdrawal is necessary to
satisfy such financial need.
(ii) Without limiting the generality of (1) next above, a
withdrawal will be deemed to be made on account of an immediate and heavy
financial need only if the Participant certifies to the Committee that the
withdrawal is on account of: (i) medical expenses (as defined in Code section
213(d) incurred by the Participant or his spouse or dependents (as defined in
<PAGE>
Code section 152) or necessary for these persons to obtain medical care
described in Code section 213(d); (ii) costs directly related to the purchase
(excluding mortgage payments) of a principal residence for the Participant;
(iii) payment of tuition and related educational fees for post-secondary
education of the Participant or his spouse, children or dependents for the next
twelve months; or (iv) expenditures to stave off eviction of the Participant
from his principal residence or foreclosure of a mortgage on the same.
(iii) A withdrawal is deemed necessary to satisfy an immediate
and heavy financial need only if the Participant certifies to the Committee
that the need cannot be satisfied (i) through reimbursement or compensation by
insurance or otherwise; (ii) by reasonable liquidation of the Participant's
assets to the extent such liquidation would not itself cause an immediate and
heavy financial need; or (iii) by other distributions or loans from plans
maintained by the Company, including distributions available through
withdrawals of Matured Funds, but excluding distributions available only
through total withdrawals under Section 11.1(b), or by borrowing from
commercial sources on reasonable commercial terms. Furthermore, the
distribution may not be in excess of the amount of the immediate and heavy
need, which may include any amounts necessary to pay any federal, state or
local taxes or penalties reasonably anticipated to result from the
distribution.
(iv) The Before-Tax Contributions of a Participant who obtains a
hardship withdrawal shall be limited for such Participant's next taxable year
to the applicable limit under Code section 402(g) for that year minus the
Participant's Before-Tax Contributions for the year of the hardship
distribution.
(v) A Participant who receives a hardship withdrawal is
prohibited from making Before-Tax Contributions and After-Tax Contributions to
the Plan and all other plans maintained by the Company for at least 12 months
after receipt of the hardship withdrawal. For this purpose the phrase "all
other plans maintained by the Company" means all qualified and nonqualified
plans of deferred compensation maintained by the Company. The phrase includes
but is not limited to a stock option, stock purchase, or similar plan, or a
cash or deferred arrangement that is part of a cafeteria plan within the
meaning of Section 125. However, it does not include the mandatory employee
contribution portion of a defined benefit plan. It also does not include a
health or welfare benefit plan, including one that is part of a cafeteria plan
within the meaning of Section 125.
(vi) Withdrawals on account of hardship shall be limited to the
"Distributable Amount" which shall be equal to a Participant's total Before-Tax
Contributions as of the date of the hardship withdrawal, reduced by the amount
of previous hardship withdrawals. A Participant's total Before-Tax
Contributions used in determining the Distributable Amount shall be increased
by income allocable to Before-Tax Contributions credit as of December 31, 1988.
<PAGE>
The Committee may, in its sole discretion, alter the foregoing
conditions or otherwise limit the amount, time or manner of any withdrawal
under this provision to the extent deemed necessary by the Committee to satisfy
the requirements of Code section 401(k) or the regulations thereunder.
11.3 Distributions Upon Attaining Age 70-1/2. Notwithstanding any other
provision of this Plan to the contrary, a Participant shall commence receiving
distributions by April 1 of the calendar year following the calendar year in
which the Participant attains age 70-1/2. The amount and timing of the
distributions shall be determined in accordance with Code section 401(a)(9) and
Treasury Regulations thereunder, including Treas. Reg. 1.401(a)(9)-2. The
provisions of the Plan governing withdrawals from the Plan shall apply to
distributions under this Section to the extent such provisions are not
inconsistent with this Section.
11.4 Withdrawal of Rollover Account. A Participant may withdraw all or
any portion of his Rollover Account at any time upon notice to the Committee.
11.5 No Replacement of Withdrawn Accounts. A Participant may not replace
any amounts withdrawn hereunder.
11.6 Other Rules Regarding Withdrawals.
Any withdrawal shall be subject to the following requirements:
(a) Only one withdrawal will be permitted
(i) during any 12-month period from a Participant's Before-Tax,
or Matching Contribution Accounts and
(ii) during any calendar quarter from a Participant's After-Tax
or Rollover Contributions Accounts.
(b) A withdrawal must be requested through the VTS or CSR. Such
withdrawals will be processed as soon as administratively feasible following
notification by the Committee that the withdrawal is approved.
(c) If a loan is outstanding at the time a withdrawal is requested,
such withdrawal shall be permitted only to the extent that the remaining vested
Account balance under the Plan will be at least 100% of the outstanding loan
balance as of the date of the withdrawal.
(d) There may be an application fee for each withdrawal as set by the
Committee from time to time.
<PAGE>
ARTICLE XII
LOANS
12.1 Availability of Loans to Participants. Subject to the approval of
the Committee or its agent, a Participant may borrow from his Account balance
by making application on forms prescribed by the Committee. The loan request,
which shall include, if applicable, whether the use to be made of the loan
proceeds will be for the purchase, construction or reconstruction of a
principal residence for the Participant, shall be made within such time as the
Committee may prescribe. All loans are made in increments of $100 with a
minimum loan of $1,000. For purposes of this Article, a Participant includes a
"party in interest" as defined under ERISA section 3(14). Any loan shall be
allocated to the Account of the Participant to whom the loan is made and
repayment of principal and interest on the loan shall be allocated to such
Account. A loan application pursuant to this Article XII shall not be
permitted more than three times within any twelve (12) month period. A
Participant may have only one loan outstanding at any time.
12.2 Loan Requirements.
(a) Maximum Amount of Loan. The amount of any loan, when added to
the outstanding balance of all prior loans to the Participant under this Plan
and all other qualified retirement plans maintained by the Company and any
Affiliated Companies, shall not exceed the lesser of (i) 50% of the balance of
the Participant's Account, or (ii) $50,000 (reduced by the excess, if any, of
(A) the highest outstanding balance of loans to the Participant from the Plan
during the twelve (12)-month period ending on the day before the date on which
such loan was made, over (B) the outstanding balance of loans to the
Participant from the Plan on the date on which such loan was made.)
(b) Length of Loan. The term of the loan shall not be less than one
(1) year nor more than five (5) years, except when used to purchase a principal
residence for the Participant, in which case the term of the loan shall not
exceed fifteen (15) years, so long as the repayment amount on such loan is no
less than Twenty Dollars ($20) per payroll period.
(c) Rate of Interest and Security. The interest charged on such loan
shall be the prime rate charged by the Trustee on the date of the loan
application, plus one percentage point. Such loan must be adequately secured,
as determined by the Committee.
(d) Repayment Terms.
(i) Payments. Except as otherwise determined by the Committee,
all loans (principal plus interest) shall be repaid by means of automatic
payroll deductions. Repayment shall begin with the month following the month
in which proceeds from the loan are received. Deductions for repayments shall
be in substantially equal amounts over the repayment period and shall be
<PAGE>
sufficient in the aggregate to amortize fully the loan within the repayment
period. The Participant shall authorize payroll deductions to repay the loan.
The Participant must also sign a loan agreement as prescribed by the Committee.
All deductions representing repayment of the loan shall be transmitted at least
monthly to the Trustee.
(ii) Prepayment. A Participant may elect to choose to repay the
remaining balance of the loan in a single lump sum without penalty but no
sooner than three (3) months after commencement of the loan.
(iii) Repayment Upon Death, Retirement or Other Termination of
Employment. A loan under this Article XII shall be repaid upon the
Participant's Retirement, death or other Termination of Employment; provided,
however, that a Participant who retires and elects an optional valuation date
as provided for in Section 8.5, may continue the monthly loan repayment
applicable when he retires. No loan may be entered into subsequent to the
election of an optional valuation date. If a loan is not repaid in full upon
the Participant's death, Retirement or other Termination of Employment, the
obligation to repay any outstanding loan amount shall be extinguished by the
distribution of the loan agreement to such Participant or, in the case of
death, his beneficiary.
12.3 Promissory Note and Loan Agreement. Each loan must be evidenced by a
promissory note executed by the Participant and containing such terms and
provisions as the Committee in its sole discretion shall determine in the
particular case. Such loan must also be made pursuant to a loan agreement
executed by the Participant and containing such terms and provisions as the
Committee in its sole discretion shall determine in the particular case.
12.4 Default. When the Committee declares a loan to a Participant to be
in default, no distributions of any kind (other than a distribution caused by
the Committee in order to cease such default) may thereafter be made under this
Plan with respect to the Participant during the continuance of the default.
The Committee shall take reasonable steps to eliminate the default before
causing a distribution to be made to the Participant in order to cure such
default.
12.5 Administration of Loans. All determinations of the Committee
respecting any loan application shall be final, conclusive and binding on all
interested parties. The Committee shall have the authority to adopt procedures
relating to the administration of loans and additional terms and conditions
including, but not limited to, application fees, restrictions on loan
availability, withdrawal, transfer or repayments, and rules relating to
defaults; provided, however, that all such terms and conditions shall apply to
all Participants in a manner consistent with ERISA and the Code. A
Participant's Account may be charged a reasonable administrative fee to
reimburse the Company for such costs and expenses, as determined by the
Committee.
<PAGE>
12.6 Investment of Amounts Repaid. Interest and principal components of
the monthly repayment shall be fixed for the life of the loan and shall be
allocated to the Participant's Account and invested in accordance with
investment media or funds election then in effect pursuant to Article VI.
ARTICLE XIII
STATUTORY LIMITS ON CONTRIBUTIONS
13.1 Application of Article. Notwithstanding anything contained herein to
the contrary, contributions under this Plan shall be governed in accordance
with the provisions of this Article XIII, which shall supersede any conflicting
provisions in the Plan.
13.2 Dollar Limitation on Before-Tax Contributions.
(a) Statutory Limitation. In no event may the aggregate amount of
Before-Tax Contributions made on behalf of each Participant to this Plan or any
other plan maintained by the Company for a calendar year exceed the $7,000
limit prescribed by Code section 402(g)(1), as adjusted from time to time for
cost-of-living changes pursuant to Code section 402(g)(5).
(b) Correction of Excess Deferrals. In the event that the amount of
Before-Tax Contributions for a Participant plus the amount of other Elective
Deferrals, as defined in Code section 402(g)(3) for the Participant in any
calendar year exceeds the foregoing dollar limit, the following distribution
may be made: If prior to March 1 following the close of the Participant's
taxable year for which excess deferrals are made, the Participant notifies the
Committee in writing that he requests a return of part or all of his prior Plan
Year's Before-Tax Contributions which exceed the statutory limit set forth in
Subsection 13.2(a) (along with any income, gains or losses allocable thereto),
the Plan shall return (not later than the April 15 immediately following the
March 1) the amount of Participant's Before-Tax Contributions, with any income,
gains or losses allocable thereto, which the Participant requested to be
returned. The Participant's request must designate the distribution as Excess
Deferrals and shall be limited solely to Before-Tax Contributions deemed made
in the immediately prior taxable year. The Committee shall establish such
rules and regulations as it deems necessary to carry out the intent of this
Section 13.2.
13.3 After-Tax Participation Limitation. Prior to the beginning of each
calendar year, the Committee shall deter mine the dollar amount (the "After-Tax
Participation Limitation") in terms of monthly Compensation, which is the
Committee's estimate of the maximum Benefits Base for which Before-Tax
Contributions of a Participant would not exceed the annual dollar limitation
set forth in Code section 402(g)(1) if such contributions would be made under
this Plan at a rate equal to the highest percentage of Compensation allowable
under Code section 401(k)(3). A Participant whose Benefits Base exceeds the
<PAGE>
"After-Tax Participation Limitation" shall not be permitted to make After-Tax
Contributions to the Plan. The Committee shall establish such rules and
regulations as it deems necessary to carry out the intent of this Section 13.3.
13.4 Limit on Participating Company Contributions. The total amount of
Company Matching and Before-Tax Contributions shall not exceed the maximum
amount of contributions permitted by law as a tax deductible expense to the
Participating Company for such taxable year under Code section 404, or under
any other applicable provisions of the Code.
13.5 Nondiscrimination Requirements for Before-Tax Contributions.
(a) Actual Deferral Percentage Tests - Basic Requirement. In no
event shall any Participating Company make any Before-Tax Contributions for any
Plan Year that would result in either:
(i) the Actual Deferral Percentage for the Plan Year for all
Highly Compensated Eligible Employees being more than the product of 1.25 and
the Actual Deferral Percentage for all other Eligible Employees, or
(ii) the excess of the Actual Deferral Percentage for all Highly
Compensated Eligible Employees over the Actual Deferral Percentage for all
other Eligible Employees being more than two (2) percentage points and the
Actual Deferral Percentage for the Plan Year for all Highly Compensated
Eligible Employees being twice the Actual Deferral Percentage for all other
Eligible Employees.
(b) Correction of Excess Contributions. The Committee shall cause to
be made such periodic computations as it shall deem necessary or appropriate to
determine whether either of the tests set forth in Subsection 13.5(a) shall be
satisfied during a Plan Year, and if it shall appear to the Committee that
neither of such tests will be satisfied, the Committee may, subject to
applicable law and regulations, take any of the following actions, but only to
the extent the Committee deems such actions are necessary to insure or increase
the likelihood of compliance with either of the Subsection 13.5(a) tests:
(i) Prior to Payment into the Plan. The Committee may direct
that, with respect to Before-Tax and Company Contributions not yet paid into
this Plan, (i) Before-Tax and Company Contributions on behalf of a Participant
be suspended for specified periods within the Plan Year, (ii) the maximum
contribution rate for Before-Tax Contributions be reduced for specified periods
within the Plan Year and/or (iii) a Participant's election to make Before-Tax
Contributions shall be recharacterized as an election to make After-Tax
Contributions in a like amount during specified periods within the Plan Year;
and/or
<PAGE>
(ii) Amounts Previously Paid into the Plan. The Committee may
direct that, with respect to Before-Tax Contributions paid into this Plan, (i)
any Excess Contributions, adjusted for income, gains and losses allocable to
such Excess Contributions during the Plan Year in which the contributions were
made, shall be distributed from the plan by the end of the Plan Year
immediately following the Plan Year to which they relate to Participants on
whose behalf such Excess Contributions were made, and/or (ii) recharacterize
any Excess Contributions of Before-Tax Contributions as After-Tax
Contributions. If any recharacterization of Before-Tax Contributions as After-
Tax Contributions would cause the Participant's After-Tax Contributions to
exceed the limitation set forth in Section 13.3 or the limit on After-Tax
Contributions and Company Matching Contributions set forth in Section 13.6, any
amount in excess of such limitations shall be paid to the Participant in cash.
In addition to the foregoing, the Committee may take any and all
actions permitted by Code section 401(k)(8) and the regulations thereunder to
insure or increase the likelihood of compliance with the actual deferral
percentage requirements of Code section 401(k)(3) for such Plan Year.
In the case of any suspension, reduction, recharacterization, or
other action due to the foregoing limitations, the amount of Before-Tax
Contributions authorized by Highly Compensated Eligible Employees shall first
be reduced in increments of one percent (1%), or such lesser increments as
determined by the committee, to the extend necessary, commencing with the
Highly Compensated Eligible Employees who elected the highest percentage of
Before-Tax Contributions pursuant to Section 4.2, followed in succession by the
next Highly Compensated Eligible Employees who elected the highest percentage
of Before-Tax Contributions pursuant to Section 4.2, in combination with the
first Highly Compensated Eligible Employees. This process shall continue until
one of the tests set forth in Subsection 13.5(a) is satisfied. The Committee
shall notify affected Participants of any such suspension, reduction,
recharacterization, or other action.
13.6 Nondiscrimination Requirements for After-Tax Contributions.
(a) Actual Contribution Percentage Tests - Basic Requirement. In no
event shall any Participating Company make any After-Tax Contributions that
would result in either:
(i) the Actual Contribution Percentage for the Plan Year for all
Highly Compensated Eligible Employees being more than the product of 1.25 and
the Actual Contribution Percentage for all other Eligible Employees, or
(ii) the excess of the Actual Contribution Percentage for all
Highly Compensated Eligible Employees over the Actual Contribution Percentage
for all other Eligible Employees being more than two (2) percentage points and
<PAGE>
the Actual Contribution percentage for the Plan Year for all Highly Compensated
Eligible Employees being twice the Actual Contribution Percentage for all other
Eligible Employees.
(b) Correction of Excess Aggregate Contributions. The Committee shall
cause to be made such periodic computations as it shall deem necessary or
appropriate to determine whether either of the tests set forth in Subsection
13.6(a) shall be satisfied during a Plan Year, and if it shall appear to the
Committee that neither of such tests will be satisfied, the Committee may,
subject to applicable law and regulations, take any of the following actions,
but only to the extent the Committee deems such actions are necessary to insure
or increase the likelihood of compliance with either of the Subsection 13.6(a)
tests:
(i) Prior to Payment into the Plan. The Committee may direct
that, with respect to After-Tax Contributions not yet paid into this Plan, (i)
After-Tax Contributions made by or on behalf of a Participant be suspended for
specified periods within the Plan Year and/or, (ii) the maximum contribution
rate for After-Tax Contributions be reduced for specified periods within the
Plan Year; and/or
(ii) Amounts Previously Paid into the Plan. The Committee may
direct that, with respect to After-Tax Contributions paid into this Plan, (i)
any Excess Aggregate Contributions, adjusted for income, gains and losses
allocable to such Excess Aggregate Contributions during the Plan Year in which
the contributions were made, shall be distributed from the Plan by the end of
the Plan Year immediately following the Plan Year to which they relate to
Participants who made such Excess Aggregate Contributions, or on whose behalf
such Excess Aggregate Contributions were made.
In addition to the foregoing, the Committee may take any and all
actions permitted by Code section 401(m)(3) and the regulations thereunder to
ensure or increase the likelihood of compliance with the actual contribution
percentage requirements of Code section 401(m)(2) for such Plan year.
In the case of any suspension, reduction, or other action due to the
foregoing limitations, the amount of After-Tax and/or Company Matching
Contributions shall first be reduced in increments of 1%, or such lesser
increments as determined by the Committee, to the extent necessary, commencing
with the Highly Compensated Eligible Employees who elected the highest Actual
Contribution Percentage, followed in succession by the next Highly Compensated
Eligible Employees who elected the highest Actual Contribution Percentage, in
combination with the first Highly Compensation Eligible Employees. This
process shall continue until one of the tests set forth in Subsection 13.6(a)
is satisfied. The Committee shall notify affected Participants of any such
suspension, reduction or other action.
<PAGE>
13.7 Multiple Use and Aggregation Rules.
(a) Multiple Use of Alternative Method. In order to prevent the
multiple use of the alternative method described in Sections 13.5(a)(2) and
13.6(a)(2) above and in Code section 401(m)(2)(A)(ii), any Highly Compensated
Eligible Employee shall, in the discretion of the Committee, have his Actual
Deferral Percentage or his Actual Contribution Percentage under this Plan or
any other plan maintained by the Company or an Affiliated Company (as defined
in Section 2.1(f)) reduced pursuant to Treasury Regulation 1.401(m)-2. The
provisions of Code section 401(m) and Treasury Regulation 1.401(m)-2 are
incorporated herein by reference.
(b) Family Member Aggregation Rules. For the purpose of determining
the Actual Deferral Percentage or the Actual Contribution Percentage of a
Highly Compensated Eligible Employee who is subject to Family Member
aggregation rules of Code section 414(q)(6) because such Participant is one of
the ten (10) Highly Compensated Eligible Employees paid the greatest "Section
415 Compensation" (as defined in Section 2.1(xx)), the rules of Code section
414 and any other applicable provisions of the Code, and any rules and
regulation issued under Code section 414 and/or such other provisions of the
Code, shall be applied to the extent applicable.
(c) Aggregation of Certain Plans. For purposes of Sections 13.5 and
13.6, if two or more plans, including this Plan (other than an employee stock
ownership plan as defined in Code section 4975(e)(7)) which include Matching
Contributions, After-Tax Contributions, or Before-Tax Contributions are treated
as one plan for the purpose of Code section 401(a)(4) or 410(b) (other than the
average benefits test under Code section 410(b)(2)(A)(ii), such plans shall be
treated as one plan.
(d) Aggregation of Certain Contributions. For purposes of Sections
13.5 and 13.6, if a Highly Compensated Eligible Employee participates in two
(2) or more plans which are maintained by the Company or an Affiliated Company
to which Matching Contributions, After-Tax Contributions or Before-Tax
Contributions are made, all such contributions on behalf of such Highly
Compensated Eligible Employee shall be aggregated.
ARTICLE XIV
STATUTORY LIMITS ON ALLOCATIONS
14.1 Application of Article. Notwithstanding anything contained herein to
the contrary, allocations under this Plan shall be governed in accordance with
the provisions of this Article XIV, which shall supersede any conflicting
provisions in the Plan.
14.2 Maximum Annual Additions. In no event shall the aggregate Annual
Additions which may be credited to a Participant's Account for any Limitation
Year exceed the lesser of (i) $30,000 (or, if greater, one-fourth of the dollar
<PAGE>
limitation then in effect under Section 415(b)(1)(A) of the Code) or (ii) 25%
of the Participant's Section 415 Compensation for such Limitation Year.
14.3 Adjustment for Excessive Annual Additions. For this purpose, any
excess amount resulting from application of the maximum Annual Addition in a
Limitation Year which reduces Company Contributions shall be considered Annual
Additions for such Limitation Year. After-Tax Contributions which exceed the
Maximum Permissible Amount shall be returned to the Participant having made
such After-Tax Contributions.
14.4 Membership in Other Plans.
(a) Aggregation of Defined Contribution Plan Benefits. The maximum
Annual Addition for any Participant who at any time has been a participant in
one or more defined contribution plans maintained by an Affiliated Employer,
shall apply as if the total contributions and other additions under all such
defined contribution plans in which the Participant has been a participant were
received under one plan.
(b) Defined Benefit Plans. For purposes of determining the aggregate
amount of Annual Additions, benefits under any defined benefit plan which are
derived from employee contributions shall be treated as a separate defined
contribution plan.
(c) Adjustments. In the case of a Participant who is a participant
in a defined benefit plan and a defined contribution plan maintained by an
Affiliated Employer, the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction for any Limitation Year shall not exceed 1.0
as calculated below. In the event the sum of such fractions exceeds 1.0, the
annual benefits under any defined benefit plan of an Affiliated Employer, as
the case may be, shall be reduced in order that neither plan shall be
disqualified under the Code.
(d) Denominator Adjustment (Defined Benefit Plan Fraction).
Notwithstanding the above, if the Participant was a participant in a plan in
existence on July 1, 1982, the denominator of the Defined Benefit Plan Fraction
shall not be less than 125 percent of the sum of the annual benefits under such
plans which the Participant had accrued as of the end of the last Limitation
Year beginning before January, 1983. The preceding sentence applies only if
the defined benefit plans individually and in the aggregate satisfied the
requirements of Section 415 as in effect at the end of the 1982 Limitation
Year.
(e) Numerator Adjustment (Defined Contribution Plan Fraction. If a
Participant was a participant in one or more defined contribution plans
maintained by an Affiliated Employer which were in existence on July 1, 1982,
the numerator of the Defined Contribution Plan Fraction shall be adjusted if
the sum of this Defined Contribution Plan Fraction and the Defined Benefit
<PAGE>
Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the
adjustment, an amount equal to the product of (i) the excess of the sum of the
fractions over 1.0, times (ii) the denominator of this Defined Contribution
Plan Fraction, shall be permanently subtracted from the numerator of this
Defined Contribution Plan Fraction. The adjustment is calculated using the
fractions as they would be computed as of the end of the last Limitation Year
beginning before January l, 1983. This adjustment shall also be made if at the
end of the last Limitation Year beginning before January 1, 1984, the sum of
the fractions exceeds 1.0 because of accruals or additions that were made
before the limitations of this Article became effective to any plans of an
Affiliated Employer.
ARTICLE XV
SPECIAL RULES FOR TOP-HEAVY PLANS
15.1 Application of Top-Heavy Rules. Notwithstanding anything contained
herein to the contrary for any Plan Year in which this Plan is determined to be
a "Top-Heavy Plan", as defined below, the Plan shall be governed in accordance
with the provisions of this Article XV, which shall supersede any conflicting
provisions in the Plan.
15.2 Determination of Top-Heavy Status. This Plan will be deemed to be a
Top-Heavy Plan for any Plan Year if: (i) the Plan is not included in any
Required Aggregation Group or Permissive Aggregation Group and the Top-Heavy
Ratio (as defined below) for the Plan exceeds sixty percent (60%); or (ii) the
plan is included in a Required Aggregation Group but not a Permissive
Aggregation Group and the Top-Heavy Ratio for the Required Aggregation Group
exceeds sixty percent (60%); or (iii) the Plan is included in a Required
Aggregation Group and a Permissive Aggregation Group and the Top-Heavy Ratio
for the Permissive Aggregation Group exceeds sixty percent (60%).
The determination of the Top-Heavy Ratio shall be calculated in
accordance with the rules set forth in Code section 416. For such purpose, the
"determination date" and the "valuation date" for each Plan Year shall be the
last day of the preceding Plan Year immediately preceding the date as to which
such determination is made and the present value of a Participant's accrued
benefits under any defined benefit plan shall be determined using the actuarial
assumptions then in use for the purpose of determining the employer's
contribution to such plan.
15.3 Minimum Contribution Requirement. For any Plan Year in which this
Plan is determined to be a Top-Heavy Plan, either (i) a minimum contribution
shall be made pursuant to the Plan or another defined contribution plan
maintained by the Participating Company to the Account of each Participant who
is a Non-Key Employee by the Participating Company that employs him, or (ii) a
minimum non-integrated benefit must be provided to each Non-Key Employee
pursuant to a defined benefit plan maintained by the Participating Company by
<PAGE>
the Participating Company that employs him. For the purposes of the preceding
sentence, the minimum contribution provided to each Non-Key Employee shall be
equal to three percent (3%) of such Non-Key Employee's Section 415
Compensation. If, however, employee contributions (including any Before-Tax
Contributions made on behalf of the Participant), under this and any other
defined contribution plan required to be included in the Top-Heavy Group and
maintained by the Participating Company, for any Key Employees for such Plan
Year is less than three percent (3%) of such Key Employee's Section 415
Compensation not in excess of $200,000, then, the Participating Company's
minimum contribution to each Participant shall equal the amount that results
from multiplying such Participant's Section 415 Compensation times the highest
contribution rate of any Key Employee covered by the Plan (including any
Before-Tax Contribution made on behalf of the Participant). For purposes of
the first sentence of this Section 15.3, the minimum non-integrated benefit
provided by the Participating Company to each Non-Key Employee is an amount,
which when expressed as an annual retirement benefit, shall be no less than two
percent (2%) of such Non-Key Employee's average annual Section 415 Compensation
for the five (5) highest consecutive years of service with the Participating
Company, not to exceed ten (10) years.
15.4 Employment Requirement. Section 15.3 shall not apply to any
Participant who was not employed by an Affiliated Company on the last day of
the Plan Year.
15.5 Aqqreqation With Other Plans. For purposes of Section 15.3, Company
Contributions and Before-Tax Contributions allocated under any other defined
contribution plan of an Affiliated Company in which any Key Employee
participates or which enables another defined contribution plan to meet the
requirements of Code section 401(a)(4) or 410 shall be considered contributions
and forfeitures allocated under this Plan. In the case of any Non-Key Employee
Participant who is also a participant in any defined benefit plan of an
Affiliated Company, the foregoing provisions of Section 15.3 shall be applied,
but with five percent (5%) substituted for three percent (3%).
15.6 Effect on Section 415 Limitations. For any Plan Year in which this
Plan is deemed to be a Top-Heavy Plan, the number 1.00 shall be substituted for
1.25 in the definitions of Defined Contribution Fraction and Defined Benefit
Fraction in Section 14.4; provided, however, that the foregoing shall not apply
if (i) the Top-Heavy Ratio is 0.90 or less and (ii) each Non-Key Employee
receives an additional minimum contribution or benefit under a plan maintained
by an Affiliated Company. In the case of a Non-Key Employee participating only
in a defined benefit plan, the additional minimum benefit for each year of
Credited Service counted is one percentage point, up to a maximum of ten (10)
percentage points, of the Participant's average Section 415 Compensation for
<PAGE>
the five (5) consecutive years when the Participant had the highest aggregate
Section 415 Compensation from an Affiliated Company. In the case of a Non-Key
Employee participating only in this or another defined contribution plan, the
additional minimum contribution is one percent (1%) of the Participant's
Section 415 Compensation. In the case of a Non-Key Employee participating both
in a defined benefit plan and this or another defined contribution plan, there
is no additional minimum benefit, but the additional minimum contribution shall
be two and one-half percent (2-1/2%) of the Participant's Section 415
Compensation. At the discretion of the Committee, the Defined Contribution
Plan Fraction provided above may be computed using the transitional rules of
Code section 415(e)(6).
ARTICLE XVI
DESIGNATION OF BENEFICIARIES
16.1 Designation Procedure. Subject to the provisions of Section 16.2,
each Participant or Inactive Participant may designate from time to time one or
more Beneficiaries (who may be designated primarily, contingently or
successively and who may be an entity other than a natural person) to whom his
Plan benefits are to be paid if he dies before receipt of all such benefits.
Each Beneficiary designation shall be in a form prescribed by the Committee,
and will be effective only when filed with the Committee during the
Participant's lifetime. No joint ownership or co-ownership is permitted under
the Plan. A change in beneficiary may be made at any time subject to any
relevant legal requirements and shall be effective when received and recorded
by the Participating Company by whom he is employed. Each Beneficiary
designation filed with the Committee will cancel all Beneficiary designations
previously filed with the Committee. The revocation of a Beneficiary
designation no matter how effected, shall not require the consent of any
designated Beneficiary except as provided in Section 16.2 below.
16.2 Spousal Consent. No beneficiary designation shall be effective under
this Plan unless the Participant's spouse consents in writing to such
designation, the spouse's consent acknowledges the effect of such designation
and the spouse's signature is witnessed by a plan representative or a notary
public. Consequently, any Beneficiary designation previously made by a
Participant shall be automatically revokes upon the marriage or remarriage of a
Participant. A spouse's consent shall be valid under the Plan only with
respect to the specified Beneficiary or Beneficiaries designated by the
Participant. If the Beneficiary or Beneficiaries are subsequently changed by
the Participant, a new consent by the spouse will be required. The spouse's
consent to any Beneficiary designation made by a Participant pursuant to the
Plan, once made, may not be revoked by the spouse.
Notwithstanding the foregoing, spousal consent to a Participant's
Beneficiary designation shall not be required if: (i) the spouse is designated
as the sole primary beneficiary by the Participant, or (ii) it is established
to the satisfaction of the Committee that spousal consent cannot be obtained
<PAGE>
because there is no spouse, because the spouse cannot be located or because of
such other circumstances as may be prescribed in regulations issued by the
Secretary of the Treasury. Any consent by a spouse or any determination that
the consent is not required pursuant to (i) or (ii) shall be effective only
with respect to such spouse.
16.3 Absence of Designation. If any Participant or Inactive Participant
fails to designate a Beneficiary in the manner provided above, or if the
Beneficiary designated by the deceased Participant dies before him or before
complete distribution of the Participant's benefits, the Trustee shall
distribute such benefits in the following order of priority to the deceased
Participant's (i) spouse, (ii) lineal descendants, (iii) parents or (iv)
estate. If the Committee is in doubt as to the right of any person to receive
such amount, the Committee may direct the Trustee to retain such amount,
without liability for interest thereon, until the rights thereto are
determined, or the Committee may direct the Trustee to pay such amount into any
court of appropriate jurisdiction and such payment shall be a complete
discharge of the liability of this Plan and Trust therefor.
ARTICLE XVII
ASSIGNMENT OR ATTACHMENT
17.1 Nonassiqnability. To the extent permitted by law, and except as
provided for in Article XII or required to comply with a Qualified Domestic
Relations Order (as defined in Code section 401(a)(13), a "QDRO"), no right or
interest of any Participant or his Beneficiaries to any benefits or future
payments under this Plan or under the Trust shall be subject in any manner to
alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge,
attachment, charge or encumbrance of any kind nor in any manner by subject to
the debts or liabilities of any person and any attempt to so alienate or
subject any such amount, whether presently or thereafter payable, shall be
void; provided, however, the foregoing shall not apply to any assignment or
transfer, in the case of Participant's death, to his designated beneficiary or
beneficiaries as provided in the Plan or, in the absence of such designation,
to his spouse, lineal descendants, parents or estate, in the foregoing order of
priority. If any person shall attempt to, or shall, alienate, sell, transfer,
assign, pledge, attach, charge or otherwise encumber any amount payable under
the Plan and Trust, or any part thereof, or if by reason of his bankruptcy or
other event happening at any such time such amount would be made subject to his
debts or liabilities or would otherwise not be enjoyed by him, then the
Committee, if it so elects, may direct that such amount be withheld and that
the same or any part thereof be paid or applied to or for the benefit of such
person, his spouse, children or other dependents, or any of them, in such
manner and proportion as the Committee may deem proper.
17.2 QDRO Exception. In the event a QDRO is received by the Committee, it
shall be followed in accordance with its provisions without otherwise
invalidating this Article XVII. Upon receipt of any domestic relations order
by this Plan, the Committee shall take the following steps:
<PAGE>
(a) Notice. The Committee shall notify, by letter, the Participant
and any alternate payee (as defined in Code section 414(p)(8) named in such
order of the receipt of a domestic relations order and this Plan s procedures
for determining whether such order is a QDRO. The notice to the alternate
payee shall include a statement that he is entitled to designate a
representative for receipt of copies of any notices that are sent to the
alternate payee with respect to a domestic relations order. The notice shall
be sent to the Participant and alternate payee at the address specified in the
order or, if none is specified, at the address of the Participant or alternate
payee last known to the Committee.
(b) QDRO Determination. Within a reasonable period of time after
receipt of such order, the Committee shall make a determination as to whether
such an order is a QDRO and notify the Participant and each alternate payee of
such determination. In making its determination, the Committee may seek the
advice of legal counsel as to whether the order meets the requirements of Code
section 401(a)(13).
(c) Segregation of Funds; Payment. Pending the Committee's
determination of whether a domestic relations order is a QDRO, the Committee
shall instruct the Trustee to segregate the amounts payable to the alternate
payee during such period if the order is a QDRO. The alternate payee shall be
paid his separate Account or his percentage of the Participant's Account in a
lump sum payment unless the domestic relations order specifies a different
manner of payment permitted by this Plan; the alternate payee shall not be
required to consent to such lump sum payment. The Committee shall adopt
reasonable procedures to determine the qualified status of domestic relations
orders and to administer the distributions thereunder. If the Committee
determines an order is not a QDRO, the Participant's Account shall be
distributed as soon as administratively possible following the end of the month
the cancellation is received by the Committee, unless an election pursuant to
Section 8.6 has been exercised.
ARTICLE XVIII
ADMINISTRATION
18.1 General. Except for matters required by the terms of this Plan or of
the Trust Agreement to be decided by the Board or the Trustee, the Plan shall
be administered by the Committee, as such Committee is from time to time
constituted, or any successor committee the Board may designate to administer
the Plan; provided that if at any time Rule 16b-3 or any successor rule ("Rule
16b-3") under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), so permits without adversely affecting the ability of the Plan to
company with the conditions for exemption from Section 16 of the Exchange Act
(or any successor provision) provided by Rule 16b-3, the Committee may delegate
<PAGE>
the administration of the Plan in whole or in part, on such terms and
conditions, and to such person or persons as it may determine in its
discretion, as it relates to persons not subject to Section 16 of the Exchange
Act (or any successor provision). The membership of the Committee or such
successor committee shall be constituted so as to comply at all times with the
applicable requirements of Rule 16b-3. No member of the Committee shall be
eligible or have been eligible within one year prior to his appointment to
participate in the Plan or to receive awards under any other plan, program or
arrange ment of the Company or any of its affiliates if such eligi bility would
cause such member to cease to be a "disinterested person" under Rule 16b-3;
provided that if at any time Rule 16b-3 so permits without adversely affecting
the ability of the Plan to comply with the conditions for exemption from
Section 16 of the Exchange Act (or any successor provision) provided by Rule
16b-3, one or more members of the Committee may cease to be "disinterested
persons".
18.2 Fiduciary Responsibilitv of the Committee. Sub ject to the
provisions of Subsection 18.1, the Committee shall be the plan administrator
and, as a named fiduciary, shall have fiduciary responsibility under ERISA for
the general operation of this Plan, and the exclusive authority and
responsibility (i) to appoint and remove investment advisors, if any, with
respect to any investment medium or fund of the Trust Fund and the Trustee or
any successor Trustee under the Plan and Trust Agreement, and (ii) to direct
the segregation of all or a portion of the assets of any invest ment medium or
fund of the Trust Fund into an investment advisor account or accounts at any
time and from time to time, and to add assets to or withdraw assets from such
investment advisor account or accounts as it deems desirable or appropriate;
provided, however, that except as expressly set forth above, the Committee
shall have no responsibility for or control over the investment of Trust
Assets, and (iii) to appoint a Recordkeeper or any successor Recordkeeper.
18.3 Responsibilitv of the Company and Trustee. Notwithstanding anything
contained herein to the contrary, the Company shall have the exclusive
authority to appoint and remove the members of the Committee and, as provided
in Section 19.1, to amend, suspend or terminate, in whole or in part, this
Plan; and the Trustee shall have the sole responsibility for the administration
of the Trust and, except to the extent that the authority to manage all or a
part of the Trust Assets is allocated by the Committee to one or more
investment managers, the management and control of the Trust Assets, all as
specifically provided in the Trust Agreement.
18.4 Certain Committee Provisions.
(a) Powers. Subject to any limitation imposed by law or by this
Plan, the Committee shall have such authority and powers as may be necessary to
administer the Plan in accordance with its terms, including, but not by way of
limitation, the authority and power to:
<PAGE>
(i) determine all questions affecting the eligibility of any
person to participate in this Plan;
(ii) determine the amount, manner and time of any benefits
payable under this Plan to any Participant, Inactive Participant or
Beneficiary;
(iii) prescribe procedures to be followed by Participants,
Inactive Participants or Beneficiaries filing applications for benefits;
(iv) employ such legal counsel, accountants, actuaries,
consultants and agents, and such clerical and other services, as are reasonably
necessary to assist in the administration of this Plan;
(v) adopt such rules and regulations as it deems appropriate for
the administration of this Plan and the transaction of its business, or
clarifying the interpre tation of the Plan, which is not inconsistent with the
terms, provisions and intent of the Plan, all such rules and regulations to be
uniformly and consistently applied to all Participants in similar
circumstances;
(vi) issue directions to the Trustee concerning all
distributions or withdrawals to be made from the Trust Fund pursuant to the
provisions of this Plan;
(vii) designate investment policies under which the Trustee
shall act;
(viii) correct defects, rectify omissions and reconcile
inconsistencies to the extent necessary to effectuate this Plan;
(ix) construe all terms, provisions, conditions and limitations
of this Plan, and determine all questions, whether legal or factual in nature,
arising out of or in connection with the provisions of the Plan or its adminis
tration in any and all areas in which the Committee deems such determination
advisable.
(x) to delegate the above authority to such person(s) as the
Committee may designate, including, but not by way of limitation, to a third
party recordkeeper.
(b) Records and Reports. The Committee shall exercise such authority
and responsibility as it deems appropriate in order to comply with ERISA and
governmental regulations issued thereunder relating to records of Participant's
service, account balances and the percentage of such account balances which are
nonforfeitable under this Plan; notifica tions to Participants; annual
registration with the Internal Revenue Service; and annual reports to the
Department of Labor.
<PAGE>
(c) Disputes. If any dispute shall arise as to any act to be
performed by the Committee, the Committee may postpone the performing of such
act until final adjudication of such dispute shall have been made in a court of
competent jurisdiction or until the members of the Committee shall be
indemnified against loss to their satisfaction.
(d) Interested Members. Subject to the requirements of the Exchange
Act and any rules and regulations thereunder, no action by the Committee shall
be void or voidable solely because such action specifically relates to or
affects the participation or benefits of one or more Committee members (as
opposed to relating to or affecting the participation or benefits of all
Participants or any cate gory or group of Participants), or solely because such
member or members were present at or participated in the meeting at which such
action was taken, or such members or members' votes were counted for such
purpose, if the material facts as to such member's or members' interest in such
action are disclosed to or known by the Committee and its authorizes the action
in good faith by the affirmative votes of a majority of the members present who
are not so interested, even though they may constitute less than a quorum.
Interested members may be counted in determining the presence of a quorum at
any meeting of the Committee.
18.5 Records and Reliance on Information. The Committee shall maintain or
cause to be maintained records reflecting administration of the Plan, which
records shall be subject to audit by the Company. The members of the Com
mittee or any Participating Company, and their respective officers, directors
and employees, shall be entitled to rely upon all tables, valuations,
certificates, opinions and reports furnished by an actuary, accountant,
trustee, insur ance company, counsel or other expert who shall be engaged by
the Committee or by any Participating Company; the mem bers of the Committee or
any Participating Company, and their respective officers, directors and
employees, shall be fully protected in respect of any action taken or omitted
to be taken by them in good faith in reliance thereon; and all action so taken
or omitted shall be conclusive upon all persons affected thereby.
18.6 Conclusiveness of Action. The Committee shall have the exclusive
right and discretion to determine any question arising in connection with the
interpretation, application or administration of this Plan, and its
determination in good faith shall be conclusive and binding upon all parties
concerned, including, without limitation, any and all Employees, Participants,
spouses, Beneficiaries, heirs, distributees, estates, executors, administrators
and assigns.
18.7 Bonding and Insurance. To the extent required under ERISA section
412, the Company shall secure fidelity bonding for the fiduciaries of this Plan
<PAGE>
and the Company (in its discretion) or the Trustee (as directed by the
Committee) may obtain a policy or policies of insurance for the members of the
Committee (and other fiduciaries of the Plan) to cover liability or loss
occurring by reason of the act or omission of the fiduciary.
18.8 Benefit Claims Procedures.
(a) Filing of Claim. Any Participant, Inactive Participant or
Beneficiary under this Plan ("Claimant"), may file a written claim for a Plan
benefit with the Committee or with a person named by the Committee to receive
claims under the Plan. The claim shall include a general descrip tion of the
benefit which the claimant believes is due and the reasons the Claimant
believes such benefit is due, to the extent this is within the knowledge of
Claimant. It shall not be necessary for the Claimant to cite any particular
Article or Section of the Plan, but only set out the facts known to him which
he believes constitutes a basis for a claim.
(b) Action on Claim. Within sixty (60) days of the receipt of the
claim by the Committee, the Committee or its delegatee shall notify the
Claimant as to the disposition of the claim. Within ninety (90) days after
receipt of the claim by the Committee, unless special circumstances require an
extension of time for process of the claim, the Committee or its delegatee
shall notify the Claimant as to the disposition of the claim.
(c) Denial of Claim. In the event a claim is denied in whole or in
part, the notice of denial shall contain (i) the specific reason or reasons for
the denial and the written specific reference to the pertinent Plan provisions
on which the denial or limitation of benefits is based, (ii) the appropriate
information as to the steps to be taken if the Claimant wishes to submit his or
her claim for review, and (iii) a description of any additional material or
information necessary for the Claimant to perfect a claim and an explanation of
why such material or information is necessary. If such an extension of time
for processing is required, written notice of the extension shall be furnished
to the Claimant prior to the termination of said ninety (90) day period and
such notice shall indicate the special circumstances which make the
postponement appropriate.
(d) Right of Review. In the event of a denial or limitation of
benefits, the Claimant or his duly authorized representative shall be permitted
to review pertinent documents and to submit to the Committee issues and
comments in writing. In addition, the Claimant or his duly authorized
representative may make a written request for a full review of his claim and
its denial by the Committee; provided, however, that such written request must
be received by the Committee (or its delegatee to receive such requests) within
sixty days after receipt by the Claimant of written notification of the denial
<PAGE>
or limitation of the claim. The sixty (60) day requirement may be waived by
the Committee in appropriate cases.
(e) Decision on Review. A decision shall be rendered by the
Committee within sixty (60) days after the receipt of the request for review,
provided that where special circumstances require an extension of time for
processing the decision, it may be postponed on written notice to the Claimant
(prior to the expiration of the initial sixty (60) day period), for an
additional sixty (60) days, but in no event shall the decision be rendered more
than one hundred twenty (120) days after the receipt of such request for
review.
(f) Conclusiveness of Action. All interpretations, determinations
and decisions of the Committee in respect of any claim hereunder shall be made
at the discretion of the Committee and shall be final, conclusive and binding
upon all persons claiming an interest in this Plan.
(g) Collective Bargaining Unit Procedures. Participants covered by a
collective bargaining agreement under which benefit claim denials are a proper
subject for the agreement's grievance procedure, shall use that grievance
procedure in substitution of the foregoing Claim Denial Appeal Procedure.
18.9 Correction of Errors. If any change in records or error results in
any Participant or beneficiary receiving from this Plan more than he would have
been entitled to receive had the records been correct or had the error not been
made, the Participating Company by which he is employed, upon discovery of such
error, shall correct the error by adjusting, as far as practicable, the payment
in such manner that the benefits to which such person was correctly entitled
shall be paid.
18.10 Plan Adninistrative Expenses. The expenses of administering
this Plan, including the fees and expenses of any Investment Manager and of the
Trustee for the performance of their duties and cost of services rendered under
the Plan and Trust, may be paid out of the Trust Fund and allocated to and
deducted from the Accounts of Participants by the Committee in accordance with
the provisions of Section 7.3, if the Company does not pay such expenses
directly.
ARTICLE XIX
AMENDMENT, TERMINATION OR MERGER, CONSOLIDATION
OR TRANSFER OF ASSETS
19.1 Power to Amend, Suspend or Terminate. The Company may, except as
provided in Section 19.4, amend, suspend or discontinue this Plan in whole or
in part at any time. Any such amendment may be retroactive if it is necessary
or appropriate to qualify or maintain the Plan or Trust as a plan or trust
meeting the requirements of Code section 401, to secure and maintain the tax
exemption of the Trust under Code section 501, in order that the contributions
<PAGE>
to the Plan be deductible under Code section 404(a) and/or to bring the Plan or
Trust into conformity with any other applicable provisions of the Code or ERISA
and regulations issued under either the Code or ERISA.
19.2 Limitation on Amendment or Termination. The Company shall not have
the power to amend or terminate this Plan in such manner as would cause or
permit any part of the assets of the Plan held in the Trust Fund to be diverted
to purposes other than for the exclusive benefit of Participants, Inactive
Participant and Beneficiaries, or as would cause or permit any portion of such
assets to revert to or become the property of the Participating Companies,
except as otherwise provided in Article V. The Company shall not have the
right to modify or amend the Plan in such manner as to reduce the accrued
benefit of any Participant, Inactive Participant or Beneficiary, to deprive any
Participant, Inactive Participant or Beneficiary of any benefit to which any
one of them was entitled under the Plan by reason of contributions made prior
thereto, or adversely to affect the rights and duties of the Committee or the
Trustee without its consent in writing, unless such modification or amendment
is necessary to conform the Plan to, or to satisfy or continue to satisfy the
conditions of, any applicable law, including ERISA, governmental regulations or
rulings, or to cause the Plan to meet or to continue to meet the requirements
for qualification of the Plan under Code section 401(a), or any similar statute
enacted as a successor thereto.
19.3 Suspension of Plan. In the event of suspension of this Plan, all
provisions of the Plan shall continue in effect during such period of
suspension, except Articles IV, V and those provisions of Article XI which
permit resumption of contributions. Upon continuous suspension of the Plan for
a period of three (3) years, the Plan shall terminate.
19.4 Rights Upon Plan Termination. In the event of termination of this
Plan in whole or in part or upon the discontinuance of Company Matching
Contributions, Participants shall immediately become 100% vested in their
Company Matching Contributions Accounts and effective ninety (90) days after
such termination or discontinuance, Accounts of affected Participants shall be
settled and distributed under the provisions of Section 8.3 as though
retirement had occurred on such ninetieth (90th) day. In the event of death or
other termination of employment during such ninety (90) day period, Sections
8.2 and 8.3, as applicable, shall apply as to the method of payment.
19.5 Merger, Consolidation or Transfer. The merger or consolidation of
this Plan with, or transfer of assets or liabilities of the Trust Fund to
another trust fund held under any other plan of deferred compensation shall be
permitted only if each Participant, Inactive Participant and Beneficiary in the
Plan would receive a benefit immediately after the merger, consolidation or
transfer, if such plan were then terminated, equal to or greater than the
benefit he would have been entitled to receive immediately had this Plan been
<PAGE>
terminated immediately before the merger, consolidation or transfer. No
merger, consolidation or transfer shall take place unless such other plan and
trust are qualified under Code section 401(a), or is such merger, consolidation
or transfer would cause this Plan to cease to be a qualified plan.
19.6 Adoption of Plan by Successor Company. A successor to the business
of a Participating Company, by whatever form or manner resulting, may continue
and adopt this Plan and the Trust Agreement by an instrument in writing
executed by such successor and by the Participating Company. Such successor
shall succeed to all the rights, powers and duties hereunder of the
Participating Company. The employment of any employee who is continued in the
employ of such successor shall not be deemed to have been terminated for any
purpose hereunder.
ARTICLE XX
RELATED ENTITIES; PARTICIPATING COMPANY WITHDRAWAL
20.1 Adoption of Plan by Related Entities. Any related entity of Company,
with the approval of the Board, may become a Participating Company and secure
the benefits of this Plan for its employees by adopting this Plan as its
savings plan, by becoming a party to the Trust Agreement and by taking such
other action as the Company shall consider necessary or desirable to accomplish
that purpose.
20.2 Participating Company Withdrawal.
(a) At the Company's Request. The Company, upon thirty (30) days'
written notice, may at any time request a Participating Company to withdraw
from this Plan, and upon the expiration of such thirty (30)-day period, unless
such Participating Company has taken appropriate corporate or other action to
accomplish such withdrawal, such Participating Company shall be deemed to have
withdrawn from the Plan.
(b) At the Related Entity's Request. Subject to the provisions of
Subsection 20.2(d), any Participating Company, with the consent of the Company,
may at anytime withdraw from this Plan upon giving the Company and the Trustee
at least thirty (30) days notice of its intention to withdraw.
(c) Segregation of Trust Assets Upon Withdrawal. Upon withdrawal
pursuant to either Subsection 20.2(a) or 20.2(b), the Trustee shall segregate
such part of the Trust Assets as may be determined by the Committee to
constitute the appropriate share of the Trust Fund then held in respect of the
Participants of such Participating Company.
(d) Exclusive Benefit of Participants . Except as otherwise allowed
by law, neither the segregation and transfer of the Trust Assets upon the
withdrawal of a Participating Company nor the execution of a new agreement and
<PAGE>
declaration of trust by such withdrawing Participating Company shall operate to
permit any part of the Trust Fund to be used for or diverted to purposes other
than for the exclusive benefit of the Participants and their Beneficiaries.
(e) Applicability of Withdrawal Provisions. The withdrawal
provisions contained in this Article XX shall be applicable only if the
withdrawing Participating Company continues to cover its Participants and
eligible Employees in another defined contribution plan and trust qualified
under Code sections 401 and 501. Otherwise, the termination provisions of
Article XX of this Plan shall apply.
ARTICLE XXI
MISCELLANEOUS
21.1 Limitation of Liability. It is expressly under stood and agreed by
each Employee who becomes a Participant that, except as otherwise provided by
law, neither the Committee nor any member thereof, any Participating Company or
any stockholder, officer, director or employee thereof, any party to whom the
Company or the Committee shall have allocated any responsibility or delegated
any duty nor any other party acting at the request of the Board or the
Committee shall be liable for any act or failure to act, or for any cause or
reason or thing whatsoever, connected with or related to this Plan or the
administration or operation thereof, except in case of willful misconduct or
gross negligence.
21.2 Estoppel. The Committee and each member thereof and the Company, and
any other Participating Company, and each stockholder, officer, director and
employee thereof, except as otherwise provided by law, shall be entitled to
rely conclusively on all tables, valuations, certificates, statements, opinions
reports and other representations that shall be furnished by an actuary,
accountant, trustee, insurance company, counsel or other expert who shall be
employed or engaged by the Company, any other Participating Company or the
Committee, and shall be fully protected in respect of any action taken or
omitted to be taken by them in good faith in reliance thereon; and any action
so taken or omitted shall be conclusive upon all persons affected thereby. Any
such certificate, statement or other representation made by an Employee,
Participant or spouse of an Employee or Participant shall be conclusively
binding upon such Employee, Participant and spouse and the Beneficiary of such
participant; and such Employee, Participant, spouse or Beneficiary shall
thereafter and forever be estopped from disputing the truth and correctness of
such certificate, statement or other representation. Any such certificate,
statement or other representation made by a Participant's Beneficiary shall be
conclusively binding upon such Beneficiary, and such Beneficiary shall
thereafter and forever be estopped from disputing the truth and correctness of
such certificate, statement or other representation.
<PAGE>
21.3 Indemnification and Insurance. To the full extent permitted by law,
the Company and all other Participating Companies shall and do hereby jointly
and severally indemnify and agree to hold harmless any and all parties
protected under Section 21.3 from any and all claims, demands, suits or
proceedings made or threatened and any and all loss, damage or liability, joint
or several, including payment of expenses in connection with defense against
any such claim, for their acts, omissions and conduct, and for the acts,
omission or conduct constitutes or is alleged to constitute a breach of such
party's fiduciary or other responsibilities under ERISA or any other law,
except for those acts, omissions or conduct resulting from his own willful
misconduct or willful failure to act; provided, however, that if any party
would otherwise be entitled to indemnification hereunder in respect of any
liability and such party shall be insured against loss as a result of such
liability by any insurance contract or contracts, such party shall be entitled
to indemnification hereunder only to the extent by which the amount of such
liability shall exceed the amount thereof payable under such insurance contract
or contracts. Expenses against which any party indemnified under this Section
19.9 may be indemnified include, without limitation, the amount of any
settlement or judgment, costs, counsel fees and related charges reasonably
incurred in connection with a claim asserted or proceeding brought or
settlement thereof. The foregoing right to indemnification shall be in
addition to any other rights to which any party indemnified under this Section
19.8 may be entitled as a matter of law.
21.4 Trust Is Sole Source of Benefits. The Trust shall be the sole source
of benefits under this Plan and, except as otherwise required by law, the
Company, the other Participating Companies and the Committee assume no
liability or responsibility for payment of such benefits, and each Participant,
Inactive Participant, Beneficiary or other person who shall claim the right to
any payment under the Plan shall be entitled to look only to the Trust for such
payment and shall not have any right, claim or demand therefor against the
Participating Companies or the Committee or any member thereof, or any employee
or director of any of the Participating Companies.
21.5 No Right to be Retained in Employment. Nothing herein contained
shall be deemed (i) to give to any employee the right to be retained in the
employ of a Participating Company or any of its subsidiary or affiliated or
associated companies (ii) to affect the right of such employer to terminate or
discharge any employee at any time; (iii) to give such employer the right to
require any employee to remain in its employ; or (iv) to affect any employee's
right to terminate his employment at any time. The adoption and maintenance of
this Plan shall not constitute a contract between the Company or any employee
or consideration for, or an inducement to or condition of, the employment of
any employee.
21.6 Sale of a Participating Company, Division or Business Unit.
<PAGE>
(a) In the event a sale or other disposition of a Participating
Company, or of all or a substantial part of a division or other business unit
of a Participating Company which the Company determines under the facts
constitutes an employment unit (hereinafter a "Transferred Employing Unit"),
such portion of the Trust assets as may be determined by the Committee to
constitute the appropriate share of the Trust Fund then held in respect of the
Participants subsequently employed by the purchaser of or successor to the
Transferred Employing Unit ("Transferred Participants") shall be held subject
to transfer by the Trustee in accordance with the terms of the agreement
pursuant to which the Transferred Employing Unit was sold or disposed of;
provided, however, that this provision shall not supersede any other provision
of the Plan.
(b) If such agreement does not provide for a transfer of Trust
Assets, or if the terms of the agreement provide for the transfer of Trust
assets to a plan which is qualified under Code section 401(a) and the purchaser
or successor does not establish such a plan with twelve (12) months after the
closing date of the sale or other disposition of the Transferred Employing
Unit, the portion of the Trust Fund attributable to Transferred Participants
shall be held by the Trustee for distribution to such Participants pursuant to
the provisions of Article VIII.
21.7 Collective Bargaining Units. This Plan shall become applicable to
Employees who are members of a collective bargaining unit if, and when, the
Participating Company and the authorized bargaining unit representatives as a
result of good faith bargaining agree that the Plan shall apply to such
Employees.
21.8 Communications.
(a) Communications by the Committee. All notices, statements,
reports and other communications made, delivered or transmitted to a
Participant, Beneficiary or other person under this Plan shall be deemed to
have been duly given, made or transmitted when delivered to, or when mailed by
first-class mail, postage prepaid and addressed to, such Participant,
Beneficiary or other person at his address last appearing on the records of the
Committee.
(b) Communications by the Participants and Others. All elections,
designations, requests, notices, instructions and other communications made,
delivered or transmitted by a Participating Company, Participant, Beneficiary
or other person to the Committee required or permitted under this Plan shall be
in such form as is prescribed from time to time by each such Committee, shall
be transmitted in the form or delivered to such location as shall be specified
by each such Committee and shall be deemed to have been given and delivered
only upon actual receipt thereof by such Committee at such location.
<PAGE>
21.9 Prevention of Escheat. If the Committee cannot ascertain the
whereabouts of any person to whom a payment is due under this Plan, and if,
after five (5) years from the date such payment is due, a notice of such
payment due is mailed to the last known address of such person, as shown on the
records of the Committee or the Company, and within three (3) months after such
mailing such person has not made written claim therefor, the Committee, if it
so elects, after receiving advice from counsel to the Plan, may direct that
such payment and all remaining payments otherwise due to such person be
cancelled on the records of the Plan and the amount thereof applied to reduce
the contributions of the Company and upon such cancellation, the Plan and the
Trust shall have no further liability therefor except that, in the event such
person later notifies the Committee of his whereabouts and requests the payment
or payments due to him under the Plan, the amount so applied shall be paid to
him as provided in Article X.
21.10 Inabilitv to Locate Payee. Anything to the con trary herein
notwithstanding, if the Committee is unable, after a reasonable effort, to
locate any Participant or Beneficiary to whom an amount is distributable
hereunder, such amount shall be forfeited and used to reduce Company Matching
Contributions in the year of forfeiture. Notwithstanding the foregoing,
however, the amount of the forfeiture (unadjusted for any income, gains or
losses) shall be reinstated, by means of an additional contribution by the
Company if and when a valid claim for the forfeited amount is subsequently made
by the Participant or Beneficiary or if the Committee receives proof of death
of such person, satisfactory to the Committee; in such case, payment of the
reinstated amount shall be made in accordance with the provisions of this Plan.
Any benefits lost by reason of applicable state law relating to escheat or
abandoned property shall be considered forfeited but shall not be subject to
reinstatement.
21.11 Facility of Payment Provision. If the Committee shall find that
any person to whom any amount is payable under this Plan is unable to care for
his affairs because of illness or accident, or is a minor, or has died, then
any payment due him or his estate (unless a prior claim therefor has been made
by a duly appointed legal representative) may, if the Committee so elects, be
paid to his spouse, a child, a relative, an institution maintaining or having
custody of such person, or any other person deemed by the Committee to be a
proper recipient on behalf of such person otherwise entitled to payment. Any
such payment shall be a complete discharge of the liability of the Plan and the
Trust therefor.
21.12 Public Accountant. The Committee shall engage on behalf of
Participants an independent qualified public accountant to conduct an
examination of this Plan financial records and other records of the Plan as
such accountant may deem necessary and to render opinions as required under
ERISA.
<PAGE>
21.13 Required Information. Each Participant and Inactive Participant
shall file with the Committee such pertinent information concerning himself,
his spouse and his Beneficiary as the Committee may specify, and no
Participant, Inactive Participant, Beneficiary or other person shall have any
rights or be entitled to any benefits under this Plan unless such information
is filed by or with respect to him.
21.14 Summary Plan Description. Each Participant shall be furnished
with the summary plan description of this Plan required by Section 102(a)(1)
and 104(b)(1) of ERISA. Such summary plan description shall be updated from
time to time as required under ERISA and Department of Labor regulations
thereunder.
21.15 Available Copies. The Company shall make available for
examination by any Participant copies of this Plan, the Trust Agreement(s) and
the latest annual report of the Plan filed (on Form 5500) with the Internal
Revenue Service. Upon written request of any Participant, the Company shall
furnish copies of such documents and may make reasonable charge to cover the
cost of furnishing such copies, as provided in regulations of the Department of
Labor.
21.16 Title and Headings. The titles and headings of the Articles,
Sections and Subsections are inserted for convenience of reference only, and in
case of any conflicts, the text of this Plan, rather than the titles or
headings, shall control.
21.17 Separability. If any provision of this Plan is found, held or
deemed to be void, unlawful, or unenforceable under any applicable statute or
other controlling law, the remainder of this Plan shall continue in full force
and effect.
21.18 Applicable Law. This Plan and all rights thereunder shall be
governed, construed, regulated, interpreted and administered according to the
laws of the State of Delaware, except to the extent that state law shall not
have been preempted by ERISA or by other federal law.
ARTICLE XXII
VOTING
Each Participant, Inactive Participant or Beneficiary (for purposes
of this Article XXII, collectively, "Voting Person"), shall have the right to
direct the Trustee with respect to the voting of Common Stock allocated to his
account. Before each annual or special meeting of its stockholders, Global
shall cause to be sent to each Voting Person a copy of the proxy solicitation
material for the meeting, together with a form of proxy requesting instructions
to the Trustee as to the voting of the shares of Common Stock allocated to such
Voting Person's Accounts. Upon timely receipt of such instructions, the
Trustee, itself or by proxy, shall vote the shares of Common Stock allocated in
such accounts in accordance with the instructions of the Voting Person. The
<PAGE>
instructions so received by the Trustee from Voting Persons shall be held in
confidence and shall not be divulged or released to any person other than the
inspectors of election and certain employees associated with processing proxy
cards and tabulating the vote. (The vote of any such Voting Person shall not
be disclosed except as may be necessary to meet legal requirements. However,
all comments directed to management from stockholders, whether written on the
proxy card or elsewhere, shall be forwarded to management in a form that does
not permit identification of the stockholder.) If five (5) days prior to the
time of such meeting of stockholders the Trustee shall not have received
instructions with respect to any shares of Common Stock allocated to a Voting
Person's Account, the Trustee, itself or by proxy, shall vote all such shares
in the same proportion as the shares for which instructions were received from
other participants.
GLOBAL ENVIRONMENTAL SOLUTIONS, INC.
RETIREMENT SAVINGS PLAN
RELATED TRUST AGREEMENT
<PAGE>
TABLE OF CONTENTS
Page No.
ARTICLE 1 - ESTABLISHMENT OF TRUST FUND . . . . . . . . . . . . . . . . . 1
ARTICLE 2 - DISBURSEMENT OF FUNDS
2.1 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Excess Contributions . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - INVESTMENT OF TRUST . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 4 - POWERS OF TRUSTEE
4.1 Purchase of Property . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Sale Exchange, Conveyance and Transfer of Property . . . . . . . . 3
4.3 Exercise of Owners' Rights . . . . . . . . . . . . . . . . . . . . 3
4.4 Settlement of Claims and Debts . . . . . . . . . . . . . . . . . . 3
4.5 Retention of Cash. . . . . . . . . . . . . . . . . . . . . . . . . 3
4.6 Retention of Property Acquired . . . . . . . . . . . . . . . . . . 3
4.7 Registration of Investments. . . . . . . . . . . . . . . . . . . . 4
4.8 Employment of Agents and Counsel . . . . . . . . . . . . . . . . . 4
4.9 Execution of Instruments . . . . . . . . . . . . . . . . . . . . . 4
4.10 Power to do any Necessary Act. . . . . . . . . . . . . . . . . . . 4
4.11 Fiduciary Standard of Conduct. . . . . . . . . . . . . . . . . . . 4
ARTICLE 5 - COMPENSATION, EXPENSES AND TAXES. . . . . . . . . . . . . . . 4
ARTICLE 6 - MAINTENANCE OF RECORDS. . . . . . . . . . . . . . . . . . . . 5
ARTICLE 7 - REMOVAL OR RESIGNATION OF TRUSTEE AND
APPOINTMENT OF SUCCESSOR TRUSTEE. . . . . . . . . . . . . . . 5
ARTICLE 8 - IMMUNITY OF TRUSTEE
8.1 Protection of Trustee. . . . . . . . . . . . . . . . . . . . . . . 6
8.2 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . 6
8.3 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.4 Evidence of Action of Company. . . . . . . . . . . . . . . . . . . 7
8.5 Reliance on Counsel. . . . . . . . . . . . . . . . . . . . . . . . 7
<PAGE>
ARTICLE 9 - QUALIFIED INVESTMENT MANAGER
9.1 Appointment and Acknowledgement. . . . . . . . . . . . . . . . . . 7
9.2 Qualification. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.3 Relation to Trustee. . . . . . . . . . . . . . . . . . . . . . . . 8
9.4 Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 10 - CONCERNING INSURANCE COMPANIES . . . . . . . . . . . . . . . 8
ARTICLE 11 - AMENDMENT AND TERMINATION
11.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11.2 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 12 - SPENDTHRIFT PROVISIONS . . . . . . . . . . . . . . . . . . . 9
ARTICLE 13 - ADOPTION BY OTHER BUSINESS ENTITIES. . . . . . . . . . . . . 10
ARTICLE 14 - CONSTRUCTION OF AGREEMENT. . . . . . . . . . . . . . . . . . 10
ARTICLE 15 - MISCELLANEOUS PROVISIONS
15. 1 Disposition of Unclaimed Benefits. . . . . . . . . . . . . . . . . 10
15.2 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15.3 Titles, Headings, Number, and Gender . . . . . . . . . . . . . . . 11
15.4 Counterparts as Original . . . . . . . . . . . . . . . . . . . . . 11
<PAGE>
GLOBAL ENVIRONMENTAL SOLUTIONS, INC.
RETIREMENT SAVINGS PLAN
RELATED TRUST AGREEMENT
TRUST AGREEMENT (the "Agreement") made as of January 1, 1994, by and between
Global Environmental Solutions, Inc. and any related and/or successor employers
(the "Company"), and Wilmington Trust Company (the "Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore adopted a 401(k) plan (the "Plan"), for the
benefit of the participants of the Plan and their beneficiaries as therein
defined.
NOW, THEREFORE, the Company and the Trustee agree as follows:
ARTICLE 1
ESTABLISHMENT OF TRUST FUND
The Company hereby establishes with the Trustee a trust fund (the "Fund")
consisting of cash and such other property acceptable to the Trustee as shall,
from time to time, be paid or delivered to the Trustee and the earnings and
profits thereon. The Fund shall be held, managed and administered by the
Trustee in trust in accordance with the provisions of this Agreement without
distinction between principal and income. At no time shall any part of the
Fund (whether by reason of any amendment of this Agreement, or otherwise) be
used for, or diverted to, purposes other than the exclusive benefit of
participants of the Plan or their beneficiaries: provided, however, that
contributions made by the Company by mistake of fact or which are not
deductible under Section 404 of the Internal Revenue Code of 1986 (the "Code")
may, at the request of the Company, be returned to the Company within one year
of the mistaken payment of contribution or the date of disallowance of the
deduction, as the case may be. If, on the initial determination as to
qualification under the Code, the Internal Revenue Service rules that the Plan
and the trust established hereunder are not qualified, then the Company may
direct the Trustee to return the portion of the Fund attributable to its
contributions to it within one year of denial of qualification, provided the
application for the determination is made by the time prescribed by law for
filing the Company's return for the taxable year in which such Plan was
adopted, or such later date as the Secretary of the Treasury may prescribe.
Any amounts refunded to the Company shall not include investment earnings and
must be reduced by its share of investment losses, if any.
1
<PAGE>
ARTICLE 2
DISBURSEMENT OF FUNDS
2.1 Disbursement of Funds
The Trustee shall, from time to time, on the written directions of Noble
Lowndes the Recordkeeper") as duly authorized by the Plan administrator,
make payments out of the Fund to much persons, in such manner, in such
amounts and for such purposes as may be specified in such written
directions of the Recordkeeper, and upon any such payment being made, the
amount thereof shall no longer constitute a part of the Fund. The Trustee
shall not be responsible in any way with respect to the application of
such payments or for the administration of the Plan. The Trustees shall
be under no duty to enforce payment of any contributions to the Fund and
shall not be responsible for the adequacy of the Fund to meet and
discharge any and all liabilities under the Plan.
2.2 Excess Contributions
Notwithstanding anything contained herein to the contrary, the amount of
"excess contributions" (as such term is defined by Section 401(k)(8)(B) of
the Code) may be returned to the Company or distributed to "highly
compensated employees" (as such term is defined by Section 414(q) of the
Code), as the case may be, pursuant to Section 401(k)(8) of the Code and
regulations thereunder.
ARTICLE 3
INVESTMENT OF TRUST FUND
The Trustee shall and when directed by the Recordkeeper invest the Fund in (a)
such separate investment under funds established in accordance with the terms
of the Plan: and (b) loans, if any, granted to participants in accordance with
the terms of the Plan.
The Recordkeeper shall advise the Trustee of the amounts which shall be
allocated to each of said Investment fund or funds, and to each of' said loans
if any. The Trustee shall hold the amounts so specified as part of the
investment fund to which it shall have been allocated.
The Plan is intended to meet the requirements of Section 404(c) of ERISA.
Therefore. the Trustee shall not be liable for any loss or expense which is (a)
the direct and necessary result of the participant's or beneficiary's exercise
of control and/or (b) the result of the Trustee's refusal or failure to comply
with any such direction which if implemented would violate plan provisions or
applicable law.
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ARTICLE 4
POWERS OF TRUSTEE
Trustee shall have the following powers and authority in the administration of
the trust hereby created:
4.1 Purchase of Property
To purchase, or subscribe for, any security or property and to retain the
same in trust.
4.2 Sale, Exchange, Conveyance and Transfer of Property
To sell or otherwise dispose of, by private or public sale, any personal
property held by the Trustee. No person dealing with the Trustee shall be
bound to verify the application of the purchase money or to inquire into
the validity, expediency or propriety of any such sale or other
Disposition.
4.3 Exercise of Owners' Rights
To exercise any ownership rights relating to any assets of the Fund
including, but not limited to, any rights as owner of any securities which
are part of the Fund.
4.4 Settlement of Claims and Debts
To settle, compromise or submit to arbitration any claim, debt or damage
due or owing to or from the Fund; to commence or defend suits or legal or
administrative proceedings; and to represent the Fund in all suits and
legal and administrative proceedings.
4.5 Retention of Cash
To keep such portion of the Fund in cash or cash balances as the Trustee
may, from time to time, deem to be in the best interests of the trust
created hereby, it being understood that the Trustee shall not be required
to pay any interest on any such cash balances.
4.6 Retention of Property Acquired
To accept and retain for such time as it may deem advisable any security
or other property received or acquired by it as Trustee hereunder, whether
or not such security or other property is productive of income or would
normally be purchased as investments hereunder.
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4. 7 Registration of Investments
To register any investment held as part of the Fund in the name of the
Trustee or in the name of a nominee and to hold any investment in bearer
form, but the books and records of the Trustee shall at all times show
that all such investments are part of the Fund.
4.8 Employment of Agents and Counsel
To employ suitable agents and counsel (who may be counsel for the Company
or Trustee) and to pay their reasonable expenses and compensation.
4.9 Execution of Instruments
To 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 the powers herein granted.
4.10 Power to do Any Necessary Act
To do all such acts, undertake all such proceedings and exercise all such
rights and privileges, although not specifically mentioned herein, as
necessary or proper for the accomplishment of the foregoing powers or
otherwise in the best interests of the Fund.
4.11 Fiduciary Standard of Conduct
The Trustee shall discharge its duties solely in the interest of the
participants and their beneficiaries for the exclusive purpose of
providing benefits to participants and their beneficiaries and defraying
reasonable expenses of administering the Plan.
ARTICLE 5
COMPENSATION, EXPENSES AND TAXES
The Company may elect to pay (a) the expenses incurred by the Trustee in
performance of its duties, including reasonable fees for legal services
rendered to the Trustee: (b) such compensation to the Trustee. as may be agreed
upon in writing from time to time between the Company and the Trustee; (c) all
other proper charges and disbursements of the Trustee: (d) administrative
expenses of the Plan including premiums for any surety bond covering
fiduciaries of the Plan and trust which may be required under Section 412 of
ERISA and (e) the fees and retainers of the Plan's recordkeeper, consultant,
4
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custodian, administrator and counsel. If the Company does not elect to pay all
or part of these expenses, the Trustee shall pay these expenses and charge the
payment thereof against the assets of the Fund. Until paid, any such fees and
expenses shall constitute a charge against the Fund. All taxes of any kind
whatsoever that may be levied or assessed under existing or future laws upon,
or in respect of, the Fund or the income thereof, and any expense directly
relating to the investments of the Fund such as brokerage commissions and
registration charges, shall be paid from the Fund.
ARTICLE 6
MAINTENANCE OF RECORDS
The Trustee shall keep accurate and detailed accounts of all investments.
receipts, disbursements and other transactions hereunder, so as to reflect each
separate investment fund, if applicable, and all accounts, books and records
relating thereto shall be open to inspection and audit at all reasonable times
by any person designated by the Company. Within 60 days following the close of
the fiscal year of the Plan and within 60 days after the removal or resignation
of the Trustee as provided in Article 7 hereof, the Trustee shall file with the
Company a written account setting forth all investments. the receipts, the
disbursements and other transactions effected by them during such fiscal year
or during the period from the close of the last fiscal year to the date of such
removal or resignation, and setting forth the current value of the Fund. Upon
the expiration of 60 days from the date of filing such annual or other account
the Trustee shall, to the extent permitted by law, be forever released and
discharged from all liability and accountability to anyone with respect to the
propriety of its acts and transactions shown in such account, except with
respect to such acts or transactions to which the Company shall file with the
Trustee written objections within such 60 day period. No person other than the
Company may require an accounting or bring an action against the Trustee with
respect to the trust created hereby or its actions as Trustee, except to the
extent permitted by law.
ARTICLE 7
REMOVAL OR RESIGNATION OF TRUSTEE
AND APPOINTMENT OF SUCCESSOR TRUSTEE
The Trustee may be removed by the Company at any time upon 90 days' prior
written notice to the Trustee. The Trustee may resign at any time upon written
notice to the Company. Such resignation shall effect upon the expiration of 90
days (or at any other time agreed upon by the Trustee and the Company). In the
event of a vacancy in the office of Trustee as the result of a Trustee's
removal or resignation, the Company shall appoint a successor individual or
corporate trustee, who, upon acceptance of such appointment, shall have the
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same powers and duties as those conferred upon the original Trustee hereunder;
and, the title to all funds and properties constituting the Fund shall vest in
those who shall from time to time be the Trustee hereunder.
ARTICLE 8
IMMUNITY OF TRUSTEE
8.1 Protection of Trustee
The Trustee shall be fully protected in relying upon written direction of
the Recordkeeper as authorized by the Plan administrator. The Trustee
shall be fully protected in acting upon any instrument, certificate or
paper believed by them to be genuine and to be signed or presented by the
proper person or persons, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statement contained in any such
writing, but may accept the same as conclusive evidence of the truth and
accuracy of the statements therein contained. The Trustee shall not be
liable for the proper application of any part of the Fund if action is
taken by the Trustee in accordance with written directions of the
Recordkeeper as herein provided.
8.2 Limitation of Liability
The Trustee shall not be liable for the making, retention or sale of any
investment or reinvestment made by it, in its own discretion, nor for any
loss to, or diminution of the Fund, except due to its own gross
negligence, willful misconduct, lack of good faith or failure to discharge
its duties in accordance with Section 4.11, nor shall the Trustee be
liable for the breach of responsibility of a the Plan administrator or
other fiduciary of the Plan except as provided by law.
8.3 Indemnification
The Trustee shall be indemnified by the Company and/or the Recordkeeper
against its prospective costs, expenses and liability in connection with
all litigation relating to the Plan, the Agreement or the Fund, except
where the litigation is occasioned by the willful misconduct or gross
negligence of the Trustee. No such indemnification shall extend or exist
to the extent such costs, expenses and liabilities are covered by
insurance or would be so covered if any policy then in force including a
waiver of subrogation.
Nothing in this Agreement shall preclude the purchase by or for the
Trustee of one or more policies of insurance to protect the Trustee from
liability for breach of fiduciary or co-fiduciary responsibility,
provided, however, that if such insurance shall be purchased by the Fund
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utilizing the assets thereof to pay premiums, such insurance must permit
recourse by the insurer against the Trustee in the case of a breach by the
Trustee of its fiduciary responsibilities.
8.4 Evidence of Action of Company
Except as otherwise herein specifically provided, any action by the
Company in accordance with any of the provisions of this Agreement shall
be evidenced by:
(a) a resolution of its board of directors (or similar governing body)
certified to the Trustee over the signature of its secretary or
assistant secretary or other duly authorized agent; or
(b) an appropriate written authorization of the Plan administrator or
Recordkeeper to which the board of directors has delegated the
authority to take such action. and the Trustee shall be fully
protected in acting in accordance with any such resolution or other
authorization.
8.5 Reliance on Counsel
The Trustee may from time to time consult with counsel (who may be counsel
for the Company, the Trustee or the Recordkeeper) and shall be fully
protected in acting upon the advice of counsel.
ARTICLE 9
QUALIFIED INVESTMENT MANAGER
9.1 Appointment and Acknowledgement
The Company may appoint a qualified investment manager to manage and
control the investment and reinvestment of the Fund or a portion of the
Fund in his sole discretion in accordance with Article 3. The accounts,
books. and records of the Trustee shall reflect the segregation of said
portion of the Fund in separate investment management accounts. Such
investment manager shall accept his appointment and acknowledge his status
as a fiduciary under the Plan in writing to the Trustee and shall be
subject to the standard of conduct described in Section 4.11.
9.2 Qualification
A qualified investment manager shall be (a) an investment adviser
currently registered under the Investment Advisers Act of 1940: (b) a
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bank, as defined in the Act, or (c) an insurance company qualified to
perform investment management services under the laws of more than one
state. Such qualification, along with his status as a fiduciary under the
Plan, shall be acknowledged in writing to the Trustee.
9.3 Relation to Trustee
The appointed investment manager shall direct the Trustee in exercising
the powers enumerated in Articles 3 and 4 with respect to the separate
investment management accounts under its management and control. The
Trustee shall be under no duty to review such investment directions.
Notwithstanding the provisions of Section 4.11, the Trustee shall not be
liable for acting pursuant to any direction of, or failing to act in the
absence of any direction from the investment manager, except as stated in
Section 8.2.
9.4 Resignation or Removal
Until notified by the Company of the resignation or removal of the
investment manager, the Trustee shall be fully protected in relying on the
acknowledgement and certification as delivered to it. Upon 30 days' prior
written notice of such resignation or removal, the Trustee shall assume
management responsibility for the Fund in accordance with Articles 3 and
4. The Trustee shall relinquish management responsibility for the Fund to
a successor investment manager upon 30 days' prior written notice by the
Company of the new investment manager and upon receipt of such successor's
acknowledgement and certification.
ARTICLE 10
CONCERNING INSURANCE COMPANIES
No insurance company which shall have issued or which shall issue a contract or
policy which forms a part of the Fund shall be deemed a party to this
Agreement. A certification in writing by the Trustee as to the occurrence of
any event contemplated by this Agreement shall be conclusive evidence thereof
and the insurance company shall be protected in relying upon such certification
and shall incur no liability for so doing. With respect to any action under
any such contract, the insurance company may deal with the Trustee as the sole
owner thereof and need not see that any action of the Trustee is authorized by
this Agreement. Any change made or action taken by an insurance company upon
the direction of the Trustee shall fully discharge the insurance company from
all liability with respect thereto, and it need not see to the distribution or
further application of any monies paid by it to the Trustee or paid in
accordance with the direction of the Trustee.
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ARTICLE 11
AMENDMENT AND TERMINATION
11.1 Amendment
The Company reserves the right to amend, at any time, in whole or in part,
any or all of the provisions of this Agreement by notice thereof in
writing delivered to the Trustee, provided no such amendment which affects
the rights, duties or responsibilities of the Trustee may be made without
its consent.
11.2 Termination
This Agreement and the trust created hereby may be terminated by the
Company, upon 90 days' prior notice in writing to the Trustee, as of the
last business day of any month. Upon such termination or upon the
dissolution or liquidation of the Company, the Fund shall be paid out by
the Trustee as and when directed by the Recordkeeper as directed by the
Plan administrator in accordance with the provisions of Section 2. 1
hereof and, to the extent directed by the Recordkeeper, shall be used to
purchase annuity or other contracts issued by any insurance company
approved by the Plan administrator.
ARTICLE 12
SPENDTHRIFT PROVISIONS
No benefit, which shall be payable out of the Fund to any person (including a
participant of the Plan or his beneficiary), shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any such attempt shall be void. No benefit shall in any manner be
subject to the debts, contracts, liabilities, engagements or torts of any
participant of the Plan or his beneficiary nor shall any benefit be subject to
attachment or other legal process for or against such person, and any such
attempt shall not be recognized by the Trustee except with respect to (a) loans
to participants, if applicable, under the terms of the Plan, (b) a Qualified
Domestic Relations Order as defined in Section 414(p) of the Code and (c) such
other instances as required by law.
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ARTICLE 13
ADOPTION BY OTHER BUSINESS ENTITIES
Any corporation or other business entity may, with the approval of the board of
directors (or similar governing body) of the Company, by resolution of its own
board of directors (or similar governing body), adopt the trust hereby created
if such corporation or other business entity shall have adopted the Plan.
Contributions made by such business entity shall be invested and maintained
together with the contributions made hereunder by the Company and any other
adopting business entity.
ARTICLE 14
CONSTRUCTION OF AGREEMENT
This Agreement and the trust created hereby shall be administered, construed
and enforced according to the laws of the State of Delaware, and the Trustee
shall be liable to account only in the courts of that state. All transfers of
funds or other property to the Trustee shall be deemed to take place in the
State of Delaware. The Trustee may at any time initiate an action or
proceeding for the settlement of their accounts or for the determination of any
question of construction which may arise or for instructions, and the only
necessary parties defendant to such action or proceeding shall be the Company
and the Plan administrator, except that the Trustee may bring in as parties
defendant any other person or persons.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 Disposition of Unclaimed Benefits
In the event that any check in payment of benefits under the Plan remains
outstanding at the expiration of six months from the date of mailing of
such check to the last known address of the payee, the Trustee, upon
written notification from the Plan administrator, shall stop payment of
all such outstanding checks and shall suspend the issuance of any further
checks, if any, to such payee. If, during the three-year period from the
date of mailing of the first such check, the Plan administrator cannot
establish contact with the payee by taking such action as it deems
appropriate and the payee does not make contact with the Plan
administrator, the Plan administrator shall notify the Trustee to dispose
of such unpaid benefits in the manner prescribed by the Plan.
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15.2 Severability
Should any provision of this Agreement or any regulation adopted hereunder
be deemed or held to the unlawful or invalid for any reason, such fact
shall not adversely affect the other provisions herein or regulations
hereunder contained unless such invalidity shall render impossible or
impractical the functioning of this Agreement and, in such case, the
appropriate parties shall immediately adopt a new provision or regulation
to take the place of the one held illegal or invalid.
15.3 Titles, Headings, Number and Gender
The titles and headings of the Sections in this instrument are for
convenience of reference only and. in the event of any conflict, the text
of this instrument, rather than such titles and headings, shall control.
Wherever used, the masculine pronoun shall include the feminine and the
feminine pronoun shall include the masculine and the singular shall
include the plural and the plural shall include the singular.
15.4 Counterparts as Original
This Agreement has been executed in counterparts, each of which so
executed shall be construed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed this day of November, 1993.
GLOBAL ENVIRONMENTAL
SOLUTIONS, INC.
By: ___________________________
ATTEST:
_________________________________
WILMINGTON TRUST COMPANY
By:_____________________________
ATTEST:
_________________________________
11
Noble Lowndes Connections
Plan Administration Services
Appendix A: Basic Services
This Appendix describes the process by which services are provided in
accordance with the terms and conditions of the Agreement.
I. General Guidelines
A. Recordkeeping and Valuation of Sub-accounts Invested through Wall
Street Investor Services
For the Plan assets invested in the Funds provided by Wall Street
Investor Services (WSIS), the participants' shares are held in unissued
form in plan-level omnibus accounts established at each respective
mutual fund company.
Participant sub-accounts invested in the underlying Funds will be
valued whenever there is activity within the sub-accounts. A sub-
account valuation will reflect adjustments to participants' sub-account
balances such as contributions, transfers, withdrawals, loans and loan
repayments, distributions, income, and realized gains and losses since
the last sub-account valuation. Any unrealized gains or losses will be
included in the market value placed on the number of shares within a
sub-account. Market value is based on share prices issued by the
respective fund companies.
Participant sub-account valuations will be done each Business Day after
the new share price has been received (for purposes of this Agreement,
the term "Business Day" will mean any Business Day on which the New
York Stock Exchange is open). Income accruals for any funds for each
month will not be credited to participant sub-accounts until the
dividend payable date. However, if Noble Lowndes processes participant
distributions of 100% of a participant's sub-account in a fund prior to
the crediting of income, these income accruals will be included in the
distribution. Accrued income will not be included in a participants'
sub-account until credited.
B. Valuation of Subaccounts Invested in other Investment Funds
Noble Lowndes will perform valuations for those sub-accounts invested
in investment options other than the underlying mutual funds whenever
there is any activity in the sub-accounts (e.g., contributions,
dividends). However, Noble Lowndes cannot perform the sub-account
valuations until it
<PAGE>
has received all necessary information about the activity (e.g.,
investment price) from the appropriate party. The Employer is
responsible for ensuring that Noble Lowndes is provided with all of the
necessary information in a timely manner. These other investment
options will be limited to existing GIC contracts or publicly traded
company stock unless otherwise agreed upon by the plan sponsor and
Noble Lowndes.
C. Participant Data
The Employer will provide Noble Lowndes with all required participant
information by magnetic tape, diskette, modem transmission, or other
input medium acceptable to Noble Lowndes. The frequency of data
transmission and the format will be agreed upon by Noble Lowndes and
the Employer.
D. Participant Enrollment
Noble Lowndes will provide at the Employer's expense customized
enrollment forms to use in gathering participant information and
investment allocation instructions.
The Employer will provide Noble Lowndes with the participants' names,
home addresses, birthdates, social security numbers, dates of hire,
contribution percentage, termination date, and initial investment
allocation instructions.
Noble Lowndes will provide confirmation reports of this information to
the Employer and the Employer will confirm in writing to Noble Lowndes
the accuracy of the information on the reports. Noble Lowndes will not
process any transactions until it has received this confirmation.
However, if the Employer provides contribution information to Noble
Lowndes with instructions to process the contribution, the Employer
will be deemed to have approved the accuracy of the enrollment
information.
E. Establishing a Plan Checking Account
Unless Stone Bridge Trust Company acts as Plan Trustee, the Employer
will be responsible for establishing a checking account at a bank in
the name of the Plan, for which the Plan Trustee(s) or Plan
Administrator would be authorized to act. This account must be
established at a bank which can receive Federal Reserve wires. If
another bank or trust company is appointed as plan trustees, they will
assume the responsibility for check processing, tax withholding, and
1099-R filings.
<PAGE>
F. Establishment of Plan-Level Omnibus Accounts at the Mutual Fund
Companies
Noble Lowndes and the Trustee will complete and provide to WSIS a
completed New Account Form to establish plan-level omnibus accounts in
the underlying Mutual Funds. These accounts will be registered in the
name of the Plan trustee(s).
WSIS cannot accept any contributions or any assets from a prior
trustee/custodian until the new account form has been received. On
this form, the Trustee will be required to provide wire transfer
information and the trust tax identification number. The Trustee will
request a trust tax indemnification number for the Plan if one does not
already exist.
G. Establishment of Plan-level Account Trust for Publicly Traded Employer
Stock Funds
If Employer Stock is one of the investment options of the Plan, the
Employer and the Trustee(s) will provide all parties with all
information that is required to administer this plan fund. Shares of
stock owned by the Plan will be held in street name at Alex Brown &
Sons, Inc.
H. Conversion from Prior Recordkeeper
Plan conversion from the prior recordkeeper does not need to be
completed before Noble Lowndes begins to provide recordkeeping services
for the Plan.
The Employer will authorize the transfer of Plan assets from the prior
trustee/ custodian to an omnibus account in a money market fund on the
last day of the prior valuation period. The Employer will be
responsible for authorizing a wire transfer of the assets to Alex Brown
& Sons, Inc.
The Employer or prior recordkeeper will provide Noble Lowndes with the
most recent valuation information and the record layout by magnetic
tape, diskette or other means acceptable to Noble Lowndes. Noble
Lowndes will then build conversion files based on the final records and
will send confirming reports of these files to the Employer. The
Employer will be required to provide Noble Lowndes with written
approval of the Noble Lowndes conversion files. After the Employer has
provided Noble Lowndes with this approval, Noble Lowndes will allocate
the Plan conversion balances among the appropriate investment option.
The assets will be split into the same investment options that the
participants have elected for contributions, unless a separate
allocation form is provided. Noble Lowndes will then process the
investment of any earnings on the Plan conversion balance which have
accumulated since that valuation date on a
<PAGE>
pro-rata basis. After the assets have been invested, Noble Lowndes
will credit each participant sub-account with its proportionate share
of the assets.
If the records that Noble Lowndes receives from the prior recordkeeper
for the conversion are in the prescribed format needed for conversion
to the daily valuation recordkeeping system and if the plan assets are
reconciled to the participant records, then the conversion will not be
subject to any additional fee. If, however, the records are not
complete, reconciled, and in the prescribed format, the conversion will
be subject to an hourly processing fee unless agreed otherwise between
Noble Lowndes and the Employer. Noble Lowndes will notify the Employer
as soon as possible whether the conversion will be subject to an
additional fee.
The length of time required for Noble Lowndes to complete the
conversion will depend primarily on when Noble Lowndes receives all of
the necessary information for the conversion in good order from the
prior recordkeeper. The Employer will give Noble Lowndes a reasonable
amount of time in which to complete the conversion in light of the work
required for its completion.
During the period in which the conversion is being completed, the
Employer agrees that Noble Lowndes will not process any activity, e.g.,
transfers, distributions, loans, statement generation, for which the
records from the prior recordkeeper would be necessary.
I. Breakage and Other Discrepancies
In transactions with the mutual funds and any GIC or Employer Stock
Funds, including contributions, transfers, distributions, and
allocations of earnings, there may be breakage (fractional share
differences between systems) between the Noble Lowndes records and the
Mutual Fund Company records. From time to time, but no more frequently
than once every three months, and in a manner mutually agreed upon by
Noble Lowndes and the Employer, Noble Lowndes will allocate these
discrepancies to the participant sub-accounts or they will be used to
reduce administrative expenses.
However, breakage that is the result of an Employer error will be
charged to the Employer unless otherwise agreed upon. Breakage that is
the result of an error by Noble Lowndes or WSIS will not be charged to
the Plan or the Employer, and a correction will occur immediately upon
discovery.
J. Emergency Down Time
Notwithstanding anything to the contrary herein, if Noble Lowndes is
not able to process any Plan activity because of any circumstance,
condition
<PAGE>
or situation beyond its control (e.g., loss of utilities, breakdown of
equipment, acts of God), Noble Lowndes is not responsible for any loss
of any kind incurred as a result thereof.
K. Incorrect Prices or Accrual Rates of Investment Options
If Noble Lowndes is notified that a reported price or accrual rate of
one of the mutual funds was incorrect and the incorrect price would
affect the Plan assets, Noble Lowndes will handle any necessary
adjustments as mutually agreed upon by Noble Lowndes and the Employer
and will correct affected transactions at no expense to the Employer.
If there is a surplus or deficiency after any reprocessing has been
completed, it will be subject to the breakage rules outlined in Section
I. above.
L. Emergency or Time-Sensitive Requests
To the extent possible, Noble Lowndes will attempt to honor Employer
requests to process transactions on an expedited basis. The Employer
must provide such requests in writing or by facsimile. Noble Lowndes
will not accept telephone requests unless the requests are confirmed by
facsimile.
For any transaction that Noble Lowndes is required to process as of a
specific date, the Employer must provide Noble Lowndes with the
information necessary to process the transaction at least three
Business Days before the date the transaction is to be effected.
M. Persons Authorized to Provide Instructions to Noble Lowndes
Noble Lowndes will only accept instructions from the individuals
specified except for instructions received from participants through
the Voice Response System. If Noble Lowndes receives any instructions
from any person not specified or other than through the voice system,
Noble Lowndes will not act upon the instructions and will notify the
Employer as soon as possible while awaiting further instructions.
Noble Lowndes will not be responsible for any losses resulting from any
delay while awaiting further instructions from the employer.
N. Receipt
Noble Lowndes is deemed to have received instructions, requests or any
input media when an authorized person in the daily valuation services
department has physically received such instructions, requests or input
media.
<PAGE>
II. Plan Recordkeeping Guidelines
A. Participant Records/Investment Allocation Choices
Noble Lowndes will maintain records of participants' names, addresses,
birthdates, social security numbers, dates of hire, entry dates, and
investment allocation choices. The records will be based on
information provided to Noble Lowndes by the Employer from time to
time.
B. Contribution Processing
1. Basic Guidelines
a. Noble Lowndes will process contributions on a monthly basis
unless the Employer elects a different basis on the Election
Form. The Employer or the Plan's Trustee may transmit
contributions to WSIS for the purchase of shares on any day.
Purchase will be made as soon after receipt as administratively
possible.
b. The Employer will provide contribution information and totals
to Noble Lowndes in a format acceptable to Noble Lowndes. The
input containing the contribution information will be
accompanied by a cover letter describing its contents and
providing confirming totals by contribution type. Loan
repayment information will accompany the contribution
information and will be provided separately from the
contribution information on the appropriate input media.
c. Contribution information received by hard copy will be deemed
to have been received after 12:00 noon eastern time on the day
of receipt for purposes of this Agreement, regardless of the
actual time of receipt.
d. Noble Lowndes will process the contributions for each
participant according to the current applicable participant
investment instructions stored in the recordkeeping system in
accordance with plan provisions. The participants' investment
choices will apply to all contribution types unless the Plan
provides for separate elections.
e. Contribution information will be processed only when all
preliminary processing (e.g., new participant set-up,
investment allocation changes) have been received by Noble
Lowndes. In addition, any problems with the contribution
information or preliminary processing may cause delays in the
investment of the contributions and the posting of the
contributions to participant accounts.
<PAGE>
2. Monitoring of Elective Deferral Limits
Noble Lowndes will retrospectively monitor each participant's
salary reduction contributions for a calendar year to determine if
the participant has reached the limit under Internal Revenue Code
Section 402(g) for such year. If Noble Lowndes determines that a
participant has exceeded the limit, Noble Lowndes will notify the
Employer and await instructions from the Employer before effecting
any remedial action.
3. Contributions on Behalf of Participants Who Have Taken Hardship
Distributions
If the Employer elects the "Suspension Method" on the Election
Form, Noble Lowndes will not accept contributions from a
participant who has taken a hardship distribution until the
Employer notifies Noble Lowndes that the participant is eligible
to make such contributions. If Noble Lowndes receives
contributions on behalf of such a participant, Noble Lowndes will
notify the Employer and await instructions from the Employer
before processing the contribution. Noble Lowndes is not
responsible for any loss of any kind due to the processing delay
while waiting for the Employer's instructions.
4. Contribution Processing - Investments through Wall Street Investor
Services
a. If Noble Lowndes receives complete and usable contribution
information (in the ACTII format) before 12:00 noon eastern
time on any Business Day, Noble Lowndes will, by 3:00 p.m.
eastern time that day, edit the contribution information and
verify the dollar totals. If Noble Lowndes receives such
information after 12:00 noon eastern time (or in a different
format), Noble Lowndes will edit and verify the information by
3:00 p.m. eastern time the next Business Day. Verifying the
dollar totals means confirming that the participant totals
provided in the input medium match the totals provided in the
cover letter which accompanies the input.
b. On the Business Day that Noble Lowndes completes editing and
verifying the contribution information, Noble Lowndes will
instruct the Employer or the Trustee to wire the contribution
amount to WSIS for investment into the funds. Contributions
will be held in a money market account until mutual fund shares
are purchased. Participant sub-accounts will begin to earn
income in the mutual funds on the first Business Day following
the date of investment (trade date).
c. WSIS may return any unauthorized wire, any wire which does not
contain all of the required information, or any wire that is
for an incorrect amount. Noble Lowndes is not responsible for
any loss of any kind due to any such delay caused by the return
of a deposit.
<PAGE>
d. The first Business Day after the contribution amount has been
invested, Noble Lowndes will post the contribution amounts to
the participant sub-accounts. Noble Lowndes will send a
contribution investment summary on a plan-level basis to the
Employer each time shares are purchased.
e. If the Employer wires contribution amounts to WSIS more
frequently than Noble Lowndes processes contributions, the
contribution amounts will be invested in the money market fund
selected for such purpose on the Election Form pending the
regular contribution processing by Noble Lowndes. The Employer
must use a different money market fund than that used for
investment allocations, if any, under the Plan for this
purpose.
f. Contributions that are transmitted by check may normally be
delayed up to three Business Days for investment into the
underlying mutual funds due to the transit time to WSIS and the
time required for the check to clear.
g. Any earnings on the contribution amount in a holding account
will remain in the holding account and will be combined with
other accumulated amounts under the breakage account and
processed accordingly.
5. Contribution Processing - Other Investment Options
a. After Noble Lowndes has edited and verified the contribution
information, Noble Lowndes will provide the Employer with
information about the dollar amount that is to be invested in
any other investment option(s). The Employer will be
responsible for providing WSIS and Noble Lowndes with all
information which will allow for other investment options.
b. Once the contribution investment has been made, if the other
investment option has a fluctuating price, the Employer will
also provide to Noble Lowndes and WSIS, either directly or
indirectly through another party, the trade information (e.g.,
purchase price and shares purchased) for that deposit. Once
Noble Lowndes receives this information, Noble Lowndes will
update the participant sub-accounts.
c. In addition, the Employer will provide to Noble Lowndes and
WSIS directly or indirectly through another party, any earnings
information (e.g., dividends and interest paid) on any
investment option other than any of the underlying mutual funds
or company stock fund.
<PAGE>
6. Processing Hierarchy
If Noble Lowndes receives more than one type of information on
request on any Business Day, Noble Lowndes will process the
information or requests in the following order, unless the
Employer instructs Noble Lowndes otherwise:
* New Participant Enrollments
* Investment Allocation Changes (Future Deposits)
* Contributions and Loan Repayments (payroll deduction)
* Contributions and Loan Repayments (Non-payroll deduction)
* New Loan Disbursements
* Investment Fund Transfers
* Total Distributions/Withdrawals
C. Transfer Processing In General
1. General Guidelines
Noble Lowndes will process investment fund transfer requests
according to the rules outlined below.
a. Plan Participants will provide transfer requests to Noble
Lowndes by telephone through the Voice Response System or
customer service representative.
b. Noble Lowndes will process investment fund transfers on a
percentage basis by liquidating the requested percentage of a
participant's balance in a specified investment option, and
then reinvesting the proceeds into the requested investment
option(s).
c. Noble Lowndes will process each transfer request against all
contribution types within each fund selected. Separate
elections for each contribution type are not permitted.
d. Noble Lowndes will not monitor any transfer restrictions of the
Plan or investment funds unless otherwise agreed.
e. Noble Lowndes will monitor participant transfer requests
initiated through the Voice Response System for compliance with
plan provisions.
f. For any request for transfers received by 12:00 noon eastern
time on any Business Day, Noble Lowndes will instruct WSIS to
make the transfer-from portion of the trades on the same day.
For requests received after 12:00 noon eastern time, Noble
Lowndes will instruct
<PAGE>
WSIS to make the transfer-from portion of the trades on the
next Business Day. The transfer-to portion of the trades will
occur the Business Day following the trade date for the
transfers-from. Transfers will receive the share prices for
the shares sold and the shares purchased on the trade date as
reflected by the Funds.
g. All transfers to and from a GIC contract or company stock fund
are subject to the restrictions in the Plan Document and
insurance contract. If necessary to comply with these
restrictions, Noble Lowndes will hold any requests for
transfers until it is able to process all fund options
simultaneously.
h. After WSIS has made the redemption, WSIS will hold the transfer
amounts in the Plan holding account until proceeds from all
funds have been received and a full purchase can be made. Any
interest earnings that result will be combined with other
amounts in the breakage account and used accordingly.
i. The first Business Day after WSIS has processed the transfers,
Noble Lowndes will post the transfers to the participant sub-
accounts. For the transfers to and from the mutual funds WSIS
will send a plan-level confirmation of the transfers to Noble
Lowndes and the Trustee. For transfers to and from a GIC Fund,
or Employer Stock Fund, plan-level confirmations will be sent
to the Employer by the insurance company and company stock
custodian respectively.
j. If a participant's transfer request requires that 100% of a
participant's investment in a mutual fund be transferred, Noble
Lowndes will add the amount of the accrued or unpaid dividend
through the prior Business Day once the Fund actually pays the
dividend. The dividend(s) will be allocated to the participant
sub-accounts for the Fund from which the transfer was made, but
the participant will not be credited for a dividend for trade
date for the Fund from which the transfer is made.
k. If a participant's transfer request requires that less than
100% of a participant's investment in a mutual fund be
transferred, any dividends accrued and unpaid at the time of
the transfer will be credited to the participant's sub-account
from which the transfer was made at the time the fund actually
pays the dividend.
l. If there is any discrepancy between the Noble Lowndes and WSIS
records or GIC contract records as a result of a transfer, the
discrepancy will be treated as breakage as described in
Section I.
<PAGE>
D. Distribution Processing In General
1. General Guidelines
Noble Lowndes will process distributions according to the plan
document and the rules outlined below. The term "distributions"
means any type of benefit distribution or withdrawal (e.g., a
hardship withdrawal) from the Plan.
a. The Employer will provide the distribution requests to Noble
Lowndes by a medium and in a format acceptable to Noble
Lowndes. The input containing the distribution information
shall be accompanied by a cover letter describing its contents.
Noble Lowndes can rely on any such information provided by the
Employer.
b. For purposes of this Agreement, distribution requests received
by hard copy will be deemed to have been received after 12:00
noon eastern time on the day of receipt, regardless of the
actual time of receipt.
c. The Employer will provide Noble Lowndes with withholding
instructions for any distribution. If withholding is requested
on any distribution, Noble Lowndes will provide the Federal
withholding calculations on the disbursement report. Unless
Stone Bridge Trust Company is the Plan Trustee and processes
checks for distributions, a wire will be sent to the Plan
checking account for the distribution which will include any
amounts to be withheld. In such case, the Employer and/or Plan
Trustee will be responsible for paying the distribution amount,
less any withholding, to the participant, as well as for
remitting the taxes withheld to the IRS with the appropriate
forms. Noble Lowndes will not calculate the amount of any
state or local withholding nor will Noble Lowndes report or
remit any such withholding to state or local tax authorities.
If a direct rollover is elected, the Employer or Trustee will
be responsible for processing this request.
d. The Employer is responsible for monitoring and enforcing any
distribution restrictions on investment options. All
distribution requests entered through the Voice Response System
will generate a hard copy form which must be approved by the
Committee, or Plan Administrator.
e. The Employer will provide Noble Lowndes and the Plan Trustee
with the reason for any distribution and the participant's
mailing address so that the year end tax forms (1099-R) will
carry the correct information.
f. If the Employer instructs Noble Lowndes to make a distribution
from a participant's sub-account to which a vesting schedule
applies, unless the Employer instructs Noble Lowndes otherwise
on the
<PAGE>
Election Form or on the distribution request, Noble Lowndes
will calculate the participant's vested portion of the account.
The Employer must provide Noble Lowndes with year to date
information as needed to update accounts properly.
g. For any distribution which is for less than 100% of a
participant's plan balance, the distribution request will
specify the dollar amount to be paid from each contribution
type by investment option. Such a request will be made in a
format acceptable to Noble Lowndes and in accordance with any
priority order contained in the plan document.
h. If Noble Lowndes receives a residual contribution or loan
repayment on behalf of a participant for whom Noble Lowndes has
already processed a total distribution, the Employer will need
to submit another distribution request for that participant.
2. Hardship Withdrawals
a. Noble Lowndes will process hardship withdrawals from
participant salary reduction (pretax) contributions made after
December 31, 1988, plus any salary reduction (pretax) account
balances as of December 31, 1988. However, if any records
which Noble Lowndes must use to calculate these amounts have
been obtained from a prior recordkeeper, Noble Lowndes is not
responsible for their accuracy.
b. If specified on the Election form, Noble Lowndes will approve
hardship withdrawals on the basis of the specific hardship
reasons as stated [in the plan document] or [on the attached
Schedule]. Noble Lowndes will not exercise discretion and any
unclear issues will be referred to the plan administrator. The
Employer acknowledges that any discretionary authority remains
with the plan administrator.
c. If specified on the Election Form, Noble Lowndes will monitor
participant contributions following hardship distributions for
the IRS safe harbor limits by designating participants as
"suspended due to hardship" after taking hardship distributions
for purposes of salary reduction (pretax) and after-tax
contributions until the Employer notifies Noble Lowndes
otherwise.
d. If Noble Lowndes determines during its editing of a
contribution that any participant is suspended, Noble Lowndes
will notify the Employer and await instructions from the
Employer before processing the Plan contribution. Noble
Lowndes will not be responsible for any losses due to any such
delay.
<PAGE>
3. Distributions from the Mutual Fund
a. If Noble Lowndes receives a distribution request (benefit
payment, withdrawal, loan) by 12:00 noon eastern time of any
Business Day, Noble Lowndes will authorize WSIS to redeem the
shares for the distribution from the mutual funds on that day.
If Noble Lowndes receives the request after 12:00 noon eastern
time, Noble Lowndes will authorize WSIS to redeem the shares
for the distribution from the mutual funds on the next Business
Day. WSIS will wire the distribution amount to the Trustee or
Plan checking account immediately upon receipt of the proceeds
from the mutual funds.
b. Distributions from the mutual funds will receive the share
price on the day WSIS makes the redemption. After WSIS has
processed the redemptions, Noble Lowndes will update the
participant sub-accounts and send a disbursement report to the
Plan Trustee. WSIS will send statements from each mutual fund
to the Employer confirming the distribution from the plan-level
omnibus account.
c. If a participant's request requires that 100% of a
participant's investment in a fund be distributed, and that
fund accrues dividends on a daily basis, or the fund has
declared a dividend which has not yet been paid, Noble Lowndes
will add the amount of the accrued or unpaid dividend through
the prior Business Day to the distribution from the remaining
plan assets in the plan-level omnibus account. Once the fund
actually pays the accrued or unpaid dividend, the dividend(s)
will be paid to the plan-level omnibus account from which the
distribution was made. The participant will not be credited
with the dividend for the trade date on which the distribution
is made.
d. If a participant distribution request requires that less than
100% of a participant's investment in one fund be distributed,
any dividends accrued and unpaid at the time of the withdrawal
will be credited to the participant sub-account until
withdrawal was made at the time the fund actually pays the
dividend.
4. Distributions from Other Funds
For distributions from a GIC Fund, or a Employer Stock Fund, Noble
Lowndes will instruct WSIS to process the redemption from the
appropriate source. However, if under normal circumstances,
redemptions may only be made from the GIC Fund on a monthly basis,
Noble Lowndes will hold any requests received before that date
until it can process the entire distribution simultaneously.
<PAGE>
If there is any minimal difference between the Noble Lowndes and
WSIS records or GIC records as a result of the distribution, the
discrepancy will be treated as breakage as described in Section I.
E. Maintenance of Vesting Schedules
Noble Lowndes will maintain vesting schedules by participant for each
plan contribution type subject to the vesting schedule(s) specified in
the plan document and on the election form. Vesting percentage will be
updated for each participant as frequently as possible contingent upon
the receipt of required information (such as credited hours) from the
Employer.
For participants who terminate service with the Employer, Noble Lowndes
will calculate vesting through the participants' termination date.
F. Completion of Tax Form 1099-R
Noble Lowndes can generate information to complete IRS Forms 1099-R for
any distributions that Noble Lowndes posted to records for any calendar
year. Noble Lowndes will not provide the accrual forms for the
Employer or the Plan Trustee.
The trustees of the Plan will be listed as the payor of the
distributions on these forms (for example, "Trustees of the XYZ 401(k)
plan" along with the trust tax identification number. If Stone Bridge
Trust Company or some other organization has been selected as plan
trustee, the responsibility for the completion and distribution of
1099-R forms and tax withholding filing requirements will be assumed by
the trustee.
Noble Lowndes will provide 1099-R information only for those
distributions processed by Noble Lowndes, and the information will be
based on Plan records which Noble Lowndes has maintained from
information provided to Noble Lowndes by the Employer and WSIS.
G. Participant Statements
Noble Lowndes will provide participant statements for the plan on a
quarterly basis along with a summary report of the statements for the
Employer.
Statements will be sent directly to the participant's home unless
otherwise specified by the Employer. Statements sent through the mail
will be subject to the postage costs as specified on the Election Form.
If the statements are sent to the Employer, the Employer will be
responsible for distributing the statements to the participant. As
<PAGE>
specified on the Election Form, Noble Lowndes will sort the participant
statements alphabetically, by location or by social security number.
Noble Lowndes will mail the statements to the participant's home
address as provided by the Employer. If Noble Lowndes does not have an
address for a participant or if a statement is returned as
undeliverable, Noble Lowndes will forward those statements directly to
the Employer for distribution.
Participant statements will summarize all transactions posted by Noble
Lowndes to the participant sub-accounts (including contributions,
investment earnings, transfers, loan disbursements, loan repayments,
forfeitures, and distributions) for the period beginning with the day
following the last statement date through the current statement date.
Earnings accrued but not yet posted to Participant sub-accounts will
not be reflected on statements. Statements will also reflect share
balances, market values and vesting information as of the statement
date.
At the Employer's request, Noble Lowndes will extend the statement date
beyond the end of a quarter. Statements will reflect the market value
as of the statement date, and will only reflect the activity which
Noble Lowndes has posted to the participant sub-accounts by the
statement date. The participant statements represent the Noble Lowndes
records for the Plan and should therefore be thoroughly reviewed by the
Employer and participants upon their receipt. If there is an error or
omission reflected on the statements for which Noble Lowndes is
responsible, the Employer will notify Noble Lowndes within a reasonable
amount of time after receiving the statements. If there is an error or
omission for which the Employer is responsible, any corrections will be
subject to a reprocessing fee and any breakage charges or other fees
incurred by Noble Lowndes or WSIS.
H. Contribution Types/Investment Options
Noble Lowndes will provide its recordkeeping services for the
contribution types and investment fund options listed on the Election
Form.
The plan may have up to five investment options as part of Basic
Service. Plans with more than five investment options may be charged
an additional fee. Also, if any of the investment options are GICs or
Employer Stock, recordkeeping for those options may be subject to
additional fees.
Unless Noble Lowndes agrees otherwise, the product of the number of
contribution types multiplied by the number of investment options
cannot exceed 33. For purposes of this limit only, Noble Lowndes will
treat loans as one of the investment options, and post 1986 after-tax
contributions, and pre 1987 after-tax contributions each as separate
contribution types.
<PAGE>
The Employer may request additional option(s) by notifying Noble
Lowndes in writing. Noble Lowndes must approve the additional
investment option(s), and will establish a time schedule for adding the
investment option.
I. Forfeiture Processing
Noble Lowndes will process plan forfeitures in accordance with the plan
document and the Election Form. Forfeitures will be processed at the
same time as the distribution of benefits occurs and will be held in a
money market account until they are reallocated or credited against
future contribution deposits by the Employer.
The Employer is responsible for notifying Noble Lowndes of participant
terminations and for confirming the request by a former employee to
receive their vested benefits.
J. IRS Form 5500 Series Report Financial Information
Noble Lowndes will provide financial information for completing the IRS
Form 5500 Series Annual Report, but will not complete the Report itself
as part of the Basic Service. However, if the Employer so chooses on
the Election Form, Noble Lowndes will complete the form for the fee
specified on the Election Form. Under normal circumstances, Noble
Lowndes will provide the financial information or the report to the
Employer three to six months after the end of the Plan Year.
The Form 5500 Series financial information prepared by Noble Lowndes,
as well as any Form 5500 Series Report prepared by Noble Lowndes, will
provide information only for the investment vehicles for which Noble
Lowndes provides recordkeeping. All Noble Lowndes Form 5500 series
gain/loss calculations will be based on average share prices, and the
costs provided will be based on Department of Labor rules and not
historical costs.
Noble Lowndes Form 5500 Series preparation will include the preparation
of Schedules C, P, A and Schedule SSA but not the accountant's opinion
which may be required to accompany a plan's 5500 Report. The Employer
is responsible for signing and filing the Form, as well as for
requesting any extensions of the filing deadline.
The Noble Lowndes 5500 information reflects information as of the Plan
Year end regardless of when statements for that quarter were generated.
The Employer will be responsible for reconciling any differences
between the information for the Plan Year and that of the last
statement date provided by Noble Lowndes.
<PAGE>
Any additional information that Noble Lowndes is requested to provide
for 5500 preparation beyond that provided as part of Basic Service will
be subject to an additional fee.
K. Telephone or Facsimile Transmission of Participant, Contribution,
Transfer, or Distribution Information
Noble Lowndes will accept any automated file by telephone transmission
via modem or any information it has agreed to accept by hard copy or by
facsimile. The timing rules in the contribution, transfer and
distribution sections above will also apply to telephone and facsimile
transmission. For modem transmission, Noble Lowndes will provide the
Employer with directions for its use. With either method, the Employer
will confirm that Noble Lowndes has received any transmission forwarded
to Noble Lowndes.
Information received by facsimile will be deemed to have been received
by hard copy and will therefore be subject to the timing rules provided
in this Agreement for receipt of information by hard copy.
If the Employer provides hard copy confirmation of information
previously provided to Noble Lowndes by the facsimile, the Employer
will notify Noble Lowndes that the hard copy is merely a confirmation
of the previous instructions. If the Employer does not do so, Noble
Lowndes will not be held responsible if Noble Lowndes acts upon the
hard copy information as well as the facsimile.
L. Loan Processing
Noble Lowndes will process straight amortized loans according to the
loan provisions of the Plan and will provide an amortization schedule
of loan repayments to the Employer and to the plan participant.
The Employer is responsible for establishing loan policy and procedures
(for example, interest rate, term of loan, minimum amount) and for
ensuring that the loan procedures and provisions comply with all
relevant laws and regulations.
The Employer is responsible for providing Noble Lowndes with the loan
requests by voice technology or other means acceptable to Noble
Lowndes. The loan request will specify the dollar amount to be
distributed from each contribution type by investment option unless a
priority order has been established by the plan.
If specified on the Election Form, Noble Lowndes will approve loans on
the basis of the specific reasons as stated [in the plan document] or
[on the attached Schedule]. Noble Lowndes will not exercise discretion
and
<PAGE>
any unclear issues will be referred to the plan administrator. The
Employer acknowledges that any discretionary authority remains with the
plan administrator.
If, for any loan request, the amount available in any of the
participant's sub-accounts is insufficient to process the loan, Noble
Lowndes will not process any part of the loan and will contact the
Employer for further instructions.
The Employer will provide loan repayment input with the contribution
input. Loan repayments may be made by wire or by check. Noble Lowndes
will allocate repayments to participant sub-accounts according to the
participants' investment options on the system at the time of the
repayment. If the loan repayment is made by check, the check must
accompany the loan repayment input, and it will be subject to the same
rules for investment as that for contribution checks described
previously.
The Employer will provide loan information to Noble Lowndes either with
all the information provided according to an amortization schedule or
with the information provided according to principal and interest
breakdown. If the loan information contains both kinds of information,
Noble Lowndes will require additional time in which to process the loan
repayments.
M. GIC Processing
Noble Lowndes will provide recordkeeping services for GICs for the fee
specified on the Election Form and according to the procedures outlined
in this Agreement and in any attachment to this Agreement. However,
Noble Lowndes will not represent the GIC carrier nor act as
intermediary between the Employer and the GIC carrier.
Also, the Employer will be responsible for ensuring that the GIC
carrier provides Noble Lowndes and WSIS with all information necessary
to provide investment and recordkeeping services for the plan assets
invested in GICs. Noble Lowndes will not be responsible for any
errors, omissions or delays caused by such GIC carrier.
N. Employer Stock Processing
Noble Lowndes will provide recordkeeping service for publicly traded
employer stock for the fee specified on the Election Form and according
to the procedures outlined herein or in any attachment to this
Agreement. Noble Lowndes will not be responsible for allocating to the
participant sub-accounts any brokers' fees or commissions on the sale
or purchase of employer stock unless agreed upon in advance. Shares of
Employer stock will be held in street name under a brokerage account
established by WSIS.
<PAGE>
O. 401(k) and 401(m) Nondiscrimination Testing
Noble Lowndes will provide nondiscrimination testing for the Plan in
accordance with IRS regulations. Data necessary to property complete
these tests will be requested separately from the participant data
which accompanies contribution deposits. It is understood that test
results are contingent on the quality and completeness of data supplied
to Noble Lowndes by the Employer. The timely receipt of accurate
information is necessary for test results to be prepared within IRS
guidelines. Noble Lowndes will not be liable for taxes or penalties
which arise as a result of non-compliant or late test results and any
mandated corrections.
P. Voice Response System
Plan participants who have signed the appropriate authorization forms
can make investment changes and/or initiate transactions by telephone
through the Voice Response System. In addition, the Participant may
elect to utilize the Customer Service Representative option for further
assistance. All phone conversations with customer service
representatives are recorded. Each participant will access the Voice
Response System through a series of security codes which includes a
personal identification number (PIN), a company code, and then social
security number. Noble Lowndes is authorized to act upon all
instructions received through voice and to issue a confirmation of the
request within two business days of receipt. It is the responsibility
of the plan participant to alter or void any previous request in a
timely manner by contacting a Noble Lowndes customer service
representative. However, if Noble Lowndes and WSIS are not notified in
a timely manner, the Employer and/or the plan participant will be
subject to breakage charges under Section I. Noble Lowndes will not be
responsible for losses caused directly or indirectly by a failure of
the Voice Response System due to events beyond its control.
Q. Trust Reconciliation Reports
Noble Lowndes will provide a trust reconciliation report to the
Employer quarterly and at plan year end. This report will summarize
all plan year activity for the peloid that Noble Lowndes has
administered the plan and can be used to complete Tax Form 5500.
R. Participant Account Adjustments
As a result of an error, it may be necessary to correct a participant's
account on a retroactive basis. If an adjustment is due as the result
of an error by Noble Lowndes, all reasonable expenses associated with
correcting the error will be paid by Noble Lowndes. If an adjustment is
<PAGE>
due as the result of an error by the Employer, Trustee, WSIS, or other
party, Noble Lowndes will provide the necessary computations to
determine the amount due to the Plan. Noble Lowndes will provide these
services on a time and expense basis to be paid by the party
responsible for the error. In addition, the party responsible for the
error will reimburse the Plan any and all amounts which will
retroactively correct the participant's account.
<PAGE>
F I N A L
Election Form
Noble Lowndes Connections(sm)
Plan Administration Services
- -------------------------------------------------------------------------------
This election form is part of the Noble Lowndes Connections(sm) Plan
Administration Services Agreement for Global Environmental Solutions Inc.
("Employer"). Noble Lowndes will provide the participant recordkeeping
services for the employer's plan according to the elections below:
1. Employer, Plan and Trustee Information
Employer Name: Global Environmental Solutions Inc.
Address: 1313 North Market Street
Wilmington, DE 19894-0001
Telephone Number: (302) 594-6627
Fax Number: (302) 594-5908
Name of Employer Plan
Contact: Paul R. Stoffer
Telephone Number: (302) 594-6627
Name of Person to Receive
Statements/Reports: Paul R. Stoffer
Address: 1313 North Market Street
Wilmington, DE 19894-0001
Names and Titles of Persons Authorized to
provide instructions to Noble Lowndes: Paul R. Stoffer
Director, Human Resources
Employer Identification No.: 51-0347760
Plan Number: 001
Trust Identification Number: 51-0349747
Plan Name: Global Environmental Solutions Inc.
Retirement Savings Plan
Trust Name: Global Environmental Solutions Inc.
Retirement Savings Plan
Plan Year end: December 31
<PAGE>
Name and Address of Plan Wilmington Trust Company
Trustee(s): 1100 North Market Street
Wilmington, DE 19890
Telephone Number: (302) 651-1900
Fax Number: (302) 651-8464
2. Basic Recordkeeping Service Selections
Contributions and loan payments will be deposited and processed:
[ ] weekly [ ] semi-monthly [ ] bi-weekly [X] monthly:
Recordkeeping will be provided for the following contribution types:
===============================================================================
Tax Status of Vesting
Contribution Type (vesting tables are provided
Name (Pretax or After-tax) in the next section)
- -------------------------------------------------------------------------------
[X] 100% [ ] Vesting [ ] Vesting
Basic Pretax schedule 1 schedule 2
- -------------------------------------------------------------------------------
[X] 100% [ ] Vesting [ ] Vesting
After-tax After-tax schedule 1 schedule 2
- -------------------------------------------------------------------------------
[ ] 100% [X] Vesting [ ] Vesting
Matching Pretax schedule 1 schedule 2
- -------------------------------------------------------------------------------
[X] 100% [ ] Vesting [ ] Vesting
Rollover Pretax schedule 1 schedule 2
===============================================================================
<PAGE>
The following vesting schedules will be maintained:
===============================================================================
Table 1 Table 2
- -------------------------------------------------------------------------------
Vesting Vested Vesting Vesting
Years Percentage Years Percentage
1 20 1 N/A
2 40 2 N/A
3 60 3 N/A
4 80 4 N/A
5 100 5 N/A
6 100 6 N/A
7 100 7 N/A
===============================================================================
Vesting under the Plan will be measured:
[X] from date of hire
[X] elapsed time
[ ] hours
[ ] on a plan year basis (hours)
[ ] other:________________________________________________________________
Recordkeeping will be provided for the following investment options (print
names to appear on statements):
1. Fixed Income Fund
2. Balanced Fund
3. Growth Fund
4. International Fund
5. Hercules Common Stock
Hardship withdrawal request will be processed as follows:
[ ] suspension method [X] certification method [ ] both
<PAGE>
Forfeitures will be processed as follows:
[X] forfeitures w ill be credited against the employer contributions
[X] at the end of the plan year after payment to participant of the
vested portion or, if no vested portion, upon termination of
employment
[ ] after the five-year break-in-service period has lapsed.
(Earnings on the assets for the break-in-service period will be
credited to the account of the terminated participant.)
[ ] forfeitures will be reallocated as additional contributions among
accounts of remaining participants
[ ] at the end of the plan year after payment to participant of the
vested portion or, if no vested portion, upon termination of
employment
[ ] after the five-year break-in-service period has lapsed.
(Earnings on the assets for the break-in-service period will be
credited to the account of the terminated participant.)
Basic Service Fee
Annual fee of $0.00 per participant with a minimum annual Basic Service Fee of
$9,900. The Employer is responsible for expenses related to Voice Response and
CSR telephone charges, overnight delivery, postage, wire fees, transaction
fees, and trustee fees. In addition, an early redemption fee will apply if
this agreement is terminated within two years.
3. Optional Service Selections
Noble Lowndes will provide the optional services below at the fee(s)
specified:
[X] Loan Processing A $30 application fee and a $10 annual
fee which are paid by the participant
[X] Statements mailed to Included in Basic Service Fee
participants
[X] IRS Form 5500 preparation Included in Basic Service Fee
[X] Maintain a separate matching Included in Basic Service Fee
account for post 04-03-93
contributions to the Hercules
Stock Fund
[X] Annual 401(k) and (401)M Midyear and year end tests included in
nondiscrimination testing Basic Service Fee
[X] Consulting services, including Time and expense charges
plan amendments
[X] Approved investment options Hercules Common Stock
not provided through WSIS
<PAGE>
4. Fee Commitment Date
Noble Lowndes agrees that the fees specified on the Election Form will
remain effective until August 31, 1994, unless modified due to a
substantial increase in participants.
5. Signatures
Noble Lowndes agrees to provide for the Plan of the Employer the
participant recordkeeping services specified in the Agreement, the Election
Form, Appendix A, and in any attachments, for the fees specified on the
Election Form. Notwithstanding any provisions in the Plan or Trust
Document to the contrary, the Employee agrees that Noble Lowndes may rely
on the provisions of the Election Form, this Agreement, Appendix A, and any
attachments in providing recordkeeping services for the Plan. The Employer
represents and warrants that it is authorized to act on behalf of the Plan
and Trust. The Employer also agrees to pay the fees for the basic
services, and to all the Employer responsibilities outlined in this
Agreement, Election Form, Appendix A, and in any attachments.
Global Environmental Solutions Inc. Noble Lowndes
/s/ Norman F. Whiteley, Jr. /s/ Joseph A. Salvadore
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
By: Norman F. Whiteley, Jr. By: Joseph A. Salvadore
--------------------------------- ---------------------------------
Title:______________________________ Title:______________________________
Date:_______________________________ Date:_______________________________
Exhibit 24
Exhibit 24. CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
of Hercules Incorporated covering the Global Environmental Solutions, Inc.
Retirement Savings Plan on Form S-8 (Registration No. 33- ) of our report
dated February 9, 1993, on our audits of the consolidated financial statements
and financial statement schedules of Hercules Incorporated and subsidiary
companies as of December 31, 1992 and 1991, and for each of the three years
in the period ended December 31, 1992, which report is included in the annual
report on Form 10-K of Hercules Incorporated for the year ended
December 31, 1992.
Cooopers & Lybrand
2400 Eleven Penn Center
Philadelphia, Pennsylvania 19103
March 10, 1994
POWER OF ATTORNEY
WHEREAS, HERCULES INCORPORATED, a Delaware corporation ("Company"),
intends to file with the Securities and Exchange Commission ("Commission")
under the Securities Act of 1933, as amended ("Act"), a registration statement
on Form S-8 ("Registration Statement"), including the exhibits thereto, with
any amendment or amendments (including post-effective amendments) and any
supplement or supplements thereto as prescribed by the Commission, and intends
to prepare a related prospectus, in each case pursuant to the Act and the rules
and regulations of the Commission promulgated thereunder, in connection with
the registration of up to and including 10,000 shares of common stock issued by
the Company ("Common Stock"), subject to adjustment pursuant to the terms of
the Global Environmental Solutions, Inc. Retirement Savings Plan ("Plan"), to
be issued pursuant to and in accordance with the Plan;
NOW, THEREFORE, each of the undersigned does hereby constitute and appoint
Michael B. Keehan and Thomas A. Ciconte, and each of them, the true and lawful
attorney or attorneys-in-fact of the undersigned, with full power of substitu-
tion and resubstitution, to act jointly or severally to (i) execute in the
name, place and stead of the undersigned, in any and all capacities, the
Registration Statement, including the exhibits thereto, and any amendment or
amendments thereto (including post-effective amendments) and any supplement or
supplements thereto, and any and all documents necessary or incidental in
connection therewith; file, or cause to be filed, the same with the Commission;
and appear before the Commission in connection with any matter relating
thereto; and (ii) execute and file, or cause to be filed, any application for
registration or qualification (or exemption therefor), or any report or any
other document required or permitted to be filed by the Company under the Blue
Sky or securities laws of any state or other jurisdiction of the United States
of America (including, without limitation, any applications, reports, consents
to service of process, appointments of attorneys to receive a notice of process
and other papers and statements that may be required under such laws), and to
furnish any other information required in connection therewith. Each of said
attorneys-in-fact, acting jointly or severally, shall have full power and
authority to do and perform in the name and on behalf of the undersigned in
any and all capacities, every act whatsoever necessary or desirable to be done
in the premises as fully and to all intents and purposes as the undersigned
might or could do in person, the undersigned hereby ratifying and confirming
the acts that said attorneys-in-fact and each of them, or their or his substi-
tutes or substitute, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney shall be revoked automatically effective on the
date the undersigned ceases to be a member of the Company's Board of Directors.
Any revocation shall not void or otherwise offset any acts performed by any
attorney-in-fact and agent named herein pursuant to this Power of Attorney
prior to the effective date of such revocation.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 21st day of February, 1994.
/s/ Manfred Caspari
--------------------------------------
Director
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 15th day of February, 1994.
/s/ Richard M. Fairbanks, III
--------------------------------------
Director
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 17th day of February, 1994.
/s/ Edith E. Holiday
--------------------------------------
Director
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 15th day of February, 1994.
/s/ Robert G. Jahn
--------------------------------------
Director
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 15th day of February, 1994.
/s/ Ralph L. MacDonald, Jr.
--------------------------------------
Director
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 16th day of February, 1994.
/s/ Lee M. Thomas
--------------------------------------
Director
