Exhibit 4(e)
THE BP AMERICA
PARTNERSHIP SAVINGS PLAN
(Amended and Restated Effective as of January 1, 1994)
February 1996 Plan No. 032
PREAMBLE
The Internal Revenue Service (IRS) issued a favorable
determination letter dated February 5, 1996 with regard to the
Plan, provided that certain proposed amendments reviewed by the
IRS are adopted and made effective as of January 1, 1994 or other
dates as required by law. All such required amendments have been
incorporated into the Plan as amended and restated herein.
AMENDMENT TO
BP AMERICA PARTNERSHIP SAVINGS PLAN
PLAN 032
WHEREAS, BP America Inc. (the "Company") maintains the BP America
Partnership Savings Plan (the "Plan");
WHEREAS, pursuant to Article XIII of the Plan, the Company has
the authority to amend the Plan, subject to its provisions;
NOW THEREFORE, Section 14.5, Merger, Consolidation or Transfer of
Plan Assets is hereby amended by addition of the following
paragraph:
Effective June 1, 1998, a Participant who no longer
contributes to the Plan, and who has an account under the BP
America Capital Accumulation Plan ("CAP") to which the
Participant is currently eligible to make contributions, or
to which the Participant made contributions immediately
prior to terminating employment or retiring, may voluntarily
elect to irrevocably transfer the balance of his accounts in
the Plan to CAP. This voluntary election will be made
available within sixty days of the Participant becoming
eligible for such transfer or at any time thereafter.
The Plan remains otherwise without change.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan this 15th day of December, 1998.
BP AMERICA INC.
By
William E. Boswell
Plan Administrator
AMENDMENT TO
BP AMERICA PARTNERSHIP SAVINGS PLAN
Plan No. 032
WHEREAS, BP America Inc. (the "Company"), desires to amend
the BP America Partnership Savings Plan (the "Plan") to implement
certain changes to the Investment Funds established and
maintained under the terms of the Plan and to clarify certain
terms used in the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Appendix B, Investment Funds, is hereby amended as
follows:
a. Effective July 1, 1997, the following descriptions of
two new investment funds available to Participants are added
to Appendix B:
The Wellesley Income Fund is a mutual fund that seeks
to provide a high level of income, long-term growth of
income and moderate long-term growth of capital. The
fund's assets are divided between bonds and common
stocks. It is offered and managed by the Vanguard
Group.
The Index Trust - Small Capitalization Stock Portfolio
("Small Cap Portfolio") is a mutual fund that holds
stocks of small U. S. companies, seeking to provide the
long-term investment growth of small-sized companies
with results that parallel the performance of the
unmanaged Russell 2000 Small Stock Index. The Small
Cap Portfolio is offered and managed by the Vanguard
Group.
b. Effective July 1, 1997, The Quantitative Fund has been
renamed "The Growth and Income Portfolio."
c. Effective October 1, 1997, The Fixed Income Fund has
been renamed "The Income Fund."
2. In order to clarify the Company's long-standing
practice and intent with regard to calculation of the Matching
Contributions, Section 3.3 is hereby amended to read as follows:
3.3 Matching Contributions. Subject to the provisions
of Section 3.4, as soon as practicable after the last day of
each Plan Year quarter, the Employer shall pay to the
Trustee as a Matching Contribution for investment as soon as
practicable in the Company Stock Fund an amount that is
equal to 50 percent of the sum (limited separately for each
payroll period) of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of,
or by, each Participant during such Plan Year quarter;
provided, however, that no Matching Contributions made with
respect to a year on behalf of a Participant shall exceed
the limitations set forth in Article IV.
3. To clarify the Company's long-standing practice and
intent, the definition of "Employee" in Section 1. I (I 9) is
hereby amended by addition of the following:
Further, the term "Employee" shall not include a person who
is a resident or nonresident alien of the United States and
who performs services under an expatriate or temporary duty
policy of the Company or an Affiliate.
4. To clarify the Company's long-standing practice and
intent with regard to the timing for restoration of account
balances upon reemployment, Section 9.5 is hereby
9.5 Buy-Back and Restoration of Forfeited Amounts: If a
Participant terminates service and is entitled to receive
the value of his vested account balance, any nonvested
portion of the account balance will be treated as a
forfeiture. A Participant who so incurs a forfeiture of
Matching Contributions and is subsequently reemployed within
seven years of his Severance Date shall have such forfeited
amount restored to his separate Accounts, along with
interest credited at the Income Fund rate of return over the
period of the forfeiture, and invested in accordance with a
new investment election. However, if such a Participant has
received a distribution of part or all of his account, he
must repay, in cash, the full amount of such distribution on
or before his final repayment date and such forfeited amount
shall be restored to his Separate Accounts and invested in
accordance with a new investment election. In this case, no
interest shall be accrued on such forfeited amount from the
time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his
Separate Accounts which results in a forfeiture of Matching
Contributions may repay in cash the amount of such
withdrawal on or before his final repayment date, and it
shall be restored to his Separate Accounts in accordance
with a new investment election. Any restoration of Matching
Contributions shall be made from a special Company
contribution which shall not constitute an Annual Addition
within the meaning of Section 4A. For purposes of repaying
the distribution amount the "final repayment date" shall be
five years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects a
withdrawal, his "final repayment date" shall be five years
after the date of such withdrawal.
IN WITNESS WHEREOF, the Company has adopted this amendment
through its appropriate procedures this 19th day of December,
1997.
BP AMERICA INC.
By
Steven W. Percy
Chief Executive Officer
By
William E. Boswell
Plan Administrator
AMENDMENT TO
THE PARTNERSHIP SAVINGS PLAN
THIS AMENDMENT to the Partnership Plan (the "Plan") made by BP
America Inc. (the "Company"), effective April 1, 1996;
WITNESSETH THAT:
Section 11. 8(a) is hereby amended in the entirety to read as
follows:
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company. In
addition to the provisions of Section 9.4, the Company may
determine that such costs and expenses shall be paid from
assets of the Plan, to the extent available; provided,
however, that such payments shall not reduce the amounts
already allocated to the Separate Account of any Participant
or the earnings already accrued on any such Separate
Account.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the day and year first above written.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
AMENDMENT TO THE
BP AMERICA PARTNERSHIP SAVINGS PLAN
THIS AMENDMENT to the BP America Partnership Savings Plan (the
"Plan") made by BP America Inc. (the "Company");
WITNESSETH THAT.
In order to clarify the Company's long-standing practice and
intent, particularly with regard to eligibility under the Plan
and responsibilities of the Plan Administrator, the definition of
"Employee" in Section 1.1(19) is hereby amended by addition of
the following:
The term "Employee" shall not include any individual
retained by the Employer directly or through an agency to
perform services for the Company or an Affiliate (for either
a definite or indefinite duration) in the capacity of a fee-
for-service worker or independent contractor or any similar
capacity including, without limitation, any such individual
who is or has been determined by a government entity, court,
arbitrator or other third party to be an employee of the
Company or an Affiliate for any purpose including tax
withholding, employment tax, employment law or for purposes
of any other employee benefit plan of the Company or an
Affiliate. For this purpose, the term "fee-for-service
worker" is not a specific term but is meant to be
interpreted broadly in a generic sense.
IN WITNESS WHEREOF, the Company has adopted this amendment to the
Plan effective as of the 20th day of December, 1996.
By By
S. W. Percy Robert F. Shockey
Chief Executive Officer Plan Administrator
TABLE OF CONTENTS
Section Page No.
ARTICLE I
DEFINITIONS
1.1 Definitions 3
1.2 Grammatical References 10
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements 11
2.2 Reemployment 11
2.3 Service in Non-Employee Capacity 12
2.4 Election to Participate 12
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions 14
3.2 After-Tax Contributions 14
3.3 Matching Contributions 15
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions 15
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415 17
4A.1 Code Section 415 Governs 17
4A.2 Definitions 17
4A.3 Limitations on Contributions 19
4A.4 Defined Benefit Plan Coverage 19
4A.5 Elimination of Excess Annual Additions 21
4B. Code Sections 402(g), 401(k) and 401(m) 21
4B.1 Code Section 402(g) Limit 22
4B.2 Nondiscrimination Tests 22
4B.3 Correction of Excesses 25
4B.4 Special Rules 25
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND
ADMINISTRATION OF CONTRIBUTIONS
5.1 Separate Accounts 27
5.2 Account Balances 27
5.3 Notification 27
5.4 Delivery of Contributions 28
5.5 Allocation of Matching Contributions 28
5.6 Crediting of Contributions 29
5.7 Changes in Reduction and Deduction Authorizations 29
TABLE OF CONTENTS
(Continued)
Section Page No.
5.8 Suspension of Contributions 29
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND
INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds 31
6.2 Investment Direction of Contributions 31
6.3 Investment of Contributions 31
6.4 Election of Participants to Transfer Invested Amounts 32
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions 33
7.2 Reemployment 33
7.3 Vesting in Before-Tax and After-Tax Contributions 34
7.4 Election of Former Vesting Schedule 34
ARTICLE VIll
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions 35
8.2 Withdrawal of Company Matching Contributions 35
8.3 Withdrawal of Before-Tax Contributions 36
8.4 Withdrawal on Account of Permanent and Total Disability 37
ARTICLE IX
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
9.1 Eligibility for Distribution 38
9.2 Distributions 38
9.3 Forms of Distributions 41
9.4 Disposition of Forfeited Balances 41
9.5 Buy-Back and Restoration of Forfeited Amounts 42
9.6 Payments to Incompetents or Minors 43
9.7 Limitations on Commencement and Distribution of Benefit
Payments 44
9.8 Reemployment 45
ARTICLE X
BENEFICIARIES
10.1 Designation of Beneficiary 46
10.2 Beneficiary in the Absence of Designated Beneficiary 46
10.3 Spousal Consent to Beneficiary Designation 47
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator and Named Fiduciary 48
11.2 Duties of Plan Administrator and Named Fiduciary 48
11.3 Rules and Regulations 51
11.4 Trust Agreement and Trustee 51
11.5 Determination of Benefits and Claims Review 52
11.6 Agency 52
11.7 Records Conclusive 52
11.8 Expenses 53
11.9 Qualified Domestic Relations Orders 53
ARTICLE XII
ASSETS HELD BY TRUSTEE
12.1 Assets Held by Trustee 55
12.2 Options, Rights, or Warrants 55
12.3 Voting Rights 56
12.4 Cost and Proceeds of Securities Transactions 57
12.5 Brokerage Charges 57
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendments 58
13.2 Limitation of Amendments 58
13.3 Termination 58
13.4 Withdrawal of an Employer 59
13.5 Corporate Reorganization 60
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Commitment as to Employment 61
14.2 Rights to Trust Assets 61
14.3 Precedent 61
14.4 Duty to Furnish Information 61
14.5 Merger, Consolidation, or Transfer of Plan Assets 62
14.6 Return of Contributions to Employers 62
14.7 Filing of Notices and Plan Information 63
14.8 Governing Law 63
14.9 Restriction on Alienation 63
14.10 Adoption by Subsidiaries 65
14.11 Rollovers to Other Plans or IRAs 65
14.12 Administrative Corrections 66
TABLE OF CONTENTS
(Continued)
Section Page No.
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Applicability 67
15.2 Top-Heavy Definitions 67
15.3 Accelerated Vesting 69
15.4 Minimum Matching Contribution 70
15.5 Adjustments to Section 415 Limitations 71
The BP America
Partnership Savings Plan
(Amended and Restated Effective as of January 1, 1994)
WHEREAS, the Company and its predecessors adopted and
established a profit-sharing and savings plan (known as the
Service Station Savings Plan A) as of April 1, 1988, for the
exclusive benefit of eligible employees of the Company and
participating Subsidiaries of the Company with the purposes of
encouraging savings by employees and assisting in providing
retirement income; and
WHEREAS, that plan has been amended and restated on several
occasions, most recently as of January 1, 1992, wherein the plan
was renamed the BP America Partnership Savings Plan (hereinafter
referred to as the "Plan"); and
WHEREAS, effective as of January 1, 1992, certain additional
classes of employees became eligible to participate in the Plan
and the accounts of these employees were transferred to the Plan
from the plans in which they previously participated as follows:
Class of Employees Previous Plan
Profit Center Manager - Truckstops of America Savings
Truckstops of America Plan
Assistant Profit Center Manager Truckstops of America Savings
- - Truckstops of America Plan
Procare managers, hourly Service Station Savings Plan B
employees and technicians
Service Station assistant Service Station Savings Plan B
managers
NOW, THEREFORE, the Company hereby amends and restates the
Plan as of January 1, 1994, and, where applicable, effective
retroactively to such other dates as required by law or indicated
herein, as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following words and phrases used
herein shall have the meanings hereinafter set forth, unless a
different meaning is plainly required by the context:
(1) The term "Act" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Reference to a section of the Act shall include such section
and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such
section.
(2) The term "Affiliate" shall mean any member of any
of the following groups if such group includes the Company
(but a member of such a group shall be considered an
"Affiliate" only during the period in which it was or has
been such a member): (a) a controlled group of corporations
within the meaning of Section 414(b) of the Code; (b) a
group of trades or businesses (whether or not incorporated)
that are under common control within the meaning of Section
414(c) of the Code; (c) an affiliated service group within
the meaning of Section 414(m)(2) of the Code; (d) an
affiliated service group within the meaning of Section
414(m)(5) of the Code; or (e) any other group required to be
aggregated with the Company pursuant to regulations under
Section 414(o) of the Code
(3) The term "Affiliated Group" shall mean the group
of entities which are Affiliates
(4) The term "After-Tax Account" shall mean the
Separate Account to which the After-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(5) The term "After-Tax Contributions" shall mean
contributions made by a Participant to the Plan in
accordance with the provisions of Section 3.2.
(6) The term "Base Pay" shall mean the regular salary
or wages paid to an Employee for normally prescribed hours,
including regularly scheduled commissions and bonuses paid
to salaried managers and Procare technicians, payments to
Employees during sick leave (not to exceed twelve
consecutive months), or other leaves of absence, and Before-
Tax Contributions under the Plan, but generally excluding
overtime, premiums, bonuses, and living or other allowances.
The Plan Administrator shall review the pay practices of
various operations covered by the Plan in determining
Compensation, and such determination shall be conclusive.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the
Plan to the contrary, (i) for Plan Years beginning on or
after January 1, 1989, the Base Pay of each employee taken
into account under the Plan shall not exceed an annual
compensation limit of $200,000; and (ii) for Plan Years
beginning on or after January 1, 1994, the Base Pay of each
employee taken into account under the Plan shall not exceed
an annual compensation limit of $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17). The cost of living
adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar
year. If a determination period for the Plan as a whole
consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period,
and the denominator of which is 12. In determining the Base
Pay of an Employee for purposes of this limitation, the
rules of Code Section 414(q)(6) shall apply, except that in
applying such rules, the term family shall include only the
spouse of the Employee and any lineal descendents of the
Employee who have not attained age 19 before the close of
the Plan Year.
(7) The Term "Before-Tax Account" shall mean the
Separate Account to which the Before-Tax Contributions of a
Participant are credited in accordance with the provisions
of Section 5.6.
(8) The term "Before-Tax Contributions" shall mean the
contributions made oh behalf of a Participant in accordance
with the provisions of Section 3.1 and of Section 401(k) of
the Code.
(9) The term "Beneficiary " shall mean the person or
persons who, in accordance with the provisions of Article X
hereof, shall be entitled to receive distribution hereunder
in the event a Participant, Terminated Participant or
Retired Participant, dies before his interest under the Plan
shall have been distributed to him in full.
(10) The term "Board of Directors" shall mean the Board
of Directors of the Company, such committee of the Board of
Directors or such officer, officers, or other employees of
the Company duly authorized by the Board of Directors to act
on its behalf with respect to the Plan.
(11) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time. Reference to a
section of the Code shall include such section and any
comparable section or sections of any future legislation
that amends, supplements, or supersedes such section.
(12) The term "Company" shall mean BP America Inc., a
Delaware corporation, its corporate successors, and the
surviving corporation resulting from any merger or
consolidation of BP America Inc. with any other corporation
or corporations.
(13) The term "Company Stock" shall mean American
Depositary Shares (each representing a number of ordinary
shares) of The British Petroleum Company, p.l.c.
(14) The term "Company Stock Fund" shall mean the Fund
established and maintained pursuant to the provisions of
Section 6.1.
(15) The term "Effective Date" shall mean January 1,
1989, or such other dates as required by law or set forth
herein..
(16) The term "Eligibility Date" shall mean the
earliest date on which an Employee becomes an Eligible
Employee in accordance with the provisions of Article 11.
(17) The term "Eligibility Service" shall mean the
period of service with which an Employee is credited in
accordance with the provisions of Section 2.1 for the
purpose of determining his eligibility to participate in the
Plan.
(18) The term "Eligible Employee" shall mean an
Employee of an Employer who is employed on or after the
Effective Date in an employment classification listed in
Appendix A and is eligible to participate in the Plan in
accordance with the provisions of Article II.
(19) The term "Employee" shall mean any common law
employee of the Company or an Affiliate, in an employment
classification listed in Appendix A, excluding any person
who renders service to an Employer solely as a director or
an independent contractor, any casual employee or any person
who is a nonresident alien and who receives no earned income
within the meaning of Code Section 911(d)(2) from an
Employer which constitutes income from sources within the
United States, as defined in Code Section 861(a)(3).
(20) The term "Employer" shall mean the Company or any
Subsidiary which adopts the Plan as herein provided, so long
as the Subsidiary has not withdrawn from the Plan. The term
"Employer" shall also include The British Petroleum Company,
p.l.c., or one of its subsidiaries; provided, however, that
employment with any of these companies is preceded
immediately by employment with the Company or a Subsidiary
as described in the foregoing sentence.
(21) The term "Employment Commencement Date" shall mean
the first date on which an Employee completes an Hour of
Service.
(22) The term "Financial Hardship" shall mean an
immediate and heavy financial need of a Participant which
satisfies the requirements of Section 401(k) of the Code and
regulations issued thereunder.
(23) The term "Fund" shall mean any of the funds
established and maintained in accordance with the provisions
of Article VI.
(24) The term "Highly Compensated Employee" shall
include highly compensated active employees and highly
compensated former employees.
A highly compensated active employee includes any
employee who performs service for an Employer during the
determination year and who, during the look-back year: (i)
received compensation from the employer in excess of $75,000
(as adjusted pursuant to Code Section 415(d)); (ii) received
compensation from the employer in excess of $50,000 (as
adjusted pursuant to Code Section 415(d)) and was a member
of the top-paid group for such year; or (iii) was an officer
of the employer and received compensation during such year
that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A). The term Highly
Compensated Employee also includes: (i) employees who are
both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back
year" and the employee is one of the 1 00 employees who
received the most compensation from the employer during the
determination year; and (ii) employees who are 5 percent
owners at any time during the look-back year or
determination year.
If no officer has satisfied the compensation
requirement of (iii) above during either a determination
year or look-back year, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. For
this purpose, the determination year shall be the plan year.
The look-back year shall be the twelve-month period
immediately preceding the determination year.
A highly compensated former employee includes any
employee who separated from service (or was deemed to have
separated) prior to the determination year, performs no
service for the employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after
the employee's 55th birthday.
If an employee is, during a determination year or
look-back year, a family member of either a 5 percent owner
who is an active or former employee or a Highly Compensated
Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the
employer during such year, then the family member and the 5
percent owner or top-ten Highly Compensated Employee shall
be aggregated. In such case, the family member and 5
percent owner or top-ten Highly Compensated Employee shall
be treated as a single employee receiving compensation and
plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated
Employee. For purposes of this section, family member
includes the spouse, lineal ascendants and descendants of
the employee or former employee and the spouses of such
lineal ascendants and descendants.
The determination of who is a Highly Compensated
Employee, including the determinations of the number and
identity of employees in the top-paid group, the top 100
employees, the number of employees treated as officers and
the compensation that is considered, will be made in
accordance with Code Section 414(q) and the regulations
thereunder.
(25) The term "Hour of Service" shall mean an hour for
which an Employee is paid, or entitled to be paid, with
respect to the performance of duties for an Employer or an
Affiliate either as regular wages, salary, or commissions or
pursuant to an award or agreement requiring an Employer or
an Affiliate to pay back wages. Hours under this paragraph
(25) shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which is
incorporated herein by reference.
(26) The term "Leased Worker" shall be a person (other
than a person who is an employee without regard to this
paragraph (26)) engaged in performing services for the
Company or an Affiliate (collectively, the "Recipient")
pursuant to an agreement between the Recipient and any other
person ("Leasing Organization") who meets the following
requirements:
(a) he has performed services for the Recipient (or
for any other "related persons," determined in
accordance with Section 414(n)(6) of the Code) on a
substantially full-time basis for a period of at least
one year;
(b) such services are of a type historically performed
in the business field of the Recipient, in the United
States, by employees; and
(c) he is not participating in a "safe harbor plan" of
the Leasing Organization. For this purpose a "safe
harbor plan" is a plan that satisfies the requirements
of Section 414(n)(5) of the Code, which generally will
be a money purchase pension plan providing (i) a
nonintegrated employer contribution of at least 10
percent of compensation (as defined in Section
415(c)(3) of the Code but including amounts contributed
pursuant to a salary reduction agreement that are
excluded from gross income under Code Section 125 or
under a qualified cash or deferred arrangement as
defined in Code section 401(k)(2)), (ii) immediate
participation, and (iii) full and immediate vesting;
provided, however, that this subparagraph (c) shall
only apply if Leased Workers do not constitute more
than 20 percent of the Recipient's non-highly
compensated workforce.
A person who is a Leased Worker shall be considered an
employee of the Company or an Affiliate during such period
(and solely for the purpose of determining length of service
for vesting purposes, shall also be considered to have been
an employee for any earlier period in which he was a Leased
Worker) but shall not be a Participant and shall not
otherwise be eligible to become covered by the Plan during
any period in which he is a Leased Worker. Notwithstanding
the foregoing, the sole purpose of this paragraph (26) is to
define and apply the term "Leased Worker" strictly (and
only) to the extent necessary to satisfy the minimum
requirements of Section 414(n) of the Code relating to
"leased employees." This paragraph (26) shall be
interpreted, applied, and, if and to the extent necessary,
deemed modified without formal amendment of language, so as
to satisfy solely the minimum requirements of Section 414(n)
of the Code
(27) The term "Matched Percentage" shall mean the
percentage of the After-Tax and Before-Tax Contributions
made by, or on behalf of, a Participant which is to be
matched by contributions of the Employers as set forth in
Section 3.3.
(28) The term "Matching Contributions" shall mean the
contributions which the Employers contribute to the Plan in
accordance with the provisions of Section 3.3.
(29) The term "Matching Contributions Account" shall
mean the Separate Account to which Matching Contributions of
a Participant are credited in accordance with the provisions
of Section 5.6.
(30) The term "Named Fiduciary" shall mean the chief
financial officer of the Company or as otherwise specified
by the Board of Directors. If there is no Named Fiduciary
designated by the Board of Directors, the Company shall be
substituted.
(31) The term "Normal Retirement Age" shall mean the
later of the date the Participant attains age 65 or the
fifth anniversary of the date the Participant commenced
participation in the Plan.
(32) The term "Participant" shall mean an Eligible
Employee who elects to participate in the Plan in accordance
with the provisions of Article II. The term "Participant"
shall also include an Employee whose contributions are
suspended or one who has transferred out of a participating
class of Employees but for whom a Separate Account is
maintained.
(33) The term "Plan" shall mean the BP America
Partnership Savings Plan, a profit-sharing plan, as herein
set forth.
(34) The term "Plan Administrator" or "Administrator"
shall mean the Vice President of BP Exploration & Oil Inc.
responsible for Human Resource functions or the successor to
such office as specified by the Board of Directors.
(35) The term "Plan Year" shall mean the 12-month
period beginning each January 1 and terminating each
subsequent December 31.
(36) The term "Reemployment Date" shall mean the first
date on which an Employee completes an Hour of Service by
performing services as an Employee after a Severance Date.
(37) The term "Retired Participant" shall mean any
Participant who retires under the terms of a qualified
pension plan maintained by an Employer or an Affiliate.
(38) The term "Separate Account" shall mean the After-
Tax Account, the Before-Tax Account or the Matching
Contributions Account of a Participant which is established
and maintained in accordance with the provisions of Section
5.1.
(39) The term "Service Date" shall mean the Employment
Commencement Date or Reemployment Date, if applicable, of
any Employee.
(40) The term "Severance Date" shall mean the earlier
of (i) the date on which an Employee retires, dies, or
otherwise terminates employment from an Employer or an
Affiliate, or (ii) the first anniversary of the first date
of a period of absence from service with the Affiliated
Group for any other reason; provided, however, that if an
Employee is absent from employment while on an Employer-
approved leave of absence, he shall not incur a Severance
Date until such leave of absence is terminated; and provided
further that if an Employee is absent from employment while
on active service in the Armed Forces of the United States,
his Severance Date shall be the date on which he terminated
his employment, unless he returns to employment with an
Employer or an Affiliate during the time period prescribed
by federal law; and provided further that no Employee shall
incur a Severance Date until the second anniversary of the
first date on which such Employee is absent from employment
with an Employer or an Affiliate for maternity or paternity
reasons. For purposes of this paragraph (40), an absence
for maternity or paternity reasons means an absence due to
(i) the pregnancy of the employee, (ii) the birth of a child
of the Employee, (iii) the placement of a child with the
Employee in connection with the adoption of such child by
the Employee, or (iv) the caring of such child for a period
beginning immediately following such birth or placement.
Notwithstanding the foregoing, if an Employee retires or
dies, or his employment otherwise is terminated during a
period of absence from employment for any reason other than
retirement or termination, his Severance Date shall be the
date of such retirement, death or other termination of
employment.
(41) The term "Subsidiary" shall mean any wholly owned
subsidiary of the Company including any wholly owned
subsidiary of another Subsidiary of the Company.
(42) The term "Terminated Participant" shall mean a
Participant who has terminated employment with an Employer
or an Affiliate.
(43) The term "Trust" shall mean the trust, maintained
in conjunction with the Plan under a trust agreement entered
into with the Trustee, for the purpose of receiving, holding
and investing amounts contributed under the Plan and from
which Plan benefits are paid.
(44) The term "Trustee" shall mean any trustee which is
designated, legally qualified, and authorized to act as the
trustee of the Trust
(45) The term "Vesting Service" shall mean the period
of service, calculated in accordance with the elapsed time
method of credited service outlined in Treasury regulation
Section 1.410(a)-7, with which a Participant is credited for
the purpose of determining his vested interest in his
Separate Accounts attributable to Matching Contributions
under Section 7.1.
(46) The term "Year of Service" means, for purposes of
determining eligibility to participate under Article II, the
twelvemonth period immediately following an Employee's
Employment Commencement Date, or any Plan Year commencing
after the Employee's Employment Commencement Date in which
the Employee is credited with at least 1000 Hours of
Service.
1.2 Grammatical References. The masculine shall
include the feminine and the singular shall include the
plural except as otherwise required by the context.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility Requirements. An Employee shall become
eligible to participate in the Plan as of the first pay date
after he both (i) attains age 21, and (ii) completes a twelve-
month period of employment during which he is credited with at
least 1,000 Hours of Service. The twelve-month period of
employment shall be (a) twelve consecutive months commencing on
the individual's Employment Commencement Date, or (b) any Plan
Year commencing subsequent to that date.
Employees covered under a collective bargaining agreement
are not eligible to participate in the Plan unless such agreement
specifically provides for coverage by the Plan or the collective
bargaining representative agrees to accept plan changes without
the requirement of further collective bargaining.
2.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply to eligibility for participation:
(a) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and
subsequently has a Reemployment Date within the twelve-month
Period following his original Employment Commencement Date,
for purposes of eligibility to participate, such Employee
shall be treated as if he had never incurred a Severance
Date; provided that he is employed in a classification
listed in Appendix A.
(b) If an Employee has not yet satisfied the Plan's
eligibility requirements, incurs a Severance Date, and has a
Reemployment Date after the twelve-month period following
his original Employment Commencement Date but within seven
years after such Severance Date, such Employee will be
eligible to participate in the Plan as of any pay date
following the Plan Year in which he completes 1,000 Hours of
Service and is age 21; provided that he is employed in a
classification listed in Appendix A.
(c) If an Employee has met the Plan's eligibility
requirements, is not yet vested in his Plan account at the
time he incurs a Severance Date and has a Reemployment Date
within seven years after such Severance Date, such Employee
is eligible to participate in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(d) If an Employee is vested in his Separate Accounts at
the time he incurs a Severance Date, such Employee can
resume participation in the Plan as of any pay date
following his Reemployment Date; provided that he is
employed in a classification listed in Appendix A.
(e) If an Employee is not vested in his Separate Accounts
at the time he incurs a Severance Date and does not incur a
Reemployment Date within seven years after such Severance
Date, such Employee will be subject to the same eligibility
requirements that are applicable to a new Employee.
2.3 Service in Non-Employee Capacity. For purposes of this
Article 11, all common law employment with the Affiliated Group
(in a capacity other than as an Employee). or The British
Petroleum Company, p.l.c., or one of its subsidiaries, shall be
treated as if such employment was employment as an Employee for
purposes of this Article II; provided, however, that no person
shall be eligible to participate in the Plan until he has
satisfied the requirements of Section 2.1.
2.4 Election to Participate. Each Eligible Employee shall
become a Participant as of his Eligibility Date or any subsequent
pay date, if he has timely filed with the Company a written
election, in the form prescribed by the Plan Administrator, which
contains:
(a) his authorization for his Employer to reduce his Base
Pay in order to make Before-Tax Contributions on his behalf
in accordance with the provisions of Section 3.1; and/or
(b) his authorization for his Employer to make payroll
deductions from his Base Pay with respect to After-Tax
Contributions in accordance with the provisions of Section
3.2; and
(c) his election as to the investment of all contributions
allocated to him in accordance with the provisions of
Article VI.
ARTICLE III
CONTRIBUTIONS
3.1 Before-Tax Contributions. Any Participant may elect to
have Before-Tax Contributions made to the Plan by his Employer in
an integral percentage of his Base Pay of not less than one
percent nor more than 16 percent; provided, however, that in no
event may the percentage of Before-Tax Contributions made on
behalf of a Participant, when added to the percentage of his
After-Tax Contributions, if any, equal less than one percent or
more than 16 percent of his Base Pay. The Base Pay of such
Participant shall be reduced by the percentage elected under the
compensation reduction authorization in effect for such
Participant provided, however, that no Before-Tax Contributions
made with respect to a year on behalf of a Participant shall
exceed the limitations set forth in Article IV.
3.2 After-Tax Contributions. Any Participant may elect to
make After-Tax Contributions by payroll deduction in an integral
percentage of his Base Pay of not less than one percent nor more
than sixteen percent; provided, however, that in no event may the
percentage of the After-Tax Contributions of a Participant, when
added to the percentage of Before-Tax Contributions, if any, made
on his behalf equal less than one percent or more than sixteen
percent of his Base Pay. Any payroll deduction with respect to
After-Tax Contributions shall be made from the Base Pay of a
Participant by his Employer in accordance with the terms of the
payroll deduction authorization in effect for such Participant;
provided, however, that no After-Tax Contributions made with
respect to a year on behalf of a Participant shall exceed the
limitations set forth in Article IV.
3.3 Matching Contributions. Subject to the provisions of
Section 3.4, as of the last day of each Plan Year quarter, the
Employers shall pay to the Trustee as a Matching Contribution for
investment in the Company Stock Fund an amount that is equal to
50 percent of the sum of After-Tax and Before-Tax Contributions,
not in excess of six percent of Base Pay, made on behalf of, or
by, each Participant during such Plan Year quarter; provided,
however, that no Matching Contributions made with respect to a
year on behalf of a Participant shall exceed the limitations set
forth in Article IV.
3.4 Coordination of Before-Tax, After-Tax and Matching
Contributions. Notwithstanding any other provision of the Plan
to the contrary, Before-Tax and After-Tax Contributions, and
accrued Company Matching Contributions of any Participant as of
any date within the calendar year will be considered in
determining the amount of contributions not exceeding the
limitations of Article IV.
As of any date within the calendar year, if Before-Tax and
After-Tax Contributions and accrued Company Matching
Contributions would exceed 25 percent of the Participant's
Compensation, Before-Tax Contributions will be automatically
converted to After-Tax Contributions to the extent necessary to
satisfy the contribution limitation to 25 percent of the
Participant's Compensation, as described in Section 4A.3. If the
limitation is still not satisfied, After-Tax Contributions will
be automatically reduced and paid to the Participant to the
extent necessary to satisfy the limitations of Section 4A.3.
If the Defined Contribution Dollar Limit as defined in
Section 4A.2(c) is reached as of any date within the calendar
year, subsequent After-Tax and Before-Tax Contributions will be
automatically discontinued. Accrued Company Matching
contributions for the calendar year not in excess of the
limitation may be made on behalf of the Participant at any time
during the calendar year and during the first quarter of the
subsequent calendar year, according to Plan provisions.
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4A. Code Section 415.
4A.1 Code Section 415 Governs. Notwithstanding anything to
the contrary contained in the Plan, effective January 1, 1987,
the amount of Matching Contributions, Before-Tax Contributions,
and After-Tax Contributions which may be credited to the Separate
Accounts of Participants shall be subject to the provisions
hereinafter set forth. The limitations contained in this Article
4A are intended to comply with the provisions of Section 415 of
the Code. If there is any discrepancy between the provisions of
this Section 4A and the provisions of Section 415 of the Code,
such discrepancy shall be resolved in such a manner so as to give
full effect to the provisions of Section 415 of the Code which
are hereby incorporated by reference.
4A.2 Definitions. For purposes of this Section 4A the
following terms shall have the meanings hereinafter set forth:
(a) "Annual Additions" shall mean the amount credited to a
Participant's Separate Accounts for the Limitation Year that
constitutes:
(i) Employer contributions,
(ii) Employee contributions,
(iii) Forfeitures, and
(iv) Amounts described in Code Section 415(l)(1) or in
Code Section 419A(d)(2), if any.
(b) "Compensation" shall mean (for purposes of Section 4A
of the Plan) wages, salaries and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with
an Employer or an Affiliate to the extent that the amounts
are includable in gross income (including, but not limited
to, commissions paid salesmen, compensation for services on
the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan, but excluding:
(i) Employer contributions to a plan of deferred
compensation which are not includible in the employee's
gross income for the taxable year in which contributed,
or any distributions from a qualified deferred
compensation plan;
(ii) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified
stock option; and
(iv) Other amounts which receive special tax benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
(c) "Defined Contribution Dollar Limitation" shall mean
$30,000 or, if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the Limitation Year; provided,
however, that in the case of a Limitation Year less than 12
months in duration due to an amendment changing the
Limitation Year to a different 12-month period, the Defined
Contribution Dollar Limitation shall be a fraction of the
foregoing amount equal to the number of full months in the
Limitation Year divided by 12.
(d) "Employee Contributions" shall mean After-Tax
Contributions to the Plan made by a Participant during the
Limitation Year.
(e) "Employer Contributions" shall mean Before-Tax
Contributions and Matching Contributions credited by an
Employer to the Plan on behalf of a Participant for the
Limitation Year.
(f) "Limitation Year" shall mean each 12-month period
beginning each January 1 and terminating each subsequent
December 31.
4A.3 Limitations on Contributions.
(a) Maximum Annual Additions. The maximum Annual Additions
that may be contributed or allocated to a Participant's
Separate Accounts under the Plan and/or any other qualified
defined contribution plan maintained by the Company or an
Affiliate for any Limitation Year shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for
the Limitation Year.
For purposes of implementing this limitation, the Plan
Administrator may estimate the Compensation of the
Participant to be paid during the Limitation Year and
restrict the Before-Tax and/or After-Tax Contribution
elections of Participants.
(b) Special Rules. The compensation limitation referred to
in Section 4A.3(a)(ii) shall not apply to any contribution
for any medical benefits (within the meaning of Section
401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(l)(1) or
Section 419A(d)(2) of the Code.
4A.4 Defined Benefit Plan Coverage. If any Participant in
the Plan is covered by one or more qualified defined benefit
plans (whether or not terminated) maintained by an Employer or an
Affiliate concurrently covered by the Plan, the sum of the
defined benefit plan fraction with respect to such Participant
and the defined contribution plan fraction with respect to such
Participant shall not exceed 1.0. For purposes of this section,
defined benefit plan fraction and defined contribution plan
fraction shall mean the following:
(a) "Defined benefit plan fraction" shall mean a fraction,
the numerator of which is the projected annual benefit of
such Participant under all such defined benefit plans
(determined as of the close of such Limitation Year) and the
denominator of which is the lesser of (i) 125 percent of the
dollar limitation in effect under Sections 415(b) and 415(d)
of the Code for such year or (ii) 140 percent of the highest
average compensation, including any adjustment, under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined
benefit plans maintained by an Employer or an Affiliate
which were in existence on May 6, 1986, the denominator of
this fraction will not be less than 125 percent of the sum
of the annual benefits under such plans which the
Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plans individually and in the
aggregate satisfied the requirements of Section 415 for all
Limitation Years beginning before January 1, 1987.
(b) "Defined contribution fraction" shall mean a fraction,
the numerator of which is the sum of the annual additions to
the participant's account under all the defined contribution
plans (whether or not terminated) maintained by an Employer
or Affiliate for the current and all prior Limitation Years,
and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether a
defined contribution plan was maintained by the Employer or
Affiliate). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the dollar limitation
determined under Sections 415(b) and (d) of the Code in
effect under Section 415(c)(1)(A) of the Code or 35 percent
of the participant's compensation for such year.
The Plan Administrator may elect to apply the transitional
rules stated in Sections 415(e)(4) and 415(e)(6).
If the defined benefit plan(s) and defined contribution
plans(s) of an Employer or Affiliate in existence on May 6,
1986, satisfied the applicable requirements of Section 415
of the Code as in effect for all Limitation Years beginning
before January 1, 1987, an amount shall be subtracted from
the numerator of the defined contribution plan fraction (not
exceeding such numerator) as prescribed by the Secretary of
the Treasury, if necessary, so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
under Section 415(e)(1) of the Code does not exceed 1.0 for
such Limitation Year.
The annual additions for years beginning before January 1,
1987 shall not be recomputed to treat all employee
contributions as annual additions.
4A.5 Elimination of Excess Annual Additions. To the extent
that any of the limitations set forth under this Section 4A would
be exceeded due to a reasonable error in estimating a
Participant's annual compensation, the following procedures shall
be followed to prevent such excess(es).
(a) If the Annual Additions to the Separate Accounts of a
Participant in any Limitation Year would exceed the
limitation contained in this Section 4A absent such
limitation, the excess shall be avoided as follows:
(i) The Before-Tax Contributions that would have been
contributed for the Participant's benefit shall be
reduced and automatically converted to After-Tax
Contributions; and
(ii) Next, After-Tax Contributions made during the
Limitation Year shall be returned to the Participant to
the extent necessary to satisfy the limitations on
Annual Additions.
In each case specified above, the amount to be converted or
returned shall be that amount as is necessary to permit the
maximum amount of the Annual Additions to the Participant's
Separate Accounts for such year to be made under the Plan
without violating the restrictions contained herein or in
Section 415 of the Code.
In the event that, notwithstanding the foregoing, the
limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and
such excess arises as a consequence of the allocations of
forfeitures or a reasonable error in estimating the
Participant's annual Compensation, the portion of such
excess attributable to Matching Contributions shall be held
in a suspense account and, if such Participant remains a
Participant after the end of the Limitation Year, shall be
used to reduce Matching Contributions for such Participant
for the succeeding Limitation Years, and, if such
Participant ceases participating in the Plan, shall
thereafter be used to reduce Matching Contributions for all
other Participants in the Limitation Year in which he ceases
to be a Participant and succeeding Limitation Years, as
necessary.
4B. Code Sections 402(g), 401(k) and 401(m).
4B.1 Code Section 402(g) Limit. No Participant shall be
permitted to have Before-tax Contributions made under this Plan
(or any other qualified plan maintained by an Employer or an
Affiliate), during any taxable year, in excess of the dollar
limitation under Code Section 402(g) in effect at the beginning
of such taxable year.
If the amount of Before-Tax Contributions elected by a
Participant under the Plan during a calendar year would cause the
Code Section 402(g) dollar limitation to be exceeded, such amount
will be reduced and automatically converted to After-Tax
Contributions during the calendar year. If any excess deferrals
(as defined in Code Section 402(g)) exist subsequent to the end
of the calendar year, the Plan Administrator may notify the Plan
of such excess deferrals and may direct the Trustee to refund
such excess deferrals to affected Participants (along with any
income allocable to the excess deferrals for the taxable year)
prior to the 15th of April immediately following such calendar
year. If any such excess deferrals are distributed more than two
and one-half (2-1/2) months after the last day of the Plan Year
in which they arose, a ten (10) percent excise tax will be
imposed on the Company with respect to such amounts.
4B.2 Nondiscrimination Tests. This Section 4B.2 is
effective as of January 1, 1987. For purposes of the
nondiscrimination tests of this Section 4B.2, the portion of the
Plan that benefits a unit of employees covered by a collective
bargaining agreement will be treated as comprising a separate
plan from the non-collectively bargained portion of the Plan. To
the extent that there are multiple units of employees covered by
collective bargaining agreements, the Company at its option may
treat two or more collective bargaining units as a single unit,
provided that the combinations of collective bargaining units are
determined on a basis that is reasonable and reasonably
consistent from year to year.
(a) Actual Deferral Percentage ("ADP") Test Notwithstanding
Section 3.1 or any other provision of the Plan, during any
Plan Year the Before-Tax Contributions made on behalf of
Eligible Employees who are Highly Compensated Employees
shall be restricted to the extent necessary to satisfy at
least one of the following tests:
Test No. 1: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ADP of Eligible Employees who are not
Highly Compensated Employees
Test No. 2: The average ADP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ADP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ADP of Eligible
Employees who are not Highly Compensated Employees.
For these purposes, "ADP" shall mean the ratio
(expressed as a percentage) of Before-Tax Contributions
made on behalf of an Eligible Employee for the Plan
Year to the Eligible Employee's Compensation. as
defined below, for the Plan Year.
(b) Actual Contribution Percentage ("ACP") Test
Notwithstanding Sections 3.2 and 3.3 or any other provision
of the Plan, during any Plan Year the After-Tax
Contributions (including any Before-Tax Contributions
automatically converted to After-Tax Contributions pursuant
to Section 4B.1) and Matching Contributions paid to the Plan
with respect to Eligible Employees who are Highly
Compensated Employees shall be restricted to the extent
necessary to satisfy at least one of the following tests:
Test No 1: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25
times the average ACP of Eligible Employees who are not
Highly Compensated Employees.
Test No. 2: The average ACP of Eligible Employees who
are Highly Compensated Employees does not exceed the
lesser of (i) 2 times the average ACP of Eligible
Employees who are not Highly Compensated Employees, or
(ii) 2 percent plus the average ACID of Eligible
Employees who are Not Highly Compensated Employees.
For these purposes, "ACP" shall mean the ratio
(expressed as a percentage) of total After-Tax and
Matching Contributions made by or on behalf of an
Eligible Employee for the Plan Year to the Eligible
Employee's "Compensation," as defined below, for the
Plan Year.
(c) Multiple Use Limitation Test. In addition to the
limitations of paragraphs (a) and (b) above, and
notwithstanding Sections 3.1, 3.2 and 3.3 of the Plan or any
other provision of the Plan, during any Plan Year in which
Test No. 2 of paragraph (a) is used to satisfy the ADP Test
and Test No. 2 of paragraph (b) is used to satisfy the ACP
Test, the Before-Tax Contributions, After-Tax Contributions
and Matching Contributions paid to the Plan with respect to
Participants who are Highly Compensated Employees shall be
restricted to the extent necessary to assure that the sum of
the ADP and ACP of such Highly Compensated Eligible
Employees does not exceed the greater of:
(i) 1.25 times the ADP of Eligible Employees who are
not Highly Compensated Employees, plus the ACP of such
Eligible Employees, plus the lesser of 2 percent or the
ACP of such Eligible Employees, or
(ii) 1.25 times the ACP of Eligible Employees who are
not Highly Compensated Employees, plus the ADP of such
Eligible Employees, plus the lesser of 2 percent or the
ADP of such Eligible Employees
(d) Definition of "Compensation" For purposes of the ADP,
ACP and Multiple Use Tests, "Compensation" means wages,
salaries and fees for professional services and other
amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in
the course of employment with an Employer or an Affiliate to
the extent that the amounts are includable in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan), plus any elective
contributions made by an Employer or an Affiliate that are
not includable in gross income under Section 125 and Section
402(e)(3) of the Code, but excluding:
(i) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock (or
property) held by the Participant either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(iii) Other amounts which receive special tax
benefits.
If a Participant is employed outside the United States and
paid in foreign currency, Compensation will be based on
foreign pay elements converted to U.S. Dollars. The
conversion to U.S. Dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as
elected by the Participant during the Limitation Year.
4B.3 Correction of Excesses.
(a) In the event that the ADP test set forth in 4B.2 above
is exceeded, an amount of Before-Tax Contributions of Highly
Compensated Employees will be reduced and automatically
converted to After-Tax Contributions. Such amount shall be
determined by reducing the maximum percentage of Before-Tax
Contributions of the Highly Compensated Employees from its
highest limit to such smaller percentage which will result
in the ADP test being passed. Any amounts so converted to
After-Tax contributions shall nevertheless remain non-
forfeitable and remain subject to the distribution
limitations that apply to Before-Tax Contributions to the
extent required by the Code.
(b) In the event that the ACP test or the multiple use test
set forth in 4B.2 above is exceeded, an amount of After-Tax
Contributions for Highly Compensated Employees will be
reduced and automatically returned (along with any income
allocable to such amount during the Plan Year) to the
Participants within the time frame required under the Code.
Such amount shall be determined by reducing the maximum
percentage of After-Tax Contributions of the Highly
Compensated Employees from its highest limit to such smaller
percentage which will result in the ACP test or the multiple
use test being passed.
If any amounts returned to correct the ACP test are
distributed more than two and one-half (2-1/2) months after
the last day of the Plan Year in which the excess arose, a
ten (10) percent excise tax will be imposed on the Company
with respect to these amounts.
4B.4 Special Rules.
(a) The ADP or ACP for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is
eligible to have Before-Tax, After-Tax or Matching
Contributions allocated to his account under two or more
plans or arrangements described in Code Sections 401(a)
and/or 401(k) that are maintained by an Employer or
Affiliate, shall be determined as if all such Contributions
were made under a single plan or arrangement,
(b) For purposes of determining the ADP or ACP of a
Participant who is a Highly Compensated Employee, the
Contributions and Compensation of such Participant shall
include the Contributions and Compensation of family members
(as described in Code Section 414(q)(6)(B)). The
Contributions and Compensation of such family members shall
be disregarded in determining the ADP or ACP of Participants
who are not such Highly Compensated Employees.
(c) The determination and treatment of a Participant's ADP
or ACP shall satisfy such other requirements as may be
prescribed by law.
ARTICLE V
ESTABLISHMENT OF SEPARATE ACCOUNTS AND
ADMINISTRATION OF CONTRIBUTIONS
5.1 Separate Accounts. Each Participant shall, where
applicable, have established in his name the following Separate
Accounts:
(a) a Before-Tax Account which shall reflect the Before-Tax
Contributions made on behalf of a Participant, as well as
the investment income thereon in the Funds;
(b) an After-Tax Account which shall reflect the After-Tax
Contributions of a Participant, as well as the investment
income thereon in the Funds.
(c) a Matching Contributions Account which shall reflect
the Matching Contributions of a Participant, as well as the
investment income thereon in the Funds.
5.2 Account Balances. For all purposes of the Plan, the
balance of each Separate Account as of any date shall be the
balance of such account after all credits and charges thereto,
for and as of such date, have been made as provided herein. The
determination of the Plan Administrator as to Separate Account
balances shall be final.
5.3 Notification. At least annually the Company shall
notify each Participant, Terminated Participant and Retired
Participant of the balance of his Separate Accounts as of the
last day of such year.
5.4 Delivery of Contributions. Each Employer shall cause
to be delivered to the Trustee all After-Tax, Before-Tax, and
Matching Contributions made in accordance with the provisions of
Article III as soon as reasonably practicable, but no later than
90 days after the contributions are made, and in accordance with
procedures established by the Plan Administrator.
If a Participant is paid in foreign currency, each After-Tax
or Before-Tax Contribution amount shall be based on the United
States dollar equivalent of the Participant's foreign Base Pay.
The conversion to United States dollars is made using a payroll
transaction exchange rate and/or a fixed exchange rate as elected
by the employee. The resulting amount, after conversion into
United States dollars, will be transferred to the Trustee and
credited on behalf of the Participant to the proper Separate
Account. All statements setting forth a Participant's Separate
Accounts will be expressed in United States dollars.
5.5 Allocation of Matching Contributions. The Matching
Contributions of an Employer for each Plan Year quarter shall be
allocated quarterly among Participants who are Eligible Employees
of such Employer during such quarter and who made, or had made on
their behalf, After-Tax or Before-Tax Contributions for such
quarter. Each such Participant's allocated share of the Matching
Contributions of an Employer for such quarter shall be equal to
the matched percentage of his After-Tax and Before-Tax
Contributions specified pursuant to Section 3.3 with respect to
such quarter.
5.6 Crediting of Contributions. Subject to the provisions
of Sections 4A, 4B and Article VII, contributions shall be
credited to the Separate Accounts of a Participant in the
following manner:
(a) the amount of Before-Tax Contributions made on behalf
of a Participant shall be credited to such Participant's
Before-Tax Account;
(b) the amount of After-Tax Contributions made by a
Participant shall be credited to such Participant's After-
Tax Account;
(c) the amount of Matching Contributions allocated to a
Participant shall be credited to the Participant's Matching
Contributions Account.
Such Before-Tax, After-Tax and Matching Contributions shall
be invested by the Trustee in accordance with the provisions of
Section 6.3 and procedures established by the Plan Administrator.
5.7 Changes in Reduction and Deduction Authorizations. The
percentage of Before-Tax Contributions and After-Tax
Contributions made by, or on behalf of, a Participant may be
changed to satisfy legal requirements in accordance with
procedures established by the Plan Administrator; to an integral
percentage which does not exceed the limitations specified in
Articles III and IV.
5.8 Suspension of Contributions. Any Participant who is
making, or having made on his behalf, Before-Tax and/or After-Tax
Contributions under Sections 3.1 or 3.2 may suspend part or all
of such Contributions at any time by notifying the Company in
accordance with procedures established by the Plan Administrator.
Any such suspension shall remain in effect until such
Contributions are resumed.
ARTICLE VI
ESTABLISHMENT OF FUNDS, DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
6.1 Establishment of Investment Funds. The Company shall
select and establish certain funds (the "Investment Funds" or
"Funds") that it shall cause to be maintained for the purpose of
investing assets held under the Plan which relate to the Separate
Accounts of Plan Participants. One such Fund shall be a Company
Stock Fund which shall invest solely in Company Stock.
Descriptions of the various funds are contained in Appendix B.
6.2 Investment Direction of Contributions. Any Before-Tax,
After-Tax and Matching Contributions of a Participant shall be
invested by the Trustee in accordance with directions received
from the Participant, based upon the investment elections of each
Participant made in accordance with the provisions of Sections
6.3 and 6.4 in the various Investment Funds selected by the
Participant.
6.3 Investment of Contributions. Each Participant, upon
electing to become a Participant under the Plan, shall make
investment elections directing the manner in which his Before-Tax
and After-Tax Contributions shall be invested by the Trustee.
Such election shall be the same for Before-Tax and After-Tax
Contributions. Contributions that are credited to a Separate
Account of such Participant shall be invested in the various
Investment Funds in any combination of integral percentages that
equals 100 percent. In the absence of a valid Participant
election, Before-tax Contributions and After-Tax Contributions
shall be invested by the Trustee in the Fixed Income Fund pending
receipt of a valid investment direction from the Participant.
Investment elections shall be made by a Participant in accordance
with uniform administrative and operational rules established by
the Plan Administrator.
Subject to the provisions of Section 6.4, the investment
options so elected by a Participant shall remain in effect until
he changes his investment elections or ceases to be a Participant
in accordance with the provisions of the Plan.
Matching Contributions shall be invested by the Trustee in
the same manner as Before-Tax and After-Tax Contributions are
invested.
6.4 Election of Participants to Transfer Invested Amounts.
A Participant, Terminated Participant or Retired Participant may
elect at any time to have a portion or all of the balance of the
assets liquidated and transferred from the Investment Funds in
which they are currently invested to one or more of the other
Funds in accordance with uniform administrative and operational
rules established by the Plan Administrator. Such an election
shall become effective, and the Participant may thereafter change
or revoke such election, at such times and in the manner
established by the Plan Administrator.
ARTICLE VII
VESTING
7.1 Vesting in Matching Contributions. A Participant shall
be 100 percent vested in the Matching Contributions credited to
his Matching Contributions Account as well as all earnings
credited to such Account, if:
(a) such Participant is credited with at least five years
of Vesting Service;
(b) such Participant attains age 65;
(c) such Participant is declared mentally incompetent or
becomes permanently and totally disabled;
(d) such Participant dies, or
(e) such Participant's employment is involuntarily
terminated due to an involuntary separation program
sponsored by the Company, or as a result of the sale or
other disposition of a Subsidiary or division or part
thereof of the Company (or an Affiliate of the Company).
7.2 Reemployment. If an Employee incurs a Severance Date
and is subsequently rehired as an Employee, the following special
rules apply for purposes of vesting under the Plan:
(a) If a Participant incurs a Severance Date and
subsequently has a Reemployment Date within twelve months
following the Severance Date, such Participant's years of
Vesting Service will be calculated as if such Participant
had never incurred a Severance Date.
(b) If a Participant who is vested in his Separate Accounts
incurs a Severance Date and then has a Reemployment Date
more than twelve months after the Severance Date, such
Participant's years of Vesting Service earned prior to the
Severance Date will be restored for purposes of vesting
under the Plan. However, such a Participant will not be
credited with years of Vesting Service for the period of the
Participant's absence.
(c) If a Participant who is not vested in his Separate
Accounts incurs a Severance Date and then has a Reemployment
Date more than twelve months but less than seven years after
the Severance Date, such Participant's years of Vesting
Service earned prior to the Severance Date will be restored
for purposes of vesting under the Plan. However, such a
Participant will not be credited with years of Vesting
Service for the period of the Participant's absence.
7.3 Vesting in Before-Tax and After-Tax Contributions. A
Participant shall always be 100 percent vested in Before-Tax and
After-Tax Contributions credited to his Before-Tax and After-Tax
Accounts, as well as all earnings credited to such Accounts.
7.4 Election of Former Vesting Schedule. In the event of
an amendment to the Plan that directly or indirectly affects the
computation of a Participant's nonforfeitable interest in his
Separate Accounts attributable to Matching Contributions, any
Participant who is a Participant on the effective date of such
amendment or who is credited with three or more years of Vesting
Service shall have a right to have his nonforfeitable interest in
such accounts continue to be determined under the vesting
schedule in effect prior to such amendment rather than under the
new vesting schedule, unless the nonforfeitable interest of such
Participant in such accounts under the Plan, as amended, at any
time is not less than such interest determined without regard to
such amendment. Notwithstanding the foregoing provisions of this
Section 7.4, the vested interest of each Participant on the
effective date of such amendment shall not be less than his
vested interest under the Plan as in effect immediately prior to
the effective date of such amendment.
ARTICLE VIII
WITHDRAWALS WHILE EMPLOYED
8.1 Withdrawal of After-Tax Contributions. By applying to
the Company in the form and manner prescribed by the Plan
Administrator, a Participant may elect to withdraw in cash or in
kind, or both, any portion up to the entire value of his After-
Tax Contributions made to the Plan and all earnings on After-Tax
Contributions less any such amounts previously withdrawn. Such a
withdrawal will be taken first from any After-Tax Contributions
made to the Plan prior to 1987. When pre-1987 After-Tax
Contributions are exhausted, such withdrawal will be taken
proportionately from After-Tax Contributions made to the Plan
after 1986 and earnings on all After-Tax Contributions. After-
Tax Contributions withdrawn will be taken first from those not
subject to Matching Contributions and then from those subject to
Matching Contributions. If the Participant is not yet vested
pursuant to Section 7.1 and any part of the After-Tax
Contributions withdrawn are subject to Matching Contributions,
all Matching Contributions credited to the Participant's After-
Tax Account will be forfeited.
8.2 Withdrawal of Company Matching Contributions. By
applying to the Company in the form and manner prescribed by the
Plan Administrator, a Participant who is vested pursuant to
Section 7.1 may elect to withdraw in Gash or in kind, or both,
any portion up to the entire value of all Matching Contributions
under his Matching Contributions Account and any earnings on such
Contributions less any amounts previously withdrawn; provided
that he first withdraws the value of all his After-Tax
Contributions and earnings thereon pursuant to the provisions of
Sections 8.1; and provided further that a vested Participant who
has not participated in the Plan for at least five years may only
withdraw Matching Contributions that have been in the Plan for at
least two years.
8.3 Withdrawal of Before-Tax Contributions. Subject to the
provisions of this Section 8.3, a Participant may apply to the
Company in the form and manner prescribed by the Plan
Administrator, for a withdrawal in cash from his Separate Account
attributable to Before-Tax Contributions and any earnings accrued
through December 31, 1988, on such Contributions less any such
amounts previously withdrawn; provided that he has first
withdrawn the total value of his After-Tax Account and, if the
Participant is vested, the total value of the Matching
Contributions Account pursuant to Sections 8.1 and 8.2
At any time after a Participant has attained age 59-1/2 or
has become totally and permanently disabled, earnings accrued
after December 31, 1988, on Before-Tax Contributions may also be
withdrawn. The amounts in such Participant's Before-Tax Account
will be aggregated with his After-Tax Account for the purpose of
making withdrawals from the Plan; and such Participant's Before-
Tax Contributions, including any interest, dividends, and
appreciation thereon, less any amounts previously withdrawn, may
be withdrawn in connection with an After-Tax Contribution
withdrawal under Section 8.1
Except for a Participant who has attained age 59-1/2 or has
become totally and permanently disabled, a withdrawal of Before-
Tax Contributions and any earnings thereon, except as indicated
below, shall be permitted only if the Plan Administrator
determines that such withdrawal is needed for a Financial
Hardship and that such withdrawal will not exceed the lesser of
(i) the amount required to meet the need for which the withdrawal
is requested, or (ii) the value of his Before-tax Account.
However, If such Participant has not yet attained age 59-1/2 or
becomes totally and permanently disabled, any earnings accrued
after December 31, 1988, on his Before-Tax Contributions are not
available for withdrawal even in the case of a Financial
Hardship.
8.4 Withdrawal on Account of Permanent and Total
Disability. In the event the Participant becomes permanently and
totally disabled, he shall be eligible to withdraw up to the
entire value of his Separate Accounts under the provisions of
Sections 8.1, 8.2 and 8.3. In this instance, permanent and total
disability shall be defined according to uniform procedures
established by the Plan Administrator.
ARTICLE IX
DISTRIBUTIONS UPON RETIREMENT OR
OTHER TERMINATION OF EMPLOYMENT
9.1 Eligibility for Distribution. Each Participant shall
be entitled to receive the vested amount of his Separate Accounts
upon retirement or other termination of employment with the
Affiliated Group for any reason, including death.
9.2 Distributions. The Plan Administrator shall direct the
Trustee to make distribution to, or for the benefit of, a
Participant, who becomes eligible to receive the vested amount of
his Separate Accounts under Section 9.1 in the manner hereinafter
set forth
(a) Distributions to Participants Upon Retirement or Other
Termination of Employment (Other than Death). In the case
of a Participant who retires or terminates employment with
the Affiliated Group (for reasons other than death), if the
combined value of the vested interest of the Participant
under the Plan and all other qualified profit-sharing plans
maintained by the Affiliated Group is (and was at the time
of any prior distribution) $3,500 or less, distribution of
such Participant's vested interest under the Plan shall be
made to him as soon as practicable in a single lump-sum
payment. If the value of the vested interest of such
Participant under the Plan and all other qualified profit-
sharing plans maintained by the Affiliated Group is (or was
at the time of any prior distribution) in excess of $3,500,
distribution of such Participant's vested interest under the
Plan shall be made in one or more of the following methods,
in accordance with rules established by the Plan
Administrator, as the Participant shall select:
(i) in a single lump-sum payment payable at any time
prior to the April 1 of the calendar year following the
calendar year in which the Retired Participant attains
age 70-1/2, unless otherwise permitted by law; or
(ii) in a series of monthly installments over a period
not in excess of the normal life expectancy of the
Participant or the joint life expectancies of the
Participant and his Beneficiary, such installments to
be equal in amount, except as necessary to adjust for
any net earnings and changes in the market value of his
Separate Accounts, or by any other method reasonably
calculated to provide a more rapid distribution of his
interest. Notwithstanding the foregoing, a Participant
may defer commencing distribution until the April 1 of
the calendar year following the calendar year in which
he attains age 70-1/2 unless otherwise permitted by
law. For purposes of this subparagraph (ii), the life
expectancy of a Participant and such Participant's
Beneficiary may be redetermined, but not more
frequently than annually, and in accordance with such
rules as may be prescribed by Treasury regulations.
Further, life expectancy and joint and last survivor
expectancy shall be computed using the return multiples
of Treasury regulation 1.72-9. A Participant wishing to
have the life expectancy used to calculate his benefit
redetermined annually, must so elect no later than the
commencement of his payments, and such election is
irrevocable. If such an election is not made, the life
expectancy used to calculate his benefit will not
change, and no redetermination of life expectancy may
be elected at a future date.
The dollar amount of an installment payment, the length
of the payment period under an installment payment or
the type of installment payment may be changed once per
year effective with the payment anniversary date;
provided, that any such changes meet the requirements
of Section 9.7 hereof (taking into consideration any
amendment of Section 401(a)(9) of the Code). An
installment payment under this subparagraph (ii) may be
changed to a payout under subparagraph 9.2(a)(i), or
such other form of payout under subparagraphs 9.2(a)(i)
may be changed to an installment payment under this
subparagraph (ii) once after such payment or payout
commences. For purposes of this subparagraph (ii),
"payment anniversary date" shall mean the anniversary
of the date that the installment payments commenced.
Notwithstanding the foregoing provisions of this paragraph
(a), if the life expectancy of a person other than the
Participant or his spouse is utilized in determining the
amount of any benefit payment, the value of the payments to
be made during the life expectancy of such Participant shall
be computed pursuant to the minimum distribution incidental
benefit requirement of Treasury regulations.
(b) Distributions Due to Death. Unless death occurs before
the .required beginning date," (as defined in Section
9.7(c)) distribution of the Participant's vested interest
will be made in accordance with procedures established by
the Plan Administrator, and subject to an applicable
election, as follows:
(i) No Beneficiary designated. The entire account
must be distributed by December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
(ii) Spouse Beneficiary designated. The entire account
must be distributed over a period not exceeding the
Beneficiary's life expectancy. Payments must begin by
the later of (1) December 31 of the year following the
year of the Participant's death, or (2) December 31 of
the year the Participant would have attained age 70-
1/2.
(iii) Non-Spouse Beneficiary Designated. The
entire account must be distributed over a period not
exceeding the Beneficiary's life expectancy. Payments
must begin by December 31 of the year following the
year of the Participant's death, or as soon as
administratively feasible thereafter.
(iv) Distribution Exception. In cases in which a
Beneficiary does not wish to receive a distribution
over his/her life expectancy under (ii) or (iii) above
(as applicable), either the Participant or, following
the Participant's death the Beneficiary, may elect to
have the distribution paid out under (i) above. Such
an election must be made by, and may not be revoked
following, the earlier of (1) December 31 of the year
the distribution is required to commence under (ii) or
(iii) above, or (2) December 31 of the year in which
the fifth anniversary of the Participant's death
occurs.
In the absence of any specific election by the Participant
or Beneficiary as to the form of the distribution, the
distribution will be paid out under (ii) or (iii) as
applicable.
If death occurs after the Retired or Terminated
Participant's .required beginning date," distribution of the
remaining portion of a Participant's vested interest will be
made in accordance with procedures established by the Plan
Administrator, and subject to an applicable election, as
follows:
(i) No Beneficiary designated. The entire account
must be distributed immediately.
(ii) Beneficiary Designated.
(1) Payments made over the Participant's life
expectancy only. If no election to recalculate
life expectancy was made, the remaining account
must be distributed to the Beneficiary at least as
rapidly as under the method of distribution in
effect at the Participant's death. The life
expectancy schedule for a deceased Participant
would continue to be used, with the Beneficiary
having the option to increase the payments. If an
election to recalculate life expectancy was made,
the remaining account must be paid out to the
Beneficiary by December 31 of the year following
the year of the Participant's death.
(2) Payments being made over the joint life
expectancy of the Participant and Beneficiary. If
no election to recalculate life expectancy was
made, the Beneficiary will continue to receive
distributions based on the joint life expectancy
factors already in effect (as if no death had
occurred), with the Beneficiary having the option
to increase the amount of the payments. If an
election is made by the Participant to have his
life expectancy recalculated and either (a) no
election is made to have his designated
Beneficiary's life expectancy recalculated, or (b)
the designated Beneficiary is not the
Participant's spouse, the Beneficiary will receive
the regularly scheduled payment in the year of the
Participant's death, and the remaining account
will be distributed over the Beneficiary's single
life expectancy with no recalculation. The
Beneficiary has the option to increase the amount
of the payments. If an election to recalculate
the Participant's and the spousal Beneficiary's
life expectancies was made, the Beneficiary will
receive the regularly scheduled payment in the
year of the Participant's death, and the remaining
account will be distributed over the Beneficiary's
single life expectancy with recalculation. The
Beneficiary has the option to increase the amount
of the payments
9.3 Forms of Distributions. All distributions under this
Article IX shall be made in the following manner:
(a) Any distributions, other than annuity contracts or
monthly installment payments, may be made in cash or in
kind, or both, in accordance with the election of the
Participant or Beneficiary
(b) Any distributions to a Participant in a monthly
installment form under subparagraph (a)(ii) of Section 9.2
shall be made in cash.
9.4 Disposition of Forfeited Balances. If a termination of
employment results in a forfeiture of Matching Contributions,
such forfeiture may either be used to reduce the Employers'
Matching Contribution obligation or be applied, as directed by
the Plan Administrator or Named Fiduciary, as appropriate, to pay
such administrative expenses of the Plan as are legally permitted
to be paid from the Trust and as are actually paid not later than
the next succeeding Plan Year quarter. If the amount of all such
forfeitures during the quarter exceeds the amount used before the
end of the next succeeding quarter to reduce Matching
Contributions and to pay expenses of the Plan, the excess may be
applied thereafter only to reduce matching contribution
obligations for succeeding quarters until eliminated.
9.5 Buy-Back and Restoration of Forfeited Amounts. A
Participant who terminates employment and incurs a forfeiture of
Matching Contributions and is subsequently reemployed within five
years of his Severance Date shall have such forfeited amount
restored to his Separate Accounts, along with interest credited
at the Fixed Income Fund rate of return over the period of the
forfeiture, and invested in accordance with a new investment
election. If such a Participant receives a distribution of part
or all of his account, he must repay, in cash, the full amount of
such distribution on or before his final repayment date and such
forfeited amount shall be restored to his Separate Accounts and
invested in accordance with a new investment election. In this
case, no interest shall be accrued on such forfeited amount from
the time of the distribution until the time the distribution is
repaid. A Participant who effects a withdrawal from his Separate
Accounts which results in a forfeiture of Matching Contributions
may repay in cash the amount of such withdrawal on or before his
final repayment date, and shall be restored to his Separate
Accounts in accordance with a new investment election. Any
restoration of Matching Contributions shall be made from a
special Company contribution which shall not constitute an Annual
Addition within the meaning of Section 4A. For purposes of
repaying the distribution amount, in the case of a Participant
who terminates employment, the "final repayment date" shall be
five years after the first date on which he is subsequently
reemployed. In the case of a Participant who effects a
withdrawal, his "final repayment date" shall be five years after
the date of such withdrawal.
9.6 Payments to Incompetents or Minors. If any individual
to whom an amount is payable hereunder is incapable of attending
to his financial affairs because of any mental or physical
condition, including the infirmities of advanced age, or is a
minor, such amount (unless prior claim therefor shall have been
made by a duly qualified guardian or other legal representative)
may, in the discretion of the Plan Administrator, be paid to a
duly appointed guardian or to another person for the use or
benefit of the individual found to be a minor or incapable of
attending to his financial affairs or in satisfaction of legal
obligations incurred by or on behalf of such individual. The
Trustee shall make such payment only upon receipt of written
instructions to such effect from the Plan Administrator. Any
such payment shall be charged to the Separate Accounts from which
any such payment would otherwise have been paid to the individual
found to be a minor or incapable of attending to his financial
affairs and shall be a complete discharge of any liability
therefor under the Plan.
9.7 Limitations on Commencement and Distribution of Benefit
Payments.
(a) Unless the Participant otherwise elects (or is deemed
to elect otherwise because the combined present value of
such Participant's nonforfeitable accrued benefit under the
Plan and all other qualified profit-sharing plans maintained
by the Affiliated Group does not exceed $3,500), the payment
of benefits under the Plan to such Participant shall begin
not later than the 60th day after the close of the Plan Year
in which the latest of the following events occurs:
(i) The date on which such Participant attains age 65;
(ii) The tenth anniversary of the date on which such
Participant commenced participation in the Plan; and
(iii) The date on which such Participant terminates
service with the Affiliated Group.
(b) Notwithstanding the foregoing, such Participant's
entire interest in his Separate Accounts (including any
distribution of incidental death benefits) must be
distributed, or begun to be distributed, to him not later
than his "required beginning date."
(c) A Participant's "required beginning date" is the April
1st of the calendar year following the year in which the
Participant attains age 70-1/2. For a Participant who
attains age 70-1/2 before January 1, 1988, and is not a 5-
percent owner, the term "required beginning date" means
April 1 of the calendar year following the later of (1) the
calendar year in which the Participant attains age 70-1/2 or
(2) the calendar year in which the employee retires. For a
Participant who attains age 70-1/2 before January 1, 1988,
and is a 5-percent owner, the term "required beginning date"
means April 1 of the calendar year following the later of
(1) the calendar year in which the Participant attains age
70-1/2, or (2) the earlier of (i) the calendar year with or
within which ends the Plan Year in which the Participant
becomes a 5-percent owner, or (ii) the calendar year in
which the Participant retires.
(d) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined under Code Section 416(i) at any time
during the Plan Year ending with or within the calendar year
in which such owner attains age 66-1/2 or any subsequent
year.
(e) Notwithstanding any provision in this Plan to the
contrary, if not made in a lump-sum, the interest of a
Participant in his Separate Accounts under the Plan must be
distributed, in accordance with Treasury regulations
promulgated under Section 401(a)(9) of the Code, over one of
the four following periods:
(i) the life of such Participant;
(ii) the joint lives of such Participant and such
Participant's Beneficiary;
(iii) a period not extending beyond the life
expectancy of such Participant; or
(iv) a period not extending beyond the joint life
expectancies of such Participant and such Participant's
beneficiary.
9.8 Reemployment. In the event a Participant, is
reemployed by an Employer or an Affiliate, and if such Retired
Participant again becomes an active Participant, his Separate
Accounts from his prior participation shall be consolidated with
the Separate Accounts established in his name after such
reemployment.
ARTICLE X
BENEFICIARIES
10.1 Designation of Beneficiary. A Participant, Retired
Participant, or Terminated Participant may designate a
Beneficiary to whom distribution shall be made hereunder in the
event such Participant dies before his interest is distributed to
him in full. If such Participant has a spouse, his spouse shall
be his Beneficiary and shall receive distribution of his
remaining interest in accordance with the provisions of Section
9.2; provided, however, that a person or persons other than his
spouse may be designated as his Beneficiary if the requirements
of Section 10.3 are met. Any such designation or change of
designation shall be subject to the provisions of Section 10.3,
shall be made in writing in the form prescribed by the Plan
Administrator, and shall become effective only when filed with
the Plan Administrator; provided, however, that any such
designation or change of designation which is received by the
Plan Administrator after the death of the Participant, Retired
Participant or Terminated Participant shall be disregarded.
10.2 Beneficiary in the Absence of Designated Beneficiary.
If (i) a Participant, Retired Participant, or Terminated
Participant who dies does not have a surviving spouse and if no
Beneficiary has been designated pursuant to the provisions of
Section 10.1, or (ii) no Beneficiary survives such Participant,
then the Beneficiary shall be the estate of such Participant. If
any Beneficiary designated pursuant to Section 10.1 dies after
becoming entitled to receive distributions hereunder and before
such distributions are made in full and if no other person or
persons have been designated to receive the balance of such
distributions upon the happening of such contingency, the estate
of such deceased Beneficiary shall become the Beneficiary as to
such balance.
10.3 Spousal Consent to Beneficiary Designation. In the
event a Participant, Retired Participant, or Terminated
Participant is married, any Beneficiary designation, other than a
designation of his spouse as Beneficiary, shall be effective only
if his spouse consents in writing thereto and such consent
acknowledges the specific designation of Beneficiary and the
effect of such action, and is witnessed by a notary public,
unless a Plan representative finds that such consent cannot be
obtained because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
Treasury regulations issued thereunder.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator and Named Fiduciary. The Plan shall
be administered by the Vice President of BP Exploration & Oil
Inc. with responsibility for Human Resources (or the successor to
such office as designated by the Board of Directors) who shall
serve as Plan Administrator within the meaning of ERISA. The
chief financial officer of the Company shall serve as Named
Fiduciary except as otherwise designated by the Board of
Directors.
The Board of Directors may arrange for the delegation by the
Trustee to the Named Fiduciary of any functions normally
performed by trustees (except the custody of assets, the voting
with respect to shares held by the Trustee, and the purchase and
sale or redemption of securities.)
11.2 Duties of Plan Administrator and Named Fiduciary. The
Plan Administrator shall have the authority and responsibility
for control of the operation and administration of the Plan. The
Named Fiduciary shall have the responsibility to manage and
control the assets of the Plan, which includes the investment of
Plan assets. The Plan Administrator and the Named Fiduciary may,
from time to time, designate, or revoke the designation of, one
or more persons other than themselves to carry out one or more
specific fiduciary responsibilities. Each such designation
shall:
(a) be in writing signed by the Plan Administrator or Named
Fiduciary, as applicable;
(b) specify one or more fiduciary duties in connection with
the Plan for which such designee shall be responsible; and
(c) be accepted by such designee. The revocation of any
such designation shall be in writing signed by the Plan
Administrator or Named Fiduciary, whichever originally made
such designation, and shall include a statement that such
has been notified of such revocation.
The Plan Administrator and the Named Fiduciary shall also
have such additional responsibilities and authority with respect
to the Plan as are specifically vested in them from time to time
by action of the Board of Directors of the Company. The
authority of the Plan Administrator and the Named Fiduciary to
delegate any of their duties as fiduciaries under the Plan to any
designee may be limited pursuant to action of such Board of
Directors. Each such designated fiduciary may rely upon any such
direction, information, or action of the Plan Administrator,
Named Fiduciary or another designated fiduciary as being proper
under this Plan or the Trust, and is not required under this Plan
or the Trust to inquire into the propriety of any such direction,
information, or action. It is intended under the Plan and the
Trust that each fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities, and
obligations under this Plan and the Trust and shall not be
responsible for any act or failure to act of another fiduciary.
No designated fiduciary, Plan Administrator, Named Fiduciary nor
the Group guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
No bond or other security shall be required of the Plan
Administrator or the Named Fiduciary or anyone delegated to act
on behalf of either, nor shall they receive additional
compensation for services performed by them in the administration
of this Plan, except as may otherwise be required by law.
No director, officer or Employee of the Group shall be
personally liable for any act or omission to act in connection
with the operation or administration of the Plan, except for his
own willful misconduct or gross negligence, except as may
otherwise be required by law.
The Plan Administrator and the Named Fiduciary and each of
their designees, if any, may serve, subject to the foregoing
provisions of this Section 11.2, in more than one fiduciary
capacity with respect to the Plan and may employ one or more
persons to render advice with regard to any responsibility such
fiduciary has under the Plan.
The Plan Administrator shall have the sole and exclusive
discretion and authority to apply, construe and interpret all
provisions and terms of the Plan, to grant and/or deny any and
all claims for benefits, and to determine and decide any and all
issues and factual circumstances relating to eligibility for
benefits. All findings, decisions and determinations of any kind
made by the Plan Administrator shall not be disturbed unless the
Plan Administrator has acted in an arbitrary and capricious
manner. Subject to the requirements of law, the Plan
Administrator shall be the sole judge of the standard of proof
required in any claim for benefits and in any determination of
eligibility for a benefit. All decisions of the Plan
Administrator shall be final and binding on all parties. The
Plan Administrator shall exercise his powers in a uniform and
nondiscriminatory manner.
11.3 Rules and Regulations. The Plan Administrator may from
time to time prescribe rules or regulations for the
administration of the Plan. Without limiting the generality of
the foregoing, the Plan Administrator may adopt such rules or
regulations with respect to the signature by an Employee and/or
the spouse of an Employee, any directions or other papers to be
signed by Employees, and similar matters as the Plan
Administrator shall determine to be necessary or advisable in
view of the laws of any state or country.
11.4 Trust Agreement and Trustee. The Named Fiduciary and
the Trustee have entered into a trust agreement pursuant to which
the Trustee is to act as trustee under the Plan. The Named
Fiduciary may, without further reference to, or action by, any
Subsidiary participating in the Plan, from time to time enter
into such further agreements with the Trustee or other parties
and make such amendments to such trust agreement or such further
agreements as it may deem necessary or desirable.
The Named Fiduciary may from time to time designate a
successor Trustee which shall be a bank or trust company with
capital and surplus of not less than $10,000,000, and the Named
Fiduciary may require the Trustee to take such steps and execute
such instruments as the Named Fiduciary may deem necessary or
desirable to make effective the transfer of the Trust assets to
the successor Trustee and to maintain the Plan.
11.5 Determination of Benefits and Claims Review. The Plan
Administrator or his designee shall make all initial
determinations as to the right of any person to a benefit. The
Plan Administrator shall establish and follow a procedure for
review of any such determination consistent with regulations of
the Department of Labor under Section 503 of the Act.
11.6 Agency. The Plan Administrator, the Named Fiduciary,
or the Trustee need not recognize the agency of any party for a
Participant or a Beneficiary unless it shall receive documentary
evidence thereof satisfactory to it and thereafter from time to
time, as the Plan Administrator, the Named Fiduciary, or the
Trustee may determine, additional documentary evidence showing
the continuance of such agency. The Plan Administrator, the
Named Fiduciary, or the Trustee shall be entitled to rely upon
the continuance of such agency and to deal with the agent as if
he or it were the Participant or the Beneficiary.
11.7 Records Conclusive. The records of the Trustee, Plan
Administrator, Named Fiduciary, Employers, and Subsidiaries shall
be conclusive in respect of all matters involved in the
administration of the Plan.
11.8 Expenses. Expenses and costs of the Plan shall be paid
in the following manner:
(a) Except as otherwise provided in the Plan or trust
agreement, all costs and expenses incurred in administering
the Plan, including the expenses of the Plan Administrator
and Named Fiduciary, the fees and expenses of the Trustee
and its counsel, and other administrative expenses, shall be
ratably shared by the Employers on such basis as shall
otherwise be mutually agreed upon or, failing such
agreement, as shall be determined by the Company
(b) Taxes, if any, on any assets held by the Trustee or
income therefrom which are payable by the Trustee shall be
charged against the Participant's Separate Accounts as the
Trustee shall determine.
11.9 Qualified Domestic Relations Orders. The Plan
Administrator shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
Anything to the contrary in the Plan notwithstanding, in the
event a qualified domestic relations order provides for a
distribution of a Participant's, Terminated Participant's or
Retired Participant's Separate Accounts, or any portion thereof,
to an alternate payee as defined under Section 414(p)(8) of the
Code, such distribution may include Before-Tax Contributions,
After-Tax Contributions and Matching Contributions, as well as
earnings thereon, without regard to the date as of which such
Participant, Terminated Participant or Retired Participant
separates from service or attains age 59-1/2.
ARTICLE XII
ASSETS HELD BY TRUSTEE
12.1 Assets Held by Trustee. All cash, bonds, stock
certificates, and contracts representing monies on deposit with
insurance companies shall, until disposed of pursuant to the
provisions of this Plan, be held in the possession or name of the
Trustee; provided, however, that transferable securities may be
registered in the name of the Trustee or in the name of its
nominee. All Mutual Fund shares may be held as unissued shares
(not in certificate form), in the name of the Trustee.
Nontransferable securities shall be issued in such name or names
as the Trustee may elect, subject to any applicable laws or
regulations at the time in effect with respect thereto. In the
sole discretion of the Trustee, investments in a particular issue
of stock, security, or a particular issue of bonds made at the
direction of more than one Participant may be represented by a
single certificate, single contract, or single bond, as the case
may be.
12.2 Options, Rights, or Warrants. In the event that any
options, rights, or warrants shall be granted or issued with
respect to shares of stock held by the Trustee under the Plan,
the Trustee shall give to the Participant who directed the
investment in such shares a reasonable opportunity to direct the
Trustee to exercise such options, rights, or warrants for his
Separate Account, and if any cash shall be required in connection
with such exercise, such Participant shall, simultaneously with
his direction to the Trustee, authorize the Trustee to use for
such purpose any uninvested funds held for him and/or make
available to the Trustee any additional necessary funds. Such
additional funds may be made available to the Trustee either by
payment thereof in cash or by written direction to the Trustee on
forms prescribed by the Plan Administrator to sell any security
held for him; provided, however, that any such additional funds
deposited by any Participant with the Trustee for the aforesaid
purpose shall not be deemed a Before-Tax or After-Tax
Contribution under Article Ill. Any securities acquired as the
result of the exercise of any such options, rights, or warrants
shall be added to the Participant's Separate Accounts. If any
Participant shall not, within the time designated by the Trustee,
direct the Trustee to exercise any such option, right, or warrant
and make available to the Trustee any necessary funds, the
Trustee shall sell such option, right, or warrant on any
registered security exchange, if there be any market therefor,
and the cash proceeds from the sale of any such options, rights,
or warrants shall be credited to the Participant's Separate
Accounts. The foregoing provisions notwithstanding, the Trustee
shall reserve the right to determine whether any dividends on
Company Stock held by the Plan shall be paid in cash or in kind
under a share dividend plan.
12.3 Voting Rights. The Trustee shall vote the Company
Stock held in the Company Stock Fund for the respective accounts
of Participants in accordance with such Participants' directions
which may be certified to the Trustee by the Plan Administrator
or any agent designated by the Plan Administrator; provided that
any such shares with respect to which no such direction shall be
received and any fractional shares shall be voted by the Trustee
in the same proportions as shares as to which voting instructions
have been received.
12.4 Cost and Proceeds of Securities Transactions. If the
purchase or sale of securities by the Trustee, whether in
pursuance of standing directions or specific directions, cannot
be completed in a single transaction, but requires multiple
transactions, the price per unit (including prices determined by
the Trustee in cases of matched purchases and sales) at which all
securities of that particular issue are purchased or sold by the
Trustee shall be the weighted average net price per unit at which
all securities of that particular issue are purchased or sold for
the multiple transactions.
12.5 Brokerage Charges. Brokerage commissions, transfer
taxes, and other charges and expenses in connection with the
purchase or sale of securities shall be added to the cost of such
securities or deducted from the proceeds thereof, as the case may
be.
ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Amendments. Subject to the provisions of Section 13.2,
the Board of Directors is authorized to amend the provisions of
the Plan at any time in its sole discretion. This authority may
be delegated from time to time by resolutions of the Board of
Directors to certain officers of the Group, which delegations
shall constitute part of the Plan.
13.2 Limitation of Amendments. The Company shall make no
amendment to the Plan which shall result in the forfeiture or
reduction of the interest of any Employee, Eligible Employee,
Participant, Terminated Participant, Retired Participant or
person claiming under or through any one or more of them pursuant
to the Plan; provided, however, that nothing herein contained
shall restrict the right to amend the provisions hereof relating
to the administration of the Plan and Trust. Moreover, no
amendment shall be made hereunder which shall permit any part of
the Trust property to revert to any Employer or be used for or be
diverted to purposes other than the exclusive benefit of
Employees, Eligible Employees, Participants, Terminated
Participants, Retired Participants and persons claiming under or
through them pursuant to the Plan.
13.3 Termination. The Company reserves the right, by action
of its Board of Directors, to terminate the Plan as to all
Employers at any time, which termination shall become effective
upon notice in writing to the Trustee (the effective date of such
termination being hereinafter referred to as the "termination
date"). The Plan shall terminate automatically if there is a
complete discontinuance of contributions hereunder by all
Employers. Upon any such termination of the Plan, the Trustee
and the Company shall take the following actions for the benefit
of Participants, Terminated Participants, Retired Participants,
and Beneficiaries:
(a) As of the termination date, the Trustee shall value the
Funds hereunder, and the Plan Administrator shall adjust all
Separate Accounts accordingly. The termination date shall
become a valuation date. In determining the net worth of
the Funds hereunder, the Trustee shall include as a
liability such amounts as in its judgment shall be necessary
to pay all expenses in connection with the termination of
the Trust and the liquidation and distribution of the Trust
property, as well as other expenses, whether or not accrued,
and shall include as an asset all accrued income.
(b) The Trustee, upon instructions from the Plan
Administrator, shall then segregate and, subject to
applicable provisions of the Code relating to distribution
of Before-Tax Contributions, distribute an amount equal to
the entire interest of each Participant, Terminated
Participant, Retired Participant and Beneficiary in the
Funds to or for the benefit of each such Participant or
Beneficiary in accordance with the provisions of Section
9.2.
Notwithstanding anything to the contrary contained herein,
upon any such Plan termination, the interest of any Participant
and Beneficiary shall become fully vested and nonforfeitable;
and, if there is a partial termination of the Plan within the
meaning of the Code, the interest of each Participant and
Beneficiary who is affected by such partial termination shall
become fully vested and nonforfeitable.
13.4 Withdrawal of an Employer. An Employer other than the
Company may, by action of its board of directors, withdraw from
the Plan, such withdrawal to be effective upon notice in writing
to the Company and shall thereupon cease to be an Employer for
all purposes of the Plan. An Employer shall be deemed
automatically to withdraw from the Plan in the event of its
complete discontinuance of contributions or (subject to the
provisions of Section 13.5) in the event it ceases to be a
Subsidiary.
13.5 Corporate Reorganization. The merger, consolidation,
or liquidation of the Company or any Employer with or into the
Company or any other Employer shall not constitute a termination
of the Plan as to the Company or such Employer.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 No Commitment as to Employment. Nothing herein
contained shall be construed as a commitment on the part of any
Employer to continue the employment or rate of compensation of
any Employee hereunder for any period.
14.2 Rights to Trust Assets. Nothing in the Plan shall be
construed to confer any right or claim upon any person other than
the parties hereto, Participants, Terminated Participants,
Retired Participants and Beneficiaries. All payments of benefits
as provided in the Plan shall be made solely out of the assets of
the Trust. and none of the fiduciaries shall be liable therefor
in any manner.
14.3 Precedent. Except as otherwise specifically provided
or required by law, no action taken in accordance with the terms
of the Plan, by an Employer, the Company, or any fiduciary for
the Plan, shall be construed or relied upon as a precedent for
similar action under similar circumstances.
14.4 Duty to Furnish Information. Each of the Employers,
the Company, or the Trustee shall furnish to any of the others
any documents, reports, returns, statements, or other information
that any other reasonably deems necessary to perform its duties
imposed hereunder or otherwise imposed by law.
14.5 Merger, Consolidation, or Transfer of Plan Assets. The
Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another
plan, unless, immediately after such merger, consolidation, or
transfer of assets or liabilities, each Participant, Terminated
Participant, Retired Participant or Beneficiary will receive a
benefit which is at least equal to the benefit he was entitled to
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (if the plan had then terminated).
14.6 Return of Contributions to Employers. If a Before-Tax
Contribution:
(a) is made under a mistake of fact, or
(b) is conditioned upon deduction of the Contribution under
Section 404 of the Code and such deduction is disallowed, or
(c) is conditioned upon initial qualification of the Plan
under Section 401(a) of the Code and the Plan does not so
qualify,
such a Contribution may be returned to the Employers within one
year after the mistaken payment of the contribution, the
disallowance of the deduction (to the extent disallowed), or the
date of denial of the qualification of the Plan, whichever is
applicable. For this purpose, all Contributions made by the
Employers are expressly declared to be conditioned upon their
deductibility under Section 404 of the Code and the qualification
of the Plan.
14.7 Filing of Notices and Plan Information. Any Plan forms
to be filed with the Plan shall be mailed by first-class mail or
otherwise delivered to the BP America Participant Service Center
at the following address:
BT Services Tennessee, Inc.
Bankers Trust New York Corp.
P. O. box 305049
Nashville, TN 37230-5049
Such forms must be actually received by the applicable due date
under the Plan. Any Plan notices or communications to be filed
with the Plan Administrator or Named Fiduciary shall be mailed by
first-class mail or otherwise delivered to such individual at 200
Public Square, Cleveland, Ohio 44114-2375. Legal notices shall
be directed to the Corporate Secretary, BP America Inc., 200
Public Square, Cleveland, Ohio 44114-2375.
14.8 Governing Law. Except as provided under federal law,
the provisions of the Plan shall be governed by and construed in
accordance with the laws of the State of Ohio.
14.9 Restriction on Alienation. Except as provided in
Sections 401(a)(13)(B) and 414(p) of the Code relating to
qualified domestic relations orders or as otherwise provided
under Section 401(a)(13) of the Code and related regulations, no
benefit under the Plan at any time shall be subject in any manner
to anticipation, alienation, assignment (either at law or in
equity), encumbrance, garnishment, levy, execution, or other
legal or equitable process. No person shall have power in any
manner to anticipate, transfer, assign (either at law or in
equity), alienate, or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void. If by reason of any attempt
by a Participant, Terminated Participant, Retired Participant or
Beneficiary to alienate, sell, transfer, assign, pledge, encumber
or otherwise dispose of any right or interest under the Plan, or
if by reason of bankruptcy or insolvency or because of any
attachment, garnishment or other proceeding or, any order,
finding or judgment of any court, either in law or in equity,
prior to the actual transfer and delivery of such right or
interest to such Participant or Beneficiary, such right or
interest except for this Section would be payable to, or enjoyed
by some person, firm, or corporation other than such Participant
or Beneficiary, then any such right or interest shall cease, and
thereafter the Trustee, upon the direction of the Plan
Administrator, shall from time to time as and when payments would
otherwise (except for this Section) become due and payable to
such Participant or Beneficiary, pay or deliver to or expend for
the use and benefit of such Participant or Beneficiary or to or
for the use of any person dependent upon such Participant for
support from any amount which would have been payable or
distributable to such Participant or Beneficiary, except for this
Section, such sums as the Plan Administrator in its sole
discretion may deem necessary or advisable for his support or for
the support of any one dependent upon him. At the time when,
except for this Section, final payment would be required to be
made to such Participant or Beneficiary, there shall be paid to
such Participant or Beneficiary only so much of the balance
remaining to his credit under the Plan as the Plan Administrator,
in the exercise of its sole discretion, may direct and the
remainder thereof, if any, shall be paid over and delivered to
his spouse, if any, or if none, to his children, if any, in equal
shares. If there is no spouse or children of such Participant or
Beneficiary alive at such time, the Trustee shall pay and deliver
any portion of any such remaining balance which is not paid to
such Participant or Beneficiary to the estate of such Participant
or Beneficiary.
14.10 Adoption by Subsidiaries. Any Subsidiary of the
Company which at the time is not an Employer may, with the
consent of the Board of Directors of the Company, adopt the Plan
and become an Employer hereunder. An appropriate written
instrument evidencing such adoption shall be executed and filed
with the Company.
14.11 Rollovers to Other Plans or IRAs. Notwithstanding
any provision of the Plan to the contrary that would otherwise
limit a Distributee's election under this Section, a Distributee
may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
Definitions:
(1) Eligible Rollover Distribution. An Eligible Rollover
Distribution is any distribution of all or any portion
of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not
include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the
Distributee's beneficiary, or for a specified period of
ten years or more;
(b) any distribution to the extent such distribution
is required under Code Section 401(a)(9); and
(c) the portion of any distribution that is not
includable in gross income (determined without regard
to the exclusion for net unrealized appreciation with
respect to employer securities)
(2) Eligible Retirement Plan. An Eligible Retirement Plan
is an individual retirement account described in Code
Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the
Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the
surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee. A Distributee includes a Participant,
Retired Participant or Terminated Participant. In
addition, the Participant's, Retired Participant's or
Terminated Participant's surviving spouse, or former
spouse who is the alternate payee under a qualified
domestic relations order as defined in Code Section
414(p), are Distributees with regard to the interest of
the spouse or former spouse.
(4) Direct Rollover. A Direct Rollover is a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
14.12 Administrative Corrections. The Plan
Administrator or the Named Fiduciary, as appropriate, may take
reasonable actions, consistent with applicable law, as may be
necessary to correct any omissions, defects, or inconsistencies
in the operation or administration of the Plan.
ARTICLE XV
TOP-HEAVY PROVISIONS
15.1 Applicability. Notwithstanding any other provision to
the contrary, in the event the Plan is deemed to be a top-heavy
plan for any Plan Year, the provisions contained in this Article
XV with respect to vesting and Matching Contributions shall be
applicable with respect to such Plan Year. In the event the Plan
is determined to be a top-heavy plan and upon a subsequent
Determination Date is determined to no longer be a top-heavy
plan, the vesting and the Employer contribution provisions in
effect immediately preceding the Plan Year in which the Plan was
determined to be a top-heavy plan shall again become applicable
as of such subsequent Determination Date; provided, however, that
in the event such prior vesting schedule does again become
applicable, the provisions of Section 7.4 and Section 13.2 shall
apply (i) to preserve the nonforfeitable accrued benefit of any
Participant or Beneficiary and (ii) to permit in accordance with
Section 7.4, a Participant to elect to continue to have his
nonforfeitable interest in his Employer contributions determined
in accordance with the vesting schedule applicable while the Plan
was a top-heavy plan.
15.2 Top-Heavy Definitions. For purposes of this Article
XV, the following definitions shall apply:
(a) The term "Determination Date" with respect to any Plan
Year shall mean the last day of the preceding Plan Year.
(b) The term "Determination Period" shall mean the Plan
Year containing the Determination Date or the four preceding
plan years.
(c) The term "Key Employee" shall mean any Employee or
former Employee (and the beneficiaries of such Employee) who
at any time during the Determination Period was an officer
of the Company if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section
415(b)(1)(A), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the
Company if such individual's compensation exceeds 100
percent of the dollar limitation under Code Section
415(c)(1)(A), a 5-percent owner of the Company, or a one-
percent owner of the Company who has an annual compensation
of more than $150,000. For purposes of this definition, the
term "compensation" has the meaning given to such term by
Code section 414(q)(7).
(d) The term "Non-Key Employee" shall mean any Participant
who is not a Key Employee.
(e) The term "Permissive Aggregation Group" shall mean
those plans not included in an Employers Required
Aggregation Group in conjunction with any other plan or
plans of such Employer, so long as the entire group of plans
would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code.
(f) The term "Required Aggregation Group" shall include (i)
all plans of an Employer in which a Key Employee is a
participant and (ii) all other plans of an Employer which
enable a plan described in clause (i) hereof to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(g) A "Super Top-Heavy Group" with respect to a particular
Plan Year shall mean a Required or Permissive Aggregation
Group that, as of the Determination Date, would qualify as a
top-heavy group under the definition in paragraph (h) of
this Section 15.2 with "90 percent" substituted for "60
percent" each place where "60 percent" appears in such
definition.
(h) The term "Super Top-Heavy Plan" with respect to a
particular Plan Year shall mean a plan that, as of the
Determination Date, would qualify as a top-heavy plan under
the definition in paragraph (i) of this Section 15.2 with
"90 percent" substituted for "60 percent" each place where
"60 percent" appears in such definition. A plan is also a
"Super Top-Heavy Plan" if it is part of a Super Top-Heavy
Group.
(i) The term "top-heavy group" with respect to a particular
Plan Year shall mean a required or a Permissive Aggregation
Group if the sum, as of the Determination Date, of the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
group and the aggregate of the account balances of Key
Employees under all defined contribution plans included in
such group exceeds 60 percent of a similar sum determined
for all employees covered by the plans included in such
group.
(j) The term "top-heavy plan" with respect to a particular
Plan Year shall mean (i), in the case of a defined
contribution plan, a plan for which, as of the Determination
Date, the aggregate of the accounts (within the meaning of
Section 416(g) of the Code and the regulations thereunder)
of Key Employees exceeds 60 percent of the aggregate of the
accounts of all Participants under the plan, with the
accounts valued as of the relevant Valuation Date, (ii) in
the case of a defined benefit plan, a plan for which, as of
the Determination Date, the present value of the cumulative
accrued benefits payable under the plan (within the meaning
of Section 416(g) of the Code and the regulations
thereunder) to Key Employees exceeds 60 percent of the
present value of the cumulative accrued benefits under the
plan for all employees, with present value of accrued
benefits to be determined in accordance with the actuarial
assumptions specified in such defined benefit plan, and
(iii) a plan that is part of a top-heavy group. For
purposes of this paragraph, a Participant's accrued benefit
in a defined benefit plan will be determined under a uniform
accrual method applied under all defined benefit plans
maintained by the Company or an Affiliate or, where there is
no such method, as if such benefit accrued not more rapidly
than the slowest rate of accrual permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
Notwithstanding the foregoing provisions of this paragraph,
however, a plan shall be deemed not to be a top-heavy plan
if it is part of a required or Permissive Aggregation Group
that is not a top-heavy group.
(k) The term "Valuation Date" shall mean the most recent
valuation date within a twelve-month period ending on the
Determination Date.
15.3 Accelerated Vesting. In the event the Plan is
determined to be a top-heavy plan with respect to any Plan Year,
a Participant who is not vested in his Separate Accounts
attributable to Matching Contributions in accordance with the
provisions of Article VII shall be eligible to receive a
nonforfeitable percentage of Matching Contributions allocated to
his Separate Accounts which shall be determined by application of
the following vesting schedule:
Years of Vesting Service Nonforfeitable Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
An involuntary cash-out shall not be an amount less than the
present value of a Participant's entire employer-derived non-
forfeitable benefit at the time of the distribution.
15.4 Minimum Matching Contribution. In the event the Plan
is determined to be a top-heavy plan with respect to any Plan
Year, the Matching Contributions allocated to the Separate
Accounts of each Non-Key Employee who is a Participant and who is
not separated from service with the Employer as of the end of
such Plan Year shall be no less than the lesser of (a) three
percent of his compensation or (b) the largest percentage of
compensation that is allocated for such Plan Year to the Separate
Accounts of any Key Employee, provided that, in the event the
Plan is part of a Required Aggregation Group, and the Plan
enables a defined benefit plan included in such group to meet the
requirements of Section 401(a)(4) or 410 of the Code, the minimum
allocation of Matching Contributions to the Separate Accounts of
each Non-Key Employee shall be three percent of the compensation
of such Non-Key Employees, and provided further that, if the
highest rate allocated to any Key Employee is less than three
percent, amounts contributed as a result of a salary reduction
agreement must be included in determining contributions made on
behalf of Key Employees. Any minimum allocation to the Separate
Accounts of a Participant required by this Section 15.4 shall be
made without regard to any social security contribution made by
the Employer on behalf of the Participant and without regard to
whether or not a Non-Key Employee withdraws his Before Tax or
After Tax Contributions. This minimum allocation shall be made
for a Non-Key Employee who has not separated from service at the
end of the Plan Year, regardless of whether the Non-Key Employee
has less than 1000 hours for the year. Notwithstanding the
minimum top-heavy allocation requirements of this Section 15.4,
in the event that the Plan is a top-heavy plan, each Non-Key
Employee hereunder who is also covered under a top-heavy defined
benefit plan maintained by an Employer will receive the top-heavy
benefits provided for under such defined benefit plan in lieu of
the minimum top-heavy allocation under the Plan.
15.5 Adjustments to Section 415 Limitations.
Notwithstanding the provisions of Section 4A, in the event that
the Plan is a top-heavy plan and the Employer maintains a defined
benefit plan covering some or all of the employees that are
covered by the Plan, Section 415(e)(2)(B) and 415(e)(3)(B) of the
Code shall be applied to the Plan by substituting "1.0" for
"1.25" and Section 415(e)(6)(B)(i) of the Code shall be applied
to the Plan by substituting $41,500" for $51,875", except that
such substitutions shall not be applied to the Plan if (a) the
Plan is not a Super Top-Heavy Plan and (b) each Non-Key Employee
who is a Participant, who also participates in a defined benefit
plan maintained by an Employer, will receive a defined benefit
minimum top-heavy benefit of three percent per year of service
(up to 30%), and (c) each Non-Key Employee who is a Participant
who does not participate in a defined benefit plan maintained by
an Employer will receive a defined contribution minimum
allocation of four percent of compensation.
* * *
This amendment and restatement of the BP America Partnership
Savings Plan was executed at Cleveland, Ohio, this 19th day of
February, 1996.
BP AMERICA INC.
By
Felix R. Strater
Vice President, Human
Resources
BP Exploration & Oil Inc.
Plan Administrator
APPENDIX A
COVERED EMPLOYMENT CLASSIFICATION
January 1, 1994
The following groups have been designated by the Board of
Directors as employment classifications eligible for
participation in the Plan:
Participating Employer Employment Classification
ACTIVE GROUPS:
BP Oil ProCare managers
ProCare hourly (full-time and part-
time)
Service Station managers and assistant
managers
TERMINATED EMPLOYEE GROUPS:
BP Oil West Coast Service Station managers and
assistant managers.
APPENDIX B
INVESTMENT FUNDS
January 1, 1996
Company Stock Fund. The assets of the Company Stock Fund
shall be invested solely in Company Stock. Company Stock shall
be purchased on the open market or shall be acquired through the
support of newly issued Ordinary Shares of the Company's ultimate
parent, the British Petroleum Company, p.l.c. ("BP"), in
accordance with any procedures which may be established by the
Named Fiduciary. Any purchase of Company Stock on the open
market shall be made only for fair market value as determined by
the Trustee. No commission shall be charged or paid with respect
to any acquisition or sale of Company Stock, except in the case
of Company Stock purchased or sold on a registered national
securities exchange.
Fixed Income Fund. The Fixed Income Fund shall consist of
assets which are invested or held for investment intended to
provide a fixed rate of return including, but not limited to,
those governmental or corporate obligations, trust and
participation certificates and mortgages, insurance contracts
and/or bank contracts which provide for the repayment of funds
invested plus a fixed rate of interest. The Trustee may also, as
directed by the Named Fiduciary from time to time, purchase third
party bonds, guarantees or other forms of insurance on any and
all investments in the Fixed Income Fund and may purchase or hold
property in a short-term investment fund consisting of, but not
limited to, short term notes, debentures, Treasury bills, savings
bond deposits, commercial paper, and any other property for which
the maturity is fixed for a period of time not in excess of 12
months, or a collective trust comprised of such securities
provided such trust is maintained for trusts which form parts of
a pension or profit-sharing plan qualified under the Code. To
the extent that any such assets are so invested in a collective
trust, the instrument establishing the collective trust and the
trust maintained thereunder shall be a part of the Plan and
Trust.
INVESCO Total Return Fund. The INVESCO Total Return Fund
seeks to achieve a high total return on investment through
capital appreciation and current income by investment in a
combination of equity securities and fixed income securities.
Above all, the fund's objective is to achieve reasonably
consistent total returns over up and down market cycles.
Quantitative Fund. The Quantitative Fund is a mutual fund
which seeks a total return greater than that of the U.S. stock
market as measured by the S&P 500 market index, while maintaining
a risk posture similar to that of the index. It invests in a
broadly diversified group of common stocks having investment
characteristics similar to the stocks represented in the S&P 500
but with emphasis on stocks that the Fund's manager considers to
be undervalued by the market. The Quantitative Fund is part of
the Vanguard Group and is managed by Franklin Portfolio
Associates, Inc.
Fidelity Blue Chip Growth Fund. The Fidelity Blue Chip
Growth Fund seeks to achieve long-term capital appreciation from
a portfolio of equity securities issued by established,
recognized companies that are experiencing growth.
J. P. Morgan Institutional International Equity Fund. The
J. P. Morgan Institutional International Equity Fund seeks to
provide a high total return from a portfolio of equity securities
(stocks) of foreign corporations. The fund assumes a long-term
investment horizon to pursue its objective.