As filed with the Securities and Exchange Commission on November
17, 1994
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARK IV INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) 23-1733979
(I.R.S. Employer
Identification Number)
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York
(Address of Principal Executive Offices) 14226-0810
(Zip Code)
1992 Stock Option Plan of Purolator Products Company,
1994 Long-Term Incentive Plan of Purolator Products Company and
Purolator Products Company Employees' Retirement Savings Plan
Assumed and/or Amended in Connection with Agreement and Plan of
Merger dated as of October 3, 1994 among Purolator Products
Company, Mark IV Industries, Inc. and Mark IV Acquisition Corp.
(Full title of the plans)
WILLIAM P. MONTAGUE
Executive Vice President
MARK IV INDUSTRIES, INC.
P.O. Box 810
501 John James Audubon Parkway
Amherst, New York 14226-0810
(Name and address of agent for service)
(716) 689-4972
(Telephone number, including area code, of agent for service)
________________
Copies to:
DAVID L. FINKELMAN, Esq.
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004-2696
(212) 806-5400
GERALD S. LIPPES, Esq.
Lippes, Silverstein, Mathias & Wexler
700 Guaranty Building
28 Church Street
Buffalo, New York 14202-3950
(716) 853-5100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities
to be Registered Amount to be
Registered Proposed Maximum Offering
Price Per Share (3) Proposed Maximum
Aggregate Offering Price (3) Amount of
Registration Fee
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 445,327 shares (1) $20.75(4) $9,240,535(4) $3,186.39
Common Stock
($.01 par value) 26,085 shares (1) $20.75(4) $541,264(4) $186.64
Common Stock
($.01 par value) 228,588 shares (2) $20.75(4) $4,743,201(4) $1,635.59
Interests in the Purolator
Products Company Employees'
Retirement Savings Plan (3) (5) (5) (5)
Total 700,000 shares $5,008.62
(1) Consists of 445,327 shares of Common Stock of the Registrant which are issuable upon exercise of options which have been
granted by Purolator Products Company under the 1992 Stock Option Plan and 26,085 shares of Common Stock of the
Registrant which are issuable upon exercise of options which have been granted by Purolator Products Company under the
1994 Long-Term Incentive Plan, which Plans have been assumed by the Registrant. This Registration Statement also covers
an indeterminate number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or
similar transactions.
(2)Consists of 228,588 shares of Common Stock of the Registrant which may be purchased from time to time at market prices
for participants in the Purolator Products Company Employees' Retirement Savings Plan.
(3)Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the Employees' Retirement Savings Plan.
(4)Estimated solely for the purpose of calculating the amount of the registration fee. The price per share and aggregate offering
price are based upon the average of the high and low prices of the Registrant's Common Stock on November 11, 1994, as
reported on the New York Stock Exchange.
(5)Pursuant to Rule 457(h)(2) under the Securities Act, no separate fee is required to register interests in the Employees'
Retirement Savings Plan.
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note:The documents containing the information specified in
Part I of Form S-8 will be sent or
given to participants as specified by Rule 428(b)(1)
under the Securities Act of 1933, as
amended (the "Securities Act"). Such documents need not be filed
with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act.
These documents and the documents incorporated by
reference in the Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that
meets the requirements of Section 10(a) of the
Securities Act. See Rule 428(a)(1) under the Securities
Act.
This Registration Statement on Form S-8 of Mark IV
Industries, Inc., a Delaware corporation (the "Registrant"),
covers 700,000 shares of the Registrant's Common Stock, par value
$0.01 per share ("Common
Stock"), reserved for issuance under the following employee
benefit plans of Purolator Products Company
("Purolator"), as such plans have been assumed by the Registrant
and/or amended (collectively, the "Plans"):
(i)1992 Stock Option Plan of Purolator Products
Company;
(ii)1994 Long-Term Incentive Plan of Purolator Products
Company; and
(iii)Purolator Products Company Employees' Retirement
Savings Plan;
and an indeterminate amount of interests in the Purolator
Products Company Employees' Retirement Savings
Plan.
If necessary for a prospectus to be used for reoffers of the
Registrant's Common Stock acquired
pursuant to the Plans, a prospectus prepared in accordance with
the requirements of Form S-3 will be filed
as part of this Registration Statement by means of a
post-effective amendment hereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Commission under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended February 28, 1994;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended May 31, 1994
and August 31, 1994;
(c) The Registrant's Report on Form 8-K dated November 2,
1994.
(d) The Annual Report on Form 11-K of the Purolator
Products Company Employees'
Retirement Savings Plan for the fiscal year ended
December 31, 1993.
(e) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the
annual report referenced in (a) above;
(f) The Registrant's Tender Offer Statement on Schedule
14D-1 dated October 7, 1994,
Amendment No. 1 thereto dated October 11, 1994,
Amendment No. 2 thereto dated October
24, 1994, Amendment No. 3 thereto dated November 3,
1994, Amendment No. 4 thereto
dated November 7, 1994 and Amendment No. 5 thereto
dated November 16, 1994; and
(g) The description of the Registrant's Common Stock
contained in the Registrant's Registration
Statement on Form 8-A, dated August 28, 1987, including
any amendments or reports filed
for the purpose of updating such description.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all
securities registered hereby have been sold or which deregisters
all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such
documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the validity of the
shares of Common Stock offered pursuant to
this Registration Statement are being passed upon for the
Registrant by Lippes, Silverstein, Mathias & Wexler,
counsel to the Registrant. Gerald S. Lippes, a partner of
Lippes, Silverstein, Mathias & Wexler, is Secretary
and a Director of the Registrant and was the beneficial owner of
1,701,751 shares of Common Stock as of
November 7, 1994.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in
summary, that directors and officers of Delaware corporations are
entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including
attorneys' fees) incurred by them as a result of suits
brought against them in their capacity as a director or officer,
if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful; provided, that
no indemnification may be made against expenses in respect of any
claim, issue or matter as to which they
shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but
in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such
expenses which such court shall deem proper. Any such
indemnification may be made by the corporation only
as authorized in each specific case upon a determination by the
stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the
applicable standard of conduct. Article Ninth
of the Registrant's Certificate of Incorporation entitles
officers, directors and controlling persons of the
Registrant to indemnification to the full extent permitted by
Section 145 of the DGCL, as the same may be
supplemented or amended from time to time.
Article Ninth of the Registrant's Certificate of
Incorporation was amended in August 1986 to provide
that no director shall have any personal liability to the
Registrant or its stockholders for any monetary
damages for breach of fiduciary duty as a director, provided that
such provision does not limit or eliminate
the liability of any director (i) for breach of such director's
duty of loyalty to the Registrant or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (involving certain
unlawful dividends or stock repurchases) or (iv)
for any transaction from which such director derived an improper
personal benefit. The provisions of such
article do not limit or eliminate the liability of any director
for any act or omission occurring prior to the
effective time of such amendment.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Agreement and Plan of Merger dated as of October 3,
1994, among Purolator Products
Company, Mark IV Industries, Inc. and Mark IV
Acquisition Corp. (Incorporated by
reference to Exhibit (c)(1) to the Registrant's Tender
Offer Statement on Schedule 14D-1
dated October 7, 1994).
4.2* Mark IV Industries, Inc. Assumption of the 1992 Stock
Option Plan of Purolator Products
Company and the 1994 Long-Term Incentive Plan of
Purolator Products Company.
4.3* 1992 Stock Option Plan of Purolator Products Company.
4.4* 1994 Long-Term Incentive Plan of Purolator Products
Company.
4.5* Purolator Products Company Employees' Retirement
Savings Plan (as amended and restated
effective January 1, 1994).
4.6* First Amendment to the January 1, 1994 Amendment and
Restatement of the Purolator
Products Company Employees' Retirement Savings Plan.
5.1* Opinion of Lippes, Silverstein, Mathias & Wexler as to
the legality of the securities being
offered.
23.1*Consent of Coopers & Lybrand with respect to financial
statements of the Registrant.
23.2*Consent of Arthur Andersen LLP with respect to
financial statements of Purolator Products
Company.
23.3*Consent of Lippes, Silverstein, Mathias & Wexler
(included in Exhibit 5.1).
24* Powers of Attorney (included on p. II-4 of this
Registration Statement).
* Filed herewith.
Item 9.Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement to
include any material information with
respect to the plan of distribution not previously
disclosed in the Registration
Statement or any material changes to such
information in the Registration
Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such
post-effective amendment shall be deemed to be a
new registration statement relating
to the securities offered therein, and the
offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability
under the Securities Act, each filing of the
Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is
incorporated by reference in the Registration Statement
shall be deemed to be a new
registration statement relating to the securities
offered herein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the provisions of Item
6 of this Registration Statement, or otherwise, the
Registrant has been advised that, in the
opinion of the Commission such indemnification is
against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid
by a director, officer or controlling person of the
Registrant in the successful defense of any
action, suit or proceeding) is asserted by such
director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public
policy as expressed in the Securities Act and will be
governed by the final adjudication of
such issue.
(d) The undersigned Registrant hereby undertakes that the
Employees' Retirement Savings Plan
has been submitted to the Internal Revenue Service (the
"IRS") and that the Registrant will
make or cause to be made all changes required by the
IRS in order to qualify the Employees'
Retirement Savings Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town
of Amherst, State of New York on the 17th day of November, 1994.
MARK IV INDUSTRIES, INC.
By: /s/ William P. Montague
William P. Montague
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below
constitute and appoints Sal H. Alfiero, Clement R. Arrison,
William P. Montague, Gerald S. Lippes, John
J. Byrne and Richard L. Grenolds, and each of them, his true and
lawful attorneys-in-fact and agents with full
power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities,
to sign any and all amendments (including post-effective
amendments) of and supplements to this Registration
Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with
the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents and each of them
full power and authority to do and perform each and every act and
thing requisite and necessary to be done
in and about the premises, to all intents and purposes and as
fully as they might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been
signed by the following persons in the capacities indicated on
the 17th day of November, 1994.
Signature Capacity
/s/ Sal H. Alfiero Chairman of the Board and Chief Executive
Officer
Sal H. Alfiero
/s/ Clement R. Arrison President and Director
Clement R. Arrison
/s/ William P. Montague Executive Vice President and Chief
Financial Officer
William P. Montague
/s/ Gerald S. Lippes Secretary and Director
Gerald S. Lippes
/s/ Frederic L. Cook Senior Vice President - Administration
Frederic L. Cook
/s/ John J. Byrne Vice President - Finance
John J. Byrne
/s/ Richard L. Grenolds Vice President - Chief Accounting Officer
Richard L. Grenolds
Pursuant to the requirements of the Securities Act of 1933,
the Committee appointed under the terms
of the Purolator Products Company Employees' Retirement Savings
Plan has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Amherst,
State of New York, on the 17th day of November, 1994.
Purolator Products Company Employees'
Retirement Savings Plan
By:/s/ John J. Byrne John J. Byrne
Member of the Employees' Retirement
Savings Plan Committee
EXHIBIT INDEX
Exhibit No. Description Page
4.1 Agreement and Plan of Merger dated as of October 3, 1994,
among Purolator Products Company, Mark IV Industries, Inc. and
Mark IV Acquisition Corp. (Incorporated by reference to Exhibit
(c)(1) to the Registrant's Tender Offer Statement on Schedule
14D-1 dated October 7, 1994.
4.2* Mark IV Industries, Inc. Assumption of the 1992
Stock Option Plan of Purolator Products Company and the 1994
Long-Term Incentive Plan of Purolator Products Company.
4.3* 1992 Stock Option Plan of Purolator Products
Company.
4.4* 1994 Long-Term Incentive Plan of Purolator Products
Company.
4.5* Purolator Products Company Employees' Retirement
Savings Plan (as amended and restated as of January 1, 1994).
4.6* First Amendment to the January 1, 1994 Amendment and
Restatement of the Purolator Products Company
Employees' Retirement Savings Plan.
5.1* Opinion of Lippes, Silverstein, Mathias & Wexler as
to the legality of the securities being offered.
23.1* Consent of Coopers & Lybrand with respect to
financial
statements of the Registrant.
23.2* Consent of Arthur Andersen LLP with respect to
financial
statements of Purolator Products Company.
23.3* Consent of Lippes, Silverstein, Mathias & Wexler
(included in
Exhibit 5.1).
24* Powers of Attorney (included on p. II-4 of this
Registration Statement).
* Filed herewith.
MARK IV INDUSTRIES, INC.
ASSUMPTION OF THE 1992 STOCK OPTION
PLAN OF PUROLATOR PRODUCTS COMPANY AND
THE 1994 LONG-TERM INCENTIVE PLAN OF
PUROLATOR PRODUCTS COMPANY
In connection with the Agreement and Plan of Merger
("Merger Agreement") dated as of October 3, 1994 by and among
Mark IV Industries, Inc. ("Mark IV"), Mark IV Acquisition Corp.
and Purolator Products Company ("Purolator") and pursuant to
resolutions of the Board of Directors of Mark
IV adopted on November 7, 1994, Mark IV hereby assumes the 1992
Stock Option Plan of Purolator and the 1994 Long-Term Incentive
Plan of Purolator (collectively, the "Plans") solely for
purposes of assuming Purolator's obligations with respect to
those options issued under the Plans which are outstanding as of
the Effective Time (the "Effective Time") as defined in the
Merger Agreement and as to which the holders have elected an
assumption by Mark IV of such options in lieu of a cash payment
pursuant to Section 2.5(a) of the Merger Agreement (each a
"Purolator Option"). Each of such Purolator Options shall be
automatically converted as of the Effective Time into an option
(a "Mark IV Option") to purchase a number of shares of the
common stock, par value $0.01 per share, of Mark IV ("Mark IV
Common Stock") equal to the number of shares of common stock,
par value $0.01 per share, of Purolator that could have
been purchased (assuming full vesting) under such Purolator
Option on the day (the "Conversion Date") immediately preceding
the Effective Time multiplied by a fraction (the "Conversion
Factor"), the numerator of which is $25.00 and the denominator
of which is the closing price, as reported by the New York Stock
Exchange, of a share of Mark IV Common Stock on the Conversion
Date (rounded to the nearest whole number of shares of Mark IV
Common Stock), at a price per share of Mark IV Common Stock
equal to the per-share option exercise price specified in the
Purolator Option divided by the Conversion Factor (rounded down
to the nearest whole cent). Such Mark IV Option shall otherwise
be subject to the same terms and conditions as such Purolator
Option, except as hereinafter provided, and the date of grant of
the substituted Mark IV Option shall be the date on which the
corresponding Purolator Option was granted.
As of the Effective Time, (i) all references in the Plans and
the Purolator Options to Purolator shall be
deemed to refer to Mark IV; (ii) all Purolator Options shall be
deemed to be 100% vested and (iii) Mark
IV shall assume all of Purolator's obligations with respect to
Purolator Options as so amended. The Purolator Options assumed
by Mark IV shall not be treated as incentive stock options as
defined in Section 422 of the Internal Revenue Code of 1986, as
amended. This Assumption shall be effective as of
the Effective Time and shall be conditioned upon the
consummation of the Merger pursuant to the Merger
Agreement. In the event that such Merger is not consummated,
this Assumption and the amendments to the Purolator Options as
aforesaid shall be void and of no force or effect.
Dated: November 7, 1994
MARK IV INDUSTRIES, INC.
By: /s/ Gerald S. Lippes
Gerald S. Lippes
Secretary
<PAGE>
1992 STOCK OPTION PLAN
of
Purolator Products Company
1. Objectives. The Purolator Products Company 1992
Stock Option Plan (the "Plan") is designed to retain key
executives and other selected employees and reward them for
making major contributions to the success of Purolator Products
Company, a Delaware corporation (the "Company"), and
its Subsidiaries (as hereinafter defined). These objectives are
to be accomplished by making awards under the Plan and thereby
providing Participants (as hereinafter defined) with a
proprietary interest in the growth and performance of the
Company and its Subsidiaries.
2. Definitions. As used herein, the terms set forth
below shall have the following respective meanings:
"Award" means the grant of any form of stock option to
a Participant pursuant to any applicable terms, conditions and
limitations as the Committee may establish in order to fulfill
the objectives of the Plan.
"Award Agreement" means a written agreement between the
Company and a Participant that sets forth the terms, conditions
and limitations applicable to an Award.
"Board" means the Board of Directors of the Company.
"Common Stock" means the Common Stock, par value $0.01
per share, of the Company.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means such committee of the Board as is
designated by the Board to administer the Plan. The Committee
shall be constituted to permit the Plan to comply with Rule
16b-3.
"Director" means an individual serving as a member of
the Board.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Fair Market Value" means, as of a particular date, (i)
if the shares of Common Stock are listed on a national
securities exchange, the mean between the highest and lowest
sales price per share of Common Stock on the principal such
national securities exchange on that date, or, if there shall
have been no such sale so reported on that date, on the last
preceding date
on which such a sale was so reported, (ii) if the shares of
Common Stock are not so listed but are quoted in the NASDAQ
National Market System, the mean between the highest and lowest
sales price per share of Common Stock on the NASDAQ
National Market System on that date, or, if there shall have been
no such sale so reported on that date, on the last
preceding date on which such a sale was so reported or (iii) if
the Common Stock is not so listed or quoted, the mean between
the closing bid and
asked price on that date, or, if there are no quotations
available for such date, on the last preceding date on which such
quotations shall be available, as reported
by NASDAQ, or, if not reported by NASDAQ, by the National
Quotation Bureau, Inc.
"Participant" means an employee of the Company or any
of its Subsidiaries to whom an Award has been made under this
Plan.
"Rule 16b-3" means Rule 16b-3 promulgated under the
Exchange Act, or any successor rule.
"Subsidiary" means any corporation of which the Company
directly or indirectly owns shares representing more
than 50% of the voting power of all classes or series of capital
stock of such corporation which have the right to vote generally
on matters submitted to a vote of the stockholders of
such corporation.
3. Eligibility. Employees of the Company and its
Subsidiaries eligible for an Award under this Plan are those who
hold positions of responsibility and whose performance, in the
judgment of the Committee, can have a significant effect on the
success of the Company and its Subsidiaries.
4. Common Stock Available for Awards. There shall be
available for Awards granted during the term of this Plan an
aggregate of 387,500 shares of Common Stock. The Board and the
appropriate officers of the Company shall from time to time take
whatever actions are necessary to file required documents with
governmental authorities and stock exchanges and transaction
reporting systems to make shares of Common Stock available for
issuance pursuant to Awards. Common Stock related to
Awards that are forfeited or terminated, expire unexercised, or
are settled in a manner such that all or some of the shares
covered by an Award are not issued to a Participant shall
immediately become available for Awards hereunder. The Committee
may from time to time adopt and observe such procedures
concerning the counting of shares against the Plan maximum as it
may deem appropriate under Rule 16b-3.
5. Administration. This Plan shall be administered by
the Committee, which shall have full and exclusive power to
interpret this Plan, to grant waivers of the restrictions set
forth in this Plan and to adopt such rules, regulations and
guidelines for carrying out this Plan as it may deem necessary or
proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the
objectives of this Plan. The Committee may correct any defect or
supply any omission or reconcile any inconsistency in this
Plan or in any Award in the manner and to the extent the
Committee deems necessary or desirable to carry it into effect.
Any decision of the Committee in the interpretation and
administration of this Plan shall lie within its sole and
absolute discretion and shall be final, conclusive and binding on
all parties concerned. No member of the Committee or officer of
the Company to whom it has delegated authority in accordance
with the provisions of Paragraph 6 of this Plan shall be liable
for anything done or omitted to be done by him or her, by any
member of the Committee or by any officer of the Company in
connection with the performance of any duties under this Plan,
except for his or her own willful misconduct or as expressly
provided by statute.
6. Delegation of Authority. The Committee may
delegate to the Chief Executive Officer and to other senior
officers of the Company its duties under this Plan pursuant to
such conditions or limitations as the Committee may establish,
except that the Committee may not delegate to any person the
authority to grant Awards to, or take other action with respect
to, Participants who are subject to Section 16 of the Exchange
Act.
7. Awards. The Committee shall determine the type or
types of Awards to be made to each Participant under this Plan.
Each Award made hereunder shall be embodied in an Award
Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole
discretion and shall be signed by the Participant and by the
Chief Executive Officer, the Chief Operating Officer, or any Vice
President of the Company for and on behalf of the Company.
Awards may consist of those listed in this Paragraph 7 and may
be granted singly, in combination or in tandem. Awards may also
be made in combination or in tandem with, in replacement of, or
as alternatives to, grants under this Plan or any other employee
plan of the Company or any of its Subsidiaries, including
the plan of any acquired entity. An Award may provide for the
granting or issuance of additional, replacement or alternative
Awards upon the occurrence of specified events, including the
exercise of the original Award. An Award shall consist of a
right to purchase a specified number of shares of Common
Stock at a specified price that is not less than the Fair Market
Value of the Common Stock on the date of grant of the option. A
stock option may be in the form of an incentive stock option
("ISO") which, in addition to being subject to applicable terms,
conditions and limitations established by the Committee,
complies with Section 422 of the Code.
8. Payment of Awards.
(a) General. Payment of Awards may be made in the
form of cash or Common Stock or combinations thereof and may
include such restrictions as the Committee shall determine,
including in the case of Common Stock, restrictions on transfer
and forfeiture provisions.
(b) Dividends and Interest. Dividends or dividend
equivalent rights may be extended to and made part of any Award,
subject to such terms, conditions and restrictions as the
Committee may establish.
(c) Substitution of Awards. At the discretion of the
Committee, a Participant may be offered an election to substitute
an Award for another Award or Awards of the same or different
type.
9. Stock Option Award Exercise. The price at which
shares of Common Stock may be purchased under a stock option
shall be paid in full at the time of exercise in cash or, if
permitted by the Committee, by means of tendering Common Stock
valued at Fair Market Value on the date of exercise, or
any combination thereof. The Committee shall determine
acceptable methods for tendering Common Stock to exercise a stock
option as it deems appropriate. The Committee may provide for
loans from the Company to permit the exercise of Awards and may
provide for procedures to permit the exercise of
Awards by use of the proceeds to be received from the sale of
Common Stock issuable pursuant to an Award.
10. Tax Withholding. The Company shall have the right
to deduct applicable taxes from any Award payment and withhold,
at the time of delivery of shares of Common Stock under this
Plan, an appropriate number of shares of Common Stock for
payment of taxes required by law or to take such other action as
may be necessary in the opinion of the Company to satisfy all
obligations for withholding of such taxes. The Committee may
also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder
of the Award with respect to which withholding is required. If
shares of Common Stock are used to satisfy tax withholding, such
shares shall be valued based on the Fair Market Value when the
tax withholding is required to be made.
11. Amendment, Modification, Suspension or
Termination. The Board may amend, modify, suspend or terminate
this Plan for the purpose of meeting or addressing any changes in
legal requirements or for any other purpose permitted by law
except that (i) no amendment or alteration that would impair the
rights of any Participant under any Award previously granted to
such Participant shall be made without such Participant's consent
and (ii) no amendment or alteration shall be effective prior to
approval by the Company's stockholders to the extent such
approval is then required pursuant to Rule 16b-3 in order to
preserve the applicability of any exemption provided by such rule
to any Award then outstanding (unless the holder of such
Award consents) or to the extent stockholder approval is
otherwise required by applicable legal requirements.
12. Termination of Employment. Upon the termination
of employment by a Participant, any unexercised, deferred or
unpaid Awards shall be treated as provided in the specific Award
Agreement evidencing the Award. In the event of such a
termination, the Committee may, in its discretion, provide
for the extension of the exercisability of an Award, accelerate
the vesting of an Award, eliminate or make less restrictive any
restrictions contained in an Award or otherwise amend or modify
the Award in any manner not adverse to such Participant.
13. Assignability. No Award or any other benefit
under this Plan constituting a derivative security within the
meaning of Rule 16a-1(c) under the Exchange Act shall be
assignable or otherwise transferable except by will or the laws
of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder. The
Committee may prescribe and include in applicable Award
Agreements other restrictions on transfer. Any attempted
assignment of an Award or any other benefit under this Plan in
violation of this Paragraph 13 shall be null and void.
14. Adjustments.
(a) The existence of outstanding Awards shall not
affect in any manner the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
capital stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stock (whether or not such issue is
prior to, on a parity with or junior to the Common Stock) or the
dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any
other corporate act or proceeding of any kind, whether or not of
a character similar to that of the acts or proceedings enumerated
above.
(b) In the event of any subdivision or consolidation
of outstanding shares of Common Stock or declaration of a
dividend payable in shares of Common Stock or capital
reorganization or reclassification or other transaction involving
an increase or reduction in the number of outstanding shares
of Common Stock, the Committee may adjust proportionally (i) the
number of shares of Common Stock reserved under this Plan and
covered by outstanding Awards denominated in Common Stock or
units of Common Stock; (ii) the exercise or other price in
respect of such Awards; and (iii) the appropriate Fair
Market Value and other price determinations for such Awards. In
the event of any consolidation or merger of the Company with
another corporation or entity or the adoption by the Company of a
plan of exchange affecting the Common Stock or any
distribution
to holders of Common Stock of securities or
property (other than normal cash dividends or dividends payable
in Common Stock), the Committee shall make such adjustments or
other provisions as it may deem equitable, including adjustments
to avoid fractional shares, to give proper effect to such event.
In the event of a corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or
liquidation, the Committee shall be authorized to issue or assume
stock options, regardless of whether in a transaction to which
Section 425(a) of the Code applies, by means of substitution of
new options for previously issued options or an
assumption of previously issued options, or to make provision for
the acceleration of the exercisability of, or lapse of
restrictions with respect to, Awards and the termination of
unexercised options in connection with such transaction.
15. Restrictions. No Common Stock or other form of
payment shall be issued with respect to any Award unless the
Company shall be satisfied based on the advice of its counsel
that such issuance will be in compliance with applicable federal
and state securities laws. It is the intent of the
Company that this Plan comply in all respects with Rule 16b-3,
that any ambiguities or inconsistencies in the construction of
this Plan be interpreted to give effect to such intention, and
that if any provision of this Plan is found not to be in
compliance with Rule 16b-3, such provision shall be null and void
to the extent required to permit this Plan to comply with Rule
16b-3. Certificates evidencing shares of Common Stock
delivered under this Plan may be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any securities exchange or
transaction reporting system upon which the Common
Stock is then listed and any applicable federal and state
securities law. The Committee may cause a legend or legends to
be placed upon any such certificates to make appropriate
reference to such restrictions.
16. Governing Law. This Plan and all determinations
made and actions taken pursuant hereto, to the extent not
otherwise governed by mandatory provisions of the Code or the
securities laws of the United States, shall be governed by and
construed in accordance with the laws of the State of Delaware.
17. Effective Date of Plan. This Plan shall be
effective as of the date (the "Effective Date") of the later to
occur of the following: (a) the approval by the Board of
Directors of the Company and (b) the approval (i) by unanimous
written consent of the holders of the shares of Common Stock or
(ii) by the holders of a majority of shares of Common Stock
present, or represented, and entitled to vote at a meeting of the
Company's stockholders. If the stockholders of the Company
should fail to so approve this Plan prior to January 31, 1993,
this Plan shall not become effective and any purported grants of
Awards hereunder shall be null and void.
<PAGE>
1994 LONG-TERM INCENTIVE PLAN
of
PUROLATOR PRODUCTS COMPANY
1. Objectives. The Purolator Products Company 1994
Long-Term Incentive Plan (the "Plan") is designed to retain key
executives and other selected employees and reward them for
making major contributions to the success of Purolator Products
Company, a Delaware corporation (the "Company"), and its
Subsidiaries (as hereinafter defined). These objectives are to
be accomplished by making awards under the Plan and thereby
providing Participants (as hereinafter defined) with a
proprietary interest in the growth and performance of the Company
and its Subsidiaries.
2. Definitions. As used herein, the terms set forth
below shall have the following respective meanings:
"Award" means the grant of any form of stock option,
stock appreciation right, stock award or cash award, whether
granted singly, in combination or in tandem, to a Participant
pursuant to any applicable terms, conditions and limitations as
the Committee may establish in order to fulfill the objectives of
the Plan.
"Award Agreement" means a written agreement between the
Company and a Participant that sets forth the terms,
conditions and limitations applicable to an Award.
"Board" means the Board of Directors of the Company.
"Common Stock" means the Common Stock, par value $0.01
per share, of the Company.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means such committee of the Board as is
designated by the Board to administer the Plan. The Committee
shall be constituted to permit the Plan to comply with Rule
16b-3.
"Director" means an individual serving as a member of
the Board.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Fair Market Value" means, as of a particular date, (i)
if the shares of Common Stock are listed on a national
securities exchange, the mean between the highest and lowest
sales price per share of Common Stock on such principal national
securities
exchange on that date, or, if there shall have been no such sale
so reported on that date, on the last preceding date on which
such a sale was so reported, (ii) if the shares of Common Stock
are not so listed but are quoted in the NASDAQ National Market
System ("NASDAQ"), the mean between the highest and lowest sales
price per share of Common Stock on the NASDAQ National
Market System on that date, or if there shall have been no such
sale so reported on that date, on the last preceding date on
which such a sale was so reported or (iii) if the Common Stock is
not so listed or quoted, the mean between the closing bid and
asked price on that date, or, if there are no quotations
available for such date, on the last preceding date on which such
quotations shall be available, as reported by NASDAQ, or, if not
reported by NASDAQ, by the National Quotation Bureau, Inc.
"Participant" means an employee of the Company or any
of its subsidiaries to whom an Award has been made under this
Plan.
"Rule 16b-3" means Rule 16b-3 promulgated under the
Exchange Act, or any successor rule.
"Subsidiary" means any corporation of which the Company
directly or indirectly owns shares representing more than 50% of
the voting power of all classes or series of capital stock of
such corporation which have the right to vote generally on
matters submitted to a vote of the stockholders of such
corporation.
3. Eligibility. Employees of the Company and its
Subsidiaries eligible for an Award under this Plan are those who
hold positions of responsibility and whose performance, in the
judgment of the Committee, can have a significant effect on the
success of the Company and its Subsidiaries.
4. Common Stock Available for Awards. There shall be
available for Awards granted wholly or partly in Common Stock
(including rights or options which may be exercised for or
settled in Common Stock) during the term of this Plan an
aggregate of 500,000 shares of Common Stock. The Board
of Directors and the appropriate officers of the Company shall
from time to time take whatever actions are necessary to file
required documents with governmental authorities and stock
exchanges and transaction reporting systems to make shares of
Common Stock available for issuance pursuant to Awards. Common
Stock related to Awards that are forfeited or terminated, expire
unexercised, are settled in cash in lieu of Stock or in a manner
such that all or some of the shares covered by an Award are not
issued to a Participant, or are exchanged for Awards that do not
involve Common Stock, shall immediately become available for
Awards hereunder. The Committee may from time to time adopt and
observe such procedures concerning the counting of shares against
the Plan maximum as it may deem appropriate under
Rule 16b-3.
5. Administration. This Plan shall be administered by
the Committee, which shall have full and exclusive power to
interpret this Plan, to grant waivers of the restrictions set
forth in this Plan and to adopt such rules, regulations and
guidelines for carrying out this Plan as it may deem necessary or
proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the
objectives of this Plan. The Committee may correct any defect or
supply any omission or reconcile any inconsistency in this Plan
or in any Award in the manner and to the extent the Committee
deems necessary or desirable to carry it into effect. Any
decision of the Committee in the interpretation and
administration of this Plan shall lie within its sole and
absolute discretion and shall be final, conclusive and binding on
all parties concerned. No member of the Committee or officer of
the Company to whom it has delegated authority in accordance with
the provisions of Paragraph 6 of this Plan shall be liable for
anything done or omitted to be done by him or her, by any member
of the Committee or by any officer of the Company in
connection with the performance of any duties under this Plan,
except for his or her own willful misconduct or as expressly
provided by statute.
6. Delegation of Authority. The Committee may
delegate to the Chief Executive Officer and to other senior
officers of the Company its duties under this Plan pursuant to
such conditions or limitations as the Committee may establish,
except that the Committee may not delegate to any person the
authority to grant Awards to, or take other action with respect
to, Participants who are subject to Section
16 of the Exchange Act.
7. Awards. The Committee shall determine the type or
types of Awards to be made to each Participant under this Plan.
Each Award made hereunder shall be embodied in an Award
Agreement, which shall contain such terms, conditions and
limitations as shall be determined by the Committee in its sole
discretion and shall be signed by the Participant and by the
Chief Executive Officer, the Chief Operating Officer, or any Vice
President of the Company for and on behalf of the Company.
Awards may consist of those listed in this Paragraph 7 and may be
granted singly, in combination or in tandem. Awards may also be
made in combination or in tandem with, in replacement of, or as
alternatives to, grants or rights under this Plan or any other
employee plan of the Company or any of its Subsidiaries,
including the plan of any acquired entity. An Award may provide
for the granting or issuance of additional, replacement or
alternative Awards upon the occurrence of specified events,
including the exercise of the original Award.
(a) Stock Option. An Award may consist of a right to
purchase a specified number of shares of Common Stock at a
specified price that is not less than the par value of the Common
Stock on the date of grant of the option. A stock option may be
in the form of an incentive stock option ("ISO")
which, in addition to being subject to applicable terms,
conditions and limitations established by the
Committee, complies with Section 422 of the code. The maximum
aggregate number of shares for which options may be granted to an
employee during each year this Plan is in effect is 100,000
shares.
(b) Stock Appreciation Right. An Award may consist of
a right to receive a payment, in cash or Common Stock, equal to
the excess of the Fair Market Value or other specified valuation
of a specified number of shares of Common Stock on the date the
stock appreciation right ("SAR") is exercised over a specified
strike price as set forth in the applicable Award Agreement. The
maximum aggregate number of SARs which may be granted to an
employee during each year this Plan is in effect is 100,000
SARs.
(c) Stock Award. An Award may consist of Common Stock
or may be denominated in units of Common Stock. All or part of
any stock award may be subject to conditions established by the
Committee, and set forth in the Award Agreement, which may
include, but are not limited to, continuous service with the
company and its Subsidiaries, achievement of specific business
objectives, increases in specified indices, attaining specified
growth rates and other comparable measurements of performance.
Such Awards may be based on Fair Market Value or other specified
valuations. The certificates evidencing shares of Common Stock
issued in connection with a stock award shall contain appropriate
legends and restrictions describing the terms and conditions of
the restrictions applicable thereto.
(d) Cash Award. An Award may be denominated in cash
with the amounts of the eventual payment subject to future
service and such other restrictions and conditions as may be
established by the Committee, and set forth in the Award
Agreement, including, but not limited to, continuous service
with the Company and its Subsidiaries, achievement of specific
business objectives, increases in specified indices, attaining
specified growth rates and other comparable measurements of
performance.
8. Payment of Awards.
(a) General. Payment of Awards may be made in the
form of cash or Common Stock or combinations thereof and may
include such restrictions as the Committee shall determine,
including in the case of Common Stock, restrictions on transfer
and forfeiture provisions. As used herein, "Restricted
Stock" means Common Stock that is restricted or subject to
forfeiture provisions.
(b) Deferral. With the approval of the Committee,
payments may be deferred, either in the form of installments or a
future lump sum payment. The Committee may permit selected
Participants to elect to defer payments of some or all types of
Awards in accordance with procedures established by
the Committee. Any deferred payment, whether elected by the
Participant or specified by the Award Agreement or by the
Committee, may be forfeited if and to the extent that the Award
Agreement so provides.
(c) Dividends and Interest. Dividends or dividend
equivalent rights may be extended to and made part of any Award
denominated in Common Stock or units of Common Stock, subject to
such terms, conditions and restrictions as the Committee may
establish. The Committee may also establish rules
and procedures for the crediting of interest on deferred cash
payments and dividend equivalents for deferred payment
denominated in Common Stock or units of Common Stock.
(d) Substitution of Awards. At the discretion of the
Committee, a Participant may be offered an election to substitute
an Award for another Award or Awards of the same or different
type.
9. Stock Option Award Exercise. The price at which
shares of Common Stock may be purchased under a stock option
shall be paid in full at the time of exercise in cash or, if
permitted by the Committee, by means of tendering Common Stock or
surrendering another Award, including Restricted
Stock, valued at Fair Market Value on the date of exercise, or
any combination thereof. The Committee shall determine
acceptable methods for tendering Common Stock or other Awards to
exercise a stock option as it deems appropriate. The Committee
may provide for loans from the Company to permit the
exercise or purpose of Awards and may provide for procedures to
permit the exercise or purpose of Awards by use of the proceeds
to be received from the sale of Common Stock issuable pursuant to
an Award. Unless otherwise provided in the applicable Award
Agreement, in the event shares of Restricted
Stock are tendered as consideration for the exercise of a stock
option, a number of the shares issued upon the exercise of the
stock option, equal to the number of shares of Restricted Stock
used as consideration therefor, shall be subject to the same
restrictions as the Restricted Stock so submitted as well as any
additional restrictions that may be imposed by the Committee.
10. Tax Withholding. The Company shall have the right
to deduct applicable taxes from any Award payment and withhold,
at the time of delivery or vesting of cash or shares of Common
Stock under this Plan, an appropriate amount of cash or number of
shares of Common Stock or a combination thereof for payment of
taxes required by law or to take such other action as may be
necessary in the opinion of the Company to satisfy all
obligations for withholding of such taxes. The Committee may
also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore
owned by the holder of the Award with respect to which
withholding is required. If shares of Common Stock are used to
satisfy tax withholding, such shares shall be valued based on the
Fair Market Value when the tax withholding is required to be
made.
11. Amendment, Modification, Suspension or
Termination. The Board may amend, modify, suspend or terminate
this Plan for the purpose of meeting or addressing any changes in
legal requirements or for any other purpose permitted by law
except that (i) no amendment or alteration that
would impair the rights of any Participant under any Award
previously granted to such Participant shall be
made without such Participant's consent and (ii) no amendment or
alteration shall be effective prior to approval by the Company's
stockholders to the extent such approval is then required
pursuant to Rule 16b-3 in order to preserve the applicability of
any exemption provided by such rule to any Award then
outstanding (unless the holder of such Award consents) or to the
extent stockholder approval is otherwise required by applicable
legal requirements.
12. Termination of Employment. Upon the termination
of employment by a Participant, any unexercised, deferred or
unpaid Awards shall be treated as provided in the specific Award
Agreement evidencing the Award. In the event of such a
termination, the Committee may, in its discretion, provide
for the extension of the exercisability of an Award, accelerate
the vesting of an Award, eliminate or make less restrictive any
restrictions contained in an Award or otherwise amend or modify
the Award in any manner not adverse to such Participant.
13. Assignability. No Award or any other benefit
under this Plan constituting a derivative security within the
meaning of Rule 16a-1(c) under the Exchange Act shall be
assignable or otherwise transferable except by will or the laws
of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder. The
Committee may prescribe and include in applicable Award
Agreements other restrictions on transfer. Any attempted
assignment of an Award or any other benefit under this Plan in
violation of this Paragraph 13 shall be null and void.
14. Adjustments.
(a) The existence of outstanding Awards shall not
affect in any manner the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
capital stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stock (whether or not such issue is
prior to, on a parity with or junior to the Common Stock) or the
dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any
other corporate act or proceeding of any kind, whether or not of
a character similar to that of the acts or proceedings enumerated
above.
(b) In the event of any subdivision or consolidation
of outstanding shares of Common Stock or declaration of a
dividend payable in shares of Common Stock or capital
reorganization or reclassification or other transaction involving
an increase or reduction in the number of outstanding shares
of Common Stock, the Committee may adjust proportionally (i) the
number of shares of Common Stock reserved under this Plan and
covered by outstanding Awards denominated in Common Stock or
units of Common Stock; (ii) the exercise or other price in
respect of such Awards; and (iii) the appropriate Fair
Market Value and other price determinations for such Awards. In
the event of any consolidation or merger of the Company with
another corporation or entity or the adoption by the Company of a
plan of exchange affecting the Common Stock or any distribution
to holders of Common Stock of securities or
property (other than normal cash dividends or dividends payable
in Common Stock), the Committee shall make such adjustments or
other provisions as it may deem equitable, including adjustments
to avoid fractional shares, to give proper effect to such event.
In the event of a corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or
liquidation, the Committee shall be authorized to issue or assume
stock options, regardless of whether in a transaction to which
Section 424(a) of the Code applies, by means of substitution of
new options for previously issued options or an
assumption of previously issued options, or to make provision for
the acceleration of the exercisability of, or lapse of
restrictions with respect to, Awards and the termination of
unexercised options in connection with such transaction.
15. Restrictions. No Common Stock or other form of
payment shall be issued with respect to any Award unless the
Company shall be satisfied based on the advice of its counsel
that such issuance will be in compliance with applicable federal
and state securities laws. It is the intent of the
Company that this Plan comply in all respects with Rule 16b-3,
that any ambiguities or inconsistencies in
the construction of this Plan be interpreted to give effect to
such intention, and that if any provision of this
Plan is found not to be in compliance with Rule 16b-3, such
provision shall be null and void to the extent
required to permit this Plan to comply with Rule 16b-3.
Certificates evidencing shares of Common Stock
delivered under this Plan may be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any securities exchange or
transaction reporting system upon which the Common
Stock is then listed and any applicable federal and state
securities law. The Committee may cause a legend or legends to
be placed upon any such certificates to make appropriate
reference to such restrictions.
16. Unfunded Plan. Insofar as it provides for Awards
of cash, Common Sock or rights thereto, this Plan shall be
unfunded. Although bookkeeping accounts may be established with
respect to Participants who are entitled to cash, Common Stock or
rights thereto under this Plan, any such accounts
shall be used merely as a bookkeeping convenience. The Company
shall not be required to segregate any assets that may at any
time be represented by cash, Common Stock or rights thereto, nor
shall this Plan be construed as providing for such segregation,
nor shall the Company nor the Board nor the Committee be
deemed to be a trustee of any cash, Common Stock or rights
thereto to be granted under this Plan. Any liability or
obligation of the Company to any Participant with respect to a
grant of cash, Common Stock or rights thereto under this Plan
shall be based solely upon any contractual obligations that may
be created by this Plan and any Award Agreement, and no such
liability or obligation of the Company shall be deemed
to be secured by any pledge or other encumbrance or any property
of the Company. Neither the Company nor the Board nor the
Committee shall be required to give any security or bond for the
performance of any obligation that may be created by this Plan.
17. Governing Law. This Plan and all determinations
made and actions taken pursuant hereto, to the extent not
otherwise governed by mandatory provisions of the Code or the
securities laws of the United States, shall be governed by and
construed in accordance with the laws of the State of
Delaware.
18. Effective Date of Plan. This Plan shall be
effective as of the date (the "Effective Date") it is approved by
the Board of Directors of the Company.
<PAGE>
PUROLATOR PRODUCTS COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
(As Amended and Restated Effective as of January 1, 1994)
PUROLATOR PRODUCTS COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
(As Amended and Restated Effective as of January 1, 1994)
I N D E X
Page
ARTICLE I DEFINITION. . . . . . . . . . . . . . . . . . . . 3
Section:
1.1 Account . . . . . . . . . . . . . . . . . . . . . 3
1.2 Affiliate . . . . . . . . . . . . . . . . . . . . 3
1.3 After-Tax Contribution Account. . . . . . . . . . 3
1.4 After-Tax Contributions . . . . . . . . . . . . . 3
1.5 Beneficiary . . . . . . . . . . . . . . . . . . . 3
1.6 Board of Directors. . . . . . . . . . . . . . . . 3
1.7 Code. . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Committee . . . . . . . . . . . . . . . . . . . . 3
1.9 Company . . . . . . . . . . . . . . . . . . . . . 3
1.10 Compensation. . . . . . . . . . . . . . . . . . . 3
1.11 Contribution. . . . . . . . . . . . . . . . . . . 4
1.12 Effective Date. . . . . . . . . . . . . . . . . . 4
1.13 Eligible Members. . . . . . . . . . . . . . . . . 4
1.14 Employee. . . . . . . . . . . . . . . . . . . . . 4
1.15 Employer. . . . . . . . . . . . . . . . . . . . . 4
1.16 Employer Contribution Account . . . . . . . . . . 4
1.17 Entry Date. . . . . . . . . . . . . . . . . . . . 4
1.18 ERISA . . . . . . . . . . . . . . . . . . . . . . 4
1.19 Forfeiture. . . . . . . . . . . . . . . . . . . . 5
1.20 Income of the Trust Fund. . . . . . . . . . . . . 5
1.21 Investment Fund . . . . . . . . . . . . . . . . . 5
1.22 Member. . . . . . . . . . . . . . . . . . . . . . 5
1.23 Normal Retirement Date. . . . . . . . . . . . . . 5
1.24 Plan. . . . . . . . . . . . . . . . . . . . . . . 5
1.25 Plan Quarter. . . . . . . . . . . . . . . . . . . 5
1.26 Plan Year . . . . . . . . . . . . . . . . . . . . 5
1.27 Pre-Tax Contribution Account. . . . . . . . . . . 5
1.28 Pre-Tax Contributions . . . . . . . . . . . . . . 5
1.29 Prior Plan. . . . . . . . . . . . . . . . . . . . 5
1.30 Prior Plan Member . . . . . . . . . . . . . . . . 5
1.31 Rollover Account. . . . . . . . . . . . . . . . . 5
1.32 Rollover Amount . . . . . . . . . . . . . . . . . 5
1.33 Service . . . . . . . . . . . . . . . . . . . . . 6
1.34 Trust Agreement . . . . . . . . . . . . . . . . . 6
1.35 Trust Fund. . . . . . . . . . . . . . . . . . . . 6
1.36 Trustee . . . . . . . . . . . . . . . . . . . . . 6
1.37 Valuation Date. . . . . . . . . . . . . . . . . . 6
ARTICLE II ADMINISTRATION OF THE PLAN. . . . . . . . . . . . 7
Section:
2.1 Allocation of Responsibility Among Fiduciaries
for Plan
and Trust Administration. . . . . . . . . . . . . 7
2.2 Appointment of Committee. . . . . . . . . . . . . 7
2.3 Records and Reports . . . . . . . . . . . . . . . 7
2.4 Other Committee Powers and Duties . . . . . . . . 8
2.5 Rules and Decisions . . . . . . . . . . . . . . . 9
2.6 Committee Procedure . . . . . . . . . . . . . . . 9
2.7 Authorization of Benefit Payments . . . . . . . . 9
2.8 Payment of Expenses . . . . . . . . . . . . . . . 9
2.9 Application and Forms for Benefits. . . . . . . . 10
2.10 Committee Liability . . . . . . . . . . . . . . . 10
2.11 Quarterly Statements. . . . . . . . . . . . . . . 10
2.12 Annual Audit. . . . . . . . . . . . . . . . . . . 11
2.13 Funding Policy. . . . . . . . . . . . . . . . . . 11
2.14 Allocation and Delegation of Committee
Responsibilities. . . . . . . . . . . . . . . . . 11
ARTICLE III PARTICIPATION AND SERVICE . . . . . . . . . . . . 12
Section:
3.1 Eligibility for Participation . . . . . . . . . . 12
3.2 Notification of Eligible Employees. . . . . . . . 12
3.3 Applications by Employees . . . . . . . . . . . . 12
3.4 Service . . . . . . . . . . . . . . . . . . . . . 12
3.5 Break In Service. . . . . . . . . . . . . . . . . 14
3.6 Participation and Service Upon Re-Employment. . . 14
3.7 Transferred Members . . . . . . . . . . . . . . . 15
3.8 Beneficiary Upon Death. . . . . . . . . . . . . . 15
3.9 Qualified Election. . . . . . . . . . . . . . . . 16
ARTICLE IV CONTRIBUTIONS AND FORFEITURES . . . . . . . . . . 17
Section:
4.1 Pre-Tax Contributions . . . . . . . . . . . . . . 17
4.2 Employer Matching Contributions . . . . . . . . . 17
4.3 After-Tax Contributions . . . . . . . . . . . . . 18
4.4 Employer Matching Contributions and Pre-Tax
Contributions to be Tax Deductible. . . . . . . . 18
4.5 Change of Elections and Suspension of Allotments. 18
4.6 Delivery to Trustee . . . . . . . . . . . . . . . 18
4.7 Application of Funds. . . . . . . . . . . . . . . 19
4.8 Disposition of Forfeitures. . . . . . . . . . . . 19
4.9 Rollover Accounts . . . . . . . . . . . . . . . . 19
ARTICLE V MEMBER ACCOUNTS . . . . . . . . . . . . . . . . . 20
Section:
5.1 Individual Accounts . . . . . . . . . . . . . . . 20
5.2 Account Adjustments . . . . . . . . . . . . . . . 20
5.3 Limitations on Contributions. . . . . . . . . . . 21
5.4 Valuation of Trust Fund . . . . . . . . . . . . . 28
5.5 Recognition of Different Investment Funds . . . . 28
ARTICLE VI VOLUNTARY WITHDRAWALS . . . . . . . . . . . . . . 29
Section:
6.1 Withdrawal from After-Tax Contribution Account. . 29
6.2 Withdrawal from Employer Contribution Account . . 29
6.3 Withdrawal from Pre-Tax Contribution and
Rollover Accounts . . . . . . . . . . . . . . . . 29
6.4 Hardship Withdrawals. . . . . . . . . . . . . . . 29
6.5 Designation of Investment Funds for Withdrawals . 31
6.6 Loans . . . . . . . . . . . . . . . . . . . . . . 31
6.7 Form of Withdrawals . . . . . . . . . . . . . . . 33
ARTICLE VII MEMBERS' BENEFITS . . . . . . . . . . . . . . . . 34
Section:
7.1 Retirement of Members on or after Normal
Retirement Date . . . . . . . . . . . . . . . . . 34
7.2 Disability of Members . . . . . . . . . . . . . . 34
7.3 Death of Members. . . . . . . . . . . . . . . . . 34
7.4 Other Termination of Service. . . . . . . . . . . 34
7.5 Valuation Dates Determinative of Member's Rights. 35
ARTICLE VIII PAYMENT OF BENEFITS . . . . . . . . . . . 36
Section:
8.1 Payment of Benefits . . . . . . . . . . . . . . . 36
8.2 Presenting Claims for Benefits. . . . . . . . . . 38
8.3 Claims Review Procedure . . . . . . . . . . . . . 38
8.4 Disputed Benefits . . . . . . . . . . . . . . . . 39
8.5 Member's Right to Transfer Eligible Rollover
Distribution. . . . . . . . . . . . . . . . . . . 39
ARTICLE IX TRUST AGREEMENT; INVESTMENT FUNDS;
INVESTMENT DIRECTIONS . . . . . . . . . . 41
Section:
9.1 Trust Agreement . . . . . . . . . . . . . . . . . 41
9.2 Investment Funds. . . . . . . . . . . . . . . . . 41
9.3 Investment Directions of Members. . . . . . . . . 42
9.4 Change of Investment Directions . . . . . . . . . 42
9.5 Benefits Paid Solely from Trust Fund. . . . . . . 43
9.6 Committee Directions to Trustee . . . . . . . . . 43
9.7 Authority to Designate Investment Manager . . . . 43
9.8 Purchase, Sale and Voting of Company Stock and
Pennzoil Stock. . . . . . . . . . . . . . . . . . 43
9.9 Tender and Exchange Offers of Company Stock and
Pennzoil Stock. . . . . . . . . . . . . . . . . . 45
ARTICLE X ADOPTION OF PLAN BY OTHER ORGANIZATIONS;
SEPARATION OF THE TRUST FUND;
AMENDMENT AND TERMINATION OF THE PLAN;
DISCONTINUANCE OF CONTRIBUTIONS TO THE
TRUST FUND. . . . . . . . . . . . . . . . . . . . 47
Section:
10.1 Adoptive Instrument . . . . . . . . . . . . . . . 47
10.2 Separation of the Trust Fund. . . . . . . . . . . 47
10.3 Termination, Amendment, Modification or
Suspension
of the Plan by the Company. . . . . . . . . . . . 47
10.4 Acceptance or Rejection of Amendment or
Modification
by Other Employers. . . . . . . . . . . . . . . . 48
10.5 Termination of the Plan as to Other Employers . . 48
10.6 Liquidation and Distribution of Trust Fund
Upon Termination. . . . . . . . . . . . . . . . . 48
10.7 Effect of Termination or Discontinuance of
Contributions . . . . . . . . . . . . . . . . . . 49
10.8 Merger of Plan with Another Plan. . . . . . . . . 49
10.9 Consolidation or Merger with Another Employer . . 50
ARTICLE XI MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . 51
Section:
11.1 Terms of Employment . . . . . . . . . . . . . . . 51
11.2 Controlling Law . . . . . . . . . . . . . . . . . 51
11.3 Invalidity of Particular Provisions . . . . . . . 51
11.4 Non-Alienation of Benefits. . . . . . . . . . . . 51
11.5 Payments in Satisfaction of Claims of Members . . 51
11.6 Payments Due Minors and Incompetents. . . . . . . 52
11.7 Impossibility of Diversion of Trust Fund. . . . . 52
11.8 Evidence Furnished Conclusive . . . . . . . . . . 52
11.9 Copy Available to Members . . . . . . . . . . . . 52
11.10 Unclaimed Benefits. . . . . . . . . . . . . . . . 52
11.11 Headings for Convenience Only . . . . . . . . . . 53
11.12 Successors and Assigns. . . . . . . . . . . . . . 53
11.13 Plan Conditioned upon Internal Revenue Service
Approval . . . . . . . . . . . . . . . . . . . . . . . . 53
11.14 Notices . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XII TOP-HEAVY PLAN REQUIREMENTS . . . . . . . . . . . 55
Section:
12.1 General Rule. . . . . . . . . . . . . . . . . . . 55
12.2 Vesting Provisions. . . . . . . . . . . . . . . . 55
12.3 Minimum Contribution Percentage . . . . . . . . . 55
12.4 Limitation on Compensation. . . . . . . . . . . . 56
12.5 Limitation on Contributions . . . . . . . . . . . 56
12.6 Coordination With Other Plans . . . . . . . . . . 57
12.7 Distributions to Certain Key Employees. . . . . . 57
12.8 Determination of Top-Heavy Status . . . . . . . . 57
ARTICLE XIII TESTING OF CONTRIBUTIONS. . . . . . . . . 62
Section:
13.1 Definitions . . . . . . . . . . . . . . . . . . . 62
13.2 Actual Deferral Percentage. . . . . . . . . . . . 63
13.3 Actual Deferral Percentage Limits . . . . . . . . 63
13.4 Reduction of Pre-Tax Contribution Rates by
Leveling Method . . . . . . . . . . . . . . . . . 64
13.5 Increase in Pre-Tax Contribution Rates. . . . . . 65
13.6 Excess Pre-Tax Contributions. . . . . . . . . . . 65
13.7 Aggregation of Family Members in Determining the
Actual Deferral Ratio . . . . . . . . . . . . . . 66
13.8 Contribution Percentage . . . . . . . . . . . . . 66
13.9 Contribution Percentage Limits. . . . . . . . . . 67
13.10 Treatment of Excess Employer Matching
Contributions. . . . . . . . . . . . . . . . . . . . . . 67
13.11 Aggregation of Family Members in Determining the
Actual Contribution Ratio . . . . . . . . . . . . 68
<PAGE>
PUROLATOR PRODUCTS COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
(As Amended and Restated Effective January 1, 1994)
RECITALS
Facet Enterprises, Inc., now known as Purolator
Products Company, a Delaware corporation (the "Company"),
established the Facet Enterprises, Inc. Salaried Employees'
Savings Plan, effective April 1, 1976 (the "Initial Plan"), for
the benefit of its eligible employees.
The Initial Plan, as amended, was amended and restated
effective October 1, 1987 in order to (i) reflect the sale of the
Company to Pennzoil Company, a Delaware corporation, (ii) reflect
changes required by the Tax Reform Act of 1986, and
(iii) incorporate all of the previous amendments to the Initial
Plan; and was again amended, renamed, and restated effective
October 1, 1991 in the form of the Purolator Products Company
Employees' Retirement Savings Plan (the "Prior Plan") to
incorporate some of the announced plan changes, to comply with
the provisions of the Tax Reform Act of 1986 and to make certain
other changes.
As part of the Initial Plan, as amended, the Company
established a trust, effective as of April 1, 1980 (the "Initial
Trust"), to hold and administer funds created under the plan for
the exclusive benefit of participants and beneficiaries
thereunder. In connection with the October 1, 1991 amendment,
renaming, restatement and continuation of the Plan, the Board of
Directors also authorized the amendment, renaming, restatement
and continuation of the Initial Trust, as amended, in the form of
the Purolator Products Company Employees' Retirement Savings Plan
Trust Agreement (the "Prior Trust").
Effective as of January 1, 1994, the Board of Directors
of the Company authorized the amendment, restatement and
continuation of the Prior Plan, as amended and in effect on
December 31, 1993, in the form of the Purolator Products Company
Employees' Retirement Savings Plan (the "Plan"), as set forth
herein, to incorporate certain announced plan changes. In
connection with the January 1, 1994 amendment, restatement and
continuation of the Plan, the Board of Directors also authorized
the amendment, restatement and continuation of the Prior Trust,
as amended, in the form of the Purolator Products Company
Employees' Retirement Savings Plan Trust Agreement (the "Trust"),
which is intended to form a part of the Plan as set forth herein.
There shall be no termination and no gap or lapse in
time or effect between the Prior Plan and this Plan, and the
existence of a qualified plan shall be uninterrupted. The
provisions of this Plan shall apply only to a Member who
terminates Service on or after January 1, 1994. The rights and
benefits, if any, of a former employee shall be determined in
accordance with the provisions of the Prior Plan in effect on the
date his employment terminated.
The purpose of this Plan is to encourage employees to
save, and invest systematically, a portion of their current
compensation in order that they may have an additional source of
income upon their retirement or disability, or for their family
in the event of their death. The benefits provided hereunder
will be in addition to benefits employees are entitled to receive
under any other employee benefit programs of the Company and
under the Federal Social Security Act.
This Plan and its related Trust are intended to meet
the requirements of Sections 401(a), 401(k) and 501(a) of the
Internal Revenue Code of 1986, and of the Employee Retirement
Income Security Act of 1974, as either may be amended from time
to time.
NOW, THEREFORE, Purolator Products Company hereby
amends and restates in its entirety and continues the Purolator
Products Company Employees' Retirement Savings Plan, effective
January 1, 1994, which shall read as follows:
ARTICLE I
DEFINITIONS
As used in this Plan, the following words and phrases
shall have the following meanings unless the context clearly
requires a different meaning:
1.1 Account: Collectively, the accounts maintained for
each Member pursuant to Section 5.1.
1.2 Affiliate: The Company and any corporation in which
the shares owned or controlled directly or indirectly by the
Company represent 50% or more of the voting power of the issued
and outstanding capital stock of such corporation; a corporation
or other trade or business which, together with an Employer, is
under common control within the meaning of Code Section 414(b) or
(c); any organization (whether or not incorporated) which,
together with an Employer, is a member of an affiliated service
group within the meaning of Code Section 414(m); and any other
entity required to be aggregated with any Employer pursuant to
regulations under Code Section 414(o).
1.3 After-Tax Contribution Account: The separate account
maintained for a Member to record his After-Tax Contributions to
the Plan before January 1, 1994 and adjustments relating thereto.
1.4 After-Tax Contributions: The amounts contributed by a
Member prior to January 1, 1994 pursuant to Section 4.3 of the
Prior Plan and the amount of Pre-Tax Contributions which were
recharacterized as After-Tax Contributions pursuant to
Section 13.6 of the Prior Plan.
1.5 Beneficiary: A Member's surviving spouse, or if no
surviving spouse exists or if a qualified election has been made
pursuant to Section 3.9, such other natural person or persons, or
the trustee of an inter vivos trust for the benefit of natural
persons, entitled to benefits hereunder following a Member's
death.
1.6 Board of Directors: The board of directors of the
Company.
1.7 Code: The Internal Revenue Code of 1986, as now in
effect or hereafter amended, or the corresponding provisions of
any future Federal internal revenue law.
1.8 Committee: The Employees' Retirement Savings Plan
Committee appointed by the Board of Directors to act as
administrator of the Plan and to perform the duties described in
Article II.
1.9 Company: Purolator Products Company, a Delaware
corporation, and its predecessors and successors.
1.10 Compensation: The compensation actually paid to an
Employee (excluding a Transferred Member) by his Employer for
personal services, which includes base pay, commissions, overtime
pay, shift differentials, and any amounts by which a Member's
normal remuneration is reduced pursuant to a voluntary salary
reduction plan qualified under Section 125 of the Code or a cash
or deferred arrangement qualified under Section 401(k) of the
Code, including this Plan, but which excludes any other items of
compensation, such as bonuses, amounts received as a result of
the exercise of stock options, car allowances, moving expenses,
and any other extraordinary item of income; provided, however,
that the Compensation of each Member taken into account under the
Plan for any Plan Year shall not exceed $150,000 (or such
adjusted amount as provided under Code Section 401(a)(17)). If
an Employee is employed by more than one Employer, his
Compensation shall be the aggregate compensation received from
the Employers. The Compensation which shall be determinative
under Article V shall be that for the twelve (12) month period
ending on the Annual Valuation Date. The Compensation of a
Member as reflected on the books and records of his Employer
shall be conclusive; provided, however, that the Plan shall not
be bound by any mathematical or mechanical errors in calculation,
or similar errors.
1.11 Contribution: Any amount contributed to the Trust Fund
pursuant to the provisions of this Plan by an Employer.
Contributions by the Employer shall sometimes be referred to as
"Pre-Tax Contributions" and "Employer Matching Contributions," as
specified under Sections 4.1 and 4.2 hereof.
1.12 Effective Date: January 1, 1994.
1.13 Eligible Members: For purposes of determining the
Members on whose behalf Employer Matching Contributions shall be
made under Section 4.2, Eligible Members shall include Employees
of an Employer who were Members in the Plan during the applicable
calendar month, including those who terminated Service prior to
the end of such month for any reason and those who were
transferred to an Affiliate or to another Employer (either as an
Employee or to an employment classification which is not covered
by this Plan) prior to the end of the applicable month.
1.14 Employee: Any person who, on or after the Effective
Date, is receiving remuneration for personal services (or would
be receiving such remuneration except for an authorized leave of
absence) as an employee of the Employer. The term "Employee"
also includes individuals who are "leased employees" (as defined
in Code Section 414(n) subject to Code Section 414(n)(5)).
1.15 Employer: The Company, its successors, and any
Affiliate which shall adopt this Plan pursuant to the provisions
of Article X, and the successors, if any, to such Affiliate.
1.16 Employer Contribution Account: The account maintained
for a Member to record his share of the Employer Matching
Contributions and adjustments relating thereto.
1.17 Entry Date: The first day of each calendar month of
each Plan Year.
1.18 ERISA: Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended from time to time.
1.19 Forfeiture: The portion of a Member's Employer
Contribution Account which is forfeited because of termination of
Service before full vesting pursuant to Section 7.4.
1.20 Income of the Trust Fund: The net gain or loss of the
Trust Fund from investments, as reflected by interest payments,
dividends, realized and unrealized gains and losses on securities
and other investment transactions, and expenses paid from the
Trust Fund.
1.21 Investment Fund: Any of the investment funds
comprising the Trust Fund, as described in Section 9.2.
1.22 Member: An Employee who, pursuant to the provisions of
Article III, has met the eligibility requirements for
participation in this Plan and is participating in the Plan, and
a person who has securities or cash in an Account under the Plan.
1.23 Normal Retirement Date: The first day of the month
next following the month in which the Member attains age
sixty-five (65).
1.24 Plan: The Purolator Products Company Employees'
Retirement Savings Plan, as set forth herein, and as hereafter
amended from time to time.
1.25 Plan Quarter: The three (3) month period commencing on
January 1, April 1, July 1 and October 1 of each Plan Year.
1.26 Plan Year: The twelve (12) month period commencing on
January 1 and ending on December 31.
1.27 Pre-Tax Contribution Account: The account maintained
for a Member to record his Pre-Tax Contributions to the Plan and
adjustments relating thereto.
1.28 Pre-Tax Contributions: The amount contributed by the
Employer pursuant to the Member's deferral election in accordance
with Section 4.1.
1.29 Prior Plan: The Purolator Products Company Employees'
Retirement Savings Plan, as amended and restated effective as of
October 1, 1991 and as in effect on December 31, 1993.
1.30 Prior Plan Member: Any person who is in the employment
of an Employer or Affiliate on December 31, 1993 and who was
included in and covered by the Prior Plan. A Prior Plan Member
shall also be the beneficiary, spouse or estate representative of
a Prior Plan Member who died or who was receiving or was entitled
to receive benefits under the Prior Plan.
1.31 Rollover Account: The account maintained for a Member
to record his Rollover Amount and adjustments relating thereto.
1.32 Rollover Amount: All or any part of an "eligible
rollover distribution" as defined in Code Section 402(c)(4) and
Temporary Treasury Regulation Section 1.402(c)-2T, including a
"rollover contribution" as described in Code Section 402(c)(5).
1.33 Service: For purposes of determining an Employee's
eligibility to participate in the Plan under Section 3.1 and for
determining a Member's vested percentage in his Employer
Contribution Account under Section 7.4, an Employee's or Member's
period of employment with an Employer or an Affiliate, as
determined in accordance with Section 3.4.
1.34 Trust Agreement: The Trust Agreement provided for in
Article IX, as amended from time to time.
1.35 Trust Fund: The Investment Funds held by the Trustee
under the Trust Agreement, together with all income, profits or
increments thereon.
1.36 Trustee: The trustee under the Trust Agreement.
1.37 Valuation Date: Each business day during the Plan
Year. The last business day of each calendar month shall be the
"Monthly Valuation Date," the last business day of each Plan
Quarter shall be the "Quarterly Valuation Date," and the last
business day of December of each Plan Year shall be the "Annual
Valuation Date."
Words used in this Plan and in the Trust Agreement in
the singular shall include the plural and in the plural the
singular, and the gender of words used shall be construed to
include whichever may be appropriate under any particular
circumstances of the masculine, feminine or neuter genders.
ARTICLE II
ADMINISTRATION OF THE PLAN
2.1 Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration: The Employers, the Board of Directors
of the Company, the Employees' Retirement Savings Plan Committee
and the Trustee (hereinafter collectively referred to as the
"Fiduciaries") shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them
under this Plan or the Trust Agreement. In general, each
Employer shall have the sole responsibility for making the
contributions provided for under Sections 4.1 and 4.2. The Board
of Directors shall have the sole authority to appoint and remove
the Trustee and the members of the Employees' Retirement Savings
Plan Committee (the "Committee") and to amend or terminate, in
whole or in part, this Plan or the Trust Agreement. The
Committee shall have the sole responsibility to administer the
Plan, which responsibilities are more specifically described in
this Plan and the Trust Agreement and shall have the sole
authority to appoint or remove any "Investment Manager" (as such
term is defined in Section 3(38) of ERISA) which may be provided
for under the Trust Agreement. The Trustee shall have the sole
responsibility for the administration of the Trust Fund and shall
have exclusive authority and discretion to manage and control the
Trust Fund, except to the extent that the authority to manage,
acquire and dispose of assets of the Trust Fund is delegated to
an Investment Manager, all as more specifically provided in the
Trust Agreement. Each Fiduciary warrants that any directions
given, information furnished or action taken by it shall be in
accordance with the provisions of the Plan or the Trust
Agreement, as the case may be, authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary
may rely upon any such direction, information or action of
another Fiduciary as being proper under this Plan or the Trust
Agreement, and is not required under this Plan or the Trust
Agreement to inquire into the propriety of any such direction,
information or action. It is intended under this Plan and the
Trust Agreement that each Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and
obligations under this Plan and the Trust Agreement and shall not
be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in any manner
against investment loss or depreciation in asset value.
2.2 Appointment of Committee: The Plan shall be
administered by an Employees' Retirement Savings Plan Committee
consisting of at least three (3) persons who shall be appointed
and serve until replaced by the Board of Directors, which
Committee shall serve in the capacity of the "plan administrator"
within the meaning of Section 404 of ERISA. The members of the
Committee shall not receive compensation with respect to their
services for the Committee. All usual and reasonable expenses of
the Committee may be paid in whole or in part by the Company, and
any expenses not paid by the Company shall be paid by the Trustee
out of the Trust Fund. The Company shall pay the premiums on any
bond secured for the performance of the duties of the Committee
members described hereunder. The Company shall be entitled to
reimbursement by other Employers for their proportionate shares
of any such costs paid in whole or in part by the Company.
2.3 Records and Reports: The Committee shall exercise such
authority and responsibility as it deems appropriate in order to
comply with ERISA and any governmental regulations issued
thereunder relating to records of Members' Service, Account
balances, the percentage of such Account balances which are
non-forfeitable under the Plan, and notifications to Members.
The Committee shall file or cause to be filed with the
appropriate office of the Internal Revenue Service and the
Department of Labor all reports, returns, notices and other
information required of plan administrators under ERISA,
including, but not limited to, the summary Plan description,
annual reports and amendments thereof.
2.4 Other Committee Powers and Duties: The Committee shall
have such powers as may be necessary to discharge its duties
hereunder, including, but not by way of limitation, the following
powers and duties:
(a) To construe and interpret the Plan, decide
all questions of eligibility and determine the
amount, manner and time of payment of any benefits
hereunder;
(b) To prescribe procedures to be followed by
Members or Beneficiaries filing applications for
benefits;
(c) To receive from the Employers and from
Employees such information as shall be necessary for
the proper administration of the Plan;
(d) To prepare and distribute, in such manner as
the Committee determines to be appropriate,
information explaining the Plan;
(e) To furnish the Employers, upon request, such
annual reports with respect to the administration of
the Plan as are reasonable and appropriate;
(f) To establish procedures to be followed by
Members for the investment and reinvestment of their
Account(s) under the Trust Fund;
(g) To receive and review reports of the
financial condition, and of the receipts and
disbursements, of the Trust Fund from the Trustee and
any Investment Manager, and to transmit such reports,
along with its findings and recommendations
surrounding the investment performance of the Trust
Fund, to the Board of Directors;
(h) To appoint or employ individuals to assist
in the administration of the Plan and any other
agents it deems advisable, including legal and
actuarial counsel;
(i) To add, delete or modify the investment
funds offered by the Plan; and
(j) To interpret and construe all terms,
provisions, conditions and limitations of this Plan
and to reconcile any inconsistency or supply any
omitted detail that may appear in this Plan in such
manner and to such extent, consistent with the
general terms of this Plan, as the Committee shall
deem necessary and proper to effectuate the Plan for
the greatest benefit of all the parties interested in
the Plan.
(k) To prescribe and monitor procedures for
confidential Member directions to the Trustee as to
(i) voting shares of Pennzoil Stock and Company Stock
in such Member's Plan accounts and (ii) tender or
exchange of such shares in response to an offer for
same.
The Committee shall have no power to add to, subtract from or
modify any of the terms of the Plan, nor to change or add to any
benefits provided by the Plan, nor to waive or fail to apply any
requirements of eligibility for a benefit under the Plan.
2.5 Rules and Decisions: The Committee may adopt such
rules for the administration of the Plan as it deems necessary,
desirable or appropriate. All rules and decisions of the
Committee shall be uniformly and consistently applied to all
Employees in similar circumstances. The judgment of the
Committee and each member thereof on any question arising
hereunder shall be binding, final and conclusive on all parties
concerned. When making a determination or calculation, the
Committee shall be entitled to rely upon information furnished by
a Member or Beneficiary, the Employer, the legal counsel of the
Employer, or the Trustee.
2.6 Committee Procedure: The Committee may act at a
meeting or in writing without a meeting. The Committee shall
elect one of its members as chairman, appoint a secretary, who
may or may not be a member of the Committee, and shall advise the
Trustee of such actions in writing. The secretary of the
Committee shall keep a record of all meetings and forward all
necessary communications to the Employer or the Trustee. The
Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs. All decisions of the
Committee shall be made by the vote of the majority including
actions taken in writing without a meeting. A dissenting
Committee member who, within a reasonable time after he has
knowledge of any action or failure to act by the majority,
registers his dissent in writing delivered to the other Committee
members, the Employer and the Trustee shall not be responsible
for any such action or failure to act. The Committee shall
designate one of its members as agent of the Plan and of the
Committee for service of legal process at the principal office of
the Company.
2.7 Authorization of Benefit Payments: The Committee shall
issue directions to the Trustee concerning all benefits which are
to be paid from the Trust Fund pursuant to the provisions of the
Plan and warrants that all such directions are in accordance with
this Plan. The Committee shall keep on file, in such manner as
it may deem convenient or proper, all reports from the Trustee.
2.8 Payment of Expenses: Brokerage commissions and
transfer taxes incurred in connection with the purchase or sale
of securities shall be added to the cost thereof or deducted from
the proceeds thereof, as the case may be. Taxes, if any, on any
security or cash held by the Trust or income therefrom which are
payable by the Trustee shall be charged against the Member's
Account(s) as the Committee shall determine. Any other expenses
allocable to a fund are charged to that fund. All other expenses
incident to the administration, termination or protection of the
Plan and Trust Fund, including, but not limited to, legal,
accounting, Investment Manager and Trustee fees, shall be paid by
the Trustee from the Trust Fund or, if not paid by the Trustee,
shall be paid by the Company, which may require reimbursement
from the other Employers for their proportionate shares.
2.9 Application and Forms for Benefits: The Committee may
require an Employee or Member to complete and file with the
Committee an application for a benefit and all other forms
approved by the Committee, and to furnish all pertinent
information requested by the Committee. The Committee may rely
on such information so furnished it, including the Employee's or
Member's current mailing address.
2.10 Committee Liability: Except to the extent that such
liability is created by ERISA, no member of the Committee shall
be liable for any act or omission of any other member of the
Committee, nor for any act or omission on his own part except for
his own gross negligence or willful misconduct, nor for the
exercise of any power or discretion in the performance of any
duty assumed by him hereunder. The Company shall indemnify and
hold harmless each member of the Committee from any and all
claims, losses, damages, expenses (including counsel fees
approved by the Committee), and liabilities (including any
amounts paid in settlement with the Committee's approval but
excluding any excise tax assessed against any member or members
of the Committee pursuant to the provisions of Section 4975 of
the Code) arising from any act or omission of such member in
connection with duties and responsibilities under the Plan,
except when the same is judicially determined to be due to the
gross negligence or willful misconduct of such member.
2.11 Quarterly Statements: As soon as practicable after
each Quarterly Valuation Date, the Committee shall prepare and
deliver to each Member a written statement showing as of that
Quarterly Valuation Date:
(a) The balance in his Account in the Trust Fund
as of the preceding Quarterly Valuation Date;
(b) The amount of Employer Matching
Contributions allocated to his Employer Contribution
Account and the amount of his Pre-Tax Contributions
for the Plan Quarter ending on such Quarterly
Valuation Date;
(c) The adjustments to his Account to reflect
his share of income and expenses of the Trust Fund
and appreciation or depreciation in Trust Fund assets
during the Plan Quarter ending on such Quarterly
Valuation Date;
(d) The new balance in his Account as of that
Quarterly Valuation Date; and
(e) Such information as the Committee deems
appropriate to advise him of his relative interests
in each Investment Fund as of the preceding Quarterly
Valuation Date and the current Quarterly Valuation
Date.
Such statement shall be deemed to have been accepted by the
Member and his Beneficiaries designated under Section 3.8 as
correct unless written notice to the contrary shall be received
by the Company within ninety (90) days after the delivery of such
statement to the Member.
2.12 Annual Audit: The Committee shall engage, on behalf of
all Members, an independent Certified Public Accountant who shall
conduct an annual examination of any financial statements of this
Plan and Trust Fund and of other books and records of this Plan
and Trust Fund as the Certified Public Accountant may deem
necessary to enable him to form and provide a written opinion as
to whether the financial statements and related schedules
required to be filed with the Department of Labor or furnished to
each Member are presented fairly and in conformity with generally
accepted accounting principles applied on a basis consistent with
that of the preceding Plan Year. If, however, the statements
required to be submitted as part of the reports to the Department
of Labor are prepared by a bank or similar institution or
insurance carrier regulated and supervised and subject to
periodic examination by a state or federal agency and if such
statements are certified by the preparer as accurate and if such
statements are, in fact, made a part of the annual report to the
Department of Labor and no such audit is required by ERISA, then
the audit required by the foregoing provisions of this Section
shall be optional with the Committee.
2.13 Funding Policy: The Committee shall, at a meeting duly
called for such purpose, establish a funding policy and method
consistent with the objectives of the Plan and the requirements
of Title I of ERISA. The Committee shall meet at least annually
to review such funding policy and method. In establishing and
reviewing such funding policy and method, the Committee shall
endeavor to determine the Plan's short-term and long-term
objectives and financial needs, taking into account the need for
liquidity to pay benefits and the need for investment growth.
All actions of the Committee taken pursuant to this Section and
the reasons therefor shall be recorded in the minutes of meetings
of the Committee and shall be communicated to the Trustee, any
investment manager who may be managing a portion or all of the
Trust Fund in accordance with the provisions of the Trust
Agreement, and the Board of Directors.
2.14 Allocation and Delegation of Committee
Responsibilities: Upon the approval of a majority of the members
of the Committee, the Committee may (i) allocate among any of the
members of the Committee any of the responsibilities of the
Committee under the Plan and Trust Agreement and/or
(ii) designate any person, firm or corporation that is not a
member of the Committee to carry out any of the responsibilities
of the Committee under the Plan and Trust Agreement. Any such
allocation or designation shall be made pursuant to a written
instrument executed by a majority of the members of the
Committee.
ARTICLE III
PARTICIPATION AND SERVICE
3.1 Eligibility for Participation: Each Employee in active
Service as of the Effective Date who was a Prior Plan Member
shall be eligible to become a Member of this Plan as of the
Effective Date. Each Employee who has been suspended from
participation in the Prior Plan immediately prior to the
Effective Date shall be eligible to participate hereunder on the
Effective Date, unless such Employee was suspended by reason of
making a hardship withdrawal under the Prior Plan, in which case
such Employee shall be eligible to participate in this Plan as of
the end of his suspension period. Each other Employee who is not
(i) a member of, or represented by, a recognized collective
bargaining agreement, unless such bargaining agreement provides
for the inclusion of its members in the Plan, (ii) a leased
employee, or (iii) a nonresident alien who receives no earned
income (within the meaning of Code Section 911(b)) from an
Employer which constitutes income from sources within the United
States (within the meaning of Code Section 861(a)(3)) shall be
eligible to commence participation on the later of the Effective
Date or the first day of the month after he starts employment.
An Employee who does not participate in the Plan when he first
becomes eligible may commence such participation on any Entry
Date thereafter by giving fifteen (15) days' prior written notice
to the Committee, provided he is otherwise eligible hereunder.
An Employee may begin making contributions to the Plan on the
first day of the month after he becomes eligible to become a
Member.
3.2 Notification of Eligible Employees: The Committee,
which shall be the sole judge of the eligibility of an Employee
to participate under the Plan, shall notify each Employee of his
initial eligibility to participate in the Plan.
3.3 Applications by Employees: Each Employee who shall
become eligible to become a Member under the Plan, and who shall
desire so to become a Member, shall execute and file with the
Committee an application to become a Member in such form as may
be prescribed by the Committee. In each such application, the
applicant shall (i) designate the amount of his Pre-Tax
Contributions to the Plan, (ii) authorize payroll deductions for
his Pre-Tax Contributions, (iii) specify the investment
directions for his Pre-Tax Contributions, as provided in
Section 9.3, (iv) designate a Beneficiary or Beneficiaries to
receive any benefits payable under the Plan in the event of his
death, (v) specify the date on which his membership in the Plan
is to commence, and (vi) agree to be bound by the terms and
conditions of the Plan.
3.4 Service: An Employee's or Member's period of Service
shall be determined in accordance with the following:
(a) Service Prior to the Effective Date: An
Employee or Member shall accrue Service under this
Plan for participation and vesting purposes for
periods of employment with an Employer or Affiliate
(including union service) prior to the Effective Date
which would have constituted "Service" under the
Prior Plan.
(b) Service After the Effective Date: From and
after the Effective Date, the term "Service" shall
mean all of an Employee's or Member's years, months,
and days of active employment on or after the
Effective Date with an Employer or Affiliate,
including union service, periods includable under
Section 3.6(b) and periods of absence:
(i) Due to accident or sickness so long
as the person is continued on the employment
rolls of the Employer or Affiliate and
remains eligible to return to work upon his
recovery;
(ii) In the service of the Armed Forces
of the United States (but if such absence is
not pursuant to orders issued by the Armed
Forces of the United States, only if with the
consent of the Employer or Affiliate); and
(iii) Due to an authorized leave of
absence granted by the Employer or Affiliate
for any other purpose approved by the Board
of Directors in accordance with established
practices of the Employer or Affiliate,
consistently applied in a non-discriminatory
manner in order that all employees under
similar circumstances shall be treated alike.
An Employee's or Member's Service shall commence
(or recommence) on the date he first performs an
"hour of service" within the meaning of Department of
Labor Regulation Section 2530.200b-2(a)(1) for an
Employer or Affiliate. If the Affiliate became an
affiliate of Purolator Products Company prior to the
Effective Date, the date an Employee first performs
an "hour of service" for that Affiliate is the date
he commences employment with that company, regardless
of whether that company was already an Affiliate. If
the Affiliate becomes an Affiliate after the
Effective Date, the date an Employee first performs
an "hour of service" for that Affiliate is the later
of the date he became an Employee or the date the
company became an Affiliate, and an Employee's
Service with an Affiliate prior to its becoming an
Affiliate shall be recognized only to the extent
authorized by the Company at the time of acquisition
of the Affiliate. All periods of Service shall be
aggregated so that a one (1) year period of Service
shall be completed as of the date the Employee or
Member completes twelve (12) months of Service
(thirty (30) days shall be deemed to be a month in
the case of the aggregation of fractional months), or
three hundred sixty-five (365) days of Service.
Hours of Service will be credited for employment
with other members of an affiliated service group
(under Code Section 414(m)), a controlled group of
corporations (under Code Section 414(b)), or a group
of trades or businesses under common control (under
Code Section 414(c)), of which the Employer is a
member. Hours of Service will also be credited for
any individual considered an Employee for purposes of
this Plan under Code Section 414(n).
(c) Termination of Service: A period of Service
of an Employee or Member shall terminate on the date
of the first to occur of (i) his retirement or death,
(ii) his quitting or discharge, (iii) his deemed date
of termination of employment pursuant to his failure
to return to work upon the expiration of an
authorized leave of absence, or (iv) one (1) year
from the date the Employee or Member is absent from
active employment for any reason other than
retirement, quitting, discharge, authorized leave of
absence or death. For purposes of clause
(iii) immediately above, an Employee's or Member's
deemed date of termination shall be the earlier of
(A) the expiration date of such authorized leave of
absence and (B) one (1) year from the date such
authorized leave of absence commenced.
3.5 Break In Service: For purposes of the Plan, a "Break
In Service" shall occur upon the expiration of the twelve (12)
consecutive month period next following an Employee's or Member's
termination of Service (as determined in accordance with the
provisions of Section 3.4(c) hereof), unless such Employee or
Member sooner recommences Service with an Employer or Affiliate.
Solely for purposes of determining whether a Break In
Service has occurred for participation and vesting purposes under
this Plan, the Service of an individual who is absent from work
for maternity or paternity reasons shall not terminate until the
expiration of two (2) years after the date such absence
commenced. For purposes of this paragraph, an absence from work
for maternity or paternity reasons means an absence (a) by reason
of the pregnancy of the individual, (b) by reason of the birth of
a child of the individual, (c) by reason of the placement of a
child with the individual in connection with the adoption of such
child by such individual, or (d) for purposes of caring for such
child for a period beginning immediately following such birth or
placement.
Notwithstanding anything in this Article III to the
contrary, Service shall be continued, and there shall be no Break
in Service, during leave taken pursuant to the Family and Medical
Leave Act of 1993 for purposes of determining eligibility to
participate and vesting under the Plan.
3.6 Participation and Service Upon Re-Employment: Upon the
re-employment of any person on or after the Effective Date who
had previously been employed by an Employer or Affiliate, the
following rules shall apply in determining his eligibility for
participation under Section 3.1 and his Service under
Section 3.4:
(a) Participation: If the re-employed person
was not a Member during his prior period of Service,
he must meet the requirements of Section 3.1 for
participation in the Plan as if he were a new
Employee. If the re-employed person was a Member in
the Plan during his prior period of Service, he shall
be eligible to recommence participation as of the
date of his re-employment, with his contributions to
resume as of the first day of the month following his
re-employment, and may also be entitled to a
reinstatement of the amount previously forfeited from
his prior Employer Contribution Account as provided
in Section 7.4.
(b) Service: Any Service attributable to his
prior period of Service shall be reinstated as of the
date of his re-employment. In addition, in the event
an Employee or Member recommences Service with an
Employer or Affiliate prior to incurring a Break In
Service, the period of his interim absence shall also
constitute Service for purposes of Section 7.4.
3.7 Transferred Members: If a Member is transferred to an
Affiliate, or to an employment classification with an Employer
which is not covered by this Plan, his participation shall be
suspended until he is subsequently re-employed by an Employer in
an employment classification covered by the Plan; provided,
however, that during such suspension period (i) such Member shall
be credited with Service in accordance with Section 3.4, (ii) he
shall not be entitled or required to make Contributions under
Section 4.1 or 4.3, (iii) his Employer Contribution Account shall
receive no Employer Matching Contribution allocations except to
the extent provided in Sections 4.2 and 5.2, and (iv) his Account
shall continue to share proportionately in Income of the Trust
Fund as provided in Section 5.2. If an Employee is transferred
from an employment classification with an Employer that is not
covered by the Plan to an employment classification that is so
covered, or from an Affiliate to an employment classification
with an Employer that is so covered, his period of Service prior
to the date of transfer shall be considered for purposes of
determining his eligibility to become a Member under Section 3.1
and for purposes of vesting under Section 7.4.
In the event an employee of an Affiliate is transferred
to employment with an Employer in an employment classification
covered by this Plan and such Affiliate provides a thrift,
savings or profit-sharing plan of like nature and intent as this
Plan in which the employee was a participant immediately
preceding his transfer, such employee's account balance in a
domestic Affiliate's defined contribution plan qualified under
Section 401(a) of the Code, determined on the valuation date
coincident with or next following the date of the employee's
transfer, will, subject to the approval of the Committee, be
transferred to the Trust Fund held under this Plan and allocated
among the Investment Funds in accordance with the provisions of
Section 9.3 hereof. In the event a Member under this Plan is
transferred to employment with an Affiliate and such Affiliate
provides a thrift, savings or profit-sharing plan of like nature
and intent as this Plan in which the Member will be eligible to
participate as an employee of such Affiliate, such Member's
account balances in this Plan, determined as of the valuation
date coincident with or next following the date of the Member's
transfer, will, subject to the approval of the plan administrator
of the Affiliate's plan, be transferred to such plan and
allocated between the investment funds held thereunder in
accordance with the provisions thereof. For purposes of this
paragraph, all references to "Affiliate" shall include employment
classifications with an Employer.
3.8 Beneficiary Upon Death: Upon the death of a Member,
his Account shall be distributed to the Member's surviving
spouse, but if there is no surviving spouse, or if the surviving
spouse has already consented by a qualified election pursuant to
Section 3.9, to the Beneficiary or Beneficiaries designated by
the Member in a written designation filed with his Employer, or
if no such designation shall have been so filed, to his estate.
No designation of any Beneficiary other than the Member's
surviving spouse shall be effective unless in writing and
received by the Member's Employer, and in no event shall it be
effective as of a date prior to such receipt. The former spouse
of a Member shall be treated as a surviving spouse to the extent
provided under a qualified domestic relations order as described
in Section 414(p) of the Code. At the time an Employee files his
application to become a Member under Section 3.3, or as soon as
possible after an Employee has become a Member, he shall file
with the Committee a written designation, in the form prescribed
by the Committee, of the Beneficiary to receive benefits payable
hereunder upon his death. The Member may at any time change or
cancel any such designation on a form prescribed by the
Committee. The last such designation received by the Committee
shall be controlling over any testamentary or other disposition;
provided, however, that no designation or change or cancellation
thereof shall be effective prior to the Member's death, and in no
event shall it be effective as of a date prior to such receipt.
If the Committee shall be in doubt as to the right of any
Beneficiary designated by a deceased Member to take the interest
of such decedent, the Committee may direct the Trustee to pay the
amount in question to the estate of such Member, in which event
the Trustee, the Employer, the Committee, and any other person in
any manner connected with the Plan shall have no further
liability in respect of the amount so paid.
3.9 Qualified Election: The Member's spouse may waive the
right to receive the Member's full vested Account balance. The
election to waive the Member's full vested Account balance must
designate a Beneficiary, which may not be changed without spousal
consent (or the consent of the spouse must expressly permit
designation by the Member without any requirement of further
consent of the spouse). A consent that permits designations by
the Member without a requirement of further consent by the spouse
must acknowledge that the spouse has the right to limit consent
to a specific beneficiary and that the spouse voluntarily elects
to relinquish such right. The waiver must be in writing and the
Member's spouse must acknowledge the effect of the waiver. The
spouse's consent to a waiver must be witnessed by a Plan
representative or a notary public. The Member may file a waiver
without the spouse's consent if it is established to the
satisfaction of the Committee that such written consent may not
be obtained because there is no spouse or the spouse may not be
located. Any consent under this Section 3.9 will be valid only
with respect to the spouse who signs the consent. Additionally,
a revocation of a prior waiver may be made by a Member without
the consent of the spouse at any time before the distribution of
the Account. The number of revocations shall not be limited.
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.1 Pre-Tax Contributions: Each eligible Employee who
elects to make Pre-Tax Contributions for a Plan Year shall
initially elect to defer a portion of his salary in whole
percentages of not less than one percent (1%) and not more than
twelve percent (12%) (to the nearest whole cent) of his
Compensation; provided, however, that Pre-Tax Contributions under
this Section 4.1 shall not total more than $9,240 per Plan Year
(as adjusted by the Secretary of the Treasury under Section
402(g) of the Code to reflect increases in the cost-of-living).
Each Member's Pre-Tax Contribution shall be contributed to the
Trust Fund by the Employer. Each such election shall be made
pursuant to the provisions of Section 3.3 and shall continue in
effect during subsequent Plan Years unless the Member shall
notify the Committee, in accordance with procedures established
by the Committee, of his election to change or discontinue his
Pre-Tax Contribution rate as provided in Section 4.5. Each
Member's Pre-Tax Contribution Account shall be fully vested and
non-forfeitable at all times.
In the event a Member's Pre-Tax Contributions exceed
the applicable $9,240 limit, or in the event the Member submits a
claim to the Committee, at the time and in the manner prescribed
by the Committee, specifying an amount of Pre-Tax Contributions
that will exceed the applicable limit of Section 402(g) of the
Code when added to amounts deferred by the Member in other plans
or arrangements, such excess (the "Excess Deferrals"), plus any
income and minus any loss attributable thereto, shall be returned
to the Member by April 15 of the following year. Such income
shall include the allocable gain or loss for the Plan Year in
which the Excess Deferral occurred. The amount of any Excess
Deferrals to be distributed to a Member for a taxable year shall
be reduced by excess Pre-Tax Contributions previously distributed
pursuant to Article XIII for the Plan Year beginning in such
taxable year. The income or loss attributable to the Member's
Excess Deferral for the Plan Year shall be determined by
multiplying the income or loss attributable to the Member's
Pre-Tax Contribution Account balance for the Plan Year (or
relevant portion thereof) by a fraction, the numerator of which
is the Excess Deferral and the denominator of which is the
Member's total Pre-Tax Contribution Account balance as of the
Valuation Date next preceding the date of return of the Excess
Deferral. Excess Deferrals shall be treated as Annual Additions
under Article V of the Plan.
4.2 Employer Matching Contributions: For each Plan Year,
each Employer shall make a Matching Contribution, in cash or
Company Stock, to the Trust Fund on behalf of its Eligible
Members in an amount equal to seventy-five percent (75%) of the
first eight percent (8%) of the total Pre-Tax Contributions
elected or contributed by its Eligible Members during such Plan
Year. Employer Matching Contributions shall be made on a monthly
basis. The Trustee shall hold all such Employer Matching
Contributions subject to the provisions of this Plan and the
Trust Agreement, and no part of such Contributions shall be used
for, or diverted to, any other purpose.
In the case of the reinstatement of any amounts
forfeited under Section 7.4 or pursuant to the unclaimed benefit
provisions of Section 11.10, the Employer shall also contribute,
within a reasonable time after the repayment described in
Section 7.4 or after a claim is filed under Section 11.10, an
amount sufficient when added to Forfeitures to reinstate such
amounts (a "Minimum Contribution"). All such Employer Matching
Contributions shall be transmitted to the Trustee as soon as
practicable after such Contributions are made.
4.3 After-Tax Contributions: No After-Tax Contributions
shall be permitted under the Plan after December 31, 1993.
4.4 Employer Matching Contributions and Pre-Tax
Contributions to be Tax Deductible: Employer Matching
Contributions and Pre-Tax Contributions shall not be made in
excess of the amount deductible under applicable Federal law now
or hereafter in effect limiting the allowable deduction for
contributions to profit-sharing plans. The Employer Matching
Contributions and Pre-Tax Contributions to this Plan when taken
together with all other contributions made by the Employer to
other qualified retirement plans shall not exceed the maximum
amount deductible under Section 404 of the Code.
Notwithstanding anything in the Plan to the contrary, a
contribution made by the Company or by the Company for an
Employer (other than the Company) which is subsequently
determined to have been the result of a good faith mistake of
fact or the deductibility of which under Section 404 of the Code
is subsequently disallowed shall be returned to the Company,
provided that the return of the amount involved is made within
one (1) year of the mistaken payment of the contribution or
disallowance of the deduction, as the case may be. The amount
which may be returned is the excess of: (1) the amount
contributed, over (2) the amount that would have been contributed
had there not occurred a mistake of fact or a disallowed
deduction. Earnings attributable to the excess contribution may
not be returned. Furthermore, if the withdrawal of the amount
attributable to the mistaken or disallowed contribution would
cause the balance of any Member's account to be reduced to less
than the balance which would have been in the account had the
mistaken or disallowed amount not been contributed, then the
amount to be returned shall be limited so as to avoid such
deduction.
4.5 Change of Elections and Suspension of Allotments: Any
Member may increase or decrease the percentage of his salary
designated as Pre-Tax Contributions as of the first day of any
month, but not retroactively and not more frequently than once
each calendar month. Further, any Member may suspend his Pre-Tax
Contributions for a period of not less than one (1) month. In
the case of total suspension of Pre-Tax Contributions, the
Employer Matching Contribution will automatically cease. Pre-Tax
Contributions which are not made during a period of suspension
shall not be made up retroactively. A Member may resume his Pre-
Tax Contributions to the Plan as of the first day of any month
after a suspension. All such changes of elections relating to
contributions shall be made in accordance with procedures
established by the Committee. Changes in a Member's Compensation
shall result in an automatic adjustment of the dollar amount of
such Member's Pre-Tax Contributions to that amount represented by
such percentage of his new Compensation. No notice shall be
given to the Member of such an automatic adjustment.
4.6 Delivery to Trustee: Pre-Tax Contributions and
Employer Matching Contributions shall be paid to the Trustee by
each Employer as soon as practicable after the end of the month
in which the deduction and related contributions are made.
4.7 Application of Funds: The Trustee shall hold or apply
the Contributions so received by it subject to the provisions of
the Plan; and no part thereof (except as otherwise provided in
the Trust Agreement) shall be used for any purpose other than the
exclusive use of the Members or their Beneficiaries.
4.8 Disposition of Forfeitures: If a Member terminates
Service without being entitled to receive a distribution of the
full amount in his Employer Contribution Account, he shall be
deemed to have received a full distribution from that Account as
of the date of his termination of Service. Upon termination of
the Member's Service, the amount to which he is not entitled
shall be forfeited and shall be allocated in the following order:
(a) First, such Forfeitures shall be allocated
to reinstate any Employer Contribution Accounts of
Members who return to Service and are entitled to
reinstatement of their Employer Contribution Account
in accordance with Section 7.4.
(b) Second, such Forfeitures shall be applied to
restore any amounts forfeited under the unclaimed
benefits provisions of Section 11.10.
(c) Third, such Forfeitures shall be applied
against the next succeeding Employer Matching
Contribution.
(d) Fourth, if the Plan is terminated, such
Forfeitures shall be allocated to the account of the
remaining Members as of the date of termination pro
rata on the basis of each of the remaining Members'
Compensation during the last Plan Year prior to
termination.
4.9 Rollover Accounts: Any Member may file with the
Committee a request that the Trustee accept a Rollover Amount
from such Member. The Committee, in its sole and absolute
discretion, shall determine whether such Member shall be
permitted to contribute a Rollover Amount to the Trust Fund. The
Committee shall develop such procedures and may require such
information from the Employee desiring to make such a transfer as
it deems necessary or desirable to determine that the proposed
transfer will meet the requirements of this Section. Upon
approval by the Committee, the amount transferred shall be
deposited in the Trust Fund and shall be credited to a separate
Rollover Account. Such account shall at all times be fully
vested and non-forfeitable and shall share in the Income of the
Trust Fund in accordance with Section 5.2, but shall not share in
Employer Matching Contribution allocations. In all other
respects, the Rollover Account shall be treated as a regular
account under this Plan and shall be subject to the investment
directions of the Member and the change thereof as otherwise
permitted herein. Upon termination of employment, the total
amount of the Rollover Account shall be distributed in accordance
with Article VIII.
ARTICLE V
MEMBER ACCOUNTS
5.1 Individual Accounts: The Committee shall create and
maintain adequate records to disclose the interest in the Trust
Fund and in its component Investment Funds of each Member, former
Member and Beneficiary. Such records shall be in the form of
individual accounts, and credits and charges shall be made to
such accounts in the manner herein described. A Member may have
up to four (4) separate accounts, an Employer Contribution
Account, a Pre-Tax Contribution Account, an After-Tax
Contribution Account and a Rollover Account. The Employer
Contribution Account shall be further divided into two (2) sub-
accounts, one reflecting Employer Matching Contributions made
prior to October 1, 1988 and earnings thereon ("Pre-October 1988
Employer Contribution Account"), and one reflecting Employer
Matching Contributions made on or after October 1, 1988 and
earnings thereon ("Post-October 1988 Employer Contribution
Account").
Any Member who transfers from one Employer to another
Employer, or who is simultaneously employed by two or more
Employers, may have individual Accounts with each such Employer.
The maintenance of individual Accounts is only for accounting
purposes, and a segregation of the assets of the Trust Fund to
each Account shall not be required. Distributions and
withdrawals made from an Account shall be charged to the Account
as of the date paid.
5.2 Account Adjustments: The Accounts of Members, former
Members and Beneficiaries shall be adjusted each Valuation Date
in accordance with the following:
(a) Income of the Trust Fund: As of each
Valuation Date during the Plan Year, the Trustee
shall value the Trust Fund at its then market value
to determine the amount of Income of the Trust Fund
for the day then ended. Then the Trustee shall
allocate such Income of the Trust Fund among the
Accounts of Members, former Members and Beneficiaries
who had unpaid balances in their Accounts as of the
end of such Valuation Date in proportion to the
balances in such Accounts at the beginning of such
Date.
(b) Pre-Tax Contributions: As of the end of
each month, the Pre-Tax Contributions of each Member
made to the Plan during such month shall be allocated
to his Pre-Tax Contribution Account.
(c) Employer Matching Contributions: As of the
end of each month, the Employer Matching Contribution
for such month shall be allocated among its Eligible
Members during such month in the ratio that each
Eligible Member's unwithdrawn Pre-Tax Contributions
for the month (up to eight percent (8%) of such
Eligible Member's monthly Compensation) bears to the
total unwithdrawn Pre-Tax Contributions of all such
Eligible Members for the month (up to eight percent
(8%) of each such Eligible Member's monthly
Compensation).
(d) Forfeitures: As of each Valuation Date,
Forfeitures which have become available for
reallocation during such Plan Year shall be applied
pursuant to Section 4.8.
(e) Employer Minimum Contributions: Employer
Minimum Contributions shall be used solely to
reinstate Accounts in accordance with Section 7.4 and
to restore Accounts pursuant to Section 11.10
whenever the Forfeitures available for such
reinstatement or restoration are insufficient.
5.3 Limitations on Contributions: Notwithstanding any
provision of this Plan to the contrary, the total Annual
Additions made to the account of a Member for any Limitation Year
(the Plan Year) shall be subject to the following limitations:
I. Single Defined Contribution Plan
1. If an Employer does not maintain
any other qualified plan, the amount of
Annual Additions which may be allocated under
this Plan on a Member's behalf for a
Limitation Year shall not exceed the lesser
of the Maximum Permissible Amount or any
other limitation contained in this Plan.
2. Prior to the determination of the
Member's actual Compensation for a Limitation
Year, the Maximum Permissible Amount may be
determined on the basis of the Member's
estimated annual Compensation for such
Limitation Year. Such estimated annual
Compensation shall be determined on a
reasonable basis and shall be uniformly
determined for all Members similarly
situated. Any Employer contributions
(including allocation of Forfeitures) based
on estimated annual Compensation shall be
reduced by any Excess Amounts carried over
from prior years.
3. As soon as is administratively
feasible after the end of the Limitation
Year, the Maximum Permissible Amount for such
Limitation Year shall be determined on the
basis of the Employee's actual Compensation
for such Limitation Year.
4. If there is an Excess Amount with
respect to a Member for the Limitation Year,
such Excess shall be disposed of as follows:
A. There shall first be
returned to the Member (i) his
After-Tax Contributions
attributable to that Limitation
Year, if any are authorized under
the Plan, and then (ii) his Pre-Tax
Contributions attributable to that
Limitation Year, to the extent such
returned Contributions would reduce
the Excess Amount.
B. If any such Excess Amount
shall then remain, there shall then
be a reduction of the Employer
Contributions allocated to the
Member, and the amount of the
reduction of the Employer
Contributions for such Member shall
be reallocated out of the Account
of such Member and shall be held in
a suspense account which shall be
applied as a part of (and to reduce
to such extent what would otherwise
be) the Employer Contributions for
all Members required to be made to
the Plan during the next subsequent
calendar month or months. No
portion of such Excess Amount may
be distributed to Members or former
Members. If a suspense account is
in existence at any time during the
Limitation Year pursuant to this
Paragraph B, such suspense account
shall not participate in the
allocation of investment gains or
losses of the Trust Fund.
C. If any such Excess Amount
shall then remain, the Excess
Amount of the Member's Pre-Tax
Contributions, as defined in
Section 4.1, shall be used to
reduce Pre-Tax Contributions for
the next Limitation Year (and
succeeding Limitation Years, as
necessary) for that Member if that
Member is eligible to participate
in the Plan as of the end of the
next and succeeding Limitation
Years. However, if that Member is
not eligible to participate in the
Plan as of the end of the
Limitation Year, then the Excess
Amounts must be held unallocated in
a suspense account and applied in
the next subsequent calendar month
or months as a part of (and to
reduce to such extent what would
otherwise be) the Employer
Contribution for all Members
required to be made to the Plan.
No portion of such Excess Amount
may be distributed to Members or
former Members. If a suspense
account is in existence at any time
during the Limitation Year pursuant
to this paragraph C, such suspense
account shall not participate in
the allocation of investment gains
or losses of the Trust Fund.
II. Two or More Defined Contribution Plans
1. If, in addition to this Plan, the
Employer maintains any other qualified
defined contribution plan, the amount of
Annual Additions which may be allocated under
this Plan on a Member's behalf for a
Limitation Year shall not exceed the lesser
of:
A. the Maximum Permissible
Amount, reduced by the sum of any
Annual Additions allocated to the
Member's accounts for the same
Limitation Year under this Plan and
such other defined contribution
plans; or
B. any other limitation
contained in this Plan.
2. Prior to the determination of the
Member's actual Compensation for the
Limitation Year, the amount referred to in
Section 1(A) above may be determined on the
basis of the Member's estimated annual
Compensation for such Limitation Year. Such
estimated annual Compensation shall be
determined on a reasonable basis and shall be
uniformly determined for all Members
similarly situated. Any Employer
contributions (including allocation of
forfeitures) based on estimated annual
Compensation shall be reduced by any Excess
Amounts carried over from prior years.
3. As soon as is administratively
feasible after the end of the Limitation
Year, the amounts referred to in Section 1(A)
above shall be determined on the basis of the
Member's actual Compensation for such
Limitation Year.
4. If a Member's Annual Additions
under this Plan and all such other defined
contribution plans result in an Excess
Amount, such Excess Amount shall be deemed to
consist of the amounts last allocated.
5. If an Excess Amount was allocated
to a Member on an allocation date of this
Plan which coincides with an allocation date
of another plan, the Excess Amount attributed
to this Plan will be the product of:
A. the total Excess Amount
allocated as of such date
(including any amount which would
have been allocated but for the
limitations of Section 415 of the
Code); times
B. the ratio of (A) the
amount allocated to the Member as
of such date under this Plan,
divided by (B) the total amount
allocated as of such date under all
qualified defined contribution
plans (determined without regard to
the limitations of Section 415 of
the Code).
6. Any Excess Amounts attributed to
this Plan shall be disposed of as provided in
Section 5.3(I)(4).
III. Defined Contribution Plan and Defined
Benefit Plan
1. General Rule: If the Employer
maintains one or more defined contribution
plans and one or more defined benefit plans,
the sum of the "defined contribution plan
fraction" and the "defined benefit plan
fraction," as defined below, cannot exceed
1.0 for any Limitation Year. For purposes of
this Section, employee contributions to a
qualified defined benefit plan are treated as
a separate defined contribution plan. For
purposes of this Section, all defined
contribution plans of an Employer are to be
treated as one defined contribution plan and
all defined benefit plans of an Employer are
to be treated as one defined benefit plan,
whether or not such plans have been
terminated.
If the sum of the defined contribution
plan fraction and defined benefit plan
fraction exceeds 1.0, the Annual Benefit of
the defined benefit plans will be reduced so
that the sum of the fractions will not exceed
1.0. In no event will the Annual Benefit be
decreased below the amount of the accrued
benefit to date. If additional reductions
are required for the sum of the fractions to
equal 1.0, the reductions will then be made
to the Annual Additions of the defined
contribution plans.
2. Defined Contribution Plan Fraction
A. General Rule: The
defined contribution plan fraction
for any year is (1) divided by (2),
where:
(1) is the numerator, the
sum of the actual Annual
Additions to the Member's
Account at the close of the
Limitation Year; and
(2) is the denominator,
the sum of the lesser of the
following amounts determined
for such year and for each
prior year of service of the
Employee:
(a) 1.25 times the
dollar limitation in
effect for each such year
(without regard to the
special dollar
limitations for employee
stock ownership plans),
or
(b) 1.4 times
twenty-five percent (25%)
of the Member's
Compensation for each
such year.
B. If the Employee was a
participant as of the first day of
the first Limitation Year beginning
after December 31, 1986, in one or
more defined contribution plans
maintained by the Employer which
were in existence on May 6, 1986,
the numerator of this fraction will
be adjusted if the sum of this
fraction and the defined benefit
fraction would otherwise exceed 1.0
under the terms of this Plan.
Under the adjustment, an amount
equal to the product of (1) the
excess of the sum of the fractions
over 1.0 times (2) the denominator
of this fraction, will be
permanently subtracted from the
numerator of this 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 1, 1987, and disregarding
any changes in the terms and
conditions of the plans made after
May 5, 1986, but using the Code
Section 415 limitation applicable
to the first Limitation Year
beginning on or after January 1,
1987.
3. Defined Benefit Plan
Fraction
A. General Rule: The
defined benefit plan fraction for
any year is (1) divided by (2),
where:
(1) is the numerator, the
projected Annual Benefit of
the Member under the Plan
(determined as of the close of
the Limitation Year), and
(2) is the denominator,
the lesser of
(a) 1.25 times the
dollar limitation
(adjusted, if necessary)
for such year, or
(b) 1.4 times one
hundred percent (100%) of
the Member's Average
Compensation for the high
three (3) years
(adjusted, if necessary).
B. Notwithstanding the
above, if the Employee was a
participant as of the first day of
the first Limitation Year beginning
after December 31, 1986, in one or
more defined benefit plans
maintained by the Employer which
were in existence on May 6, 1986,
the denominator of this fraction
will not be less than one hundred
twenty-five percent (125%) of the
sum of the Annual Benefits under
such plans which the Employee had
accrued as of the close of the last
Limitation Year beginning before
January 1, 1987, disregarding any
changes in the terms and conditions
of the plans after May 5, 1986.
The preceding sentence applies only
if the defined benefit plans
individually and in the aggregate
satisfied the requirements of Code
Section 415 as in effect for all
Limitation Years beginning before
January 1, 1987.
IV. Definitions
1. Employer: The Company and any other
Employer that adopts this Plan. In the case of a
group of employers which constitutes a controlled
group of corporations (as defined in Section 414(b)
of the Code as modified by Section 415(h)) or which
constitutes trades and businesses (whether or not
incorporated) which are under common control (as
defined in Section 414(c) as modified by
Section 415(h)) or an affiliated service group (as
defined in Section 414(m)), all such employers shall
be considered a single Employer for purposes of
applying the limitations of these sections.
2. Excess Amount: The excess of the Member's
Annual Additions for the Limitation Year over the
Maximum Permissible Amount.
3. Limitation Year: A twelve (12) consecutive
month period ending on December 31.
4. Maximum Permissible Amount: For a
Limitation Year, the Maximum Permissible Amount with
respect to any Member shall be the lesser of:
A. $30,000 (or, if greater, one-fourth
(1/4) of the defined benefit dollar
limitation set forth in Section 415(b)(1)(A)
of the Code as in effect for the Limitation
Year), or
B. Twenty-five percent (25%) of the
Member's Compensation for the Limitation
Year.
The Compensation limitation referred to in
subparagraph B above shall not apply to:
(i) Any contribution for medical
benefits (within the meaning of Code
Section 419A(f)(2)) after separation from
service which is otherwise treated as an
Annual Addition, or
(ii) Any amount otherwise treated as an
Annual Addition under Code Section 415(l)(1).
5. Compensation: For purposes of determining
compliance with the limitations of Code Section 415,
Compensation shall mean a Member's wages within the
meaning of Code Section 3401(a) and including all
other payments of compensation to a Member (in the
course of employment with an Employer maintaining the
Plan) for which such Employer is required to furnish
the Member a written statement under Sections
6041(d), 6051(a)(3) and 6052 of the Code, but
excluding any amounts paid or reimbursed by the
Employer for moving expenses incurred by the Member,
to the extent that at the time of payment it is
reasonable to believe these amounts are deductible by
the Member under Section 217 of the Code.
For purposes of applying the limitations in this
Section, amounts included as compensation are those
actually paid or made available to a Member within
the Limitation Year. Compensation shall be limited
to $150,000 (unless adjusted in the same manner as
permitted under Code Section 415(d)).
Notwithstanding anything to the contrary in the
definition, Compensation shall include any and all
items which may be includable in Compensation under
Section 415(c)(3) of the Code.
6. Average Compensation: The average
Compensation during a Member's high three (3) years
of service, which period is the three (3) consecutive
calendar years (or the actual number of consecutive
years of employment for those Employees who are
employed for less than three (3) consecutive years
with the Employer) during which the Employee had the
greatest aggregate Compensation from the Employer.
7. Annual Benefit: A benefit payable annually
in the form of a straight life annuity (with no
ancillary benefits) under a plan to which Employees
do not contribute and under which no rollover
contributions are made.
8. Annual Additions: With respect to each
Limitation Year, the total of the Employer Matching
Contributions, Pre-Tax Contributions, After-Tax
Contributions, if any, Forfeitures and amounts
described in Code Sections 415(l) and 419A(d)(2)
which are allocated to a Member's Account.
5.4 Valuation of Trust Fund: A valuation of the Trust Fund
shall be made as of each Valuation Date. For the purposes of
each valuation, the assets of the Trust Fund shall be valued at
the respective current market values, and the amount of any
obligations for which the Trust Fund may be liable, as shown on
the books of the Trustee, shall be deducted from the total value
of the assets. For the purposes of maintenance of books of
account in respect of properties constituting the Trust Fund, and
of making any such valuation, the Trustee shall account for the
transactions of the Trust Fund on a modified cash basis.
5.5 Recognition of Different Investment Funds: As provided
in Article IX, the Committee shall establish, in addition to the
Company Stock Fund, at least three (3) Investment Funds, and each
Member shall direct, within the limitations set forth in Section
9.3, what portion of the balance in his Accounts shall be
deposited in each Investment Fund. Consequently, when
appropriate, a Member may have an Employer Contribution Account,
a Pre-Tax Contribution Account, an After-Tax Contribution Account
and a Rollover Account in each such Investment Fund, and the
allocations described in Section 5.2 shall be adjusted in such
manner as is appropriate to recognize the existence of the
Investment Funds. Because Members have a choice of Investment
Funds, any reference in this Plan to an Employer Contribution
Account, a Pre-Tax Contribution Account, an After-Tax
Contribution Account or a Rollover Account shall be deemed to
mean and include all accounts of a like nature which are
maintained for the Member under each Investment Fund.
ARTICLE VI
VOLUNTARY WITHDRAWALS
6.1 Withdrawal from After-Tax Contribution Account: Each
Member of the Plan who is an Employee, in accordance with
procedures established by the Committee, may withdraw without
penalty or suspension all or a part of his After-Tax
Contributions (including earnings thereon), if any, which have
been credited to such Account for at least twenty-four (24)
months.
6.2 Withdrawal from Employer Contribution Account: In
accordance with procedures established by the Committee, a Member
who is an Employee may withdraw without penalty or suspension all
or part of his Employer Matching Contributions (including
earnings thereon), to the extent vested, so long as such
contributions were made prior to October 1, 1991. Withdrawals of
Employer Matching Contributions made after September 30, 1991
shall not be permitted under the Plan. Withdrawals of Employer
Matching Contributions shall be deemed to come first from a
Member's Pre-October 1988 Employer Contribution Account, if
applicable, and then from his Post-October 1988 Employer
Contribution Account. Before he is eligible to withdraw amounts
from his Employer Contribution Account, a Member must first have
withdrawn the total amount of his After-Tax Contributions, if
any, that has been credited to his Account for at least twenty-
four (24) months.
If a Member is not one hundred percent (100%) vested in
his Employer Contribution Account when he makes a withdrawal
pursuant to this Section, such Member's vested portion in his
Employer Contribution Account shall thereafter be determined by
the formula "X=P(AB+D)-D," where X is the vested Employer
Matching Contributions in his Account, P is the vested percentage
at the relevant time, AB is the balance of his Employer
Contribution Account at the relevant time, and D is the amount of
the distribution.
6.3 Withdrawal from Pre-Tax Contribution and Rollover
Accounts: Any Member who is an Employee and who has attained age
591/2 may withdraw, in accordance with procedures established by
the Committee, all or any part of his Pre-Tax Contribution
Account and his Rollover Account. Before making a withdrawal
under this Section, a Member must first have withdrawn the total
eligible amounts from his After-Tax Contribution Account, if any,
and Employer Contribution Account, and he must withdraw all
amounts from his Rollover Account, if any, before withdrawing
from his Pre-Tax Contribution Account. A withdrawal from the
Pre-Tax Contribution and Rollover Accounts under this Section
shall not affect the Member's remaining rights hereunder.
6.4 Hardship Withdrawals: A Member who is an Employee may
at any time file with the Committee, in accordance with
procedures established by the Committee, a request for a hardship
withdrawal from his Pre-Tax Contribution Account. The approval
or disapproval of such request shall be made within the sole
discretion of the Committee, except that the Committee shall not
approve any such request for a withdrawal unless it has been
presented a certification by the Member that he is facing a
hardship creating an immediate and substantial financial need and
that the resources necessary to satisfy that financial need are
not reasonably available from other sources of the Member. A
Member must first have withdrawn any available amount credited to
his After-Tax Contribution Account, if any, Employer Contribution
Account and Rollover Account, if any, and taken all distributions
and loans otherwise available under all employee plans maintained
by his Employer, in order to be permitted to make a hardship
withdrawal from his Pre-Tax Contribution Account. The amount of
the hardship withdrawal shall be limited to that amount which the
Committee determines to be required to meet the immediate
financial need created by the hardship and may be increased to
include anticipated federal and state income taxes and penalties
resulting from the distribution. The amount available to a
Member for a hardship withdrawal consists of the amount of
Pre-Tax Contributions and earnings thereon as of December 31,
1988, plus Pre-Tax Contributions made thereafter, but not
exceeding the total value of the Member's Pre-Tax Contribution
Account. The hardship withdrawal shall be made in cash as soon
as practicable after the Member submits the hardship request, and
the dollar amount withdrawn shall be determined by reference to
the value of the Pre-Tax Contribution Account as of the Valuation
Date concurrent with or next preceding the date on which the
request was made, plus the net dollar amount of his Pre-Tax
Contributions for the month within which the withdrawal occurs,
to the extent such Contributions were not already included in the
value of such Account. The following standards (or such other
standards as may be set forth by the Commissioner of Internal
Revenue in documents of general applicability) shall be applied
on a uniform and non-discriminatory basis in determining the
existence of a hardship:
(a) medical expenses described in Code
Section 213(d) incurred (and/or expected to be
incurred as evidenced by a written estimate thereof)
by the Member, his spouse, or any dependents of the
Member (as defined in Code Section 152);
(b) purchase (excluding mortgage payments) of a
principal residence for the Member;
(c) payment of tuition and related educational
fees for the next twelve (12) months of
post-secondary education for the Member, his spouse,
children, or dependents; or
(d) the need to prevent the eviction of the
Member from his principal residence or foreclosure on
the mortgage of the Member's principal residence.
A person shall be considered to be a dependent of the
Member if the Member certifies that he reasonably expects to be
entitled to claim that person as a dependent for Federal income
tax purposes for a calendar year coinciding with the Plan Year in
which the certification of hardship is made.
A Member who receives a hardship withdrawal shall be
prohibited from making Pre-Tax Contributions to this Plan and all
other plans maintained by the Employer (except "welfare plans" as
defined in Section 3(1) of ERISA) for the twelve (12) full
consecutive calendar months following the date of the request's
approval. In addition, the dollar limitation described in
Section 4.1 shall be reduced (but not below zero) in the Plan
Year following the hardship withdrawal by the amount of Pre-Tax
Contributions made by the Member in the Plan Year during which
the withdrawal was made.
6.5 Designation of Investment Funds for Withdrawals: A
Member may designate which Investment Funds he wants to be
liquidated to provide for the amount of the withdrawal. If the
Member fails to designate which Investment Funds are to be
liquidated, the Investment Funds will be liquidated on a pro rata
basis within each Account from which a withdrawal is being made.
6.6 Loans: A Member who is an Employee and, to the extent
not resulting in discrimination prohibited by Section 401(a)(4)
of the Code, any other Member or any Beneficiary (including an
"alternate payee" within the meaning of Code Section 414(p)(8))
who is a "party in interest" with respect to the Plan within the
meaning of ERISA Section 3(14) and who must be eligible to obtain
a Plan loan in order for the exemption set forth in 29 C.F.R.
Section 2550.408b-1 to apply to the Plan (hereinafter
"Borrower"), may apply for a loan, in accordance with procedures
established by the Committee, in the following order: from his
Pre-Tax Contribution Account, his Rollover Account, if any, the
vested portion of his Post-October 1988 Employer Contribution
Account, the vested portion of his Pre-October 1988 Employer
Contribution Account and his After-Tax Contribution Account, if
any, maintained by or for the Borrower in the Trust Fund; and the
Committee in its sole discretion may permit such a loan. Such
Account(s), to the extent of the loan amount, shall be
automatically segregated from the general investments of the
Trust Fund and shall be invested in such Member's Loan Account,
as described in Section 9.3, until the loan is repaid,
notwithstanding anything in the Plan to the contrary. Loans
shall be granted in a uniform and non-discriminatory manner on
terms and conditions determined by the Committee which shall not
result in more favorable treatment of highly compensated
employees and shall be set forth in written procedures
promulgated by the Committee in accordance with applicable
governmental regulations. All such loans shall also be subject
to the following terms and conditions:
(a) The amount of the loan, when added to the
amount of any outstanding loan or loans to the
Borrower from any other plan of the Employer or an
Affiliate which is qualified under Code
Section 401(a), shall not exceed the lesser of
(i) $50,000, reduced by the excess, if any, of the
Borrower's highest outstanding balance of loans from
all such plans during the one (1) year period ending
on the day before the date on which such loan was
made, over the outstanding balance of loans to the
Borrower from the Plan on the date on which such loan
was made or (ii) fifty percent (50%) of the present
value of the Borrower's vested Account balance under
the Plan. In no event shall a loan of less than $500
be made to a Borrower. A Borrower may not have more
than two (2) loans outstanding at a time under this
Plan, and no more than two (2) loans may be obtained
during any twelve (12) month period from the
effective date of the first loan. If a Borrower with
two (2) outstanding loans wishes to apply for a third
loan under the Plan, he must first pay, in a single
lump-sum payment of cash, the remaining balance of
one of the outstanding loans.
(b) The loan shall be for a term of at least one
(1) year and not to exceed five (5) years, unless the
loan is used to acquire any dwelling unit which
within a reasonable time is to be used as a principal
residence of the Borrower. A loan for the purchase
of a principal residence shall be for a term not to
exceed ten (10) years. The loan shall be evidenced
by a note signed by the Borrower. The loan shall be
payable in equal installments of principal and
interest, payable no less frequently than monthly,
and shall bear interest at a reasonable rate which
shall be determined by the Committee on a uniform and
consistent basis and set forth in the procedures in
accordance with applicable governmental regulations.
Payments by a Borrower who is an Employee receiving
compensation from the Employer will be made by means
of payroll deduction from the Borrower's
compensation. If the Borrower is not receiving
compensation from the Employer, the loan repayment
shall be made in accordance with the terms and
procedures established by the Committee. A Borrower
may repay an outstanding loan in full at any time.
(c) In the event an installment payment is not
paid within seven (7) days following the monthly due
date, the Committee shall give written notice to the
Borrower sent to his last known address. If such
installment payment is not made within ninety (90)
days thereafter, the Committee shall proceed with
foreclosure in order to collect the full remaining
loan balance or shall make such other arrangements
with the Borrower as the Committee deems appropriate.
Foreclosures need not be effected until occurrence of
a distributable event under the terms of the Plan,
and no rights against the Borrower or the security
shall be deemed waived by the Plan as a result of
such delay.
(d) The unpaid balance of the loan, together
with interest thereon, shall become due and payable
upon the date of distribution of the Account and the
Trustee shall first satisfy the indebtedness from the
amount payable to the Borrower or to the Borrower's
Beneficiary before making any payments to the
Borrower or to the Beneficiary.
(e) Any loan to a Borrower under the Plan shall
be adequately secured. Such security shall include a
pledge of a portion of the Borrower's right, title
and interest in the Trust Fund which shall not exceed
fifty percent (50%) of the present value of the
Borrower's vested Account balance under the Plan as
determined immediately after the loan is extended.
Such pledge shall be evidenced by the execution of a
promissory note by the Borrower which shall grant the
security interest and provide that, in the event of
any default by the Borrower on a loan repayment, the
Committee shall be authorized to take any and all
appropriate lawful actions necessary to enforce
collection of the unpaid loan.
(f) A request by a Borrower for a loan shall be
made in accordance with such procedures as the
Committee shall establish and shall specify the
amount of the loan and the Account(s) from which the
loan is to be made, in the order listed above. If a
Borrower's request for a loan is approved, the
Trustee shall make the loan in a lump-sum payment of
cash to the Borrower. The cash for such payment
shall be obtained by liquidating the vested interests
in the Investment Fund or Funds that are credited to
the Account of the Borrower and in the order
designated by the Borrower.
(g) A loan to a Borrower shall be considered an
investment of the separate Account(s) of the Borrower
from which the loan is made. To the extent that a
loan has been made from a Borrower's Pre-Tax
Contribution, After-Tax Contribution, or Rollover
Accounts, the loan repayments shall be invested
according to the Borrower's then-current designations
for investments of Pre-Tax Contributions. If the
Borrower is not currently making Pre-Tax
Contributions, he must make a special investment
election, and loan repayments will then be invested
in accordance with such election. Repayments of
loans from a Borrower's Employer Contribution Account
shall be invested in Company Stock.
6.7 Form of Withdrawals: Except as otherwise provided
hereunder, all withdrawals from the Plan under this Article VI
shall be made in a single cash payment. Withdrawals from either
Fund S or Fund P shall be made in full shares of the stock in
which the applicable Fund is invested (plus cash equal to the
value of fractional shares and any uninvested cash), provided
that the number of shares withdrawn from such Fund equals at
least twenty (20), unless the Member elects to receive the
withdrawal in cash. Irrespective of the foregoing, all hardship
withdrawals and loans shall be made in cash. The provisions of
Section 8.5 shall apply to withdrawals from the Plan under this
Article VI.
ARTICLE VII
MEMBERS' BENEFITS
7.1 Retirement of Members on or after Normal Retirement
Date: A Member shall be vested in the entire amount in his
Account upon attainment of age sixty-five (65) prior to
terminating Service. A Member who retires on or after his Normal
Retirement Date or during the period between his sixty-fifth
(65th) birthday and his Normal Retirement Date shall be entitled
to receive the entire amount in his Account. The "entire amount"
in such Member's Account at termination of employment shall
include any Pre-Tax Contributions and Employer Matching
Contributions to be made as of the end of the month in which
termination of Service occurs. Payment of benefits due under
this Section shall be made in accordance with Section 8.1.
7.2 Disability of Members: If the Committee shall find and
advise the Trustee that Service of a Member has been terminated
because of a Total and Permanent Disability (as hereinafter
defined), such Member shall become entitled to receive the entire
amount in his Account. The "entire amount" in such Member's
Account shall include any Pre-Tax Contributions and Employer
Matching Contributions to be made as of the end of the month in
which termination of Service occurs. Payment of benefits due
under this Section shall be made in accordance with Section 8.1.
For purposes of the Plan, the term "Total and Permanent
Disability" means a disability which qualifies the Member for
long-term disability benefits under a Company-sponsored
disability plan.
7.3 Death of Members: In the event of the termination of
Service of any Member by death, and after receipt by the
Committee of acceptable proof of death, his Beneficiary shall be
entitled to receive the entire amount in the Member's Account.
The "entire amount" in such Member's Account shall include any
Pre-Tax Contributions and Employer Matching Contributions to be
made as of the end of the month in which termination of Service
occurs. Payment of benefits due under this Section shall be made
in one (1) lump sum.
7.4 Other Termination of Service: In the event of
termination of Service of any Member for any reason other than
retirement on or after his Normal Retirement Date, disability or
death, a Member shall, subject to the further provisions of this
Plan, be entitled to receive the entire amount credited to his
After-Tax Contribution Account, Pre-Tax Contribution Account and
Rollover Account, plus any of his Pre-Tax Contributions made for
the month of termination of Service, but not yet allocated. In
addition, if the Member has completed at least four (4) years of
Service, he will be eligible to receive 100% of his Employer
Contribution Account, including any Employer Matching
Contribution to be made as of the end of the month in which
termination of Service occurs. Upon termination of Service by a
Member who has not completed four (4) years of Service, the
following schedule will apply:
Years of Service Vested Percent
Less than 1 20%
1 40%
2 60%
3 80%
4 or more 100%
The non-vested portion of the Employer Contribution Account of a
terminated Member shall be a Forfeiture which shall be disposed
of as provided in Section 4.8. Payment of benefits due under
this Section shall be made in accordance with Section 8.1.
If a Member terminates his Service and thereafter
recommences such Service before he incurs five (5) consecutive
one (1) year Breaks In Service, any amounts forfeited from the
prior Employer Contribution Account of such Member upon his
earlier termination of Service shall be reinstated to his post-
October 1988 Employer Contribution Account (as provided in
Section 4.2 hereof) within a reasonable time after repayment by
the Member of the amount of his previous distribution. Such
repayment must be made by means of a lump-sum cash payment and
before the earlier of the close of the five (5) consecutive one
(1) year Breaks in Service or five (5) years from the date of the
Member's recommencement of Service.
7.5 Valuation Dates Determinative of Member's Rights: In
the case of any Member whose Service is terminated for any
reason, the amount to which such Member or his or her Beneficiary
is entitled upon such termination of Service shall be determined
as of the Valuation Date next preceding the date of the
distribution.
ARTICLE VIII
PAYMENT OF BENEFITS
8.1 Payment of Benefits:
(a) Form of Benefits: Upon a Member's
entitlement to payment of benefits under Section 7.1,
7.2 or 7.4, he shall apply to the Committee, in
accordance with the procedures established by the
Committee, for payment of his benefits. The
Committee shall direct the Trustee to distribute
benefits in the method elected by the Member.
Payment of a Member's benefits will be made, at the
election of the Member, by payment in one (1) lump-
sum or one hundred twenty (120) equal monthly
installments.
(i) Lump-Sum Distribution: The normal
form of distribution under the Plan shall be
a lump-sum distribution. The amount which a
Member, former Member or Beneficiary is
entitled to receive from his Account(s) at
any time and from time to time may be paid in
cash or, to the extent that such Account(s)
have been invested in Fund S or Fund P, in
full shares of the stock in which the
applicable such Fund is invested, provided
that the number of shares to be distributed
from the Fund equals at least twenty (20), or
in any combination thereof, provided no
discrimination in value results therefrom.
The amount which a Member, former Member or
Beneficiary is entitled to receive from his
Employer Contribution Account at any time and
from time to time shall be paid in shares of
the stock in which it is invested, unless
such Member has elected to receive the vested
balance in his Employer Contribution Account
in cash.
(ii) Equal Monthly Installments: In
lieu of receiving a lump-sum distribution as
provided in subparagraph (i) above, a Member
may elect to have the value of his Account(s)
distributed to the Member in one hundred
twenty (120) substantially equal monthly
payments. The amount payable in any one (1)
Plan month shall be equal to the total vested
value of the Member's Account as of the
Valuation Date next preceding the date of the
distribution, multiplied by a fraction the
numerator of which shall be one (1) and the
denominator of which shall be the number of
monthly payments, including the payment to be
currently made, remaining in the distribution
period. The remainder of the Member's
Account shall be subject to a reasonable
charge for any Trustee's fees and expenses
attributable to maintaining that Account, but
not in excess of the income earned in such
Account. In the event of the Member's death
prior to the one hundred twentieth (120th)
payment, the balance of such account shall be
paid in a lump sum to his designated
Beneficiary or Beneficiaries or, if none, to
his estate. An election to receive one
hundred twenty (120) equal monthly
installments must be received by, or mailed
to, the Committee at least thirty (30) days
prior to the payment date specified in
Section 8.1(b); otherwise, payment will be
made in a lump sum.
(b) Timing of Benefits: The day following the
date of the Member's termination of Service is the
earliest date that payment of his or her benefits may
commence. Payment of a Member's benefits shall be
made or commence as soon as practicable after the
date that the Member (or his or her beneficiary, in
the event of the Member's death) applies for receipt
of benefits in accordance with procedures established
by the Committee, but in any event will automatically
be made or commence prior to the expiration of sixty
(60) days after the end of the Plan Year within which
such Member's Normal Retirement Date occurs.
If the amount to which a terminated Member
(or Beneficiary) is entitled is not more than $3,500,
such amount shall automatically be paid to the Member
(or Beneficiary) as soon as practicable after his
termination of employment; if such amount is in
excess of $3,500, the distribution shall be made only
upon the Member's (or Beneficiary's) election. If,
however, (i) the Member fails to elect to commence
receipt of benefits, distribution shall automatically
be made within sixty (60) days after the end of the
Plan Year in which occurs the earlier of the Member's
death or his Normal Retirement Date or (ii) the
Member's termination of Service occurs after his
Normal Retirement Date, distribution shall
automatically be made within sixty (60) days after
the end of the Plan Year in which termination occurs.
If a Member who is otherwise entitled to receive a
distribution is re-employed by an Employer prior to
receiving his distribution, such Member's Account
shall not be distributed to him until his subsequent
termination of Service. Prior to its distribution, a
Member's Account shall remain invested in the
Investment Funds in accordance with such Member's
most recent investment directions, subject to such
Member's right to redirect his investments under
Section 9.4.
Notwithstanding anything herein to the
contrary, distribution of the Account of a Member who
reaches age seventy and one-half (70 1/2) after
December 31, 1988 will automatically commence no
later than April 1 of the calendar year following the
calendar year in which he reaches age seventy and
one-half (70 1/2). The amount to be distributed each
year to a Member must be at least an amount equal to
the quotient obtained by dividing the Member's entire
interest by the life expectancy of the Member or
joint and life survivor expectancy of the Member and
designated beneficiary. Life expectancy and joint
and life survivor expectancy shall be computed by the
use of the return multiples contained in Treasury
Regulation Section 1.72-9. For purposes of this
computation, a Member's life expectancy may be
recalculated no more frequently than annually;
however, the life expectancy of a non-Spouse
beneficiary may not be recalculated. If the Member's
Spouse is not the designated beneficiary, the method
of distribution selected must ensure that more than
fifty percent (50%) of the present value of the
amount available for distribution is paid within the
life expectancy of the Member.
8.2 Presenting Claims for Benefits: Any Member or the
Beneficiary of any deceased Member may submit written application
to the Committee for the payment of any benefit asserted to be
due him under the Plan. Such application shall set forth the
nature of the claim and such other information as the Committee
may reasonably request. Promptly upon the receipt of any
application required by this Section, the Committee shall
determine whether or not the Member or Beneficiary involved is
entitled to a benefit hereunder and, if so, the amount thereof
and shall notify the claimant of its findings.
If a claim is wholly or partially denied, the Committee
shall so notify the claimant within ninety (90) days after
receipt of the claim by the Committee, unless special
circumstances require an extension of time for processing the
claim. If such an extension of time for processing is required,
written notice of the extension shall be furnished to the
claimant prior to the end of the initial ninety (90) day period.
In no event shall such extension exceed a period of ninety (90)
days from the end of such initial period. The extension notice
shall indicate the special circumstances requiring an extension
of time and the date by which the Committee expects to render its
final decision. Notice of the Committee's decision to deny a
claim in whole or in part shall be set forth in a manner
calculated to be understood by the claimant and shall contain the
following:
(i) the specific reason or reasons for the
denial,
(ii) specific reference to the pertinent Plan
provisions on which the denial is based,
(iii) a description of any additional
material or information necessary for the claimant to
perfect the claim and an explanation of why such
material or information is necessary, and
(iv) an explanation of the claims review
procedure set forth in Section 8.3 hereof.
If notice of denial is not furnished, and if the claim is not
granted within the period of time set forth above, the claim
shall be deemed denied for purposes of proceeding to the review
stage described in Section 8.3.
8.3 Claims Review Procedure: If an application filed by a
Member or Beneficiary under Section 8.2 above shall result in a
denial by the Committee of the benefit applied for, either in
whole or in part, such applicant shall have the right, to be
exercised by written application filed with the Committee within
sixty (60) days after receipt of notice of the denial of his
application or, if no such notice has been given, within sixty
(60) days after the application is deemed denied under
Section 8.2, to request the review of his application and of his
entitlement to the benefit applied for. Such request for review
may contain such additional information and comments as the
applicant may wish to present. Within sixty (60) days after
receipt of any such request for review, the Committee shall
reconsider the application for the benefit in light of such
additional information and comments as the applicant may have
presented, and if the applicant shall have so requested, shall
afford the applicant or his designated representative a hearing
before the Committee. The Committee shall also permit the
applicant or his designated representative to review pertinent
documents in its possession, including copies of the Plan
document and information provided by the Employer relating to the
applicant's entitlement to such benefit. The Committee shall
make a final determination with respect to the applicant's
application for review as soon as practicable, and in any event
not later than sixty (60) days after receipt of the aforesaid
request for review, except that under special circumstances, such
as the necessity for holding a hearing, such sixty (60) day
period may be extended to the extent necessary, but in no event
beyond the expiration of one hundred twenty (120) days after
receipt by the Committee of such request for review. If such an
extension of time for review is required because of special
circumstances, written notice of the extension shall be furnished
to the applicant prior to the commencement of the extension.
Notice of such final determination of the Committee shall be
furnished to the applicant in writing, in a manner calculated to
be understood by him, and shall set forth the specific reasons
for the decision and specific references to the pertinent
provisions of the Plan upon which the decision is based. If the
decision on review is not furnished within the time period set
forth above, the claim shall be deemed denied on review.
8.4 Disputed Benefits: If any dispute still exists between
a Member or a Beneficiary and the Committee after a review of the
claim or in the event any uncertainty shall develop as to the
person to whom payment of any benefit hereunder shall be made,
the Trustee may withhold the payment of all or any part of the
benefits payable hereunder to the Member or Beneficiary until
such dispute has been resolved by a court of competent
jurisdiction or settled by the parties involved.
8.5 Member's Right to Transfer Eligible Rollover
Distribution: Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election
under this Section, a distributee may elect, at the time and in
the manner prescribed by the 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. For the purposes of this Section 8.5, the following
definitions are applicable:
(a) Eligible rollover distribution. An eligible
rollover distribution is any distribution of all or
any portion of the balance to the credit of the
distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of
the Code; and the portion of any distribution that is
not includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) Eligible retirement plan. An eligible
retirement plan is an individual retirement account
described in Section 408(a) of the Code, an
individual retirement annuity described in
Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
(c) Distributee. A distributee includes an
employee or former employee. In addition, the
employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former
spouse who is the alternate payee under a qualified
domestic relations order, as defined in
Section 414(p) of the Code, are distributees with
regard to the interest of the spouse or former
spouse.
(d) Direct rollover. A direct rollover is a
payment by the plan to the eligible retirement plan
specified by the distributee.
ARTICLE IX
TRUST AGREEMENT;
INVESTMENT FUNDS; INVESTMENT DIRECTIONS
9.1 Trust Agreement: The Company has entered into a Trust
Agreement governing the administration of the Trust, as amended
and restated effective as of January 1, 1994, under which Bank of
Oklahoma, N.A., a national banking association with its principal
place of business in Tulsa, Oklahoma, serves as Trustee, and the
provisions of which are herein incorporated by reference as fully
as if set out herein.
9.2 Investment Funds: The Trustee shall divide the Trust
Fund into four (4) or more separate Investment Funds selected by
the Committee for investment purposes. At least one (1) of the
Funds shall be a Company Stock Fund, and at least one (1) shall
be a Short-Term Investment Fund. Such Funds shall also include a
frozen Fund invested in the common stock of Pennzoil Company
("Pennzoil Stock").
(a) Short-Term Investment Fund (Fund A). Fund A
shall be invested in certificates of deposit, high-
grade commercial paper, Treasury Bills or various
other short-term investment vehicles selected by the
Trustee to maximize current income while preserving
capital and maintaining liquidity.
(b) Company Stock Fund (Fund P), consisting
solely of the common stock of the Company ("Company
Stock"), par value $0.01.
(c) Pennzoil Stock Fund (Fund S). Fund S shall
consist solely of Pennzoil Stock, par value
$0.83 1/3. This Fund S is a frozen fund in which no
further contributions of or for any Member may be
invested. Any Member contributions to the Plan made
on or after December 1, 1992 that are directed to be
invested in Fund S shall instead be invested in
Fund A (but shall be reflected as a cash balance in
Fund S). After December 31, 1993, any such
contributions that are directed to be invested in
Fund S shall instead be invested in Fund A and
reflected in Fund A. Effective December 1, 1992, all
amounts constituting income of Fund S shall be
reinvested (i) in Fund P to the extent that such
income is income of the Member's Employer
Contribution Account(s) in Fund S and (ii) as follows
to the extent that such income is income of any of
the Member's other Account(s) within Fund S: Income
earned from December 1, 1992 through May 31, 1993
shall be reinvested in Fund A (but shall be reflected
as a cash balance in Fund S) and income earned from
and after June 1, 1993 shall be reinvested according
to the Member's current investment directions for
Pre-Tax Contributions. If a Member is not currently
making Pre-Tax Contributions to the Plan, he must
make a special investment election for the investment
of such income. Transfers, withdrawals and loans
shall continue to be allowed out of Fund S.
Contributions shall be paid into the Investment Funds
pursuant to the directions of the Members given in accordance
with the provisions of Sections 9.3 and 9.4. Except as otherwise
provided herein, interest, dividends and other income and all
profits and gains produced by each such Investment Fund shall be
paid into such Investment Fund, and such interest, dividends and
other income or profits and gains, without distinction between
principal and income, may be invested and reinvested but only in
the property hereinabove specified for the particular Investment
Fund.
Notwithstanding any provision in this Section 9.2 to
the contrary, the Committee may direct the Trustee to invest
(i) Pre-Tax or Employer Matching Contributions in short-term
fixed income investments which are acceptable to the Trustee or
in the suspense account to be maintained in each Investment Fund
during the period from the date of any such Contribution until
the next Valuation Date or (ii) all or any portion of the Trust
Fund attributable to any terminated or retired Member or
attributable to any Member who is expected to retire or to
terminate his Service within one (1) year, in one (1) or more
fixed income investments which are acceptable to the Trustee.
The fixed income investments authorized by this Section shall
include, but not be limited to, certificates of deposit, savings
accounts, or United States Treasury bills or notes.
9.3 Investment Directions of Members: By written notice to
the Committee in the manner prescribed by it, each Member may
direct that his or her Pre-Tax Contributions, and the earnings
and accretions thereon, be invested in such percentages (in five
percent (5%) increments) as he may designate among the Investment
Funds specified by the Committee.
A Rollover Amount transferred to the Plan by a Member
shall be invested pursuant to a Member's then-current investment
directions for his Pre-Tax Contributions. If a Member is not
currently making Pre-Tax Contributions, he must make a special
investment election for the investment of his Rollover Amount.
Any Member's direction for investment in Fund S shall be governed
by the provisions of Section 9.2(c) until the direction is
changed by the Member. To the extent that a Member fails to
direct the manner of investing his Pre-Tax Contributions and/or
Rollover Amount(s) as provided herein, such Member shall be
deemed to have elected to invest only in Fund A. Effective with
the Employer Matching Contribution made for December 1992,
Employer Matching Contributions on behalf of each Member shall be
invested solely in Fund P.
If a Member makes a loan from his Account(s), as
provided in Section 6.6, the amount of his outstanding loan
balance and any interest accrued thereon shall be maintained in a
separate Loan Account Fund for each Member. Loan proceeds shall
be invested pursuant to the provisions of Section 6.6(g).
9.4 Change of Investment Directions: Each Member may, in
accordance with procedures established by the Committee, direct
that the investment of his future Pre-Tax Contributions or
existing Pre-Tax Contributions, After-Tax Contribution and
Rollover Account balances, in the aggregate, be changed among the
various authorized Investment Funds available under Section 9.3.
A Member may change the investment of his Pre-Tax Contribution,
After-Tax Contribution and Rollover Accounts, in the aggregate,
by electing either to reinvest the total amount of such Account
balances or to reinvest only the total amount of such balances
invested in any one or more Investment Fund. Any such change of
investment directions shall not be allowed more than twelve (12)
times each Plan Year and shall be made as provided in
Section 4.5. A Member cannot redirect the investment of his
Post-October 1988 Employer Contribution Account other than to
make a one-time election to direct the investment of the entire
balance in this Account into Fund P, effective as of the first
day of any month in accordance with procedures established by the
Committee.
A change in a Member's investment directions for only
his future Pre-Tax Contributions does not affect the investment
of his existing Accounts.
If the Committee shall delete any of the Investment
Funds offered under the Plan, a Member shall have the opportunity
to make a one-time election to transfer the balance in such
deleted Funds to one or more remaining Funds. To the extent a
Member fails to make such an election, the Member will be deemed
to have elected to invest the balance of the deleted Fund only in
Fund A.
9.5 Benefits Paid Solely from Trust Fund: All of the
benefits to be paid under Article VIII shall be paid by the
Trustee out of the Trust Fund to be administered under such Trust
Agreement. No fiduciary shall be responsible or liable in any
manner for payment of any such benefits, and all Members
hereunder shall look solely to such Trust Fund and to the
adequacy thereof for the payment of any such benefits of any
nature or kind which may at any time be payable hereunder.
9.6 Committee Directions to Trustee: The Trustee shall
make only such distributions and payments out of the Trust Fund
as have been authorized under procedures established by the
Committee. The Trustee shall not be required to determine or
make any investigation to determine the identity or mailing
address of any person entitled to any distributions and payments
out of the Trust Fund and shall have discharged its obligation in
that respect when it shall have sent certificates and checks or
other papers by ordinary mail to such persons and addresses as
may be certified to it by the Committee.
9.7 Authority to Designate Investment Manager: The
Committee (as defined in Section 2.1) may appoint an investment
manager or managers to manage (including the power to acquire and
dispose of) any assets of the Trust Fund in accordance with the
terms of the Trust Agreement and ERISA.
9.8 Purchase, Sale and Voting of Company Stock and Pennzoil
Stock:
(a) Purchase and Sale: The shares of Company
Stock from time to time required to be purchased for
purposes of the Plan shall be purchased by the
Trustee from such source and in such manner as the
Trustee from time to time in its sole discretion may
determine. If the Trustee and the Company so agree,
any such shares may be purchased in the open market
or from the Company and may be either treasury stock
or newly issued stock, and shall be purchased at a
price per share not in excess of (A) if the shares of
Company Stock are listed on a national securities
exchange, the mean between the highest and lowest
sales price per share of Company Stock on the
principal such national securities exchange on that
date or, if there shall have been no such sale so
reported on that date, on the last preceding date on
which such a sale was so reported, (B) if the shares
of Company Stock are not so listed but are quoted in
the NASDAQ National Market System, the mean between
the highest and lowest sales price per share of
Company Stock reported on the NASDAQ National Market
System on that date or, if there shall have been no
such sale so reported on that date, on the last
preceding date on which such a sale was so reported,
or (C) if the Company Stock is not so listed or
quoted, the mean between the closing bid and asked
price on that date or, if there are no quotations
available for such date, on the last preceding date
on which such quotations shall be available, as
reported on NASDAQ or, if not reported on NASDAQ, by
the National Quotation Bureau, Inc.
The shares of Pennzoil Stock and Company
Stock held by the Trustee under the Plan shall be
registered in the name of the Trustee or its nominee,
but shall not be voted by the Trustee or such nominee
except as provided in this Section 9.8.
In the event that any option, right or
warrant shall be received by the Trustee on Pennzoil
Stock or Company Stock, the Trustee shall sell the
same, at public or private sale and at such price and
upon such other terms as it may determine, and credit
the proceeds thereof to the respective accounts of
the Members, ratably in accordance with their
interests therein, unless the Trustee shall determine
that such option, right or warrant should be
exercised, in which case the Trustee shall exercise
the same upon such terms and conditions as it may
determine.
(b) Voting: The Trustee, itself or by its
nominee, shall be entitled to vote, and shall vote,
shares of Company Stock and Pennzoil Stock in the
accounts of Members as follows:
(i) The Company shall adopt reasonable
measures to notify the Member of the date and
purposes of each meeting of stockholders of
the Company or of Pennzoil Company
("Pennzoil") at which holders of shares of
Company Stock or Pennzoil Stock (as
applicable) shall be entitled to vote, and to
request instructions from the Member to the
Trustee as to the voting at such meeting of
full shares of Company Stock or Pennzoil
Stock (as applicable) in the Account(s) of
each Member, whether or not vested.
(ii) In each case, the Trustee, itself
or by proxy, shall vote full shares of
Company Stock or Pennzoil Stock (as
applicable) in such Account(s) of the Member
in accordance with the confidential
instructions of the Member.
(iii) If five (5) business days
prior to the date of such meeting of
stockholders of the Company or Pennzoil the
Trustee shall not have received instructions
from the Member in respect of any shares of
Company Stock or Pennzoil Stock (as
applicable) in such Account(s) of the Member,
the Trustee shall vote such shares of stock
as it shall determine to be in the best
economic interest of such Member. The
Trustee shall also have the right to vote, in
its sole discretion, all fractional shares in
such Account(s).
9.9 Tender and Exchange Offers of Company Stock and
Pennzoil Stock: In the event that a tender offer, which is
subject to Section 14(d) of the Securities Exchange Act of 1934,
as amended, is made for the shares of Company Stock or Pennzoil
Stock, or an offer to exchange securities of another company for
Company Stock or Pennzoil Stock, which is subject to the
Securities Act of 1933, as amended, is made, the Committee and
the Trustee shall utilize their best efforts to notify each
affected Member and to cause to be distributed to him such
information as will be distributed to the shareholders of the
Company or of Pennzoil (as applicable) generally in connection
with any such tender or exchange offer. Each affected Member
shall also be provided a form, prescribed by the Committee, by
which the Member shall direct the Trustee, confidentially, in
writing, as to what action (if any), as set forth below, to take
on behalf of that Member with respect to the Company Stock or
Pennzoil Stock (as applicable) allocated to his Account(s). If
the Trustee does not receive such written directions from a
Member, the Trustee shall not tender or offer to exchange any
shares held in the Member's Account(s).
(a) Cash Tender Offer: In connection with a
cash tender offer, a Member may direct the Trustee to
tender any or all shares of Company Stock or Pennzoil
Stock (as applicable), held in the Member's
Account(s). Any cash received by the Trustee as a
result of such tender offer shall be invested by the
Trustee in Fund S or Fund P (as applicable), not for
the purchase of stock but in short-term money-market
investments on a temporary basis until otherwise
invested by the Committee.
(b) Exchange Offer: In connection with an
exchange offer, a Member may direct the Trustee to
offer to exchange any or all shares of Company Stock
or Pennzoil Stock (as applicable) held in the
Member's Account(s). Any property received by the
Trustee in connection with such exchange shall be
held by the Trustee under the Plan in separate
accounts for the affected Members; however, if such
property does not constitute "employer securities"
qualifying for the favorable tax treatment afforded
such securities under Section 402(a) of the Internal
Revenue Code, the Trustee shall sell the property and
the proceeds of such sale shall be invested by the
Trustee in Fund D.
(c) Tender and Exchange Offer: In connection
with a combination tender and exchange offer, a
Member may direct the Trustee to tender and offer for
exchange all shares of Company Stock or Pennzoil
Stock held in the Member's Account(s) with any cash
received by the Trustee as a result of such tender
treated as provided in (a) above and any property
received by the Trustee in connection with the
exchange treated as provided in (b) above.
A tender or exchange offer direction given by a Member
under this Section may be revoked by the Member by completion of
the form prescribed therefor by the Committee and the filing of
such form with the Trustee at least two (2) business days prior
to the withdrawal-date deadlines provided for in the regulations
with respect to tender or exchange offers prescribed by the
Securities and Exchange Commission.
The Trustee shall use its best efforts on a uniform and
non-discriminatory basis with respect to the sale or exchange of
the shares of Company Stock or Pennzoil Stock as directed by the
Members. However, neither the Committee nor the Trustee insures
that all or any part of the shares of Company Stock or Pennzoil
Stock directed by a Member to be tendered or exchanged will be
accepted under the tender or exchange offer. Any such shares not
so accepted shall remain in the Member's Account(s) and the
Member shall continue to have the same rights with respect to
such shares as he had immediately prior to the Trustee's
tendering of the shares.
If a tender exchange offer is made, the Committee shall
adopt such rules, prescribe the use of such special
administrative forms and procedures, delegate such authority,
take such action and execute such instruments or documents and do
every other act or thing as shall be necessary or in its judgment
proper for the implementation of this Section.
ARTICLE X
ADOPTION OF PLAN BY OTHER ORGANIZATIONS;
SEPARATION OF THE TRUST FUND;
AMENDMENT AND TERMINATION OF THE PLAN;
DISCONTINUANCE OF CONTRIBUTIONS TO THE TRUST FUND
10.1 Adoptive Instrument: Any corporation or other
organization with employees, now in existence or hereafter formed
or acquired which is not already an Employer under this Plan and
which is otherwise legally eligible, may, with the approval of
the Company by action of the Board of Directors, adopt and become
an Employer under this Plan by executing and delivering to the
Company and the Trustee an adoptive instrument specifying the
classification of its Employees who are to be eligible to
participate in the Plan and by agreeing to be bound as an
Employer by all the terms of the Plan with respect to its
eligible Employees. Any such approved organizations which shall
adopt this Plan shall designate the Company as its agent to act
for it in all transactions affecting the administration of the
Plan and shall designate the Committee to act for such Employer
and its Members in the same manner in which the Committee may act
for the Company and its Members hereunder. The adoptive
instrument shall specify the effective date of such adoption of
the Plan and shall become, as to such adopting Employer and its
Employees, a part of this Plan. The Company may, in its absolute
discretion, terminate an adopting Employer's participation at any
time when in its judgment such adopting Employer fails or refuses
to discharge its obligations under the Plan.
10.2 Separation of the Trust Fund: If any Employer shall
desire to separate the interest of its Members in the Trust Fund,
it may request such a separation in a notice in writing to the
Company and the Trustee. Such separation shall then be made as
of any specified date after service of such notice. In such
event, the Trustee shall set apart that portion of the Trust Fund
which shall be allocated to such Members pursuant to a valuation
and allocation of the Trust Fund made in accordance with the
procedures set forth in Sections 5.2 and 5.4, but as of the date
when such separation of the Trust Fund shall be effective. Such
portion may in the Trustee's discretion be set apart in cash or
in kind out of the properties of the Trust Fund. That portion of
the Trust Fund so set apart shall continue to be held by the
Trustee as though such Employer had entered into the Trust
Agreement as a separate trust agreement with the Trustee. Such
Employer may in such event designate a new trustee of its
selection to act as trustee under such separate trust agreement.
Such Employer shall thereupon be deemed to have adopted the Plan
as its own separate plan, and shall subsequently have all such
powers of amendment or modification of such plan as are reserved
herein to the Company.
10.3 Termination, Amendment, Modification or Suspension of
the Plan by the Company: The Company shall have the right to
terminate, amend, modify or suspend this Plan and (with the
consent of the Trustee) the Trust Agreement at any time and from
time to time to any extent that it may deem advisable. Any such
termination, amendment, modification or suspension shall be set
out in an instrument in writing duly authorized by the Board of
Directors and executed by the Company. No such termination,
amendment, modification or suspension shall, however, increase
the duties or responsibilities of the Trustee without its consent
thereto in writing or have the effect of transferring to or
vesting in any Employer any interest or ownership in any
properties of the Trust Fund, or of permitting the same to be
used for or diverted to purposes other than for the exclusive
benefit of the Members and their Beneficiaries. No amendment
shall decrease the Account of any Member or shall decrease any
Member's vested interest in his Account. Notwithstanding
anything herein to the contrary, the Plan or the Trust Agreement
may be amended in such manner as may be required at any time to
make it conform to the requirements of the Code or of any United
States statutes with respect to employees' trusts, or of any
amendment thereto, or of any regulations or rulings issued
pursuant thereto, and no such amendment shall be considered
prejudicial to any then existing rights of any Member or his
Beneficiary under the Plan.
10.4 Acceptance or Rejection of Amendment or Modification by
Other Employers: The Company shall promptly deliver to each
other Employer any amendment or modification to this Plan or the
Trust Agreement. Each such Employer will be deemed to have
consented to such amendment or modification unless it notifies
the Company and the Trustee in writing within thirty (30) days
after receipt of the amendment or modification that it does not
consent thereto, and requests a separation of its interest in the
Trust Fund in accordance with the provisions of Section 10.2, as
of the first day of the month following such written notification
to the Company and the Trustee.
10.5 Termination of the Plan as to Other Employers: A
termination of the Plan as to any particular Employer other than
the Company (and only as to any such particular Employer) shall
occur under the following circumstances:
(a) The Plan may be terminated by the delivery
to the Trustee of an instrument in writing approved
and authorized by the board of directors of such
Employer. In such event, termination of the Plan
shall be effective as of any subsequent date
specified in such instrument.
(b) Except as otherwise provided in
Section 10.9, the Plan shall terminate effective as
of the expiration of sixty (60) days following the
merger into another corporation or dissolution of any
Employer, or following any final legal adjudication
of any Employer as a bankrupt or an insolvent, unless
within such time a successor organization approved by
the Company shall deliver to the Trustee a written
instrument certifying that such organization has
(i) become the Employer of more than fifty percent
(50%) of those Employees of such Employer who are
then Members under this Plan and (ii) adopted the
Plan as to its Employees.
(c) Upon such termination, the interests in the
Plan of any Members of that Employer shall be fully
vested as of the date of termination of the Plan as
to that Employer and shall be payable in cash or in
kind within six (6) months from the date of
termination of the Plan.
10.6 Liquidation and Distribution of Trust Fund Upon
Termination: In the event a complete or partial termination of
the Plan with respect to any Employer shall occur, a separation
of the Trust Fund with respect to the affected Members of such
Employer shall be made as of the effective date of such
termination of the Plan in accordance with the procedure set
forth in Section 10.2. Following separation of the Trust Fund
with respect to the Members of any Employer as to whom the Plan
has been terminated, the assets and properties of the Trust Fund
so set apart, other than common stock of the Company, shall be
reduced to cash as soon as may be expeditious under the
circumstances. Any administrative costs or expenses incurred
incident to the final liquidation of such separate trust funds
shall be paid by the Employer, except that in the case of
bankruptcy or insolvency of such Employer any such costs shall be
charged against the Trust Fund. Following such partial reduction
of such Trust Fund to cash, the Accounts of the Members shall
then be valued as provided in Sections 5.2 and 5.4 and shall be
fully vested, whereupon each such Member shall become entitled to
receive the entire amount in his Account in cash and/or common
stock of Pennzoil Company, as directed by the Committee. The
terminating Employer shall promptly advise the appropriate
District Director of the Internal Revenue Service of such
complete or partial termination. In the event of a complete
termination of the Plan with respect to the Company, the
provisions of this Section shall apply to all Members.
10.7 Effect of Termination or Discontinuance of
Contributions: If any Employer shall terminate or partially
terminate the Plan as to its Employees, then all amounts credited
to the Accounts of the Members of such Employer with respect to
whom the Plan has terminated shall become fully vested and
non-forfeitable. If any Employer shall completely discontinue
its Contributions to the Trust Fund or suspend its Contributions
to the Trust Fund under such circumstances as to constitute a
complete discontinuance of Contributions within the meaning of
Section 1.401-6(c) of the regulations under the Code, then all
amounts credited to the Accounts of the Members of such Employer
shall become fully vested and non-forfeitable, and throughout any
such period of discontinuance of Contributions by an Employer all
other provisions of the Plan shall continue in full force and
effect with respect to such Employer other than the provisions
for Contributions by such Employer.
If the Company shall completely terminate the Plan,
then all amounts credited to the Accounts of all Members shall
become fully vested and non-forfeitable.
10.8 Merger of Plan with Another Plan: In the event of any
merger or consolidation of the Plan with, or transfer in whole or
in part of the assets and liabilities of the Trust Fund to
another trust fund held under, any other plan of deferred
compensation maintained or to be established for the benefit of
all or some of the Members of this Plan, the assets of the Trust
Fund applicable to such Members shall be transferred to the other
trust fund only if:
(a) Each Member would (if either this Plan or
the other plan then terminated) receive a benefit
immediately after the merger, consolidation or
transfer which is equal to or greater than the
benefit he would have been entitled to receive
immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
(b) Resolutions of the board of directors of the
Employer under this Plan, or of any new or successor
employer of the affected Members, shall authorize
such transfer of assets and, in the case of the new
or successor employer of the affected Members, its
resolutions shall include an assumption of
liabilities with respect to such Members' inclusion
in the new employer's plan; and
(c) Such other plan and trust are qualified
under Sections 401(a) and 501(a) of the Code.
10.9 Consolidation or Merger with Another
Employer: Notwithstanding any provision of this Article X to the
contrary, upon the consolidation or merger of two or more
Employers under this Plan with each other, the surviving Employer
or organization shall automatically succeed to all the rights and
duties under the Plan and Trust Agreement of the Employers
involved, and their shares of the Trust Fund shall, subject to
the provisions of Section 10.8, be merged and thereafter be
allocable to the surviving Employer or organization for its
Members and their Beneficiaries.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Terms of Employment: The adoption and maintenance of
the provisions of this Plan shall not be deemed to constitute a
contract between any Employer and Employee, or to be a
consideration for, or an inducement or condition of, the
employment of any person. Nothing herein contained shall be
deemed to give to any Employee the right to be retained in the
employ of an Employer or to interfere with the right of an
Employer to discharge an Employee at any time, nor shall it be
deemed to give to an Employer the right to require any Employee
to remain in its employ, nor shall it interfere with any
Employee's right to terminate his employment at any time.
11.2 Controlling Law: Subject to the provisions of ERISA,
this Plan shall be construed, regulated and administered under
the laws of the State of Oklahoma.
11.3 Invalidity of Particular Provisions: In the event any
provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the
remaining provisions of this Plan but shall be fully severable,
and this Plan shall be construed and enforced as if said illegal
or invalid provisions had never been inserted herein.
11.4 Non-Alienation of Benefits: No benefit which shall be
payable out of the Trust Fund to any person (including a Member
or Beneficiary) shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements or torts of any
such person, nor shall it be subject to attachment or legal
process for or against such person, and the same shall not be
recognized by the Trustee, except to the extent as may be
required by law.
This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p) and those other
domestic relations orders permitted to be so treated by the
Committee under the provisions of the Retirement Equity Act of
1984. The Committee shall establish a written procedure to
determine the qualified status of domestic relations orders and
to administer distributions under such qualified orders.
Further, to the extent provided under a "qualified domestic
relations order," a former spouse of a Member shall be treated as
the spouse or surviving spouse for all purposes of the Plan. If
the Committee receives a qualified domestic relations order with
respect to a Member, the Committee may authorize the immediate
distribution of the amount assigned to the Member's former spouse
pursuant to such order, to the extent vested and permitted by
law, from the Member's Accounts.
11.5 Payments in Satisfaction of Claims of Members: Any
payment or distribution to any Member or his legal representative
or any Beneficiary in accordance with the provisions of this Plan
shall be in full satisfaction of all claims under the Plan
against the Trust Fund, the Trustee and the Employer. The
Trustee may require that any distributee execute and deliver to
the Trustee a receipt and a full and complete release as a
condition precedent to any payment or distribution under the
Plan.
11.6 Payments Due Minors and Incompetents: If the Committee
determines that any person to whom a payment is due hereunder is
a minor or is incompetent by reason of physical or mental
disability, the Committee shall have the power to cause the
payments becoming due such person to be made to another for the
benefit of such minor or incompetent, without the Committee or
the Trustee being responsible to see to the application of such
payment. To the extent permitted by ERISA, payments made
pursuant to such power shall operate as a complete discharge of
the Committee, the Trustee and the Employer.
11.7 Impossibility of Diversion of Trust
Fund: Notwithstanding any provision herein to the contrary, no
part of the corpus or the income of the Trust Fund shall ever be
used for or diverted to purposes other than for the exclusive
benefit of the Members or their Beneficiaries. No part of the
Trust Fund shall ever directly or indirectly revert to any
Employer.
11.8 Evidence Furnished Conclusive: The Employer, the
Committee and any person involved in the administration of the
Plan or management of the Trust Fund shall be entitled to reply
upon any certification, statement or representation made or
evidence furnished by a Member or Beneficiary with respect to
facts required to be determined under any of the provisions of
the Plan, and shall not be liable on account of the payment of
any monies or the doing of any act or failure to act in reliance
thereon. Any such certification, statement, representation or
evidence, upon being duly made or furnished, shall be
conclusively binding upon such Member or Beneficiary but not upon
the Employer or the Committee or any other person involved in the
administration of the Plan or management of the Trust Fund.
Nothing herein contained shall be construed to prevent any of
such parties from contesting any such certification, statement,
representation or evidence or to relieve the Member or
Beneficiary from the duty of submitting satisfactory proof of
such fact.
11.9 Copy Available to Members: A copy of the Plan, and of
any and all future amendments thereto, shall be provided to the
Committee and shall be available to Members and, in the event of
the death of a Member, to his Beneficiary for inspection at the
offices of his Employer during the regular office hours of the
Employer.
11.10 Unclaimed Benefits: If at, after, or during the time
when a benefit hereunder is payable to any Member, Beneficiary or
other distributee, the Committee, upon request of the Trustee, or
at its own instance, shall mail by registered or certified mail
to such Member, Beneficiary or other distributee at his last
known address a written demand for his then address or for
satisfactory evidence of his continued life, or both, and if such
Member, Beneficiary or distributee shall fail to furnish the same
to the Committee within two (2) years from the mailing of such
demand, then the Committee may, in its sole discretion, determine
that such Member, Beneficiary or other distributee has forfeited
his right to such benefit and may declare such benefit, or any
unpaid portion thereof, terminated as if the death of the
distributee (with no surviving Beneficiary) had occurred on the
date of the last payment made thereon, or on the date such
Member, Beneficiary or distributee first became entitled to
receive benefit payments, whichever is later; provided, however,
that such forfeited benefit shall be reinstated if a claim for
the same is made by the Member, Beneficiary or other distributee
at any time thereafter. Such reinstatement shall be made out of
the Forfeitures for the Plan Year during which such claim was
filed with the Committee (as provided in Section 4.8); and, if
Forfeitures for the Plan Year are insufficient to reinstate such
amounts, the Employer shall make the Minimum Contribution
required under Section 4.2 hereof.
11.11 Headings for Convenience Only: The headings and
subheadings herein are inserted for convenience of reference only
and are not to be used in construing this instrument or any
provision thereof.
11.12 Successors and Assigns: This agreement shall bind and
inure to the benefit of the successors and assigns of the
Employers.
11.13 Plan Conditioned upon Internal Revenue Service
Approval: Anything in this Plan and the Trust Agreement to the
contrary notwithstanding, if the Internal Revenue Service
determines that this Plan and the Trust Agreement do not
initially meet the requirements of the applicable provisions of
the Code:
(a) The Employer shall execute and deliver any
agreement amending the Plan, and the Employer and
Trustee shall execute and deliver any agreement
amending the Trust Agreement so that they will meet
such requirements, if they approve such amendment.
(b) If the Employer or Trustee notifies the
other that it does not approve such amendment:
(i) This Plan and related Trust
Agreement shall be cancelled and shall be
null and void;
(ii) The rights and interests of all
Members hereunder shall be cancelled and
terminated;
(iii) The Trustee shall terminate
the Trust and all moneys and property then
constituting the assets of the Trust Fund
shall be returned to the Employer.
11.14 Notices: All notices, statements and other
communications from the Trustee or an Employer to an Employee,
Member or designated Beneficiary required or permitted hereunder
shall be deemed to have been given, furnished, delivered or
transmitted, as the case may be, when delivered to (or when
mailed by first-class mail, postage prepaid and addressed to) the
Employee, Member or Beneficiary at his address last appearing on
the books of such Employer.
All notices, instructions and other communications from
an Employee, Member or designated Beneficiary to the Company,
Committee or Trustee required or permitted hereunder (including,
without limitation, payroll deduction authorizations and changes
and terminations thereof, investment and other elections,
requests for withdrawal, and designations of Beneficiaries and
revocations and changes thereof) shall be in the respective forms
from time to time prescribed therefor by the Committee, shall be
mailed by first-class mail or delivered to such location as shall
be specified in regulations or upon the forms prescribed by the
Committee, and shall be deemed to have been duly given and
delivered upon receipt by the Company, Committee or Trustee, as
the case may be, at such location.
ARTICLE XII
TOP-HEAVY PLAN REQUIREMENTS
12.1 General Rule: For any Plan Year for which this Plan is
a Top-Heavy Plan, as defined in Section 12.8, despite any other
provisions of this Plan to the contrary, this Plan shall be
subject to the provisions of this Article XII.
12.2 Vesting Provisions: Each Member who has completed an
Hour of Service after the Plan becomes top-heavy and while the
Plan is top-heavy and who has completed the Vesting Service
specified in the following table shall be vested in his account
under this Plan at least as rapidly as is provided in the
following schedule; except that the vesting provision set forth
in Section 7.4 shall be used at any time in which it provides for
more rapid vesting:
Vesting Service Vested Percentage
Less than 2 years 0%
2 but less than 3 years 20%
3 but less than 4 years 40%
4 but less than 5 years 60%
5 but less than 6 years 80%
6 years or more 100%
If an account becomes vested by reason of the application of the
preceding schedule, it may not thereafter be forfeited by reason
of re-employment after retirement pursuant to a suspension of
benefits provision, by reason of withdrawal of any mandatory
employee contributions to which employer contributions were
keyed, or for any other reason. If the Plan subsequently ceases
to be top-heavy, the preceding schedule shall continue to apply
with respect to any Member who had at least three (3) years of
service (as defined in Treasury Regulation
Section 1.411(a)-8T(b)(3)) as of the close of the last year that
the Plan was top-heavy, except that each Member whose
non-forfeitable percentage of his accrued benefit derived from
Employer Contributions is determined under such amended schedule,
and who has completed at least three (3) years of service with
the Employer, may elect, during the election period, to have the
non-forfeitable percentage of his accrued benefit derived from
Employer Contributions determined without regard to such
amendment if his non-forfeitable percentage under the Plan as
amended is, at any time, less than such percentage determined
without regard to such amendment. For all other Members, the
non-forfeitable percentage of their accounts provided in the
preceding schedule prior to the date the Plan ceases to be top-
heavy shall not be reduced, but future increases in the
non-forfeitable percentage shall be made only in accordance with
Section 7.4.
12.3 Minimum Contribution Percentage: Each Member who is
(i) a Non-Key Employee, as defined in Section 12.8 and
(ii) employed on the last day of the Plan Year will be entitled
to have contributions and forfeitures (if applicable) allocated
to his account of not less than three percent (3%) (the "Minimum
Contribution Percentage") of the Member's Compensation. This
Minimum Contribution Percentage shall be provided without taking
Pre-Tax Contributions into account. A Non-Key Employee may not
fail to receive a Minimum Contribution Percentage because of a
failure to receive a specified minimum amount of compensation or
a failure to make mandatory employee or elective contributions.
This Minimum Contribution Percentage will be reduced for any Plan
Year to the percentage at which Contributions (including
Forfeitures if applicable) are made or are required to be made
under the Plan for the Plan Year for the Key Employee for whom
such percentage is the highest for such Plan Year. For this
purpose, the percentage with respect to a Key Employee will be
determined by dividing the Contributions (including Forfeitures
if applicable) made for such Key Employee by his total
compensation (as defined in Section 415 of the Code) not in
excess of $222,220 for the Plan Year. Such amount will be
adjusted in the same manner as the amount set forth in
Section 12.4 below.
Contributions considered under the first paragraph of
this Section 12.3 will include Employer Contributions under this
Plan and under all other defined contribution plans required to
be included in an Aggregation Group (as defined in Section 12.8
below), but will not include Employer contributions under any
plan required to be included in such aggregation group if the
plan enables a defined benefit plan required to be included in
such group to meet the requirements of the Code prohibiting
discrimination as to contributions in favor of employees who are
officers, shareholders, or the highly compensated or prescribing
the minimum participation standards. If the highest rate
allocated to a Key Employee for a year in which the Plan is top-
heavy is less than three percent (3%), amounts contributed as a
result of a salary reduction agreement must be included in
determining contributions made on behalf of Key Employees.
Contributions considered under this Section will not
include any contributions under the Social Security Act or any
other federal or state law.
12.4 Limitation on Compensation: The annual compensation of
a Member taken into account under this Article XII and under
Section 1.10 for purposes of computing benefits under this Plan
shall not exceed $150,000. Such amount shall be adjusted
automatically for each Plan Year to the amount prescribed by the
Secretary of the Treasury or his delegate pursuant to regulations
for the calendar year in which such Plan Year commences.
12.5 Limitation on Contributions: In the event that the
Company, other Employer or an Affiliate (hereinafter in this
Article collectively referred to as a "Considered Company") also
maintains a defined benefit plan providing benefits on behalf of
Members in this Plan, one of the two following provisions will
apply:
(a) If, for the Plan Year, this would not be a
Top-Heavy Plan if "ninety percent (90%)" were
substituted for "sixty percent (60%)" in Section 12.8,
then the percentage of three percent (3%) used in
Section 12.3 is changed to four percent (4%).
(b) If, for the Plan Year, this Plan would
continue to be a Top-Heavy Plan if "ninety percent
(90%)" were substituted for "sixty percent (60%)" in
Section 12.8, then the denominator of both the defined
contribution plan fraction and the defined benefit plan
fraction shall be calculated as set forth in
Section 5.3(III) for the Limitation Year ending in such
Plan Year by substituting "one (1.0)" for "one and
twenty-five hundredths (1.25)" in each place such
figure appears. This subsection (b) will not apply for
such Plan Year with respect to any individual for whom
there are no (i) Employer contributions, forfeitures or
voluntary non-deductible contributions allocated to
such individual or (ii) accruals earned under the
defined benefit plan. Furthermore, the transitional
rule set forth in Section 415(e)(6)(B)(i) of the Code
shall be applied by substituting "Forty-One Thousand
Five Hundred Dollars ($41,500)" for "Fifty-One Thousand
Eight Hundred Seventy-Five Dollars ($51,875)" where it
appears therein.
12.6 Coordination With Other Plans: In the event that
another defined contribution or defined benefit plan maintained
by a Considered Company provides contributions or benefits on
behalf of Members in this Plan, such other plan shall be treated
as a part of this Plan pursuant to principles prescribed by
applicable U.S. Treasury Regulations or IRS rulings to determine
whether this Plan satisfies the requirements of Sections 12.3,
12.4 and 12.5 and to avoid inappropriate omissions or
inappropriate duplication. If a Member is covered both by a
top-heavy defined benefit plan and a top-heavy defined
contribution plan, a comparability analysis (as prescribed by
Revenue Ruling 81-202 or any successor ruling) shall be performed
in order to establish that the plans are providing benefits at
least equal to the defined benefit minimum. If it becomes
necessary to establish that the plans are providing benefits not
less than the defined benefit minimum, the Employer or Company
shall take appropriate action to cause an adjustment in either or
both of benefits or contributions in order that such minimum
benefits are provided.
12.7 Distributions to Certain Key
Employees: Notwithstanding any other provision of this Plan to
the contrary, the entire interest in this Plan of each Member who
is a five-percent owner (as described in Section 416(i)(1)(A) of
the Code determined with respect to the Plan Year ending in the
calendar year in which such individual attains age 70 1/2) shall
be
distributed to such Member not later than the first day of April
following the calendar year in which such individual attains age
70 1/2.
12.8 Determination of Top-Heavy Status: The Plan will be a
Top-Heavy Plan for any Plan Year if, as of the Determination
Date, the aggregate of the accounts under the Plan (determined as
of the Valuation Date) for Members (including former Members) who
are Key Employees exceeds sixty percent (60%) of the aggregate of
the accounts of all Members, excluding former Key Employees, or
if this Plan is required to be in an Aggregation Group, any such
Plan Year in which such Group is a Top-Heavy Group. In
determining Top-Heavy status, if an individual has not performed
one (1) Hour of Service for any Considered Company at any time
during the five (5) year period ending on the Determination Date,
any accrued benefit for such individual and the aggregate
accounts of such individual shall not be taken into account.
For purposes of this Section, the capitalized words
have the following meanings:
(a) "Aggregation Group" means the group of plans,
if any, that includes both the group of plans required
to be aggregated and the group of plans permitted to be
aggregated. The group of plans required to be
aggregated (the "required aggregation group") includes:
(i) Each plan of a Considered Company
in which a Key Employee is a participant in
the Plan Year containing the Determination
Date, or any of the four (4) preceding Plan
Years, and
(ii) Each other plan, including
collectively bargained plans, of a Considered
Company which, during this period, enables a
plan in which a Key Employee is a participant
to meet the requirements of Section 401(a)(4)
or 410 of the Code.
The group of plans that are permitted to be
aggregated (the "permissive aggregation group")
includes the required aggregation group plus one or
more plans of a Considered Company that are not part of
the required aggregation group and that the Considered
Company certifies as a plan within the permissive
aggregation group. Such plan or plans may be added to
the permissive aggregation group only if, after the
addition, the aggregation group as a whole continues to
satisfy the requirements of Sections 401(a)(4) and 410
of the Code.
(b) "Determination Date" means for any Plan Year
the last day of the immediately preceding Plan Year.
(c) "Key Employee" means any Employee or former
Employee under this Plan who, at any time during the
Plan Year in question or during any of the four
preceding Plan Years, is or was one of the following:
(i) An officer of a Considered Company
having an annual compensation greater than
fifty percent (50%) of the amount in effect
under Section 415(b)(1)(A) of the Code for
any such Plan Year. Whether an individual is
an officer shall be determined by the
Considered Company on the basis of all the
facts and circumstances, such as an
individual's authority, duties, and term of
office, not on the mere fact that the
individual has the title of an officer. For
any such Plan Year, officers considered to be
Key Employees will be no more than the fewer
of:
(A) Fifty (50) employees; or
(B) Ten percent (10%) of the
employees or, if greater than ten
percent (10%), three (3) employees.
For this purpose, the highest paid officers
shall be selected.
(ii) One of the ten (10) Employees
owning (or considered as owning, within the
meaning of the constructive ownership rules
of Section 416(i)(1)(B) of the Code) the
largest interests in the Considered Company.
An employee who has some ownership interest
is considered to be one of the top ten (10)
owners unless at least ten (10) other
employees own a greater interest than that
employee. However, an employee will not be
considered a top ten (10) owner for a Plan
Year if the employee earns less than the
maximum dollar limitation on annual additions
to a Member's account in a defined
contribution plan under the Code, as in
effect for the calendar year in which the
Determination Date falls.
(iii) Any person who owns (or is
considered as owning within the meaning of
the constructive ownership rules of
Section 416(i)(1)(B) of the Code) more than
five percent (5%) of the outstanding stock of
a Considered Company or stock possessing more
than five percent (5%) of the combined voting
power of all stock of the Considered Company.
(iv) Any person who has an annual
compensation from the Considered Company of
more than One Hundred Fifty Thousand Dollars
($150,000) and who owns (or is considered as
owning within the meaning of the constructive
ownership rules of Section 416(i)(1)(B) of
the Code) more than one percent (1%) of the
outstanding stock of the Considered Company
or stock possessing more than one percent
(1%) of the total combined voting power of
all stock of the Considered Company. For
purposes of this subsection, compensation
means all items includable as compensation
for purposes of applying the limitations on
annual additions to a Member's account in a
defined contribution plan and the maximum
benefit payable under a defined benefit plan
under the Code.
For purposes of this subsection (c), a Beneficiary of a
Key Employee shall be treated as a Key Employee. For
purposes of parts (iii) and (iv), each Considered
Company is treated separately in determining ownership
percentages; but all such Considered Companies shall be
considered a single employer in determining the amount
of compensation.
(d) "Non-Key Employee" means any employee (and
any Beneficiary of an employee) who is not a Key
Employee.
(e) "Top-Heavy Group" means the Aggregation
Group, if as of the applicable Determination Date, the
sum of the present value of the cumulative accrued
benefits for Key Employees under all defined benefit
plans included in the Aggregation Group plus the
aggregate of the accounts of Key Employees under all
defined contribution plans included in the Aggregation
Group exceeds sixty percent (60%) of the sum of the
present value of the cumulative accrued benefits for
all employees, excluding former Key Employees as
provided in paragraph (i) below, under all such defined
benefit plans plus the aggregate accounts for all
employees, excluding former Key Employees as provided
in paragraph (i) below, under all such defined
contribution plans. In determining Top-Heavy status,
if an individual has not performed one (1) Hour of
Service for any Considered Company at any time during
the five (5) year period ending on the Determination
Date, any accrued benefit for such individual and the
aggregate accounts of such individual shall not be
taken into account. If the Aggregation Group that is a
Top-Heavy Group is a required aggregation group, each
plan in the group will be a Top-Heavy Plan. If the
Aggregation Group that is a Top-Heavy Group is a
permissive aggregation group, only those plans that are
part of the required aggregation group will be treated
as Top-Heavy Plans. If the Aggregation Group is not a
Top-Heavy Group, no plan within such group will be a
Top-Heavy Plan.
In determining whether this Plan constitutes a
Top-Heavy Plan, the Committee (or its agent) will make
the following adjustments:
(f) When more than one plan is aggregated, the
Committee shall determine separately for each plan as
of each plan's Determination Date the present value of
the accrued benefits (for this purpose using the
actuarial assumptions set forth in the applicable plan
or account balance). The results shall then be
aggregated by adding the results of each plan as of the
Determination Dates for such plans that fall within the
same calendar year.
(g) In determining the present value of the
cumulative accrued benefit (for this purpose using the
actuarial assumptions set forth in the applicable
pension plan) or the amount of the account of any
employee, such present value or account will include
the amount in dollar value of the aggregate
distributions made to such employee under the
applicable plan during the five (5) year period ending
on the Determination Date unless reflected in the value
of the accrued benefit or account balance as of the
most recent Valuation Date. The amounts will include
distributions to employees representing the entire
amount credited to their accounts under the applicable
plan.
(h) Further, in making such determination, such
present value or such account shall include any
rollover contribution (or similar transfer), as
follows:
(i) If the rollover contribution (or
similar transfer) is initiated by the
employee and made to or from a plan
maintained by another Considered Company, the
plan providing the distribution shall include
such distribution in the present value of
such account; the plan accepting the
distribution shall not include such
distribution in the present value of such
account if the plan accepted it after
December 31, 1983.
(ii) If the rollover contribution (or
similar transfer) is not initiated by the
employee or made from a plan maintained by
another Considered Company, the plan
accepting the distribution shall include such
distribution in the present value of such
account, whether the plan accepted the
distribution before or after December 31,
1983; the plan making the distribution shall
not include the distribution in the present
value of such account.
(i) In any case where an individual is a Non-Key
Employee with respect to an applicable plan but was a
Key Employee with respect to such plan for any prior
Plan Year, any accrued benefit and any account of such
employee shall be altogether disregarded. For this
purpose, to the extent that a Key Employee is deemed to
be a Key Employee if he or she met the definition of
Key Employee within any of the four preceding Plan
Years, this provision shall apply following the end of
such period of time.
(j) "Valuation Date" means, for purposes for
determining the present value of an accrued benefit as
of the Determination Date, the date determined as of
the most recent valuation date which is within a twelve
(12) month period ending on the Determination Date.
For the first plan year of a plan, the accrued benefit
for a current employee shall be determined either
(i) as if the individual terminated service as of the
Determination Date or (ii) as if the individual
terminated service as of the valuation date, but taking
into account the estimated accrued benefit as of the
Determination Date. The Valuation Date shall be
determined in accordance with the principles set forth
in Q&A T-25 of Treasury Regulations Section 1.416-1.
(k) For purposes of this Article, "Compensation"
shall have the meaning given to it in
Section 5.3(IV)(5) of the Plan.
ARTICLE XIII
TESTING OF CONTRIBUTIONS
13.1 Definitions: For purposes of this Article XIII,
the capitalized words have the following meanings:
(a) "Compensation" shall have the meaning
given to it in Section 5.3(IV)(5) of the Plan.
(b) "Employer Matching Contributions" shall
mean the amounts contributed to the Trust Fund by
the Employer pursuant to Section 4.2.
(c) "Family Member" shall mean the spouse and
the lineal ascendants and descendants (and spouses
of such ascendants and descendants) of any
Employee or former Employee.
(d) "Highly Compensated Employee" shall mean
any Employee and any employee of an Affiliate who
is a highly compensated employee under
Section 414(q) of the Code, including any Employee
and any employee of an Affiliate who, during the
current Plan Year or prior Plan Year:
(i) was at any time a five percent (5%)
owner; or
(ii) received Compensation (as defined
in Section 5.3(IV)(5)) in excess of $75,000
(or such other amount as determined by the
Secretary of the Treasury which reflects
cost-of-living increases in accordance with
the provisions of Code Section 414(q)(1)); or
(iii) received Compensation (as
defined in Section 5.3(IV)(5)) in excess of
$50,000 (or such other amount as determined
by the Secretary of the Treasury which
reflects cost-of-living increases in
accordance with the provisions of Code
Section 414(q)(1)) and was in the "top-paid
group" (the top twenty percent (20%) of
payroll excluding Employees described in Code
Section 414(q)(8) and applicable regulations)
for the Plan Year; or
(iv) was an officer receiving
Compensation (as defined in
Section 5.3(IV)(5)) exceeding one hundred
fifty percent (150%) of the defined
contribution plan dollar limit in
Section 5.3(IV)(4)(A). The number of
officers shall be limited to fifty (50)
employees (or, if lesser, the greater of
three (3) employees or ten percent (10%) of
the employees).
For purposes of determining whether an
individual is a Highly Compensated Employee for
the current Plan Year, an Employee who meets the
definition of Highly Compensated Employee set
forth in Section 13.1(d) above by virtue of
subparagraph (ii), (iii) or (iv) for the current
Plan Year (but not for the prior Plan Year) shall
not be treated as a Highly Compensated Employee
unless such individual is a member of the group
consisting of the one hundred (100) individuals
who were paid the greatest compensation (as
defined in Section 5.3(IV)(5)).
A former Employee shall be treated as a Highly
Compensated Employee if (1) such former Employee
was a Highly Compensated Employee when he
separated from Service or (2) such former Employee
was a Highly Compensated Employee in Service at
any time after attaining age 55. Any former
Employee who separated from Service before
January 1, 1987 will be treated as a Highly
Compensated Employee only if the former Employee
was a five percent (5%) owner or received
Compensation (as defined in Section 5.3(IV)(5)) in
excess of $50,000 during (i) the Employee's
separation year (or the year preceding such
separation year) or (ii) any year ending on or
after the former Employee's fifty-fifth (55th)
birthday (or the last year ending before his
fifty-fifth (55th) birthday).
(e) "Pre-Tax Contributions" shall mean the
amounts contributed to the Trust Fund out of a
Member's Compensation pursuant to Section 4.1.
13.2 Actual Deferral Percentage: The Actual Deferral
Percentage for a specified group of Employees for a Plan Year
shall be the average of the ratios (calculated separately for
each Employee in such group) of:
(a) The amount of Pre-Tax Contributions
actually paid to the Plan on behalf of each such
Employee for such Plan Year which relate to
Compensation that either would have been received
by the Employee in such Plan Year (but for the
deferral election) or are attributable to services
performed by the Employee in the Plan Year and
would have been received by the Employee within
two and one-half (2 1/2) months after the close of
the Plan Year (but for the deferral election),
over
(b) The Employee's Compensation for such Plan
Year.
The individual ratios and Actual Deferral Percentages shall be
calculated to the nearest one-hundredth (1/100) of one percent
(1%) of an Employee's Compensation.
13.3 Actual Deferral Percentage Limits: The Actual
Deferral Percentage for the eligible Highly Compensated Employees
for any Plan Year shall not exceed the greater of (a) or (b), as
follows:
(a) The Actual Deferral Percentage of
Compensation for the eligible non-Highly
Compensated Employees times 1.25, or
(b) The lesser of (i) the Actual Deferral
Percentage of Compensation for the eligible
non-Highly Compensated Employees times 2.0 or
(ii) the Actual Deferral Percentage of
Compensation for the eligible non-Highly
Compensated Employees plus two (2) percentage
points or such lesser amount as the Secretary of
the Treasury shall prescribe to prevent the
multiple use of this alternative limitation with
respect to any Highly Compensated Employee.
In determining the Actual Deferral Percentage of an
Employee who is a five percent (5%) owner or one of the ten (10)
most Highly Compensated Employees and who has a Family Member who
is an Employee, any remuneration paid to the Family Member for
services rendered to an Employer or an Affiliate and any
contributions made on behalf of or by such Family Member shall be
attributed to such Highly Compensated Employee. Family Members,
with respect to Highly Compensated Employees, shall be
disregarded as separate Employees in determining the Actual
Deferral Percentage both for Members who are non-Highly
Compensated Employees and for Members who are Highly Compensated
Employees.
The Actual Deferral Percentage for any Highly
Compensated Employee who is eligible to have deferred
contributions allocated to his account under one or more plans
described in Section 401(k) of the Code that are maintained by an
Employer or an Affiliate in addition to this Plan shall be
determined as if all such contributions were made to this Plan.
For purposes of determining whether the Actual Deferral
Percentage limits of Section 13.3 are satisfied, all Pre-Tax
Contributions that are made under two or more plans that are
aggregated for purposes of Code Section 401(a)(4) or 410(b)
(other than Code Section 410(b)(2)(A)(ii)) are to be treated as
made under a single plan, and if two or more plans are
permissively aggregated for purposes of Code Section 401(k), the
aggregated plans must also satisfy Code Sections 401(a)(4) and
410(b) as though they were a single plan.
13.4 Reduction of Pre-Tax Contribution Rates by
Leveling Method: If on the basis of the Pre-Tax Contribution
rates elected by Members for any Plan Year, the Committee
determines, in its sole discretion, that neither of the tests
contained in (a) or (b) of Section 13.3 will be satisfied, the
Committee may reduce the Pre-Tax Contribution rate of any Member
who is among the eligible Highly Compensated Employees to the
extent necessary to reduce the overall Actual Deferral Percentage
for eligible Highly Compensated Employees to a level which will
satisfy either (a) or (b) of Section 13.3. The reductions in
Pre-Tax Contribution rates shall be made in a manner so that the
Actual Deferral Percentage of the affected Members who elected
the highest Actual Deferral Percentage shall be first lowered to
the level of the affected Members who elected the next to the
highest Actual Deferral Percentage. If further overall
reductions are required to achieve compliance with (a) or (b) of
Section 13.3, both of the above-described groups of Members will
be lowered to the level of Members with the next highest Actual
Deferral Percentage, and so on, until sufficient total reductions
in Pre-Tax Contribution rates have occurred to achieve compliance
with (a) or (b) of Section 13.3. To the extent practicable, the
Committee shall prospectively limit a Member's Pre-Tax
Contribution rate for the remainder of any Plan Year in which the
Committee determines, based on the Pre-Tax Contribution rates
elected by Members, that neither of the tests contained in
Section 13.3 will be satisfied, and such Member may elect to
receive a distribution as of the end of the Plan Year of any such
excess Pre-Tax Contributions.
13.5 Increase in Pre-Tax Contribution Rates: If a
Member's Pre-Tax Contribution rate is reduced below the level
necessary to satisfy either (a) or (b) of Section 13.3 for the
Plan Year, such Member may be eligible to increase his Pre-Tax
Contribution rate for the remainder of the Plan Year to a level
not in excess of that level which will satisfy the greater of (a)
or (b) of Section 13.3. Such an increase in the Pre-Tax
Contribution rate shall be made by Members on a uniform and
non-discriminatory basis, pursuant to such rules and procedures
as the Committee may prescribe.
13.6 Excess Pre-Tax Contributions: As soon as possible
following the end of the Plan Year, the Committee shall determine
whether either of the tests contained in Section 13.3 was
satisfied as of the end of the Plan Year, and any excess Pre-Tax
Contributions, plus any income and minus any loss attributable
thereto, of those Members who are among the Highly Compensated
Employees shall be distributed to the affected Members.
The amount of any excess Pre-Tax Contributions to be
distributed to a Member shall be reduced by Excess Deferrals
previously distributed to him pursuant to Section 4.1 for the
taxable year ending in the same Plan Year. All excess Pre-Tax
Contributions to be distributed to Members shall be returned to
the Members no later than the last day of the following Plan
Year. The excess Pre-Tax Contributions, if any, of each Member
who is among the Highly Compensated Employees shall be determined
by computing the maximum Actual Deferral Percentage which each
such Member may defer under (a) or (b) of Section 13.3 and then
reducing the Actual Deferral Percentage of some or all of such
Members who elected an Actual Deferral Percentage in excess of
such maximum by an amount of sufficient size to reduce the
overall Actual Deferral Percentage for eligible Members who are
among the Highly Compensated Employees to a level which satisfies
either (a) or (b) of Section 13.3. The excess Pre-Tax
Contributions, if any, of each Member shall be determined in such
a manner that the Actual Deferral Percentage of such Members who
elected the highest Actual Deferral Percentage shall be first
lowered to the level of such Members who elected the next to the
highest Actual Deferral Percentage. If further overall
reductions are required to achieve compliance with (a) or (b) of
Section 13.3, both of the above-described groups of Members will
be lowered to the level of Members with the next highest Actual
Deferral Percentages, and so on, until sufficient total
reductions have occurred to achieve compliance with (a) or (b) of
Section 13.3.
The income or loss attributable to the Member's excess
Pre-Tax Contributions for the Plan Year shall be determined by
multiplying the income or loss attributable to the Member's
Pre-Tax Contribution Account balance for the Plan Year by a
fraction, the numerator of which is the excess Pre-Tax
Contribution and the denominator of which is the Member's total
Pre-Tax Contribution Account balance. Excess Pre-Tax
Contributions shall be treated as Annual Additions under
Section 5.3 of the Plan.
13.7 Aggregation of Family Members in Determining the
Actual Deferral Ratio:
(a) Calculation of Actual Deferral Ratios: If
an eligible Highly Compensated Employee is subject
to the family aggregation rules of
Section 414(q)(6) of the Code because such
Employee is either a five percent (5%) owner of
one of the ten (10) most Highly Compensated
Employees, the combined actual deferral ratio of
this family group (which is treated as one Highly
Compensated Employee) shall be determined by
combining the Pre-Tax Contributions and the
Compensation for all the eligible Family Members.
Pre-Tax Contributions and Compensation of
all Family Members are disregarded for purposes of
determining the Actual Deferral Percentage for the
group of non-Highly Compensated Employees, except
to the extent taken into account in paragraph (a)
above.
(b) Aggregation of Family Groups: If an
Employee is required to be aggregated as a Family
Member of more than one family group, all eligible
Employees who are Family Members of those groups
which include that Employee are aggregated as one
family group in accordance with paragraph (a)
above.
(c) Excess Pre-Tax Contributions of Family
Members: In the event that it becomes necessary
to determine and correct the excess Pre-Tax
Contributions of a Highly Compensated Employee
whose actual deferral ratio is determined under
the rules of Section 414(q)(6) of the Code and
this Section 13.7, the actual deferral ratio
calculated in paragraph (a) above shall be reduced
using the leveling method set forth in
Section 13.4 and the excess Pre-Tax Contributions
to be distributed thereby shall be allocated among
the Family Members in proportion to the Pre-Tax
Contribution of each Family Member that is
combined to determine the actual deferral ratio.
13.8 Contribution Percentage: The Contribution
Percentage for a specified group of Employees for a Plan Year
shall be the average of the ratios (calculated separately for
each Employee in such group) of:
(a) The Employer Matching Contributions paid
under the Plan on behalf of each Employee for such
Plan Year which are made on account of the
Employee's Contributions for the Plan Year are
allocated to the Employee's Employer Contribution
Account during such Plan Year and are paid to the
Trust no later than the end of the next following
Plan Year, to
(b) The Employee's Compensation for such Plan
Year.
To the extent permitted by the Code and applicable regulations,
the Employer may elect to take into account, in computing the
Contribution Percentage, Pre-Tax Contributions made under this
Plan or any other plan of the Employer. A Member's Contribution
Percentage shall be determined after determining the Member's
Excess Deferrals, if any, pursuant to Section 4.1, and after
determining the Member's excess Pre-Tax Contributions pursuant to
Section 13.6.
13.9 Contribution Percentage Limits: The Contribution
Percentage for the eligible Employees for any Plan Year who are
Highly Compensated Employees shall not exceed the greater of (a)
or (b), as follows:
(a) The Contribution Percentage for the
eligible Employees who are not Highly Compensated
Employees times 1.25, or
(b) The lesser of (i) the Contribution
Percentage for the eligible Employees who are not
Highly Compensated Employees times 2.0 or (ii) the
Contribution Percentage for the eligible Employees
who are not Highly Compensated Employees plus two
(2) percentage points or such lesser amount as the
Secretary of the Treasury shall prescribe to
prevent the multiple use of this alternative
limitation with respect to any Highly Compensated
Employee.
In determining the Contribution Percentage of an Employee who is
a five percent (5%) owner or one of the ten (10) most Highly
Compensated Employees and who has a Family Member who is an
Employee, any remuneration paid to the Family Member for services
rendered to an Employer or to an Affiliate and any contributions
made on behalf of or by such Family Member shall be attributed to
such Highly Compensated Employee. Family Members, with respect to
Highly Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for
Members who are non-Highly Compensated Employees and for Members
who are Highly Compensated Employees.
The Contribution Percentage for any Highly Compensated
Employee for any Plan Year who is eligible to have Matching
Employer Contributions made on his behalf under one or more plans
described in Section 401(a) of the Code that are maintained by an
Employer or an Affiliate in addition to this Plan shall be
determined as if all such contributions were made to this Plan.
In the event that this Plan must be combined with one
or more other plans in order to satisfy the requirements of Code
Section 410(b), then the Contribution Percentage shall be
determined as if all such plans were a single plan.
13.10 Treatment of Excess Employer Matching
Contributions: If neither of the tests described in (a) or (b)
of Section 13.9 is satisfied, the excess Employer Matching
Contributions, plus any income and minus any loss attributable
thereto, shall be forfeited, or if not forfeitable, shall be
distributed no later than the last day of the Plan Year following
the Plan Year in which such excess Employer Matching
Contributions were made. The income or loss attributable to the
Member's excess Employer Matching Contributions for the Plan Year
shall be determined by multiplying the income or loss
attributable to the Member's Employer Contribution Account for
the Plan Year by a fraction, the numerator of which is the excess
Employer Matching Contribution, and the denominator of which is
the Member's total Employer Contribution Account balance. Excess
Employer Matching Contributions shall be treated as Annual
Additions under Section 5.3 of the Plan.
The excess Employer Matching Contributions, if any, of
each Member who is among the Highly Compensated Employees shall
be determined by computing the maximum Contribution Percentage
under (a) or (b) of Section 13.9 and then reducing the
Contribution Percentage of some or all of such Members whose
Contribution Percentage exceeds the maximum by an amount of
sufficient size to reduce the overall Contribution Percentage for
eligible Members who are among the Highly Compensated Employees
to a level which satisfies either (a) or (b) of Section 13.9.
The excess Employer Matching Contributions, if any, of each
Member shall be determined in such a manner that the Contribution
Percentage of such Members who have the highest actual
contribution ratio under Section 13.8 shall be first lowered to
the level of such Members with the next to the highest actual
contribution ratio under Section 13.8. If further overall
reductions are required to achieve compliance with (a) or (b) of
Section 13.9, both of the above-described groups of Members will
be lowered to the level of Members with the next highest actual
contribution ratio under Section 13.8, and so on, until
sufficient total reductions have occurred to achieve compliance
with (a) or (b) of Section 13.9. For each Member who is a Highly
Compensated Employee, the amount of excess Employer Matching
Contributions is equal to the total Employer Matching
Contributions on behalf of the Member (determined prior to the
application of this paragraph) minus the amount determined by
multiplying the Member's actual contribution ratio (determined
after application of this paragraph) by his Compensation used in
determining such ratio. For Plan Years which begin after 1988,
the individual ratios and Contribution Percentages shall be
calculated to the nearest one-hundredth (1/100) of one percent
(1%) of the Employee's Compensation, as such term is used in
paragraph (b) of Section 13.9.
13.11 Aggregation of Family Members in Determining the
Actual Contribution Ratio:
(a) Calculation of Actual Contribution
Ratio: If an eligible Highly Compensated Employee
is subject to the family aggregation rules of
Section 414(q)(6) of the Code because such
Employee is either a five percent (5%) owner or
one of the ten (10) most Highly Compensated
Employees, the combined actual contribution ratio
for the family group (which is treated as one
Highly Compensated Employee) shall be determined
by combining the Employer Matching Contributions
and Compensation of all the eligible Family
Members.
The Employer Matching Contributions and
Compensation of all Family Members are disregarded
for purposes of determining the Contribution
Percentage for the group of Highly Compensated
Employees, and the group of non-Highly Compensated
Employees except to the extent taken into account
in paragraph (a) of this Section.
(b) Aggregation of Family Groups: If an
Employee is required to be aggregated as a Family
Member of more than one family group, all eligible
Employees or Family Members of those groups that
include the Employee shall be aggregated as one
family group in accordance with paragraph (a)
above.
(c) Excess Employer Matching Contributions of
Family Members: In the event that it becomes
necessary to determine and correct the excess
Employer Matching Contributions of a Highly
Compensated Employee whose actual contribution
ratio is determined under the rules of Code
Section 414(q)(6) and this Section 13.11, the
actual contribution ratio shall be reduced as
required under Section 13.10 and the excess
Employer Matching Contributions to be forfeited or
distributed thereby should be allocated among the
Family Members in proportion to the Employer
Matching Contributions of each Family Member that
are combined to determine the actual contribution
ratio.
IN WITNESS WHEREOF, Purolator Products Company has
caused these presents to be executed by its duly authorized
officers in a number of copies, all of which shall constitute one
and the same instrument, which may be sufficiently evidenced by
any executed copy thereof, this 13th day of April 1994.
PUROLATOR PRODUCTS COMPANY
By:/s/Roman Boruta
Roman Boruta
Chairman, President and
Chief Executive Officer
ATTEST:
Secretary
[SEAL]
<PAGE>
PUROLATOR PRODUCTS COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
First Amendment
to the
January 1, 1994
Amendment and Restatement
Facet Enterprises, Inc., a Delaware Corporation and
predecessor to Purolator Products Company (the "Company"),
established the Facet Enterprises, Inc. Salaried Employees'
Savings Plan, effective April 1, 1976 (the "Initial Plan"), for
the benefit of its eligible employees.
The Initial Plan, as amended, was amended and restated
effective October 1, 1987 in order: (i) to reflect the sale of
the Company to Pennzoil Company, a Delaware corporation; (ii) to
reflect changes required by the Tax Reform Act of 1986; and
(iii) to incorporate all of the previous amendments to the
Initial Plan.
Effective October 1, 1991, the Initial Plan was
amended, renamed, and restated in the form of the Purolator
Products Company Employees' Retirement Savings Plan (the "Prior
Plan"): (i) to incorporate some of the announced plan changes;
(ii) to comply with the provisions of the Tax Reform Act of
1986; and (iii) to make certain other changes.
Effective as of January 1, 1994, the Board of
Directors of the Company authorized the amendment, restatement
and continuation of the Prior Plan, as amended and in effect on
December 31, 1993, in the form of the Purolator Products Company
Employees' Retirement Savings Plan (the "Plan"), to incorporate
certain announced plan changes.
Effective as of November 4, 1994, Mark IV Acquisition
Corp. ("Acquisition Corp."), a Delaware corporation and a wholly-
owned subsidiary of Mark IV Industries, Inc. ("Mark IV"),
acquired substantially all of the authorized, issued and
outstanding capital stock of the Company pursuant to the terms
of an Agreement and Plan of Merger dated as of October 3, 1994,
between Acquisition Corp., Mark IV and the Company (the "Merger
Agreement"). Pursuant to the terms of the Merger Agreement,
Acquisition Corp. is to be merged with and into the Company and,
upon the effective date of such merger (such effective date
being hereinafter referred to as the "Merger Date"), all the
issued and outstanding common stock of the Company will be
converted into a right to receive cash in an amount equal to
$25.00 per share.
Under the terms of the Plan, Employer Matching
Contributions made to the Accounts of Eligible Members are to be
invested in common stock of the Company. In addition, Plan
Members are permitted to direct that their Pre-Tax
Contributions, and the balances of their Pre-Tax Contribution,
After-Tax Contribution, and Rollover Accounts will be invested
in common stock of the Company. As a result of the merger of
Acquisition Corp. and the Company and the conversion of all
outstanding common stock of the Company to a right to receive
cash, the investment of Plan assets in common stock of the
Company is no longer possible.
The Company desires to continue to provide Plan
Members the opportunity to share in the appreciation in value of
the common stock of the publicly traded corporation for whom the
services of such Plan Members are provided after the Merger
Date.
Accordingly, the Board of Directors of the Company has
authorized the amendment of the Plan: (i) to provide for the
investment of Employer Matching Contributions made after the
Merger Date in common stock of Mark IV; (ii) to provide for the
investment of amounts attributable to Employer Matching
Contributions made prior to the Merger Date in common stock of
Mark IV; (iii) to allow Members to direct that up to twenty
percent (20%) of their Pre-Tax Contributions made after the
Merger Date will be invested in the common stock of Mark IV; and
(iv) to allow Members to direct that up to twenty percent (20%)
of the aggregate balances of their Pre-Tax Contribution, After-
Tax Contribution and Rollover Accounts determined as of the
Merger Date will be invested in the common stock of Mark IV.
NOW, THEREFORE, in order to effect an amendment of the
Plan which will effect the changes to the terms of the Plan
described above, the Company hereby adopts the following
effective as of the Merger Date:
1. The first sentence of Section 4.2 of the Plan is
hereby amended to read as follows:
"4.2 Employer Matching Contributions: For
each Plan Year, each Employer shall make a
Matching Contribution, in common stock, par
value $.01 per share of Mark IV Industries,
Inc. ("Mark IV Stock") or in cash, to the
Trust Fund on behalf of its Eligible Members
in an amount equal to seventy-five percent
(75%) of the first eight percent (8%) of the
total Pre-Tax Contributions elected or
contributed by its Eligible Members during
such Plan Year."
2. The first sentence of Section 5.5 of the Plan is
hereby amended to read as follows:
"5.5 Recognition of Different Investment
Funds: The Committee shall establish, in
addition to the Mark IV Stock Fund, at least
three (3) Investment Funds, and each Member
shall direct, within the limitations set
forth in Section 9.3, what portion of the
balance in his Accounts shall be deposited
in each Investment Fund."
3. The first paragraph of Section 9.2 of the Plan is
hereby amended to read as follows:
"9.2 Investment Funds: The Trustee shall
divide the Trust Fund into four (4) or more
separate investment funds (hereinafter
"Investment Funds") which shall be selected
by the Committee for the investment of
assets held in the Trust Fund pursuant to
the terms of this Plan. Notwithstanding the
foregoing, the Investment Funds selected by
the Committee shall include a Mark IV Stock
Fund, a Short Term Investment Fund and a
Pennzoil Stock Fund, all more particularly
described as follows:"
4. Section 9.2(b) of the Plan is hereby amended to
read as follows:
"(b) Mark IV Stock Fund (Fund P), shall
consist solely of common stock, par value
$.01 per share of Mark IV Industries, Inc.,
a Delaware corporation which owns,
indirectly, all the issued and outstanding
common stock of the Company."
5. Section 9.3 of the Plan is hereby amended to read
as follows:
"9.3 (a) Investment Directions of Members:
By written notice to the Committee in the
manner prescribed by it, each Member may
direct that his or her Pre-Tax Contributions
made after the effective date of the merger
of Mark IV Acquisition Corp. with and into
the Company (hereinafter the "Merger Date")
together with any earnings and accretions
thereon, be invested in such percentages (in
five percent (5%) increments) as he or she
may designate among the Investment Funds
specified by the Committee, provided,
however, that a Member may not direct that
more than twenty percent (20%) of his or her
Pre-Tax Contributions made after the Merger
Date is to be invested in the Mark IV Stock
Fund.
Any Rollover Account transferred to the Plan
by a Member after the Merger Date shall be
invested pursuant to a Member's then-current
investment directions for his Pre-Tax
Contributions. If a Member is not making
Pre-Tax Contributions as of the effective
date of transfer of his or her Rollover
Amount to the Plan, the Member must make a
special investment election for the
investment of his or her Rollover Amount and
the twenty percent (20%) limit on the
investment of Pre-Tax Contributions in the
Mark IV Stock Fund shall apply to the
investment of such Rollover Amount.
Any Member's direction to invest in Fund S
shall be governed by the provisions of
Section 9.2(c) until the direction is
changed by the Member. To the extent that a
Member fails to direct the manner of
investing his Pre-Tax Contributions and/or
Rollover Amount(s) as provided herein, and, to
the extent that a Member has directed that his Pre-Tax
Contributions and/or Rollover Amounts be invested in common stock
of the Company and the Member does not change such investment
direction in writing, such
Member shall be deemed to have elected to
invest only in Fund A.
If a Member makes a loan from his
Account(s), as provided in Section 6.6, the
amount of his outstanding loan balance and
any interest accrued thereon shall be
maintained in a separate Loan Account Fund
for each Member. Loan proceeds shall be
invested pursuant to the provisions of
Section 6.6(g).
(b) Investment of Pre-Tax Contributions,
Rollover Contributions and After-Tax
Contribution Accounts determined as of the
Merger Date. By written notice to the
Committee in the manner prescribed by it,
each Member with a Pre-Tax Contribution
Account, Rollover Account or After-Tax
Contribution Account as of the Merger Date
(each such Account to be referred to as an
"Existing Account") shall direct the manner
in which amount of each such Existing
Accounts is to be invested among the
Investment Funds selected by the Committee
in such percentages (in five percent (5%)
increments) as he or she may designate
provided, however, that a Member shall not
be permitted to direct that more than twenty
percent (20%) of the amount held in any such
Existing Account as of the Merger Date will
be invested in the Mark IV Stock Fund. In the event
that any portion of any Member's Existing Account is attributable
to an investment in common stock of the Company and such Member
does not give directions to the Committee as to the manner in
which such portion of the Member's Existing Accounts is to be
invested, the portion of such Member's Existing Accounts which is
attributable to an investment in common stock of the Company
shall, unless otherwise directed by the Member in writing, be
invested in Fund A.
(c) Investment of Employer Matching
Contributions. Pursuant to the terms of an
Agreement and Plan of Merger dated as of
October 3, 1994 and made by and between Mark
IV Acquisition Corp., Mark IV Industries,
Inc. and the Company, on the Merger Date,
all the issued and outstanding common stock
of the Company will be converted to a right
to receive cash in an amount equal to $25.00
per share. Accordingly, effective on the
Merger Date, any Matching Contributions held
under the terms of the Plan for the benefit
of any Member and attributable to the
portion of such Matching Contributions which
was invested in common stock of the Company
shall be invested by the Trustee in Fund P.
In addition, any Employer Matching
Contributions made on behalf of each Member
on or after the Merger Date shall be
invested solely in the Fund P."
6. The first sentence of Section 9.4 of the Plan is
hereby amended to read as follows:
"9.4 Change of Investment Directors.
Subject to the limitations on the investment
by a Member in the Mark IV Stock Fund as
contained in Section 9.3 hereof, each Member
may, in accordance with procedures
established by the Committee, direct that
the investment of his future Pre-Tax
Contributions or existing Pre-Tax
Contributions, After-Tax Contribution and
Rollover Account Balances, in the aggregate,
be changed among the various authorized
Investment Funds available under Section
9.3."
7. Section 9.8(a) of the Plan is hereby amended to
read as follows:
"(a) Purchase and Sale: The shares of Mark
IV Stock from time to time required to be
purchased for the purposes of the Plan shall
be purchased by the Trustee from such source
and in such manner, as may be directed by
the Committee, in writing, or, in the
absence of such written direction, from such
source and in such manner, as the Trustee,
in its sole discretion, may determine. Any
shares of Mark IV Stock required, from time
to time, to be purchased for purposes of the
Plan may, subject to the provisions of the
preceding sentence, be purchased by the
Trustee in the open market or from Mark IV
Industries, Inc. or the Company and may be
either treasury stock or newly issued stock,
and shall be purchased at a price per share
not in excess of the mean between the
highest and lowest sales price per share of
Mark IV Stock as reported by the New
York Stock Exchange on the day immediately
preceding such purchase or, if there shall
have been no such sales so reported on that
date, on the last preceding date on which
such a sale was so reported.
The shares of Pennzoil Stock and Mark IV
Stock held by the Trustee under the Plan
shall be registered in the name of the
Trustee or its nominee, but shall not be
voted by the Trustee or such nominee except
as provided in this Section 9.8.
In the event that any option, right or
warrant shall be received by the Trustee on
Pennzoil Stock or Mark IV Stock, the Trustee
shall sell the same, at public or private
sale and at such price and upon such other
terms as it may determine, and credit the
proceeds thereof to the respective accounts
of the Members, ratably in accordance with
their interests therein, unless the Trustee
shall determine that such option, right or
warrant should be exercised, in which case
the Trustee shall exercise the same upon
such terms and conditions as it may
determine.
(b) Voting: The Trustee, itself or by its
nominee, shall be entitled to vote, and
shall vote, shares of Mark IV Stock and
Pennzoil stock in the accounts of Members as
follows:
(i) the Company shall adopt reasonable
measures to notify the Member of the date
and purposes of each meeting of stockholders
of the Mark IV Industries, Inc. ("Mark IV")
or of Pennzoil Company ("Pennzoil") at which
holders of shares of Mark IV Stock or
Pennzoil Stock (as applicable) shall be
entitled to vote, and to request
instructions from the Member to the Trustee
as to the voting at such meeting of full
shares of Mark IV Stock or Pennzoil Stock
(as applicable) in the Account(s) of each
Member, whether or not vested.
(ii) In each case, the Trustee, itself or
by proxy, shall vote full shares of Mark IV
Stock or Pennzoil Stock (as applicable) in
such Account(s) of the Member in accordance
with the confidential instructions of the
Member.
(iii) If, five (5) business days prior to
the date of such meeting of stockholders of
the Mark IV or the Pennzoil (as applicable),
the Trustee shall not have received
instructions from the Member with respect to
the manner in which any shares of Mark IV
Stock or Pennzoil Stock (as applicable) in
such Account(s) of the Member are to be
voted, the Trustee shall, vote such shares
in the same proportion, for or against each
issue submitted to the shareholders of Mark
IV or Pennzoil (as applicable) for a vote,
as the vote of the shares of Mark IV Stock
or Pennzoil Stock (as applicable) held for
the benefit of Members in the Plan with
respect to which the Trustee has received
written instructions from the Members as to
the manner in which such shares of Mark IV
Stock or Pennzoil Stock (as applicable) are
to be voted."
8. Section 9.9 of the Plan is hereby amended by
substituting the words "Mark IV Stock" for the words "Company
Stock" and by substituting the words "shareholders of Mark IV"
for the words "shareholders of the Company" wherever they appear
in such Section.
9. Section 10.6 of the Plan is hereby amended to read
as follows:
"10.6 Liquidation and Distribution of Trust
Fund Upon Termination: In the event a
complete or partial termination of the Plan
with respect to any Employer shall occur, a
separation of the Trust Fund with respect to
the affected Members of such Employer shall
be made as of the effective date of such
termination of the Plan in accordance with
the procedure set forth in section 10.2.
Following separation of the Trust Fund with
respect to the Members of any Employer as to
whom the Plan has been terminated, the
assets and properties of the Trust Fund so
set apart, shall, except for Mark IV Stock
and Pennzoil Stock, be reduced to cash as
soon as may be expeditious under the
circumstances. Any administration costs or
expenses incurred incident to the final
liquidation of such separate trust funds
shall be paid by the Employer, except that
in the case of bankruptcy or insolvency of
such Employer any such costs shall be
charged against the Trust Fund. Following
such partial reduction of such Trust Fund to
cash, the Accounts of the Members shall then
be valued as provided in Sections 5.2 and
5.4 and shall be fully vested, whereupon
each such Member shall become entitled to
receive the entire amount in his Account in
cash and/or Mark IV Stock or Pennzoil Stock,
as directed by the Member. The terminating
Employer shall promptly advise the
appropriate District Director or the
Internal Revenue Service of such complete or
partial termination. In the event of a
complete termination of the Plan with
respect to the Company, the provisions of
this Section shall apply to all Members."
IN WITNESS WHEREOF, Purolator Products Company has
executed this Amendment as of the 17th day of November, 1994.
PUROLATOR PRODUCTS COMPANY
By: /s/Frederic L. Cook
Frederic L. Cook
Member of the Employees'
Retirement Savings Plan
Committee
<PAGE>
[LETTERHEAD OF LIPPES, SILVERSTEIN, MATHIAS & WEXLER]
November 17, 1994
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
Re: Mark IV Industries, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Mark IV Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation
and filing of a registration statement of the Company on Form S-8
(the "Registration Statement") under the Securities Act of 1933,
as amended, covering up to 700,000 shares of its common stock,
par value $.01 per share (the "Shares") to be issued pursuant to
the 1992 Stock Option Plan of Purolator Products Company, the
1994 Long-Term Incentive Plan of Purolator Products Company
and the Purolator Products Company Employees' Retirement Savings
Plan (collectively, the "Plans") as such Plans were amended
and/or assumed by the Company in connection with an Agreement and
Plan of Merger dated as of October 3, 1994 among Purolator
Products Company, Mark IV Acquisition Corp. and
the Company.
We have examined copies of the Certificate of Incorporation and
By-Laws of the Company, each as amended to date, and the minutes
of various meetings of the Board of Directors of the Company. We
have examined the Registration Statement, the Plans and the
original or reproduced or certified copies of
such records of the Company, certificates of public officials,
certificates of officers and representatives of
the Company, and such other documents, papers, statutes and
authorities all as we have deemed necessary
to form the basis of the opinion hereinafter expressed. In such
examinations, we have assumed the genuineness of signatures and
the conformity to original documents of the documents supplied to
us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares,
when duly issued pursuant to the terms of
the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement as
the attorneys who have passed upon the legality of the securities
being offered thereby, and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
LIPPES, SILVERSTEIN, MATHIAS & WEXLER
EXHIBIT 23.1
Consent of Independent Public Accountants
We consent to the incorporation by reference in this
Registration Statement of Mark IV Industries,
Inc. on Form S-8 of our report dated March 29, 1994, except as to
the information presented in the first and
second paragraphs of Note 13 and in the first paragraph of Note
14, for which the date is April 8, 1994, on
our audits of the consolidated financial statements and financial
statement schedules of Mark IV Industries,
Inc. as of February 28, 1994 and 1993, and for each of the three
fiscal years in the period ended February 28,
1994, which report is included in the Annual Report on Form 10-K,
as amended by Form 10-K/A Amendment
No. 1 dated June 21, 1994.
COOPERS & LYBRAND
Rochester New York
November 17, 1994
EXHIBT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Mark IV Industries, Inc. Form
S-8 dated November 17, 1994 of our report dated February 11, 1994
on the Purolator Products Company consolidated financial
statements for the year ended December 31, 1993 included in the
Mark IV Industries, Inc. Form 8-K dated November 2, 1994, our
report dated May 31, 1994 included in the Purolator Products
Company Employees' Retirement Savings Plan Form 11-K for the year
ended December 31, 1993 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
November 16, 1994
