<PAGE>
<PAGE> 1
As filed with the Securities and Exchange Commission on January 28, 1997
Registration No. 33-64058
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AIRGAS, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-0732648
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 Matsonford Road, Suite 550
Radnor, Pennsylvania 19087
(Address of Principal Executive Offices)
AIRGAS, INC. 401(k) PLAN
(Full Title of the Plans)
SCOTT M. MELMAN,
VICE PRESIDENT-CHIEF ADMINISTRATIVE OFFICER
AIRGAS, INC.
Five Radnor Corporate Center
100 Matsonford Road, Suite 550
Radnor, Pennsylvania 19087
(Name and address of agent for service)
(610) 687-5253
(Telephone number, including area code, of agent for service)
__________________
Copies to:
NANCY D. WEISBERG, ESQUIRE
McCAUSLAND, KEEN & BUCKMAN
Radnor Court
259 Radnor-Chester Road, Suite 160
Radnor, Pennsylvania 19087-5240
(610) 341-1000
<PAGE>
<PAGE> 2
Introduction
The purpose of this Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8 (the "Registration Statement") of Airgas, Inc., a
Delaware corporation (the "Registrant") is to file as an exhibit to the
Registration Statement the Airgas, Inc. 401(k) Plan, amended and restated
January 1, 1997.
PART II
Information Required in the Registration Statement
Item 8. Exhibits.
4 Airgas, Inc. 401(k) Plan (Amended and Restated January 1, 1997)
5* Opinion of McCausland, Keen & Buckman
23.1* Consent of McCausland, Keen & Buckman (included in Exhibit 5).
23.2* Consent of KPMG Peat Marwick LLP
24* Power of Attorney (see signature page)
The Registrant undertakes that it will submit or has submitted the
Airgas, Inc. 401(k) Plan (Amended and Restated January 1, 1997) (the "Plan")
to the Internal Revenue Service ("IRS") in a timely manner and has or will
make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code of 1986, as amended.
* Previously filed.
<PAGE>
<PAGE> 3
SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
post-effective amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in Delaware County, Pennsylvania, on January 28,
1997.
AIRGAS, INC.
By: /s/ Peter McCausland
_______________________________________
Peter McCausland, Chairman of the Board
and Chief Executive Officer
By: /s/ Jeffrey P. Cornwell
_______________________________________
Jeffrey P. Cornwell, Assistant Vice
President-Corporate Controller (Principal
Financial Officer and Principal Accounting
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated.
Peter McCausland, Chairman of the Board,
Chief Executive Officer and Director*
Frank B. Foster, III, Director*
Erroll C. Sult, Director*
Robert E. Naylor, Jr., Director*
W. Thacher, Brown, Director*
John A. H. Shober, Director*
Merril L. Stott, Director*
_________________________________
* Todd R. Craun, by signing his name hereto, does sign this post-effective
amendment on behalf of each of the indicated directors of the Registrant,
pursuant to powers of attorney executed by each of such directors and filed
with the Securities and Exchange Commission, on the date indicated.
/s/ Todd R. Craun Date: January 28, 1997
_______________________________
Todd R. Craun, Attorney-in-Fact
<PAGE>
<PAGE> 4
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan Administrator has duly caused this post-effective amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Delaware County, Pennsylvania, on January 28, 1997.
AIRGAS, INC. 401(k) PLAN
By: Airgas Management, Inc., Plan Administrator
By: Plan Committee
By: /s/ Scott M. Melman
_____________________________
Scott M. Melman, member of Plan
Committee
<PAGE>
JANUARY 1, 1997)
<PAGE>
<PAGE> EX-1
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
Airgas, Inc. (the "Company") adopted the Airgas, Inc.
401(k) Plan (the "Plan") for the benefit of certain Employees (as
defined in the Plan) of the Company and its affiliates effective
January 1, 1988. The Company amended the Plan from time to time.
The Company's subsidiary, Midwest Carbide Corporation,
adopted the Keokuk Bargaining Unit 401(k) Plan (the "Keokuk
Plan") effective January 1, 1988, for the benefit of certain of
its Employees (as provided therein). The Company provided for
the merger of the Keokuk Plan with and into this Plan effective
as of January 1, 1997.
The Company hereby amends and completely restates the
Plan effective January 1, 1997, except as expressly stated to the
contrary herein, subject to the subsequent condition that the
Internal Revenue Service issues a determination that the Plan
meets all applicable requirements of section 401(a) of the Code
(as defined in subsection 1(f)), that employer contributions
thereto remain deductible under section 404 of the Code and that
the trust fund maintained with respect thereto remains tax exempt
under section 501(a) of the Code. The Plan, as herein amended
and restated, shall apply only to an Employee who is credited
with an Hour of Service (as defined in subsection 1(o)) on or
after January 1, 1997, and to the Accrued Benefit of a former
employee held in the Plan on January 1, 1997.<PAGE>
<PAGE> EX-2
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
TABLE OF CONTENTS
Section
Page
1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . 1
(a) Accrued Benefit . . . . . . . . . . . . . 1
(b) Administrator or Plan Administrator . . . 1
(c) Annual Additions. . . . . . . . . . . . . 1
(d) Board of Directors. . . . . . . . . . . . 1
(e) Break in Service. . . . . . . . . . . . . 1
(f) Code. . . . . . . . . . . . . . . . . . . 1
(g) Committee . . . . . . . . . . . . . . . . 2
(h) Company . . . . . . . . . . . . . . . . . 2
(i) Compensation. . . . . . . . . . . . . . . 2
(j) Employee. . . . . . . . . . . . . . . . . 2
(k) Entry Date. . . . . . . . . . . . . . . . 2
(l) ERISA . . . . . . . . . . . . . . . . . . 3
(m) Fiduciary . . . . . . . . . . . . . . . . 3
(n) Fund. . . . . . . . . . . . . . . . . . . 3
(o) Hour of Service . . . . . . . . . . . . . 3
(p) Investment Category . . . . . . . . . . . 5
(q) Investment Manager. . . . . . . . . . . . 5
(r) Limitation Year . . . . . . . . . . . . . 5
(s) Matching Account. . . . . . . . . . . . . 5
(t) Member. . . . . . . . . . . . . . . . . . 6
(u) Normal Retirement Date. . . . . . . . . . 6
(v) Parent Company Stock. . . . . . . . . . . 6
(w) Participating Company . . . . . . . . . . 6
(x) Payroll Period. . . . . . . . . . . . . . 6
(y) Period of Service . . . . . . . . . . . . 6
(z) Period of Severance . . . . . . . . . . . 6
(aa) Plan. . . . . . . . . . . . . . . . . . . 6
(ab) Plan Year . . . . . . . . . . . . . . . . 7
(ac) Profit Sharing Account. . . . . . . . . . 7
(ad) Related Entity. . . . . . . . . . . . . . 7
(ae) Restatement Effective Date. . . . . . . . 8
(af) Rollover Account. . . . . . . . . . . . . 8
(ag) Salary Reduction Account. . . . . . . . . 8
(ah) Severance Date. . . . . . . . . . . . . . 8
(ai) Trust Agreement . . . . . . . . . . . . . 8
(aj) Trustee . . . . . . . . . . . . . . . . . 8
(ak) Valuation Date. . . . . . . . . . . . . . 9
(al) Year of Service for Eligibility . . . . . 9
<PAGE>
<PAGE> EX-3
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
TABLE OF CONTENTS
Section
Page
2 ADMINISTRATION OF THE PLAN. . . . . . . . . . . . . 10
(a) ERISA Reporting and Disclosure by
Administrator. . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Committee . . . . . . . . . . . . . . . . 10
(c) Multiple Capacities . . . . . . . . . . . 10
(d) Committee Powers. . . . . . . . . . . . . 10
(e) Allocation of Fiduciary Responsibility. . 11
(f) Claims. . . . . . . . . . . . . . . . . . 13
(g) Fiduciary Compensation. . . . . . . . . . 14
(h) Plan Expenses . . . . . . . . . . . . . . 14
(i) Fiduciary Insurance . . . . . . . . . . . 14
(j) Indemnification . . . . . . . . . . . . . 14
3 PARTICIPATION IN THE PLAN . . . . . . . . . . . . . 15
(a) Initial Eligibility . . . . . . . . . . . 15
(b) Measuring Service . . . . . . . . . . . . 16
(c) Termination and Requalification . . . . . 16
(d) Special Rule for Rollovers. . . . . . . . 17
(e) Termination of Membership . . . . . . . . 17
4 MEMBER AND PARTICIPATING COMPANY CONTRIBUTIONS. . . 18
(a) Salary Reduction Contributions. . . . . . 18
(b) Salary Reduction Contribution Limitations 18
(c) Salary Reduction Account. . . . . . . . . 20
(d) Compliance with Salary Reduction
Contributions
Discrimination Tests. . . . . . . . . . 20
(e) Participating Company Matching
Contributions. . . . . . . . . . . . . . . . . . . . . . . . . 24
(f) Matching Account. . . . . . . . . . . . . 24
(g) Compliance with Participating Company
Matching
Contributions Discrimination Tests. . . 25
(h) Profit Sharing Contributions. . . . . . . 28
(i) Profit Sharing Account. . . . . . . . . . 29
(j) Rollovers . . . . . . . . . . . . . . . . 30
(k) Voluntary Contributions . . . . . . . . . 30
(l) Payroll Taxes . . . . . . . . . . . . . . 30
(m) Deductibility . . . . . . . . . . . . . . 30
5 MAXIMUM CONTRIBUTIONS AND BENEFITS. . . . . . . . . 31
(a) Defined Contribution Limitation . . . . . 31
(b) Combined Limitation . . . . . . . . . . . 32
(c) Combined Limitation Computation . . . . . 32
(d) Definition of "Compensation" for Code
Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . 33
(e) Transition Provision. . . . . . . . . . . 35
<PAGE>
<PAGE> EX-4
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
TABLE OF CONTENTS
Section
Page
6 ADMINISTRATION OF FUNDS . . . . . . . . . . . . . . 36
(a) Investment Control. . . . . . . . . . . . 36
(b) Parent Company Stock. . . . . . . . . . . 36
(c) Member Elections. . . . . . . . . . . . . 36
(d) No Member Election. . . . . . . . . . . . 37
(e) Facilitation. . . . . . . . . . . . . . . 37
(f) Valuations. . . . . . . . . . . . . . . . 37
(g) Allocation of Gain or Loss. . . . . . . . 37
(h) Bookkeeping . . . . . . . . . . . . . . . 38
7 BENEFICIARIES AND DEATH BENEFITS. . . . . . . . . . 39
(a) Designation of Beneficiary. . . . . . . . 39
(b) Beneficiary Priority List . . . . . . . . 39
8 BENEFITS FOR MEMBERS. . . . . . . . . . . . . . . . 41
(a) Retirement Benefit. . . . . . . . . . . . 41
(b) Death Benefit . . . . . . . . . . . . . . 41
(c) Termination of Employment Benefit . . . . 41
(d) Vesting . . . . . . . . . . . . . . . . . 41
9 DISTRIBUTION OF BENEFITS. . . . . . . . . . . . . . 42
(a) Commencement. . . . . . . . . . . . . . . 42
(b) Benefit Forms . . . . . . . . . . . . . . 43
(c) Deferred Payments . . . . . . . . . . . . 43
(d) Withholding . . . . . . . . . . . . . . . 43
(e) Compliance with Code Requirements . . . . 44
(f) Distribution Limitations . . . . . . . . 44
(g) Rollover Election . . . . . . . . . . . . 45
10 HARDSHIP AND IN-SERVICE DISTRIBUTIONS . . . . . . . 47
(a) General Rule. . . . . . . . . . . . . . . 47
(b) Need. . . . . . . . . . . . . . . . . . . 47
(c) Satisfaction of Need. . . . . . . . . . . 48
(d) Limitations . . . . . . . . . . . . . . 49
(e) Accounting. . . . . . . . . . . . . . . . 49
<PAGE>
<PAGE> EX-5
AIRGAS, INC. 401(k) PLAN
(Amended and Restated Effective January 1, 1997)
TABLE OF CONTENTS
Section
Page
11 LOANS . . . . . . . . . . . . . . . . . . . . . . . 50
(a) Availability. . . . . . . . . . . . . . . 50
(b) Minimum Requirements. . . . . . . . . . . 50
(c) Accounting. . . . . . . . . . . . . . . . 52
12 TITLE TO ASSETS . . . . . . . . . . . . . . . . . . 53
13 AMENDMENT AND TERMINATION . . . . . . . . . . . . . 54
(a) Amendment . . . . . . . . . . . . . . . . 54
(b) Termination . . . . . . . . . . . . . . . 54
(c) Conduct on Termination. . . . . . . . . . 54
14 LIMITATION OF RIGHTS. . . . . . . . . . . . . . . . 56
(a) Alienation. . . . . . . . . . . . . . . . 56
(b) Qualified Domestic Relations Order
Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(c) Employment. . . . . . . . . . . . . . . . 56
15 MERGERS, CONSOLIDATIONS OR TRANSFERS OF PLAN ASSETS 58
16 PARTICIPATION BY RELATED ENTITIES . . . . . . . . . 59
(a) Commencement. . . . . . . . . . . . . . . 59
(b) Termination . . . . . . . . . . . . . . . 59
(c) Single Plan . . . . . . . . . . . . . . . 59
(d) Delegation of Authority . . . . . . . . . 59
17 TOP-HEAVY REQUIREMENTS. . . . . . . . . . . . . . . 60
(a) General Rule. . . . . . . . . . . . . . . 60
(b) Calculation of Top-Heavy Status . . . . . 60
(c) Definitions . . . . . . . . . . . . . . . 60
(d) Combined Benefit Limitation . . . . . . . 63
(e) Vesting . . . . . . . . . . . . . . . . . 63
(f) Minimum Contribution. . . . . . . . . . . 63
18 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 65
(a) Incapacity. . . . . . . . . . . . . . . . 65
(b) Reversions. . . . . . . . . . . . . . . . 65
(c) Employee Data . . . . . . . . . . . . . . 66
(d) In Writing Requirement. . . . . . . . . . 66
(e) Law Governing . . . . . . . . . . . . . . 66
(f) Pronouns. . . . . . . . . . . . . . . . . 66
(g) Interpretation. . . . . . . . . . . . . . 66
<PAGE>
<PAGE> EX-6
1. DEFINITIONS
(a) "Accrued Benefit" shall mean on any date of
determination the value of a Member's share of the Fund.
(b) "Administrator" or "Plan Administrator" shall
mean the entity, individual or group of individuals designated
pursuant to subsection 2(a) to discharge the statutory
responsibilities of a plan administrator under ERISA. As of the
Restatement Effective Date, the Company is the Plan Administrator
acting directly or through its subsidiary, Airgas Management,
Inc.
(c) "Annual Additions" shall mean the sum for any
Limitation Year of (i) employer contributions, (ii) employee
contributions, (iii) forfeitures and (iv) amounts described in
sections 415(l)(1) and 419A(d)(2) of the Code, which are
allocated to the account of a Member under the terms of a plan
subject to section 415(c) of the Code. "Annual Additions" shall
include excess contributions as defined in section 401(k)(8)(B)
of the Code, excess aggregate contributions as defined in section
401(m)(6)(B) of the Code and excess deferrals as described in
section 402(g) of the Code, regardless of whether such amounts
are distributed or forfeited. "Annual Additions" shall not
include (i) rollover contributions (as defined in sections
402(c), 403(a)(4), 403(b)(8) and 408(d)(3) of the Code) or (ii)
employee contributions to a simplified employee pension plan
which are excludable from gross income under section 408(k)(6) of
the Code.
(d) "Board of Directors" shall mean the Board of
Directors of the Company or any committee or delegee thereof
designated in accordance with subsection 2(e)(ii).
(e) "Break in Service" shall mean for any Employee
any Plan Year in which he is not credited with more than 500
Hours of Service.
(f) "Code" shall mean the Internal Revenue Code of
1986, as amended, and the same as may be further amended from
time to time.
(g) "Committee" shall mean the individual or group of
individuals designated pursuant to subsection 2(b) to control and
manage the operation and administration of the Plan to the extent set
forth herein.
(h) "Company" shall mean Airgas, Inc.
(i) "Compensation" shall mean the total taxable income,
other than bonuses, income from exercise of stock options, expense
reimbursements, tuition reimbursements, car allowances, moving
expenses, employer contributions to the Plan, the value of welfare
benefits or perquisites, or similar items (whether or not includible
in gross income) paid to an Employee for services by a Participating
Company during a Plan Year plus amounts which an Employee elects to
have withheld from his remuneration for services under this Plan or a
plan which meets the requirements of section 125 of the Code.
"Compensation" with respect to any Member for any Plan Year shall be
limited to $150,000 (or an increased amount permitted in accordance
with a cost of living adjustment under section 415(d) of the Code).
<PAGE> EX-7
Notwithstanding the foregoing, "Compensation" for an Employee covered
by the collective bargaining agreement between Midwest Carbide
Corporation and the Oil, Chemical and Atomic Workers International
Union, Keokuk Local No. 6-249, shall mean the Employee's basic hourly
rate of pay for a Pay Period multiplied by the Hours of Service for
which he was paid for such Pay Period.
(j) "Employee" shall mean each and every person
employed by a Participating Company or a Related Entity. The term
"Employee" shall also include a person who is a "leased employee"
(within the meaning of section 414(n)(2) of the Code) with respect to
a Participating Company or a Related Entity except that no person who
is a "leased employee" shall be eligible to participate in this Plan
or be deemed an "Employee" for purposes of eligibility to participate.
(k) "Entry Date" shall mean the first day of each
calendar month of each Plan Year.
(l) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and the same as may be further
amended from time to time.
(m) "Fiduciary" shall mean a person who, with respect
to the Plan, (i) exercises any discretionary authority or
discretionary control respecting management of the Plan or exercises
any authority or control with respect to management or disposition of
the Plan's assets, (ii) renders investment advice for a fee or other
compensation, direct or indirect, with respect to any monies or other
property of the Plan, or has any authority or responsibility to do so,
or (iii) has any discretionary authority or discretionary
responsibility in the administration of the Plan.
(n) "Fund" shall mean the assets of the Plan. All
Investment Categories shall be part of the Fund.
(o) "Hour of Service"
(i) General Rule. "Hour of Service" shall mean
each hour (A) for which an Employee is directly or indirectly paid, or
entitled to payment, by a Participating Company or a Related Entity
for the performance of duties or (B) for which back pay, irrespective
of mitigation of damages, has been either awarded or agreed to by a
Participating Company or a Related Entity. These hours shall be
credited to the Employee for the period or periods in which the duties
were performed or to which the award or agreement pertains
irrespective of when payment is made. The same hours shall not be
credited under both (A) and (B) above.
(ii) Paid Absences. An Employee shall also
be credited with one "Hour of Service" for each hour for which
the Employee is directly or indirectly paid, or entitled to
payment, by a Participating Company or a Related Entity for
reasons other than the performance of duties or absence due to
vacation, holiday, illness, incapacity, disability, layoff, jury
duty or authorized leave of absence for a period not exceeding
one year for any reason in accordance with a uniform policy established
by the Committee; provided, however, not more than 501 "Hours of
Service" shall be credited to an Employee under this subsection
1(o)(ii) on account of any single, continuous period during which
the Employee performs no duties and provided, further, that no
credit shall be given if payment (A) is made or due under a plan
<PAGE> EX-8
maintained solely for the purpose of complying with applicable
worker's compensation, unemployment compensation or disability
insurance laws or (B) is made solely to reimburse an Employee for
medical or medically related expenses incurred by the Employee.
(iii) Military. An Employee shall also be
credited with one "Hour of Service" for each hour during which
the Employee is absent on active duty in the military service of
the United States under leave of absence granted by a
Participating Company or a Related Entity or when required by the
Uniform Services Employment and Reemployment Rights Act of 1994,
section 414(u) of the Code or other law, provided he returns to
employment with a Participating Company or a Related Entity
within 90 days after his release from active duty or within such
longer period during which his right to reemployment is protected
by law.
(iv) Equivalencies. If, for Plan purposes,
an Employee's records are kept on other than an hourly basis as
described above, the Committee, according to uniform rules
applicable to a class of Employees or Members, may apply the
following equivalencies for purposes of crediting "Hours of Service":
Basis Upon Which Records Credit Granted to Individual if
Individual Earns One or More Hours of Service During
are Maintained Period
Shift Actual hours for full shift
Day 10 Hours of Service
Week 45 Hours of Service
Semi-Monthly Payroll Period 95 Hours of Service
Months of Employment 190 Hours of Service<PAGE>
<PAGE> EX-9
(v) Miscellaneous. For purposes of this
subsection 1(o), the regulations issued by the Secretary of Labor
at 29 CFR Section 2530.200b-2(b) and (c) are incorporated by reference.
Nothing herein shall be construed as denying an Employee credit
for an "Hour of Service" if credit is required by separate
federal law.
(p) "Investment Category" shall mean any separate
investment fund which is made available under the terms of the
Plan.
(q) "Investment Manager" shall mean any Fiduciary
(other than a Trustee) who:
(i) has the power to manage, acquire, or
dispose of any asset of the Plan;
(ii) is:
(A) registered as an investment advisor
under the Investment Advisers Act of 1940;
(B) a bank, as defined in that Act; or
(C) an insurance company qualified to
perform services described in subsection 1(q)(i) above under the
laws of more than one state; and
(iii) has acknowledged in writing that he is a
Fiduciary with respect to the Plan.
(r) "Limitation Year" shall mean the consecutive
twelve-month period commencing on January 1st and ending on
December 31st.
(s) "Matching Account" shall mean the portion of
the Member's Accrued Benefit derived from Participating Company
contributions under subsection 4(e) hereof and the corresponding
provisions of the Plan as heretofore effective, adjusted as
provided in subsection 4(f).<PAGE>
<PAGE> EX-10
(t) "Member" shall mean each and every Employee of
a Participating Company who satisfies the requirements for
participation under Section 3 hereof and each other person who
has an Accrued Benefit held under the Plan.
(u) "Normal Retirement Date" shall mean the date
on which a Member attains age 65.
(v) "Parent Company Stock" shall mean Airgas, Inc.
common stock.
(w) "Participating Company" shall mean each
Related Entity with respect to the Company which adopts this Plan
pursuant to Section 16. The term shall also include the Company,
unless the context otherwise requires.
(x) "Payroll Period" shall mean a weekly, bi-
weekly, semi-monthly or monthly pay period or such other standard
pay period of a Participating Company applicable to the class of
Employees of which an individual is a part.
(y) "Period of Service" shall mean the period of
time commencing on the date on which an Employee first is
credited with an Hour of Service or, if applicable, on the date
following a Period of Severance of one year or more on which an
Employee first is credited with an Hour of Service provided he
requalifies for participation under subsection 3(c), and ending
on the next following Severance Date. A Period of Severance of
less than one year shall be included in a Period of Service for
all purposes.
(z) "Period of Severance" shall mean the period of
time commencing on an Employee's Severance Date and ending on the
date on which the Employee first again is credited with an Hour
of Service, exclusive of periods during which an Employee is on
an unpaid leave pursuant to the Family and Medical Leave Act of
1993.
(aa) "Plan" shall mean the Airgas, Inc. 401(k) Plan
as amended and restated as set forth herein effective January 1,
1997, and the same as may be amended from time to time.
(ab) "Plan Year" shall mean the consecutive twelve-
month period commencing on January 1st and ending on December
31st.
(ac) "Profit Sharing Account" shall mean the
portion of the Member's Accrued Benefit derived from
contributions made under subsection 4(h) hereof and the
corresponding provisions of the Plan as heretofore effective,
adjusted as provided in subsection 4(i).
(ad) "Related Entity" shall mean (i) all
corporations which are members with a Participating Company in a
controlled group of corporations within the meaning of section
1563(a) of the Code, determined without regard to sections
1563(a)(4) and (e)(3)(C) of the Code, (ii) all trades or
businesses (whether or not incorporated) which are under common
control with a Participating Company as determined by regulations
promulgated under section 414(c) of the Code, (iii) all trades or
businesses which are members of an affiliated service group with
<PAGE> EX-11
a Participating Company within the meaning of section 414(m) of
the Code and (iv) any entity required to be aggregated with a
Participating Company under regulations prescribed under section
414(o) of the Code (to the extent provided in such regulations);
provided, however, for purposes of Section 5, the definition
shall be modified to substitute the phrase "more than 50%" for
the phrase "at least 80%" each place it appears in section
1563(a)(1) of the Code. Furthermore, for purposes of crediting
Hours of Service for eligibility to participate, employment as a
"leased employee," within the meaning of section 414(n) of the
Code, of a Participating Company or a Related Entity shall be
treated as employment for a Participating Company or a Related
Entity. For purposes of subsections 3(a) and 3(b) governing
Hours of Service for purposes of eligibility to participate, an
entity the stock or assets of which a Participating Company
acquires shall be deemed a "Related Entity" for periods prior to
such acquisition for persons who become Employees incident to
such acquisition. In any other case, an entity is a "Related
Entity" only during those periods in which it is included in a
category described in this subsection.
(ae) "Restatement Effective Date" shall mean
January 1, 1997
(af) "Rollover Account" shall mean the portion of
the Member's Accrued Benefit derived from contributions made
under subsection 4(j)(i) hereof and the corresponding provisions
of the Plan as heretofore effective, adjusted as provided in
subsection 4(j)(ii).
(ag) "Salary Reduction Account" shall mean the
portion of the Member's Accrued Benefit derived from
contributions made under subsection 4(a) hereof and the
corresponding provisions of the Plan as heretofore effective,
adjusted as provided in subsection 4(c).
(ah) "Severance Date" shall mean the earliest of
the date an Employee quits, is discharged (or severed, if later),
retires, dies or otherwise has an absence which causes him to
cease to be an Employee. However, an Employee who terminates
employment to enter the military service of the United States
shall not suffer a Severance Date as of such date provided (i)
such Employee's rights are protected by federal law and (ii) such
Employee returns to employment with a Participating Company or a
Related Entity within the period required by law for preservation
of his rights. Under such circumstances, an Employee shall
receive credit for Hours of Service for his entire period of
absence. If the Employee does not return to employment with a
Participating Company or Related Entity within the time
prescribed by law, then the date he terminated employment shall
be his Severance Date.
(ai) "Trust Agreement" shall mean the agreement or
agreements between the Company and a Trustee under which all or a
portion of the Fund is held.
(aj) "Trustee" shall mean such person, persons or
corporate fiduciary
designated pursuant to subsection 6(a) to manage and control all
or a portion of the Fund pursuant to the terms of the Plan and a
Trust Agreement.
<PAGE> EX-12
(ak) "Valuation Date" shall mean the last day of
each Plan Year and such other dates as the Committee may specify
from time to time. With respect to a Member's Accrued Benefit,
the date of initial investment of new contributions or
liquidation of a Member's investment credited to an Investment
Category for reinvestment or distribution shall be the "Valuation
Date" for purposes of determining the amount of investment,
reinvestment or distribution.
(al) "Year of Service for Eligibility" shall mean a
consecutive twelve-month measuring period specified in the Plan
in which an Employee is credited with 1,000 Hours of Service or
more.<PAGE>
<PAGE> EX-13
2. ADMINISTRATION OF THE PLAN
(a) ERISA Reporting and Disclosure by
Administrator. The Company, through its Board of Directors, may
designate a Plan Administrator. If no individual or group of
individuals is designated or serving, the Company shall be the
Administrator. The Administrator shall file all reports and
distribute to Members and beneficiaries reports and other
information required under ERISA or the Code and perform such
duties as are assigned to the Administrator by the Plan or
delegated to the Administrator by the Committee.
(b) Committee. The Company, through its Board of
Directors, shall designate a Committee which shall have the
authority to control and manage the operation and administration
of the Plan. If the Committee consists of more than two members,
it shall act by majority vote. The Committee may (i) delegate
all or a portion of the responsibilities of controlling and
managing the operation and administration of the Plan to one or
more persons, including the Administrator, and (ii) appoint
agents, investment advisers, counsel, physicians or other
representatives to render advice with regard to any of its
responsibilities under the Plan. The Board of Directors may
remove, with or without cause, the Committee or any Committee
member. The Committee may remove, with or without cause, any
delegate or adviser designated by it.
(c) Multiple Capacities. Any person may serve in
more than one fiduciary capacity.
(d) Committee Powers. The responsibility to
control and manage the operation and administration of the Plan
shall include, but shall not be limited to, the performance of
the following acts:
(i) the filing of all reports required of
the Plan, other than those which are the responsibility of the Administrator;
(ii) the distribution to Members and
beneficiaries of all reports and other information required of
the Plan, other than reports and information required to be
distributed by the Administrator;
(iii) the keeping of complete records of the
administration of the Plan;
(iv) the promulgation of rules and
regulations for administration of the Plan consistent with the
terms and provisions of the Plan and the Trust Agreement; and
(v) the interpretation of the Plan,
including the determination of any questions of fact arising
under the Plan and the making of all decisions required by the
Plan.
The Committee's interpretation of the Plan and any actions and
decisions taken in good faith by the Committee based on its
interpretation shall be final and conclusive. The Committee may
correct any defect, or supply any omission, or reconcile any
inconsistency in the Plan in such manner and to such extent as
shall be expedient to carry the Plan into effect and shall be the
sole judge of such expediency.
<PAGE> EX-14
(e) Allocation of Fiduciary Responsibility. The
Board of Directors, the Administrator, the Committee, each
Trustee and each Investment Manager (if any) possess certain
specified powers, duties, responsibilities and obligations under
the Plan's governing instruments. It is intended under this Plan
that each Fiduciary be responsible solely for the proper exercise
of its own functions and that each not be responsible for any act
or failure to act of another, unless otherwise responsible as a
breach of its fiduciary duty or for breach of duty by another
Fiduciary under ERISA's rules of co-fiduciary responsibility. In
general:
(i) the Board of Directors is responsible
for appointing and removing the Administrator, the Committee,
each Trustee and each Investment Manager (if any); for amending
the Plan, each Trust Agreement, and each asset management
agreement (if any); and transferring the responsibility for any
function from or to a particular Fiduciary;
(ii) the Board of Directors may delegate any
power or duty it has under the Plan or a Trust Agreement,
including, but not limited to, amending the Plan or a Trust
Agreement, to a committee of the Board of Directors, to any
officer or Employee of the Company or a Related Entity or to any
other person or entity, in which case such delegee and not the
Board of Directors, shall be responsible for exercise of the
delegated functions;
(iii) the Committee is the Named Fiduciary
(within the meaning of ERISA) for the Plan and is responsible for
administering the Plan, for adopting such rules and regulations
as in the opinion of the Committee are necessary or advisable to
implement and administer the Plan and to transact its business,
and for providing a procedure for carrying out a funding policy
and method consistent with the objectives of the Plan and the
requirements of Title I of ERISA including, but not limited to,
selecting or establishing Investment Categories for the Plan as
provided for in Section 6, unless the Board of Directors
establishes a funding policy or delegates the responsibility to
establish a funding policy to another Fiduciary;
(iv) the Administrator is responsible for
discharging the statutory duties of a plan administrator under
ERISA and the Code and such duties that the Committee delegates
to the Administrator or the Plan specifically assigns to the
Administrator; and
(v) each Trustee and each Investment Manager
(if any) is responsible for the management and control of the
portion of the Fund over which it has control to the extent
provided in its Trust Agreement or asset management agreement,
respectively.
(f) Claims. If, pursuant to the rules,
regulations or other interpretations of the Plan, the Committee
denies the claim of a Member or beneficiary for benefits under
the Plan, the Committee shall provide written notice, within 90
days after receipt of the claim, setting forth in a manner
calculated to be understood by the claimant:
(i) the specific reasons for such denial;
<PAGE> EX-15
(ii) the specific reference to the Plan
provisions on which the denial is based;
(iii) a description of any additional material
or information necessary to perfect the claim and an explanation
of why such material or information is needed; and
(iv) an explanation of the Plan's claim
review procedure and the time limitations of this subsection
applicable thereto.
A Member or beneficiary whose claim for benefits has been denied
may request review by the Committee of the denied claim by
notifying the Committee in writing within 60 days after receipt
of the notification of claim denial. As part of said review
procedure, the claimant or his authorized representative may
review pertinent documents and submit issues and comments to the
Committee in writing. The Committee shall render its decision to
the claimant in a manner calculated to be understood by the
claimant not later than 60 days after receipt of the request for
review, unless special circumstances require an extension of
time, in which case decision shall be rendered as soon after the
sixty-day period as possible, but not later than 120 days after
receipt of the request for review. The decision on review shall
state the specific reasons therefor and the specific Plan
references on which it is based.<PAGE>
<PAGE> EX-16
(g) Fiduciary Compensation. The Committee or a
Committee member, delegate, or adviser who already receives full-
time pay from a Participating Company or a Related Entity shall
serve without compensation from the Plan for his services as
such, but he shall be reimbursed pursuant to subsection 2(h) for
any reasonable expenses incurred by him in the administration of
the Plan. The Committee or a Committee member, delegate, or
adviser who is not already receiving full-time pay from a
Participating Company may be paid such reasonable compensation as
shall be agreed upon.
(h) Plan Expenses. All expenses of administration
of the Plan shall be paid out of the Fund unless paid by the
Company or a Member. According to uniform rules, the Committee
may charge expenses to a particular Investment Category, a
particular Member's Accrued Benefit or a particular Member if the
Committee determines that such allocation of expense or charge is
desirable for the equitable administration of the Plan.
(i) Fiduciary Insurance. If the Committee so
directs, the Plan shall purchase insurance to cover the Plan from
liability or loss occurring by reason of the act or omission of a
Fiduciary provided such insurance permits recourse by the insurer
against the Fiduciary in the case of a breach of a fiduciary
obligation by such Fiduciary.
(j) Indemnification. The Company shall indemnify
and hold harmless to the maximum extent permitted by its by-laws
each Fiduciary who is an Employee or who is an officer or
director of a Participating Company or any Related Entity from
any claim, damage, loss or expense, including litigation expenses
and attorneys' fees, resulting from such person's service as a
Fiduciary of the Plan provided the claim, damage, loss or expense
does not result from the Fiduciary's gross negligence or
intentional misconduct.<PAGE>
<PAGE> EX-17
3. PARTICIPATION IN THE PLAN
(a) Initial Eligibility
(i) Salary Reduction Contributions. Each and
every Employee of a Participating Company who is not excluded
under subsection 3(a)(iv) shall be eligible to make contributions
under subsection 4(a) as of the first Entry Date after the
Employee first is credited with an Hour of Service.
(ii) Matching Contributions. Each and every
Employee of a Participating Company not excluded under subsection
3(a)(iv) shall be eligible and shall qualify to be allocated
matching contributions for Payroll Periods commencing after the
date such Employee is credited with one Year of Service for
Eligibility.
(iii) Profit Sharing Contributions. Each and
every Employee of a Participating Company not excluded under
subsection 3(a)(iv) shall be eligible to be allocated profit
sharing contributions, if any, made by the Participating Company
which employs him for a Plan Year ending after the date such
Employee is credited with one Year of Service for Eligibility.
(iv) Excluded Employees. Notwithstanding the
foregoing provisions of this subsection,
(A) no Employee whose terms and
conditions of employment are determined by a collective
bargaining agreement between employee representatives and a
Participating Company shall be eligible to participate unless
such collective bargaining agreement provides to the contrary, in
which case such Employee shall be eligible to participate only to
the extent provided in such agreement upon compliance with such
provisions for eligibility and participation as such agreement
shall provide; except that no Employee who has selected, or in
the future selects, a union shall become ineligible during the
period between his selection of the union and the execution of
the first collective bargaining agreement which covers him;
(B) no Employee who is a summer student,
co-operative student or student intern hired on an "as needed" or
temporary basis shall be eligible to participate;
(C) no Employee who is hired as a
temporary or occasional Employee or in a temporary position shall
be eligible to participate;
(D) no Employee who is a non-resident
alien who receives no income from sources within the United
States shall be eligible to participate; and
(E) no person who is an Employee by
reason of the second sentence of subsection 1(j) or any other
person a Participating Company determines is not its Employee
shall be eligible to participate, regardless of whether an
administrative agency or court rules that such person is a
Participating Company's employee for any purpose.
<PAGE> EX-18
(b) Measuring Service. For purposes of measuring
service to satisfy the eligibility provisions of subsections
3(a)(ii) and (iii), the Year of Service for Eligibility
computation period shall begin with the date on which the
Employee first is credited with an Hour of Service; provided,
however, if an Employee is credited with less than 1,000 Hours of
Service in such measuring period, then subsequent measuring
periods shall begin with the January 1st next following the
Employee's date of hire and continue on a Plan Year basis
thereafter.
(c) Termination and Requalification. An Employee
who has satisfied an applicable service requirement of subsection
3(a) and who subsequently becomes ineligible for any reason shall
requalify for participation on the date on which he is next
credited with an Hour of Service in an eligible job
classification under subsection 3(a); provided, however, if the
Employee has a Break in Service with respect to a Plan Year, he
shall not be eligible under subsection 3(a)(ii) or (iii) for
matching contributions or profit sharing contributions until he
again satisfies the service requirement applicable thereto.
(d) Special Rule for Rollovers. An Employee of a
Participating Company who will be eligible to participate in the
Plan after satisfying the service requirement of subsection
3(a)(i) may make a contribution to the Plan under subsection 4(i)
on or after the date he first is credited with an Hour of
Service. An Employee who makes a contribution under subsection
4(i) shall become a Member on the date of his contribution;
however, such individual shall not be considered to be a Member
for purposes of the remainder of Section 4 until he satisfies the
applicable service requirements of subsection 3(a).
(e) Termination of Membership. An Employee who
becomes a Member shall remain a Member as long as he has an
Accrued Benefit held under the Plan.<PAGE>
<PAGE> EX-19
4. MEMBER AND PARTICIPATING COMPANY CONTRIBUTIONS
(a) Salary Reduction Contributions. Each Employee
who becomes eligible to participate under subsection 3(a)(i) may
contribute any even multiple of 1.0% of his Compensation, but not
more than 15% (or such other percentage as may be applicable to a
class of Members covered by a specific collective bargaining
agreement) of his Compensation, for a Payroll Period, as he shall
elect in a manner prescribed by the Committee. The initial
election to contribute may be effective as of the first day of
any calendar month. Such contribution shall be accomplished
through direct reduction of Compensation in each Payroll Period
that the election is in effect. For purposes of the Code, such
contribution shall be deemed to be made by the Member's employer.
A Member may elect to increase, reduce or terminate his
contributions from time to time. All such elections shall be
made in a manner and shall become effective on the date
prescribed therefor by the Committee. Contributions made by
Participating Companies under this subsection shall be made at
such times as the Company determines and shall be allocated to
the Salary Reduction Accounts of the Members from whose
Compensation the contributions were withheld in an amount equal
to the amount withheld.
(b) Salary Reduction Contribution Limitations.
Contributions under subsection 4(a) shall be limited as provided
below:
(i) Exclusion Limit. The maximum amount of
contribution which any Member may make in any calendar year under
subsection 4(a) is $9,500 (or such increased annual amount
resulting from a cost of living adjustment pursuant to sections
402(g)(5) and 415(d)(1) of the Code), reduced by the amount of
elective deferrals by such Member under all other plans,
contracts or arrangements of any Participating Company or Related
Entity. If the contribution under subsection 4(a) for a Member
for any calendar year exceeds $9,500 (or such increased annual
amount resulting from an adjustment described above), the
Committee shall direct the Trustee to distribute the
excess amount (plus any income and minus any loss allocable to
such amount) to the Member not later than the April 15th
following the close of such calendar year. If (A) a Member
participates in another plan which includes a qualified cash or
deferred arrangement, (B) such Member contributes in the
aggregate more than the exclusion limit under this Plan and the
corresponding provisions of the other plan and (C) the Member
notifies the Committee not later than the March 1st following the
close of such calendar year of the portion of the excess the
Member has allocated to this Plan, then the Committee may direct
the Trustee to distribute to the Member not later than April 15th
following the close of such calendar year the excess amount (plus
any income and minus any loss allocable to such amount) which the
Member allocated to this Plan. A Member shall be deemed to have
given the notification described in (C) above if the excess
results from contributions solely to this Plan or plans sponsored
by Related Entities.
(ii) Discrimination Test Limits. The
Committee may limit the maximum amount of contribution for
Members who are "highly compensated employees" (as defined below)
to the extent it determines that such limitation is necessary to
<PAGE> EX-20
keep the Plan in compliance with section 401(a)(4) or section
401(k)(3) of the Code. Any limitation shall be effective for all
Payroll Periods following the announcement of the limitation.
For purposes of Section 4 of the Plan, the term "highly
compensated employee" for a Plan Year shall mean an Employee who
is described in either or both of the following groups:
(A) an Employee who was a 5% owner, as
defined in section 416(i)(1) of the Code, at any time during the
current Plan Year or last preceding Plan Year; or
(B) an Employee who receives
"compensation" (as defined below) in excess of $80,000 (or an
increased amount resulting from a cost of living adjustment)
during the preceding Plan Year and, if the Company elects, was in
the "top-paid group" (as defined below) for the preceding Plan
Year.
For purposes hereof, the following rules and
definitions shall apply:
(C) The "top-paid" group consists of the
top 20% of Employees ranked on the basis of "compensation"
received during the year. For purposes of determining the number
of Employees in the "top-paid" group, Employees described in
section 414(q)(5) of the Code and Q & A 9(b) of section 1.414(q)-
1T of the regulations thereunder are excluded.
(D) "Compensation" is compensation
within the meaning of section 415(c)(3) of the Code and for the
1997 Plan Year also includes elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement
or tax-sheltered annuity under sections 125, 402(e)(B), 402(h)(B)
and 403(b) of the Code.
(E) Employers aggregated under section
414(b), (c), (m), or (o) of the Code are treated as a single
employer.
(c) Salary Reduction Account. Each Member's
salary reduction contributions, as adjusted for investment gain
or loss and income or expense, constitute such Member's Salary
Reduction Account. A Member shall at all times have a
nonforfeitable interest in the portion of his Accrued Benefit
derived from his Salary Reduction Account.
(d) Compliance with Salary Reduction Contributions
Discrimination Tests
(i) Rule. In no event shall the "average
actual deferral percentage" (as defined below) for Members who
are "highly compensated employees" in a testing group for any
Plan Year bear a relationship to the "average actual deferral
percentage" for Members who are not "highly compensated
employees" in such testing group which does not satisfy either
subsection 4(d)(i)(A) or (B) below. The test shall be separately
performed for each testing group. Each group of Members who
participate in the Plan pursuant to a collective bargaining
agreement shall be a separate testing group and all other Members
shall be a separate testing group.
<PAGE> EX-21
(A) The requirement shall be satisfied
for a Plan Year if the "average actual deferral percentage" for
the Plan Year for the group of Members who are "highly
compensated employees" for the Plan Year is not more than the
"average actual deferral percentage" for the preceding Plan Year
of all Members who are not "highly compensated employees" for the
preceding Plan Year multiplied by 1.25.
(B) The requirement shall be satisfied
for a Plan Year if (1) the excess of the "average actual deferral
percentage" for the Plan Year for the Members who are "highly
compensated employees" for the Plan Year over the "average actual
deferral percentage" for the preceding Plan Year of all Members
who are not "highly compensated employees" for the preceding Plan
Year is not more than two percentage points (or such lower amount
as may be required by applicable regulations under the Code) and
(2) the "average actual deferral percentage" for the Plan Year
for Members who are "highly compensated employees" for the Plan
Year is not more than the "average actual deferral percentage"
for the preceding Plan Year of all Members who are not "highly
compensated employees" for the preceding Plan Year multiplied by
two (or such lower multiple as may be required by applicable
regulations under the Code).
(C) The Plan may test using the actual
deferral percentage for non-highly compensated employees for the
current Plan Year rather than the preceding Plan Year if the
Administrator so elects. The Administrator may only revoke such
an election in accordance with rules promulgated by the Secretary
of the Treasury.
(ii) Qualified Nonelective Contributions or
Refunds. If the relationship of the "average actual deferral
percentages" does not satisfy subsection 4(d)(i) for any Plan
Year, the Participating Companies may make "qualified nonelective
contributions" (within the meaning of the regulations promulgated
under section 401(k) of the Code) in an equal dollar amount for
all or a class of eligible "nonhighly compensated employees".
Such contributions shall be treated for all purposes of the Plan
as contributions made by a Member under subsection 4(a) for the
Plan Year for which they are made and shall be a part of the
Member's Salary Reduction Account. If the Participating
Companies do not make such contributions or such contributions do
not result in satisfaction of subsection 4(d)(i), then the
Committee shall direct the Trustee to distribute the "excess
aggregate contribution" (as defined below) for such Plan Year
(plus any income and minus any loss allocable thereto for the
Plan Year in which the contributions were made as determined
under the Plan's method for allocating income and loss) within
twelve months after the close of the Plan Year to the "highly
compensated employees" on the basis of the amount of
contributions attributable to each until the "excess aggregate
contribution" is eliminated. The amount of excess contributions
to be distributed shall be reduced by excess deferrals previously
distributed for the taxable year ending in the same Plan Year and
excess deferrals to be distributed for a taxable year shall be
reduced by excess contributions previously distributed for the
Plan Year beginning in such taxable year.
(iii) Additional Definitions. For purposes of
this subsection 4(d), the term "Member" shall mean each Employee
eligible to make contributions under subsection 4(a) at any time
<PAGE> EX-22
during a Plan Year. The "average actual deferral percentage" for
a specific group of Members for a Plan Year shall be the average
of the "actual deferral percentage" for each Member in the group
for such Plan Year. The "actual deferral percentage" for a
particular Member for a Plan Year shall be the ratio of the
amount of contributions made under subsection 4(a) no later than
twelve months after the close of the relevant Plan Year for such
Member out of amounts that would have been received by him in the
Plan Year but for his election under subsection 4(a) and which
are allocated to the Member on or before the last day of the Plan
Year without regard to participation or performance of services
thereafter to the Member's "compensation" for such Plan Year.
For this purpose, "compensation" means compensation for service
performed for a Participating Company which is currently
includable in gross income or which is excludable from gross
income pursuant to an election under a qualified cash or deferred
arrangement under section 401(k) of the Code or a cafeteria plan
under section 125 of the Code; provided, however, the Company may
elect to limit compensation for all Members to amounts paid
during the portion of the Plan Year during which the Member was
eligible to participate in the Plan or use any definition of
compensation permissible under section 414(s) of the Code and the
regulations thereunder. The "excess aggregate contribution" for
any Plan Year is the excess of the aggregate amount of
contributions paid over to the Fund pursuant to subsection 4(a)
on behalf of "highly compensated employees" for such Plan Year
over the maximum amount of such contributions permitted for
"highly compensated employees" under subsection 4(d)(i).
(iv) Aggregation of Contributions. The
"actual deferral percentage" for any Member who is a "highly
compensated employee" for the Plan Year and who is eligible to
make elective contributions excludable from income under sections
401(k) and 402(a)(8) of the Code to any plan maintained by a
Participating Company or a Related Entity shall be determined as
if all such contributions were made under this Plan.
(v) Aggregation of Plans. In the event that
this Plan satisfies the requirements of section 401(a)(4) or
410(b) of the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
section 401(a)(4) or 410(b) of the Code only if aggregated with
this Plan, then subsection 4(d)(i) shall be applied by
determining the "actual deferral percentages" of Members as if
all such plans were a single plan.
(vi) Testing Alternatives. To the extent
permitted by the Code, the Plan may treat contributions made
under subsection 4(a) as contributions made under subsection
4(e), and vice versa, to facilitate satisfaction of any
applicable nondiscrimination requirement.
(e) Participating Company Matching Contributions
(i) Amount. Each Participating Company
shall contribute with respect to each Member employed by it who
is eligible under subsection 3(a)(ii) an amount equal to the
lesser of (A) 50% of Member's salary reduction contribution for
each Payroll Period commencing after he has completed a Year of
Service for Eligibility or (B) 2% of the Member's Compensation
for such Payroll Period. No Member covered by a collective
<PAGE> EX-23
bargaining agreement shall be eligible for a contribution under
this subsection unless the collective bargaining agreement
covering him so provides. If the Member is eligible, the rate
and amount of matching contributions shall be as provided in the
collective bargaining agreement.
(ii) Payment Date. The Participating
Companies shall pay over to the Fund all contributions required
under this subsection no later than the due date, including
extensions, for filing the Participating Companies' federal
income tax returns for the taxable year ended coincident with or
immediately following the end of the Plan Year with respect to
which such contributions are to be made.
(f) Matching Account. The Participating Company
contributions allocated to a Member under subsection 4(e) and the
corresponding provisions of the Plan as heretofore effective, all
as adjusted for the investment gain or loss and income or
expense, constitute the Member's Matching Account. A Member
shall at all times have a nonforfeitable interest in the portion
of his Accrued Benefit derived from his Matching Account.<PAGE>
<PAGE> EX-24
(g) Compliance with Participating Company Matching
Contributions Discrimination Tests
(i) Rule. In no event shall the "average
actual contribution percentage" (as defined below) for Members
who are "highly compensated employees" for any Plan Year bear a
relationship to the "average actual contribution percentage" for
Members who are not "highly compensated employees" which does not
satisfy either subsection 4(g)(i)(A) or (B) below. The
requirement of this subsection shall not apply to Members who
participate in this Plan pursuant to a collective bargaining
agreement, and any such Members shall be excluded from the
testing group.
(A) The requirement shall be satisfied
for a Plan Year if the "average actual contribution percentage"
for the Plan Year for the group of Members who are "highly
compensated employees" for the Plan Year is not more than the
"average actual contribution percentage" for the preceding Plan
Year of all Members who are not "highly compensated employees"
for the preceding Plan Year multiplied by 1.25.
(B) The requirement shall be satisfied
for a Plan Year if (1) the excess of the "average actual
contribution percentage" for the Plan Year for the Members who
are "highly compensated employees" for the Plan Year over the
"average actual contribution percentage" of all Members who are
not "highly compensated employees" for the preceding Plan Year is
not more than two percentage points (or such lower amount as may
be required by applicable regulations under the Code) and (2) the
"average actual contribution percentage" for the Plan Year for
Members who are "highly compensated employees" for the Plan Year
is not more than the "average actual contribution percentage" for
the preceding Plan Year of all Members who are not "highly
compensated employees" for the preceding Plan Year multiplied by
two (or such lower multiple as may be required by applicable
regulations under the Code).
(C) The Plan may test using the actual
deferral percentage for nonhighly compensated employees for the
current Plan Year rather than the preceding Plan Year if the
Administrator so elects. The Administrator may only revoke such
an election in accordance with rules promulgated by the Secretary
of the Treasury.
(ii) Refund. If the relationship of the
"average actual contribution percentages" does not satisfy
subsection 4(g)(i) for any Plan Year, then the Committee shall
direct the Trustee to distribute the "excess aggregate
contribution" (as defined below) for such Plan Year (plus any
income and minus any loss allocable thereto for the Plan Year in
which the contributions were made as determined under the Plan's
method for allocating income and loss) within twelve months after
the close of the Plan Year to the "highly compensated employees"
on the basis of the amount of contributions attributable to each
until the "excess aggregate contribution" is eliminated.
(iii) Additional Definitions. For purposes of
this subsection 4(g), the term "Member" shall mean each Employee
not covered by a collective bargaining agreement eligible to
receive a matching contribution under subsection 4(e) at any time
<PAGE> EX-25
during a Plan Year. The "average actual contribution percentage"
for a specific group of Members for a Plan Year shall be the
average of the "actual contribution percentage" for each Member
in the group for such Plan Year. The "actual contribution
percentage" for a particular Member for a Plan Year shall be the
ratio of the sum of (A) the amount of contributions made under
subsection 4(e) no later than twelve months after the close of
the Plan Year for such Member which are allocated to the Member
on or before the last day of the Plan Year without regard to
participation or performance of services thereafter, (B) elective
contributions of a nonhighly compensated employee which are
permitted to be treated as matching contributions under
regulations promulgated under section 401(m) of the Code to the
Member's "compensation" for such Plan Year and (C) after tax
employee contributions which are Annual Additions. For this
purpose, "compensation" means compensation for service performed
for a Participating Company which is currently includable in
gross income or which is excludable from gross income pursuant to
an election under a qualified cash or deferred arrangement under
section 401(k) of the Code or a cafeteria plan under section 125
of the Code; provided, however, the Company may elect to limit
compensation for all Members to amounts paid during the portion
of the Plan Year during which the Member was eligible to
participate in the Plan or use any definition of compensation
permissible under section 414(s) of the Code and the regulations
thereunder. The "excess aggregate contribution" for any Plan
Year is the excess of the aggregate amount of matching
contributions paid over to the Fund pursuant to subsection 4(e)
on behalf of "highly compensated employees" for such Plan Year
over the maximum amount of such matching contributions permitted
for "highly compensated employees" under subsection 4(g)(i).
(iv) Aggregation of Contributions. The
"actual contribution percentage" for any Member who is a "highly
compensated employee" for the Plan Year and who is eligible to
make after-tax contributions to any plan subject to section 415
of the Code maintained by a Participating Company or a Related
Entity or to have employer matching contributions within the
meaning of section 401(m)(4)(A) of the Code allocated to his
account under two or more plans described in section 401(a) of
the Code that are maintained by a Participating Company or a
Related Entity shall be determined as if all such contributions
were made under this Plan and each other Plan.
(v) Aggregation of Plans. In the event that
this Plan satisfies the requirements of section 401(a)(4) or
410(b) of the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
section 401(a)(4) or 410(b) of the Code only if aggregated with
this Plan, then subsection 4(g)(i) shall be applied by
determining the "actual contribution percentages" of Members as
if all such plans were a single plan.
(vi) Aggregate Limit -- Multiple Use of
Alternative Limitation. The provisions of section 1.401(m)-2(b)
of the regulations under section 401(m) of the Code are hereby
incorporated by reference. If the limitation thereof is
exceeded, it shall be corrected through reduction of the "actual
contribution percentage" in the manner specified in subsection
4(g)(iii) with respect to "highly compensated employees" eligible
under both subsection 4(a) and subsection 4(e) of the Plan.
<PAGE> EX-26
(vii) Testing Alternatives. To the extent
permitted by the Code, the Plan may treat contributions made
under subsection 4(e) as contributions made under subsection
4(a), and vice versa, to facilitate satisfaction of any
applicable nondiscrimination requirement.
(h) Profit Sharing Contributions
(i) Amount. For each Plan Year each
Participating Company may make contributions to the Fund in such
amounts as the Company, in its absolute discretion, shall
determine; provided, however, the aggregate contribution for a
Plan Year shall not exceed any applicable limitation of Section 4
or 5. The Company shall either (A) designate the payment in
writing to the Trustee as a payment on account of its taxable
year which ends coincident with or next following such Plan Year
or (B) claim such payment as a deduction on its federal income
tax return for such taxable year. The Participating Companies
shall pay the contribution, if any, for a Plan Year on or before
the date (including any extensions thereof) on which they are
required to file their federal income tax returns for the taxable
year which ends coincident with such Plan Year.
(ii) Allocation of Contributions. As of the
last day of each Plan Year, the Committee shall allocate to the
Profit Sharing Account of each eligible Member a portion of the
amount, if any, contributed to the Fund in respect of such Plan
Year by the Participating Company employing him on the last day
of such Plan Year. Eligible Members shall be limited to
Employees who (A) have satisfied the eligibility requirements of
subsection 3(a)(iii), (B) are employed by a Participating Company
on the last day of the Plan Year and (C) are not excluded under
subsection 3(a)(iv). The Committee shall allocate the amount
among eligible Members employed by a contributing Participating
Company on the last day of the Plan Year in the ratio that each
such Member's Compensation for the Plan Year bears to the
Compensation of all eligible Members for such Plan Year.
Notwithstanding the foregoing, the contribution of Sierra Airgas
shall be allocated to Members who were employed by it on both the
first and last day of the Plan Year and who were credited with
1,000 Hours of Service in such Plan Year. Sixty percent of such
contribution shall be allocated in proportion to Compensation, as
described above, and 40% shall be allocated in proportion to
years of service where a Member is credited with one year for
each calendar year, including years prior to the date the Plan
became effective, in which he is credited with 1,000 Hours of
Service.
(iii) Collective Bargaining Units. Notwithstanding
subsections 4(h)(i) and (ii) above, each Participating Company shall
make any formula profit sharing contribution required by a collective
bargaining agreement in accordance with the terms thereof. Such
contribution shall be allocated among Members eligible under the terms
of the applicable collective bargaining agreement as provided therein.
(i) Profit Sharing Account. The Participating Company
contributions allocated to a Member under subsection 4(h) and the
corresponding provisions of the Plan as heretofore effective, all as
adjusted for investment gain or loss and income or expense, constitute
the Member's Profit Sharing Account. A Member shall at all times have
a nonforfeitable interest in the portion of his Accrued Benefit
derived from his Profit Sharing Account.
<PAGE> EX-27
(j) Rollovers
(i) Contributions. Each Employee eligible under
subsection 3(e) and each Member actively employed by a Participating
Company may contribute to the Fund an amount constituting an "eligible
rollover distribution" from a "qualified trust," both within the
meaning of section 402(c)(4) of the Code, from a previous employer's
retirement plan (or an individual retirement account consisting solely
of an "eligible rollover distribution" from a "qualified trust").
(ii) Rollover Account. Each Member's
contributions under subsection 4(j)(i) and the corresponding
provisions of the Plan as heretofore effective, all as adjusted for
investment gain or loss and income or expense, constitute such
Member's Rollover Account. A Member shall at all times have a
nonforfeitable interest in the portion of his Accrued Benefit derived
from his Rollover Account.
(iii) Refunds. If an Employee makes a contribution
under this subsection 4(j) which the Committee subsequently determines
is not eligible for contribution under section 402 of the Code, then
the Committee shall take such corrective action as the Committee
determines is necessary or appropriate under applicable law.
(k) Voluntary Contributions. A Member shall not be
permitted to make contributions to the Plan other than as permitted
under subsection 4(a) or 4(j).
(l) Payroll Taxes. The Participating Companies shall
withhold from the Compensation of the Members and remit to the
appropriate government agencies such payroll taxes and income
withholding as the Company determines is or may be necessary under
applicable statutes or ordinances and the regulations and rulings
thereunder.
(m) Deductibility. All Participating Company
contributions are expressly conditioned upon their deductibility for
federal income tax purposes. Nondeductible contributions shall be
abated and to the extent permitted by applicable law, refunded,
starting with contributions made under subsection 4(h), then 4(e) and
finally 4(a). <PAGE>
<PAGE> EX-28
5. MAXIMUM CONTRIBUTIONS AND BENEFITS
(a) Defined Contribution Limitation. In the event
that the amount allocable to a Member from contributions to the
Fund with respect to any Plan Year would cause the Annual
Additions allocated to any Member under this Plan plus the Annual
Additions allocated to such Member under any other plan
maintained by a Participating Company or a Related Entity to
exceed for any Limitation Year the lesser of (i) $30,000 (or, if
greater, one-fourth of the dollar limitation in effect under
subsection 415(b)(1)(A) of the Code for such Limitation Year) or
(ii) 25% of such Member's compensation (as defined in subsection
5(d)) for such Limitation Year, then such amount allocable to
such Member shall be reduced by the amount of such excess to
determine the actual amount of the contribution allocable to such
Member with respect to such Plan Year. If the excess amount
results from a reasonable error in determining the amount of
contribution that may be made under subsection 4(a) without
violating the limitation of this subsection, then the excess
amount with earnings attributable thereto shall be refunded to
the Member. Otherwise, the excess amount with earnings
attributable thereto allocable to a Member's Accrued Benefit
shall be held in a suspense account and shall be used to reduce
contributions allocable to the Member for the next Limitation
Year (and succeeding Limitation Years as necessary) provided the
Member is covered by the Plan as of the end of the Limitation
Year. However, if the Member is not covered by the Plan as of
the end of the Limitation Year, then the excess amount shall be
held unallocated in a suspense account and shall be allocated,
after adjustment for investment gains or losses, among all
Employees eligible to make contributions under subsection 4(a)
for such Limitation Year as an equal percentage of their
Compensation for such Limitation Year. No excess amount may be
distributed to a Member or former Member.<PAGE>
<PAGE> EX-29
(b) Combined Limitation. In addition to the
limitation of subsection 5(a), if a Participating Company or a
Related Entity maintains or maintained a defined benefit plan and
the amount required to be contributed to the Fund with respect to
any Plan Year would cause the aggregate amount allocated to any
Member under all defined contribution plans maintained by any
Participating Company or Related Entity to exceed the maximum
allocation as determined in subsection 5(c), then such amount
required to be contributed with respect to such Member shall be
reduced by the amount of such excess to determine the actual
amount of the contribution with respect to such Member for such
Plan Year. Notwithstanding the foregoing, if an excess amount is
contributed with respect to any Member, then the excess
allocation shall be reallocated or held in a suspense account in
accordance with subsection 5(a). The limitation of this
subsection shall be applied to the Member's benefit from the
defined benefit plan prior to reduction of the Member's Annual
Additions under this Plan.
(c) Combined Limitation Computation. The maximum
allocation is the amount of Annual Additions which may be
allocated to a Member's benefit without permitting the sum of the
defined benefit plan fraction (as hereinafter defined) and the
defined contribution plan fraction (as hereinafter defined) from
exceeding 1.0 for any Limitation Year. The defined benefit plan
fraction applicable to a Member for any Limitation Year is a
fraction, the numerator of which is the projected annual benefit
of the Member under the plan determined as of the close of the
Limitation Year and the denominator of which is the lesser of (i)
the product of 1.25 multiplied by the maximum then permitted
dollar amount of straight life annuity payable under the defined
benefit plan maximum benefit provisions of the Code and (ii) the
product of 1.4 multiplied by the maximum permitted amount of
straight life annuity, based on the Member's compensation,
payable under the defined benefit plan maximum benefit provisions
of the Code. For purposes of this subsection 5(c), a Member's
projected annual benefit is equal to the annual benefit,
expressed in the form of a straight life annuity, to which the
Member would be entitled under the terms of the defined benefit
plan based on the assumptions that (i) the Member will continue
employment until reaching his normal retirement age under the
plan (or current age, if later) at a rate of compensation equal
to that for the Limitation Year under consideration and (ii) all
other relevant factors used to determine benefits under the plan
for the Limitation Year under consideration will remain constant
for future Limitation Years. The defined contribution plan
fraction applicable to a Member for any Limitation Year is a
fraction, the numerator of which is the sum of the Annual
Additions for all Limitation Years allocated to the Member as of
the close of the Limitation Year and the denominator of which is
the sum of the lesser, separately determined for each Limitation
Year of the Member's employment with a Participating Company or
Related Entity, of (i) the product of 1.25 multiplied by the
maximum dollar amount of Annual Additions which could have been
allocated to the Member under the Code for such Limitation Year
and (ii) the product of 1.4 multiplied by the maximum amount,
based on the Member's compensation, of Annual Additions which
could have been allocated to the Member for such Limitation Year.
(d) Definition of "Compensation" for Code
Limitations. For purposes of the limitations on the allocation
<PAGE> EX-30
of Annual Additions to a Member and maximum benefits under a
defined benefit plan as provided for in this Section 5,
"compensation" for a Limitation Year shall mean the sum of
amounts paid by a Participating Company or a Related Entity to
the Member with respect to personal services rendered by the
Member during the Limitation Year plus (i) amounts received by
the Member (A) through accident or health insurance or under an
accident or health plan maintained or contributed to by a
Participating Company or a Related Entity and which are
includable in the gross income of the Member, (B) through a plan
contributed to by a Participating Company or a Related Entity
providing payments in lieu of wages on account of a Member's
permanent and total disability, or (C) as a moving expense
allowance paid by a Participating Company or a Related Entity and
which are not deductible by the Member for federal income tax
purposes; (ii) the value of a non-statutory stock option granted
by a Participating Company or a Related Entity to the Member to
the extent included in the Member's gross income for the taxable
year in which it was granted; and (iii) the value of property
transferred by a Participating Company or a Related Entity to the
Member which is includable in the Member's gross income due to an
election by the Member under section 83(b) of the Code.
"Compensation" shall not include (i) contributions made by a
Participating Company or a Related Entity to a deferred
compensation plan to the extent that, before application of the
limitations of section 415 of the Code to the plan, such
contributions are not includable in the Member's gross income for
the taxable year in which contributed, (ii) Participating Company
or Related Entity contributions made on behalf of a Member to a
simplified employee pension plan to the extent they are
deductible by the Member under section 219(b) of the Code, (iii)
distributions from a deferred compensation plan (except from an
unfunded nonqualified plan when includable in gross income), (iv)
amounts realized from the exercise of a nonqualified stock
option, or when restricted stock (or property) held by a Member
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture, (v) amounts realized from the
sale, exchange or other disposition of stock acquired under a
qualified or incentive stock option, and (vi) other amounts which
receive special tax benefits, such as premiums for group term
life insurance (to the extent excludable from gross income) or
Participating Company or Related Entity contributions towards the
purchase of an annuity contract described in section 403(b) of
the Code. Notwithstanding the foregoing, for Plan Years
beginning after December 31, 1997, elective deferrals as defined
in section 402(g)(3) of the Code and any amount which is
contributed or deferred by a Participating Company at the
election of an Employee and which is not included in gross income
of the Employee by reason of section 125 or 457 of the Code shall
be included in "compensation".
(e) Transition Provision. Notwithstanding the
foregoing provisions of this Section 5, the benefit of a Member
on January 1, 1987 under a defined benefit pension plan shall not
be less than it was on December 31, 1986 by reason of the
reduction in the dollar limit of section 415(b) of the Code which
then became effective. However, amounts in excess of the
limitation by reason of changes in the terms and conditions of a
defined benefit pension plan made after May 5, 1986 shall not be
preserved.<PAGE>
<PAGE> EX-31
6. ADMINISTRATION OF FUNDS
(a) Investment Control. Pursuant to the terms of the
Trust Agreement, the management and control of the assets of the Plan
shall be vested in the Trustee designated from time to time by the
Company through its Board of Directors; provided, however, the Company
through its Board of Directors may appoint one or more Investment
Managers to manage, acquire or dispose of any assets of the Plan. The
Committee shall instruct the Trustee or an Investment Manager to
establish Investment Categories for selection by the Members and may
at any time add to or delete from the Investment Categories.
(b) Parent Company Stock. The Committee shall
establish an Investment Category consisting solely of Parent
Company Stock. All dividends or other distributions with respect
thereto shall be applied to purchase additional Parent Company
Stock. The Trustee may acquire Parent Company Stock from any
source, including the public market, in private transactions,
from the Company's treasury shares or from authorized but
unissued shares. A Member may elect in accordance with
subsection 6(c) that all or a portion of his Accrued Benefit be
applied to purchase Parent Company Stock. A Member shall have
the right to direct the Trustee to vote Parent Company Stock
allocated to him in accordance with procedures established under
the Trust Agreement.
(c) Member Elections. In accordance with rules
established by the Committee, each Member shall have the right to
designate the Investment Category or Categories in which new
contributions allocated to such Member and prior balances are
invested. Any designation or change in designation of Investment
Category shall be made in such manner and be subject to such
frequency limitations as the Committee shall from time to time
specify. The designation or change shall become effective as of
the date specified by the Committee on or after which it is
received. Any election of Investment Category by any Member
shall, on its effective date, cancel any prior election. The
right to elect Investment Categories as set forth herein shall be
the sole and exclusive investment power granted to Members. The
Committee may limit the right of a Member (i) to increase or
decrease his contributions to a particular Investment Category,
(ii) to transfer amounts to or from a particular Investment
Category or (iii) to transfer amounts between particular
Investment Categories, if such limitation is required by the
rules establishing an Investment Category or necessary to
facilitate administration of the Plan. In accordance with
subsection 2(d), the Committee may promulgate separate accounting
and administrative rules to facilitate the establishment or
maintenance of an Investment Category.
(d) No Member Election. If a Member does not make
a written election of Investment Category, the Committee shall
direct that all amounts allocated to such Member be invested in
the Investment Category which, in the opinion of the Committee,
best protects principal.
(e) Facilitation. Notwithstanding any instruction
from any Member for investment of funds in an Investment Category
as provided for herein, the Trustee shall have the right to hold
uninvested or invested in a short-term investment fund any
amounts intended for investment or reinvestment until such time
<PAGE> EX-32
as investment may be made in accordance with the Plan and the
Trust Agreement.
(f) Valuations. The Fund and each Investment
Category shall be valued at fair market value as of each
Valuation Date.
(g) Allocation of Gain or Loss. The Trustee may
maintain accounts for each Member's investment in each Investment
Category. If such separate accounts are not maintained, then any
increase or decrease in the market value of each Investment
Category of the Fund since the preceding Valuation Date, as
computed pursuant to subsection 6(f), and all accrued income or
expense and realized profit or loss shall be added to or deducted
from the account of each Member in the ratio that each Member's
account in such Investment Category at the prior Valuation Date
adjusted on a uniform basis to reflect contributions and
withdrawals during the valuation period bears to the total of all
such adjusted accounts in such Investment Category; provided,
however, such allocation for the first period following the
establishment of an Investment Category shall be made based on
the ratio that the amount allocated to each Member in such
Investment Category in the period bears to the total amount
allocated to such Investment Category in the period.
(h) Bookkeeping. The Committee shall direct that
separate bookkeeping accounts be maintained to reflect each
Member's Salary Reduction Account, elective contributions under
subsection 4(a), Matching Account, Profit Sharing Account and
Rollover Account.<PAGE>
<PAGE> EX-33
7. BENEFICIARIES AND DEATH BENEFITS
(a) Designation of Beneficiary. Each Member shall
have the right to designate one or more beneficiaries and
contingent beneficiaries to receive any benefit to which such
Member may be entitled hereunder in the event of the death of the
Member prior to the complete distribution of such benefit by
filing a written designation with the Committee on the form
prescribed by the Committee. Such Member may thereafter
designate a different beneficiary at any time by filing a new
written designation with the Committee. Notwithstanding the
foregoing, if a married Member designates a beneficiary other
than his spouse, such designation shall not be valid unless the
spouse consents thereto in writing witnessed by a notary public
or authorized representative of the Plan. A spouse's consent
given in accordance with the Committee's rules shall be
irrevocable by the spouse with respect to the beneficiary then
designated by the Member unless the Member makes a new
beneficiary designation. Any written designation shall become
effective only upon its receipt by the Committee or its designee.
If the beneficiary designated pursuant to this subsection dies on
or before the commencement of distribution of benefits and the
Member fails to make a new designation, then his beneficiary
shall be determined pursuant to subsection 7(b). Notwithstanding
the above, to the extent provided in a qualified domestic
relations order (within the meaning of section 414(p) of the
Code) the former spouse of the Member may be treated as the
spouse of the Member for purposes of this subsection, and the
current spouse will not be treated as the Member's spouse for
such purposes.
(b) Beneficiary Priority List. If (i) a Member
omits or fails to designate a beneficiary, (ii) no designated
beneficiary survives the Member or (iii) the Committee determines
that the Member's beneficiary designation is invalid for any
reason, then the death benefits shall be paid to the Member's
surviving spouse, or if the Member is not survived by his spouse,
then to the Member's estate. If the Member's designated
beneficiary dies after the Member but before distribution of
benefits, then the death benefits shall be paid to the
beneficiary's estate.<PAGE>
<PAGE> EX-34
8. BENEFITS FOR MEMBERS
The following are the only post-employment benefits
provided by the Plan:
(a) Retirement Benefit
(i) Valuation. Each Member who retires on
or after his Normal Retirement Date shall be entitled to a
retirement benefit equal to 100% of the Member's Accrued Benefit
on the Valuation Date as of which his Accrued Benefit is
liquidated for distribution. Distribution will be made at the
time and the manner provided by Section 9.
(ii) Late Retirement. A Member who continues
employment beyond his Normal Retirement Date shall continue to
participate in the Plan.
(b) Death Benefit. In the event of the death of a
Member, 100% of the Member's Accrued Benefit on the Valuation
Date after his death as of which his Accrued Benefit is
liquidated for distribution shall constitute his death benefit
and shall be distributed pursuant to Sections 7 and 9 (i) to his
designated beneficiary or (ii) if no designation of beneficiary
is then in effect, to the beneficiary determined pursuant to
subsection 7(b).
(c) Termination of Employment Benefit. In the
event a Member terminates employment with all Participating
Companies and all Related Entities for reasons other than those
covered by subsections 8(a) and 8(b) above, the Member shall be
entitled to receive a benefit equal to 100% of his Accrued
Benefit on the Valuation Date on which his Accrued Benefit is
liquidated for distribution. Distributions shall be made at the
time and in the manner provided by Section 9.
(d) Vesting. A Member shall have a nonforfeitable
right to his Accrued Benefit at all times.<PAGE>
<PAGE> EX-35
9. DISTRIBUTION OF BENEFITS
(a) Commencement
(i) Vested and Retirement Benefits.
Generally, vested and retirement benefits shall be paid as soon
after the Member's termination of employment as is
administratively feasible, but not sooner than 30 days after the
Member receives the notice required by section 1.411(a)-11(c) of
the regulations under section 411(a)(11) of the Code unless the
Member receives written notice that he has a right to a period of
at least 30 days after receipt of the notice to consider whether
or not to elect a distribution and affirmatively elects after
receipt of the notice to accept a distribution rather than elect
the rollover provided for under subsection 9(g). In addition, if
the Member's nonforfeitable Accrued Benefit exceeds $3,500,
distribution of benefits shall not begin unless the Member
consents to such distribution in writing within the 90-day period
ending on the date on which the notice required under section
411(a)(11) of the Code is given. If the Member does not consent
to the distribution, his Accrued Benefit shall be retained in the
Fund. Distribution shall commence as soon as administratively
feasible after the Member's request for distribution or, if
earlier, the date on which the Member is required to receive
distribution under subsection 9(a)(ii). For purposes of the
$3,500 threshold, if the present value of the Accrued Benefit at
the time of any distribution exceeds $3,500, the present value of
the Accrued Benefit at any subsequent time will be deemed to
exceed $3,500.
(ii) Limitation and Required Commencement
Date. In no event other than with the written consent of the
Member shall the payment of benefits commence later than the 60th
day after the close of the Plan Year in which the latest of the
following occurs:
(A) The Member's Normal Retirement Date;
(B) The Member's termination of
employment; or
(C) The tenth anniversary of the year in
which the Member first commenced participation in the Plan.
Furthermore, distribution of benefits must commence on or before
the April 1st of the calendar year following the later of the
calendar year in which the Member attains age 70-1/2 or
retires; provided, however, if a Member is a 5% owner (as defined
in section 416 of the Code) at any time during the five Plan
Years ending in the calendar year in which he attained age 70-
1/2, then distribution of benefits must commence no later than
the April 1st of the calendar year following the calendar year in
which the Member attains age 70-1/2. Distribution required under
the preceding sentence shall be made in one lump sum if the
Member's Severance Date has occurred.
(iii) Death Benefits. The Plan shall pay a
Member's death benefit as soon after such time as the Member's
beneficiary requests, but not later than the December 31st of the
calendar year in which occurs the fifth anniversary of the
Member's death.
<PAGE> EX-36
(b) Benefit Forms. All benefits distributed under
Section 8 shall be paid in one lump sum. If a portion of a
Member's Accrued Benefit is invested in an Investment Category
holding Parent Company Stock, the Member may direct that the
portion of his Accrued Benefit so held be distributed to him in
kind, except that the value of a fractional share shall be
distributed in cash.
(c) Deferred Payments. If the payment of benefits
is to be deferred, the undistributed value of the benefit shall
be retained in the Fund subject to the administrative provisions
of the Plan and the Trust Agreement.
(d) Withholding. All distributions under the Plan
are subject to federal, state and local tax withholding as
required by applicable law as in effect from time to time.
(e) Compliance with Code Requirements. All forms
of benefit distributions and required benefit commencement dates
shall be subject to and in compliance with section 401(a)(9) of
the Code and the regulations thereunder, including the minimum
distribution incidental benefit requirement. Unless the Member
irrevocably elects to the contrary at the time required
distributions under section 401(a)(9) of the Code begin, required
minimum distributions made before the Member's Severance Date
shall be based on the life expectancy of the Member, as
determined under the Code, without recalculation. The provisions
of section 401(a)(9) of the Code and the regulations thereunder,
including proposed regulation sections 1.401(a)(9)-1 and 2, shall
override any provision of the Plan inconsistent therewith.
(f) Distribution Limitations. Amounts contributed
pursuant to subsection 4(a) of the Plan shall not be distributed
earlier than upon occurrence of one of the following events:
(i) The Member's retirement, death, disability or
separation from service (within the meaning of sections 401(a) and (k)
of the Code);
(ii) The termination of the Plan without
establishment or maintenance of another defined contribution plan
(other than an ESOP or SEP);
(iii) The Member's attainment of age 59-1/2 or
suffering hardship;
(iv) The sale or other disposition by a
Participating Company to an unrelated corporation of substantially all
of the assets used in a trade or business, but only with respect to
employees who continue employment with the acquiring corporation and
provided the acquiring corporation does not maintain the Plan after
the disposition; and
(v) The sale or other disposition by a
Participating Company of its interest in a subsidiary to an unrelated
entity but only with respect to employees who continue employment with
the subsidiary and provided the acquiring entity does not maintain the
Plan after the disposition.
<PAGE> EX-37
Subsections 9(f)(ii), (iv) and (v), above, apply only if the
distribution is in the form of a lump sum. Subsections 9(f)(iv) and
(v), above, apply if the transferor corporation continues to maintain
the Plan. This subsection 9(f) shall not be construed as giving a
Member a right to a distribution not otherwise expressly provided for
by another subsection of the Plan.
(g) Rollover Election. Notwithstanding any provision
of the Plan to the contrary that would otherwise limit a
"distributee's" election under this subsection, 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 purposes of this subsection, the definitions
specified below shall apply:
(i) Eligible Rollover Distribution. An eligible
rollover distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an eligible
rollover distribution does not include: 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).
(ii) Eligible Retirement Plan. An eligible
retirement plan is an individual retirement account described in
section 408(a) of the Code, an individual retirement annuity described
in section 408(b) of the Code, an annuity plan described in section
403(a) of the Code, or a qualified trust described in section 401(a)
of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan is
an individual retirement account or an individual retirement annuity.
(iii) Distributee. A distributee includes an
Employee or former Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or former Employee's
spouse 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.
(iv) Direct Rollover. A direct rollover is a
payment by the Plan to the eligible retirement plan specified by the
distributee. <PAGE>
<PAGE> EX-38
10. HARDSHIP AND IN-SERVICE DISTRIBUTIONS
(a) General Rule.
(i) Rollover. A Member may receive an in-
service distribution of all or a portion of his Rollover Account.
(ii) Hardship. A Member shall have the right
to receive an in-service distribution from his Rollover Account
and Salary Reduction Account on account of hardship. A
distribution is on account of hardship only if the distribution
both (A) is made on account of an immediate and heavy financial
need of the Member and (B) is necessary to satisfy such financial
need.
(iii) Age 59-1/2. A Member who has attained
age 59-1/2 may receive an in-service distribution from his
Rollover Account and Salary Reduction Account without regard to
hardship.
(iv) Age 70-1/2. A Member who has attained
age 70-1/2 may receive an in-service distribution of all or any
portion of his Accrued Benefit.
(b) Need. A distribution shall be deemed to be
made on account of an immediate and heavy financial need of the
Member if the distribution is on account of (i) medical expenses
described in section 213(d) of the Code incurred or to be
incurred by the Member, the Member's spouse or any dependent of
the Member (as defined in section 152 of the Code); (ii) purchase
(excluding mortgage payments) of a principal residence for the
Member; (iii) payment of tuition and related educational fees,
including room and board expenses, for the next twelve months of
post-secondary education for the Member, the Member's spouse,
child or any dependent of the Member (as defined in section 152
of the Code); (iv) the need to prevent the eviction of the Member
from his principal residence or foreclosure on the mortgage of
the Member's principal residence; or (v) such other reason as the
Commissioner of Internal Revenue specifies as a deemed immediate
and heavy financial need through the publication of regulations,
revenue rulings, notices or other documents of general
applicability.
(c) Satisfaction of Need. A distribution shall be
deemed to be necessary to satisfy an immediate and heavy
financial need of a Member only if all of the requirements or
conditions set forth below are satisfied or agreed to by the
Member, as appropriate.
(i) Amount. The distribution is not in
excess of the amount of the immediate and heavy financial need of
the Member, which amount shall be deemed to include anticipated
federal, state and local income taxes and penalties.
(ii) Other Sources. The Member has obtained
all distributions, other than hardship distributions, and all
nontaxable loans currently available under all plans subject to
section 415 of the Code maintained by any Participating Company
or Related Entity.
(iii) Suspension. The Member's elective
<PAGE> EX-39
contributions under this Plan and each other deferred
compensation plan (within the meaning of regulations under
section 401(k) of the Code) maintained by a Participating Company
or a Related Entity in which the Member participates shall be
suspended for twelve full calendar months after receipt of the
distribution.
(iv) Contribution Limitation. The Member
does not (and is not permitted to) make elective contributions
under this Plan or any other plan maintained by a Participating
Company or a Related Entity for the year immediately following
the taxable year of the hardship distribution in excess of the
applicable limit under section 402(g) of the Code for such next
taxable year reduced by the amount of the Member's elective
contributions for the taxable year of the hardship distribution.<PAGE>
<PAGE> EX-40
(d) Limitations.
(i) Hardship. Distributions on account of
hardship shall be limited to the sum of (A) the Member's Rollover
Account, (B) the Member's elective contributions under subsection
4(a) and (C) income credited to the Member's Salary Reduction
Account as of December 31, 1988.
(ii) Other Distributions. A Member shall be
permitted only one in-service distribution per Plan Year under
subsection 10(a).
(e) Accounting. A distribution under subsection
10(a)(ii) or (iii) shall be charged first against the Member's
Rollover Account and then against the Member's Salary Reduction
Account. The Committee may prescribe rules with respect to the
order of Investment Category from which the distribution shall be
paid.<PAGE>
<PAGE> EX-41
11. LOANS
(a) Availability. The Committee shall direct that
a bona fide loan be made from the Fund to any Member who requests
the same, provided the Member (i) pays any application or
processing fee which the Committee uniformly charges with respect
to loan requests and (ii) on the date the loan would be disbursed
is employed by a Participating Company or Related Entity or is a
party in interest (as defined in ERISA) with respect to the Plan.
All such loans shall be subject to the requirements of this
Section which shall be deemed to include written rules prescribed
by the Committee from time to time with respect to loans.
Eligibility for and the rules with respect to loans shall be
uniformly applied.
(b) Minimum Requirements. Loans shall be subject
to the following rules:
(i) Principal Amount. The principal amount
of the loan to a Member may not be less than $1,000 and may not
exceed, when added to the outstanding balance of all other loans
to the Member from the Plan, the lesser of (A) $50,000, reduced
by the excess of the highest outstanding balance of loans to the
Member from the Plan during the one-year period ending on the day
before the date on which such loan was made over the outstanding
balance of loans to the Member from the Plan on the date on which
such loan is made or (B) 50% of the Member's nonforfeitable
Accrued Benefit on the date on which the loan is made.
(ii) Maximum Term. The term of the loan may
not exceed five years; however, if the Member uses the loan
proceeds to acquire his principal residence, the term may be
thirty years. If a Member's employment with all Participating
Companies and Related Entities terminates for any reason, the
loan shall be due and payable on the last day of the calendar
quarter following the calendar quarter in which employment
terminated. <PAGE>
<PAGE> EX-42
(iii) Interest Rate. The interest rate shall
be a rate charged by commercial lenders for comparable loans on
the date the loan request is approved, as determined by the
Committee.
(iv) Repayment. The loan shall be repaid
over its term in level installment payments corresponding to the
Member's payroll period. As a condition precedent to approval of
the loan, the Member shall be required to authorize payroll
withholding in the amount of each installment for all periods he
is employed by a Participating Company.
(v) Collateral. The loan shall be secured
by 50% of the Member's nonforfeitable Accrued Benefit.
(vi) Distribution of Accrued Benefit. If the
nonforfeitable portion of a Member's Accrued Benefit is to be
distributed prior to the Member's payment of all principal and
accrued interest due on any loan to such Member, the distribution
shall include as an offset the amount of unpaid principal and
interest due on the loan and the note shall be distributed.
(vii) Notes. All loans shall be evidenced by
a note containing such terms and conditions as the Committee
shall require.
(viii) Multiple Loans. A Member shall be
permitted only one outstanding loan at any time.
(ix) Fees. The Committee may adopt a rule
pursuant to subsections 2(h) and 11(a) of the Plan imposing a
reasonable fee on a Member who borrows under this Section 11 for
processing his loan application, preparing his loan documentation
or administering his loan.
(c) Accounting. The principal amount of any loan
shall be drawn first from the Member's Rollover Account, then
from the Member's Profit Sharing Account, then from the Member's
Matching Account and finally from the Member's Salary Reduction
Account. The Committee may prescribe rules with respect to the
order of Investment Categories from which the distribution shall
be paid. The loan shall be treated as a separate Investment
Category of the borrowing Member. All payments of principal and
interest with respect to such loan shall be credited to the
borrowing Member, with repayment of principal credited to the
Member's Accounts in reverse order from the Accounts withdrawn.
The repayment shall be invested in accordance with the Member's
current election for new contributions.
12. TITLE TO ASSETS
No person or entity shall have any legal or equitable
right or interest in the contributions made by any Participating
Company, or otherwise received into the Fund, or in any assets of
the Fund, except as expressly provided in the Plan.
13. AMENDMENT AND TERMINATION
(a) Amendment. The provisions of this Plan may be
amended by the Board of Directors (or its delegee as authorized
by subsection 2(e)) from time to time and at any time in whole or
in part, provided that no amendment shall be effective unless the
Plan as so amended shall be for the exclusive benefit of the
<PAGE> EX-43
Members and their beneficiaries, and that no amendment shall
operate to deprive any Member of any rights or benefits accrued
to him under the Plan prior to such amendment.
(b) Termination. While it is the Company's
intention to continue the Plan in operation indefinitely, the
Company nevertheless expressly reserves the right by action of
the Board of Directors to terminate the Plan in whole or in part
or discontinue contributions. Any such termination, partial
termination or discontinuance of contributions shall be effected
only upon condition that such action is taken as shall render it
impossible for any part of the corpus of the Fund or the income
therefrom to be used for, or diverted to, purposes other than the
exclusive benefit of the Members and their beneficiaries.
(c) Conduct on Termination. If the Plan is to be
terminated at any time, the Company shall give written notice to
the Trustee which shall thereupon revalue the assets of the Fund
and the accounts of the Members as of the date of termination,
partial termination or discontinuance of contributions and, after
discharging and satisfying any obligations of the Plan, shall
allocate all unallocated assets to the Accrued Benefits of the
Members at the date of termination, partial termination or
discontinuance of contributions in accordance with subsection
6(g). Upon termination, partial termination or discontinuance of
contributions, the Accrued Benefits of Members affected thereby
shall remain fully vested and shall not thereafter be subject to
forfeiture in whole or in part. The Committee shall instruct the
Trustee to continue to control and manage the Fund for the
benefit of Members to whom distributions will be made at the time
and in the manner provided in Section 9. Notwithstanding the
foregoing, incident to a termination or a discontinuance of
contributions, the Company may amend the Plan and the Trust
Agreement to provide for distribution of Accrued Benefits to each
affected Member provided such distribution does not violate any
applicable provision of subsection 9(f) of the Plan or section
401(a) or 401(k) of the Code.<PAGE>
<PAGE> EX-44
14. LIMITATION OF RIGHTS
(a) Alienation. None of the payments, benefits or
rights of any Member shall be subject to any claim of any
creditor of such Member and, in particular, to the fullest extent
permitted by law, shall be free from attachment, garnishment,
trustee's process, or any other legal or equitable process
available to any creditor of such Member. No Member shall have
the right to alienate, anticipate, commute, pledge, encumber or
assign any of the benefits or payments which he may expect to
receive, contingently or otherwise, under this Plan, except the
right to designate a beneficiary or beneficiaries in accordance
with the Plan. This subsection shall not apply to the pledging
of a Member's Accrued Benefit as security for a loan made to such
Member under Section 11.
(b) Qualified Domestic Relations Order Exception.
Subsection 14(a) shall not apply to the creation, assignment or
recognition of a right to any benefit payable with respect to a
Member under a qualified domestic relations order within the
meaning of section 414(p) of the Code. Notwithstanding Sections
8-10, distribution to an alternate payee pursuant to a qualified
domestic relations order shall be made (i) at the time specified
in such order or (ii), if the order permits, as soon after the
Committee approves the order as is administratively feasible
provided such distribution is permitted under applicable
provisions of the Code.
(c) Employment. Neither the establishment of the
Plan, nor any modification thereof, nor the creation of any fund,
trust or account, nor the payment of any benefit shall be
construed as giving any Member or Employee, or any person
whomsoever, any legal or equitable right against any
Participating Company, the Trustee, the Committee, or the
Committee unless such right shall be specifically provided for in
the Trust Agreement or the Plan or conferred by affirmative
action of the Company, the Committee or the Committee in
accordance with the terms and provisions of the Plan or as giving
any Member or Employee the right to be retained in the employ of
any Participating Company. All Members and other Employees shall
remain subject to discharge to the same extent as if the Plan had
never been adopted.<PAGE>
<PAGE> EX-45
15. MERGERS, CONSOLIDATIONS OR TRANSFERS OF PLAN ASSETS
In the case of any Plan merger or Plan consolidation
with, or transfer of assets or liabilities of the Plan to, any
other plan, each Member in the Plan must be entitled to receive a
benefit immediately after the merger, consolidation, or transfer
(if the Plan were then to terminate) which is equal to or greater
than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the
Plan had been terminated).
16. PARTICIPATION BY RELATED ENTITIES
(a) Commencement. Any entity which is a Related
Entity with respect to the Company shall be deemed to adopt this
Plan and the accompanying Trust Agreement unless the Committee
provides otherwise.
(b) Termination. The Company may, by action of
the Board of Directors, determine at any time that any such
Participating Company shall withdraw and establish a separate
plan and fund. The withdrawal shall be effected by a duly
executed instrument delivered to the Trustee instructing the
Trustee to segregate the assets of the Fund allocable to the
Employees of such Participating Company and pay them over to the
separate fund.
(c) Single Plan. The Plan shall at all times be
administered and interpreted as a single plan for the benefit of
the Employees of all Participating Companies.
(d) Delegation of Authority. Each Participating
Company hereby acknowledges that the Company has all the rights
and duties thereof under the Plan and the Trust Agreement,
including the right to amend the same.<PAGE>
<PAGE> EX-46
17. TOP-HEAVY REQUIREMENTS
(a) General Rule. For any Plan Year in which the
Plan is a top-heavy plan or included in a top-heavy group, as
determined under subsection 17(b), the special requirements of
this Section shall apply to Members not covered by a collective
bargaining agreement.
(b) Calculation of Top-Heavy Status. The Plan
shall be a top-heavy plan (if it is not included in an
"aggregation group") or a plan included in a top-heavy group (if
it is included in an "aggregation group") with respect to any
Plan Year if the sum as of the "determination date" of the
"cumulative accounts" of "key employees" for the Plan Year
exceeds 60% of a similar sum determined for all "employees,"
excluding "employees" who were "key employees" in prior Plan
Years only.
(c) Definitions. For purposes of this Section 17,
the following definitions shall apply to be interpreted in
accordance with the provisions of section 416 of the Code and the
regulations thereunder.
(i) "Aggregation Group" shall mean the plans
of a Participating Company or a Related Entity included below
within the following categories:
(A) each such plan in which a "key
employee" is a participant including a terminated plan in which a
"key employee" was a participant within the five-years ending on
the "determination date";
(B) each other such plan which enables
any plan in subsection (A) above to meet the requirements of
section 401(a)(4) or 410 of the Code; and
(C) each other plan not required to be
included in the "aggregation group" which the Company elects to
include in the "aggregation group" in accordance with the
"permissive aggregation group" rules of the Code if such group
would continue to meet the requirements of sections 401(a) and
410 of the Code with such plan being taken into account.
(ii) "Cumulative Account" for any "employee"
shall mean the sum of the amount of his accounts under this Plan
plus all defined contribution plans included in the "aggregation
group" (if any) as of the most recent valuation date for each
such plan within a twelve-month period ending on the
"determination date," increased by any contributions due after
such valuation date and before the "determination date" plus the
present value of his accrued benefit under all defined benefit
pension plans included in the "aggregation group" (if any) as of
the "determination date." For a defined benefit plan, the
present value of the accrued benefit as of any particular
"determination date" shall be the amount determined under (A) the
method, if any, that uniformly applies for accrual purposes under
all plans maintained by the Participating Companies and all
Related Entities, or (B) if there is no such method, as if such
benefit accrued not more rapidly than under the slowest accrual
rate permitted under the fractional accrual rule of section
411(b)(1)(C) of the Code, as of the most recent valuation date
<PAGE> EX-47
for the defined benefit plan, under actuarial equivalent factors
specified therein, which is within a twelve-month period ending
on the "determination date." For this purpose, the valuation
date shall be the date for computing plan costs for purposes of
determining the minimum funding requirement under section 412 of
the Code. "Cumulative accounts" of "employees" who have not
performed services for any Participating Company or a Related
Entity for the five-year period ending on the "determination
date" shall be disregarded. An "employee's" "cumulative account"
shall be increased by the aggregate distributions during the
five-year period ending on the "determination date" made with
respect to him under any plan in the aggregation group.
Rollovers and direct plan-to-plan transfers to this Plan or to a
plan in the "aggregation group" shall be included in an
"employee's" "cumulative account" unless the transfer is
initiated by the "employee" and made from a plan maintained by an
employer which is not a Participating Company or a Related
Entity.
(iii) "Determination Date" shall mean with
respect to any Plan Year the last day of the preceding Plan Year.
(iv) "Employee" shall mean any person
(including a beneficiary thereof) who has or had an accrued
benefit held under this Plan or a plan in the "aggregation group"
including this Plan at any time during the current or any one of
the four preceding Plan Years. Any "employee" other than a "key
employee" described in subsection 17(c)(v) shall be considered a
"non-key employee" for purposes of this Section 17.
(v) "Key Employee" shall mean any "employee"
or former "employee" (including a beneficiary thereof) who is, at
any time during the Plan Year, or was, during any one of the four
preceding Plan Years any one or more of the following:
(A) an officer of a Participating
Company or a Related Entity whose compensation (as defined in
subsection 5(d)) exceeds 50% of the dollar limitation in effect
under section 415(b)(1)(A) of the Code, unless 50 other such
officers (or, if lesser, a number of such officers equal to the
greater of three or 10% of the "employees") have higher annual
compensation;
(B) one of the ten persons employed by a
Participating Company or a Related Entity both having annual
compensation (as defined in subsection 5(d)) greater than the
limitation in effect under section 415(c)(1)(A) of the Code, and
owning (or considered as owning within the meaning of section 318
of the Code) the largest interests (but at least more than a 0.5%
interest) in the Participating Companies and all Related
Entities. For purposes of this subsection (B), if two
"employees" have the same interest, the one with the greater
compensation shall be treated as owning the larger interest;
(C) any person owning (or considered as
owning within the meaning of section 318 of the Code) more than
5% of the outstanding stock of all Participating Companies or
Related Entities or stock possessing more than 5% of the total
combined voting power of such stock;
(D) a person who would be described in
<PAGE> EX-48
subsection (C) above if 1% were substituted for 5% each place the
same appears in subsection (C) above, and who has annual
compensation of more than $150,000.
For purposes of determining ownership under this subsection,
section 318(a)(2)(C) of the Code shall be applied by substituting
5% for 50%.
(d) Combined Benefit Limitation. For purposes of
the calculation of the combined limitation of subsection 5(c),
"1.0" shall be substituted for "1.25" each place the same appears
in that subsection.
(e) Vesting. The Member's Accrued Benefit shall
be nonforfeitable.
(f) Minimum Contribution. Minimum Participating
Company contributions for a Member who is not a "key employee"
shall be required in an amount equal to the lesser of 3% of
compensation (as defined in subsection 5(d)) or the highest
percentage of such compensation limited to $150,000 (or an
increased amount resulting from a cost of living adjustment under
section 415(d) of the Code) contributed for any "key employee"
under subsections 4(a) and 4(d). For purposes of meeting the
minimum contribution requirement, employer social security
contributions and elective contributions on behalf of "employees"
other than "key employees" shall be disregarded. Each "non-key
employee" of a Participating Company who has not separated from
service at the end of the Plan Year and who has satisfied the
eligibility requirements of subsection 3(a) shall receive any
minimum contribution provided under this Section 17 without
regard to (i) whether he is credited with 1,000 Hours of Service
in the Plan Year, (ii) earnings level for the Plan Year or (iii)
whether he elects to make contributions under subsection 4(a).
If an "employee" participates in both this Plan and another
defined contribution plan maintained by a Participating Company
or a Related Entity, the minimum benefit shall be provided under
the other plan. Furthermore, if an "employee" participates in
both this Plan and a defined benefit plan maintained by a
Participating Company or a Related Entity, the minimum benefit
shall be provided under the defined benefit plan.<PAGE>
<PAGE> EX-49
18. MISCELLANEOUS
(a) Incapacity. If the Committee receives a copy
of a certified court order, or other binding legal certification,
that a person entitled to receive any benefit payment is under a
legal disability or is incapacitated in any way so as to be
unable to manage his financial affairs, the Administrator shall
direct that payments be made to such person's legally appointed
guardian or other representative. Any payment of a benefit in
accordance with the provisions of this subsection shall be a
complete discharge of any liability to make such payment.
(b) Reversions. In no event, except as provided
herein, shall the Trustee return to a Participating Company any
amount contributed by it to the Plan.
(i) Mistake of Fact. In the case of a
contribution made by a good faith mistake of fact, the Trustee
shall return the erroneous portion of the contribution, without
increase for investment earnings, but with decrease for
investment losses, if any, within one year after payment of the
contribution to the Fund.
(ii) Deductibility. To the extent deduction
of any contribution determined by the Company to be deductible is
disallowed, the Trustee shall return that portion of the
contribution, without increase for investment earnings but with
decrease for investment losses, if any, for which deduction has
been disallowed within one year after the disallowance of the
deduction.
(iii) Limitation. No return of contribution
shall be made under this subsection which adversely affects the
Plan's qualified status under regulations, rulings or other published
positions of the Internal Revenue Service or reduces a Member's Accrued
Benefit below the amount it would have been had such contributions not been
made.
(iv) Compliance Refunds. This subsection
shall not preclude refunds made in accordance with subsection
4(b)(i), 4(d)(ii), 4(f)(ii) or 4(j)(iii).
(c) Employee Data. The Committee, the Trustee or
the Administrator may require that each Employee provide such
data as it deems necessary upon his becoming a Member in the
Plan. Each Employee, upon becoming a Member, shall be deemed to
have approved of and to have acquiesced in each and every
provision of the Plan for himself, his personal representatives,
distributees, legatees, assigns, and beneficiaries.
(d) In Writing Requirement. Unless otherwise
required by law, a requirement that a transaction or consent
under the Plan be "in writing" may, at the discretion of the Plan
Administrator, be effected through an interactive telephone
system or by other types of electronic communication.
(e) Law Governing. This Plan shall be construed,
administered and applied in a manner consistent with the laws of
the Commonwealth of Pennsylvania where those laws are not
superseded by federal law.
<PAGE> EX-50
(f) Pronouns. The use of the masculine pronoun
shall be extended to include the feminine gender wherever
appropriate.
(g) Interpretation. The Plan is a profit sharing
plan including a qualified, tax exempt trust under sections
401(a) and 501(a) of the Code and a qualified cash
or deferred arrangement under section 401(k)(2) of the Code. The
Plan shall be interpreted in a manner consistent with its satisfaction of all
requirements of the Code applicable to such a plan.
IN WITNESS WHEREOF, and as evidence of the adoption of
this Plan by the Company, it has caused the same to be signed by
its officers thereunto duly authorized, and its corporate seal to
be affixed hereto, this 27th day of January, 1997.
AIRGAS, INC.
Attest:
/s/ Todd R. Craun By: /s/ Scott M.Melman
____________________________ ________________________________
Secretary Vice President of Administration
(Corporate Seal)
<PAGE>
