1
Exhibit 10 g
EMPLOYEE STOCK OWNERSHIP PLAN
OF
AMERICAN PETROFINA, INCORPORATED
2
TABLE OF CONTENTS*
PAGE
SECTION l. Definitions 1
SECTION 2. Participation 10
SECTION 3. Company Contributions, Employee
Contributions and Investment
Credit Recapture 11
SECTION 4. Allocation of Shares to
Participants 18
SECTION 5. Dividends 23
SECTION 6. Voting Rights 24
SECTION 7. Expenses 25
SECTION 8. Vesting 27
SECTION 9. Distributions from the
Trust Fund 27
SECTION 10. The Trust Fund 34
SECTION 11. Committee of Administration 35
SECTION 12. Amendment, Suspension and
Termination; Merger, Consolidation
and Transfer 41
SECTION 13. Miscellaneous 46
* The Table of Contents is not a part of this
instrument.
(i)
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SECTION 1. Definitions.
The following words and phrases as used herein shall have the
following meanings unless a different meaning is plainly required by the
context:
1.1 "Board of Directors" shall mean the Board of Directors of the
Company.
1.2 "Break in Service" shall mean any Year during which an Employee
does not complete more than 500 Hours of Service.
1.3 "Committee" shall mean the committee established to administer
the Plan in accordance with Section 11.
1.4 "Company" shall mean American Petrofina, Incorporated, a Delaware
corporation, or any successor to it in ownership of all or substantially all of
its assets.
1.5 "Company Contributions" for any Year shall mean the total
contributions by the Company and any Participating Companies for that Year made
under the Plan in accordance with Section 3.
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1.6 "Compensation" shall mean for any Year the total of all amounts
paid to a Participant by the Company or any Participating Company for personal
services as salary, wages, bonuses or overtime pay, but such term shall not
include any other payments, any Company Contributions or benefits paid under
this Plan.
1.7 "Effective Date" shall mean January 1, 1976.
1.8 "Employee" shall mean any employee or officer of an Employer who
is not included in a unit of employees represented by a collective bargaining
agent.
1.9 "Employee Contributions" for any Year shall mean the total
contributions by Participants for that Year made under the Plan in accordance
with Section 3.
1.10 "Employer" shall mean the Company, any subsidiary of the Company
or any subsidiary of any subsidiary of the Company.
1.11 "ERISA" shall mean the provisions of the Employee Retirement
Income Security Act of 1974, as it (or the provisions of the United States Code
in which such provisions appear) may be amended from time to time,
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or any successor legislation adopted in lieu thereof, and references herein to
any specific provision of ERISA shall be deemed also to refer to any specific
provision of ERISA as it may hereafter be so amended or replaced.
1.12 "Fiduciary Responsibility" shall mean those operational and
administrative duties required to be performed by fiduciaries pursuant to the
provisions of Part 4 of Title I of ERISA.
1.13 "Hour of Service" shall mean each hour described in (b) through
(g) below, determined as provided in (a) below. No Hour of Service shall be
counted more than once under this Section 1.13.
(a) An Employee's Hours of Service shall
be determined and credited in accordance with the
Rules and Regulations for Minimum Standards for
Employee Pension Benefit Plans, 29 C.F.R. Part 2530,
promulgated by the United States Department of Labor,
as amended from time to time, or any successor
regulations promulgated in lieu thereof. Pursuant
to 29 C.F.R. Section 2530.200b-3(e) (1) (iv) , in lieu of
recording each Hour of Service, as defined in
subsections (b)-(g) below, an Employee shall be
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credited with 190 Hours of Service for each month for
which he would otherwise be required to be credited
with at least one such Hour of Service, as defined
below.
(b) Each hour for which an Employee is
paid, or entitled to payment, for the performance of
duties for the Employer during the applicable period.
(c) Each hour for which an Employee is
paid, or entitled to payment, by the Employer on
account of a period of time during which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence.
Notwithstanding the preceding sentence:
(i) No more than 501 Hours of
Service shall be credited to an Employee on
account of any single continuous period during
which the Employee performs no duties;
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(ii) An hour for which an Employee
is directly or indirectly paid, or entitled to
payment, on account of a period during which no
duties are performed shall not be credited to
the Employee if such payment is made or due
under a plan maintained solely for the purpose
of complying with applicable workmen's
compensation, or unemployment compensation or
disability insurance laws; and
(iii) An hour shall not be credited
for a payment which solely reimburses an Employee
for medical or medically-related expenses
incurred by the Employee.
(d) During a period of Authorized Absence,
each hour for which an Employee would normally have
been directly or indirectly paid, or entitled to
payment, by the Employer for the performance of duties
had the Employee performed duties during such period
in accordance with his most recent normal work
schedule prior to the Absence. Such hours shall be
credited to the Employee for the period in which the
duties would have been performed. For purposes of
this subsection (d) , "Authorized Absence" shall mean
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absence authorized by the Employer without loss of
employment status, including leave of absence for
military or governmental service, for which no
compensation is paid by the Employer.
(e) Each hour for which back pay,
irrespective of mitigation of damages, is either
awarded or agreed to by the Employer.
(f) Each hour for which an Employee is
required to be given credit for an Hour of Service
under any Federal law other than ERISA. The nature
and extent of any such hours shall be determined
under any such law.
(g) In the sole discretion of the Board
of Directors, hours in respect of service with any
corporation which shall be merged into or shall be
consolidated with an Employer or all or substantially
all of the assets of which shall have been acquired
by an Employer.
1.14 "Internal Revenue Code" shall mean the
Internal Revenue Code of 1954, as it may be amended from
time to time, or any successor revenue code which may
hereafter be adopted in lieu thereof, and references
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herein to any specific provision of the Internal Revenue
Code shall be deemed also to refer to the corresponding
provision of the Internal Revenue Code as it may
hereafter be so amended or replaced.
1.15 "Matching Employee Contributions" shall
mean for any Year the aggregate of the Employee
Contributions for such Year which qualify to be matched by
Company Contributions under Tax Reduction Act Section
301(e).
1.16 "Participant" shall mean any Employee of
the Company or a Participating Company who has become a
Participant in the Plan in accordance with Section 2.
1.17 "Participating Company" shall mean any
corporation (other than the Company) which for any Year
qualifies to file a consolidated Federal income tax
return with the Company, provided that such corporation
shall be designated by the Board of Directors as a
Participating Company for the purposes of the Plan and
that the board of directors of such corporation shall
adopt the Plan and Trust Agreement. Any Participating
Company shall cease to be a Participating Company under
the Plan upon the joint action of the Board of Directors
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and the board of directors of such Participating Company.
1.18 "Plan" shall mean this Employee Stock
Ownership Plan of American Petrofina, Incorporated, as
amended from time to time.
1.19 "Shares" shall mean collectively the
Company's Class A and Class B common stock, such common
stock being referred to herein as "Class A Shares" and
"Class B Shares", respectively.
1.20 "Tax Reduction Act" shall mean the Tax
Reduction Act of 1975, as it (or the provisions of the
United States Code in which it appears) may be amended
from time to time, or any successor legislation adopted
in lieu thereof, and references herein to any specific
provision of the Tax Reduction Act shall be deemed also
to refer to any specific provision of the Tax Reduction
Act as it may be hereafter so amended or replaced.
1.21 "Trust Agreement" shall mean the agreement
and declaration of trust entered into in accordance with
Section 10.
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1.22 "Trust Fund" shall mean the fund held by
the Trustee under the Trust Agreement in accordance with
Section 10.
1.23 "Trustee" shall mean the trustee or
trustees under the Trust Agreement entered into in
accordance with Section 10.
1.24 "Year" shall mean a calendar year. The
Plan Year shall be the calendar year.
1.25 Year of Service" shall mean the 12-
consecutive-month period, commencing on the date an
Employee first performs an Hour of Service, in which the
Employee completes at least 1,000 Hours of Service. In
the case of an Employee who has terminated employment
prior to becoming a Participant, "Year of Service" also
shall mean the 12-consecutive-month period, commencing
on the date on which such Employee first performs an Hour
of Service upon returning to employment following his
most recent termination of employment, in which the
Employee completes at least 1,000 Hours of Service. If
an Employee fails to complete at least 1,000 Hours of
Service in any 12-consecutive-month period described in
either of the two preceding sentences, "Year of Service"
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shall mean any Year in which the Employee completes at
least 1,000 Hours of Service.
1.26 Except as the context otherwise requires,
the masculine pronoun shall include the feminine.
SECTION 2. Participation.
2.1 Eligibility for Participation. Each
Employee of the Company or a Participating Company shall
become a Participant on January 1, 1976 if he had
completed at least one Year of Service on that date. Any
other Employee of the Company or a Participating Company
shall become a Participant on the first day of any month
coincident with or next following his completing one Year
of Service.
2.2 Loss of Participation. A Participant shall
cease participation as of the date he terminates
employment with the Company or a Participating Company
or as of the first day of any Year in which he incurs a
Break in Service.
2.3 Return to Participation. A former
Participant who has terminated employment but has not
incurred a Break in Service shall again become a
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Participant as of the date he is re-employed by the
Company or a Participating Company. A former Participant
who has incurred a Break in Service (whether or not he
has terminated employment) shall again become a
Participant as of the first day of any Year following
such Break in Service in which he completes at least
1,000 Hours of Service.
SECTION 3. Company Contributions, Employee
Contributions and Investment Credit
Recapture.
3.1 Company Contributions. (a) For each Year,
commencing with 1976, the Company and each Participating
Company shall contribute, in such proportions as such
companies shall together agree, to the Trust Fund cash
or Shares of an aggregate value equal to the additional
investment credit determined under Internal Revenue Code
Section 46(a) (2) (B) , if any, with respect to the
aggregate qualified investment of the Company and all
Participating Companies, as determined under Internal
Revenue Code Sections 46(c) and 46(d) (the "Company
Contribution"). To the extent that a Company
Contribution is in cash, such cash shall be used by the
Trustee to purchase Class A or Class B Shares as soon as
reasonably practicable following receipt thereof by the
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Trustee. Except as provided in Section 3.5, no other
contributions to the Trust Fund shall be required or
permitted.
(b) Class A Shares and Class B Shares directly
attributable to Company Contributions, as defined in
Section 3.1(a) above, shall be acquired by the Trust Fund
in a ratio substantially equal to the proportion that the
value of all outstanding Class A Shares, as determined
in Section 3.3 below, bears to the value of all
outstanding Class B Shares, in both cases excluding all
such Shares held by the Trust Fund. For this purpose,
Class B Shares shall be valued at the same value as the
same number of Class A Shares.
3.2 Time of Company Contributions. Company
Contributions in cash and in Shares and Shares purchased
by the Trustee using Company Contributions in cash shall
be transferred to the Trust Fund prior to or as soon as
reasonably practicable following the due date (including
extensions) for filing the Company's Federal income tax
return for the Year for which the Company Contributions
are made; provided, that if any additional investment
credit of the Company or any Participating Company,
determined under Internal Revenue Code Section
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46(a)(2)(B), exceeds the limitations on allowable tax
credits of Internal Revenue Code Section 46(a)(3), then
(i) that portion of the Shares allocable
to investment credit carrybacks of such excess credit
shall be transferred to the Trust Fund within the time
prescribed in Section 3.2 above for the Company
Contribution for the unused credit year, as defined
in Internal Revenue Code Section 46(b), and
(ii) that portion of Shares allocable to
investment credit carryovers of such excess credit
shall be transferred to the Trust Fund within the
time prescribed in Section 3.2 above for the Year to
which such portion is carried over.
3.3 Valuation of Share Contributions. For
purposes of Section 3.1 above, Company Contributions in
Shares shall be valued (i) by taking the average of
closing sale prices of the Class A Shares, as reported
by the composite tape for securities listed on the
American Stock Exchange, Inc., for the 20 consecutive
trading days immediately preceding the date on which the
Company's Federal income tax return is filed for the Year
with respect to which such Company Contributions are
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made, or (ii) in the case of Class B Shares, not listed
on a national exchange, at the value, as determined in
(i) above, of the same number of Class A Shares.
3.4 Initial Plan Qualification.
Notwithstanding anything contained herein to the
contrary, if an application for a determination that the
Plan satisfies the requirements of Sections 301(d) and
301(e) of the Tax Reduction Act and Internal Revenue Code
Section 401(a) is filed with the Internal Revenue Service
not later than 90 days following the date on which the
Company's tax credit under Internal Revenue Code Section
38 for 1976 with respect to the Plan is allowed, and if
such determination is not issued, then all Company
Contributions made to the Trust Fund may be returned to
the Company and the Participating Companies within 12
months after the date on which the Internal Revenue
Service issues notice to the Company that the Plan does
not satisfy the foregoing requirements or otherwise
advises the Company that it refuses to issue a favorable
determination.
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3.5 Employee Contributions. (a) For each
Year, commencing with 1977, each Participant may elect
to make voluntary Employee Contributions in cash to the
Trust Fund in an amount not less than 2% nor more than
10% of the Participant's Compensation for the Year;
provided, that such Participant must designate in writing
that his Employee Contributions for that Year shall be
available as Matching Employee Contributions. Such
Employee Contributions shall be made by payroll
deductions or such other means as the Committee may
prescribe. Employee Contributions shall be accumulated
and held by the Company, without interest, and shall be
transferred to the Trust Fund at the end of each quarter
of the Year.
(b) Employee Contributions shall be used by the
Trustee to purchase Shares as soon as reasonably
practicable following the date on which such Employee
Contributions are received by the Trustee. Class A
Shares and Class B Shares so purchased shall be acquired
by the Trustee in a ratio, at the date of any acquisition
of such Shares, substantially equal to the proportion
that the fair market value of all outstanding Class A
Shares bears to the fair market value of all outstanding
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Class B Shares, in both cases excluding all such Shares
held by the Trust Fund. For this purpose, Class B Shares
shall be valued at the same fair market value as the same
number of Class A Shares.
3.6 Additional Investment Credit Recapture.
(a) Except as otherwise provided in Section 3.6(b) (iii)
below, if the amount of any additional investment credit
determined under Internal Revenue Code Section
46(a)(2)(B) is recaptured or redetermined in accordance
with the provisions of said Internal Revenue Code, then
the Company Contributions attributable thereto which have
been transferred to the Trust Fund shall remain in the
Trust Fund and shall continue to be allocated to
Participants in the Plan.
(b) If any such credit is so recaptured, then:
(i) the Company or any Participating
Company may reduce the amount of its Company
Contribution for the Year in which recapture occurs
or any succeeding Years by the portion of the amount
so recaptured which is attributable to its respective
Company Contributions to the Trust Fund, or
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(ii) the Company or any Participating
Company may deduct said portion for Federal income tax
purposes, subject to the limitations of Internal Revenue
Code Section 404, or
(iii) the Company or any Participating
Company may withdraw from the Trust Fund an amount
attributable to Company Contributions which is not
in excess of such portion which is recaptured, on
condition that (A) while subject to withdrawal
because of recapture, such amounts are segregated
from other Trust Fund assets, and (B) separate
accounts are maintained for Participants on whose
behalf said amounts have been allocated. For this
purpose, Shares to be withdrawn from the Trust Fund
shall be valued at their fair market value at the
date of withdrawal. Shares, dividends and other
assets in the Trust Fund attributable to Employee
Contributions may not be withdrawn under this Section
3.6(b)(iii).
(c) If the amount of the credit claimed by the
Company or a Participating Company for any Year under
Internal Revenue Code Section 38 is reduced because of
a final redetermination of Federal income tax and Company
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Contributions were made for such Year, then either:
(i) the Company or any Participating
Company may reduce the amount of its Company
Contribution for the Year in which such
redetermination becomes final or any succeeding Year
by the portion of the amount of such reduction in the
credit or increase in tax which is attributable to
such Company Contributions, or
(ii) the Company or any Participating
Company may deduct such portion for Federal income tax
purposes, subject to the limitations of Internal
Revenue Code Section 404.
SECTION 4. Allocation of Shares to Participants.
4.1 Proportionate Allocation. (a) All Shares
directly attributable to Company Contributions which may
be made without regard to any Matching Employee
Contributions for any Year, as determined under Internal
Revenue Code Section 46(a)(2)(B)(i), shall be allocated
(to the nearest 1/100 of a Share) as of the end of such
Year to the account of each Participant who completed at
least 1,000 Hours of Service while a Participant during
such Year in an amount which bears substantially the same
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proportion to the amount of all such Shares allocated for
such Year to all Participants as the amount of such
Participant's Compensation while a Participant for the
Year (not in excess of $100,000) bears to the
Compensation paid to all such Participants, while
Participants, during that Year (disregarding each
Participant's Compensation in excess of $100,000).
(b) All Shares directly attributable to Company
Contributions which may be made only to match Matching
Employee Contributions for the Year, as determined under
Internal Revenue Code Section 46(a)(2)(B)(ii), shall be
allocated as of the end of such Year to the account of
each Participant in an amount equal to such Participant's
share of the Matching Employee Contributions to the Trust
Fund for such Year.
(c) All Shares purchased with Employee
Contributions shall be allocated, as soon as reasonably
practicable after they are purchased by the Trustee, to
the accounts of the Participants who made such Employee
Contributions.
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(d) All Class A Shares and Class B Shares
allocated to Participants' accounts under this Section
4.1 shall be so allocated in the ratio, at the date of
acquisition of such Shares by the Trustee, as set forth
in Section 3.5(b) above.
4.2 Limitations on Allocations. (a) The total
"annual addition", as defined below, allocated to any
Participant's account during any Year shall not exceed
the lesser of:
(i) the sum of (A) $26,825, adjusted for
each Year to take into account any cost-of-living
increase provided for that Year under Section 415(d)
of the Internal Revenue Code, plus (B) the lesser of
$26,825, as so adjusted, or the amount of the Company
Contributions for the Year, or
(ii) 25% of the Participant's Compensation
for the preceding Year.
For purposes of this Section 4.2, the "annual addition"
for any Year shall mean the sum of (1) the value of
Shares directly attributable to Company Contributions and
(2) the lesser of (A) the amount of the Participant's
Employee Contributions for the Year in excess of 6% of
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his Compensation for such Year or (B) one-half of his
Employee Contributions for such Year.
(b) For purposes of the computation of the
limitation in Section 4.2(a) above, the amount referred
to in Section 4.2(a)(i)(B) above shall be deemed to be
zero if more than one-third of the Shares directly
attributable to Company Contributions for that Year are
allocated to the group of Participants consisting of
officers of the Company, shareholders owning more than
10% of the Company's Shares (determined under Internal
Revenue Code Section 415(c)(6)(a)(iv)) and Participants
whose Compensation for the Year exceeds an amount equal
to twice $26,825, adjusted as described above.
(c) Notwithstanding the foregoing, in any case
in which an individual is a Participant in the Plan and
a participant in a defined benefit plan maintained by the
Company or a Participating Company, the sum of such
individual's "defined benefit plan fraction" and his
"defined contribution plan fraction" for any Year, as
defined in Internal Revenue Code Section 415(e), may not
exceed 1.4. The otherwise permissible "annual additions"
to any such Participant under the Plan may be reduced to
the extent necessary, as determined by the Committee, to
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prevent disqualification of the Plan, or of any other tax-
qualified plan of deferred compensation maintained by the
Company or a Participating Company in which such
Participant is a member, under the 1.4 limitation imposed
by Internal Revenue Code Section 415(e). The Committee
shall advise affected Participants of any additional
limitation on "annual additions" required by the
preceding sentences.
4.3 Reallocation of Shares. To the extent that
any Shares directly attributable to Company Contributions
cannot be allocated for any Year to a Participant's
account because of the limitations contained in Section
4.2 above, such Shares shall be proportionately
reallocated for that Year under Section 4.1 to the
accounts of other Participants. If the amount of such
Shares for any Year exceeds the amount which can be
allocated under Section 4.2 and this Section 4.3 for that
Year, such Shares shall be held in an unallocated account
in the Trust Fund and shall be allocated proportionately
under Section 4.1 for the next following Year.
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SECTION 5. Dividends.
5.1 Reinvestment of Dividends. Except as may
otherwise be directed by the Committee or otherwise be
provided in the Plan, all dividends paid on Shares held
in the Trust Fund shall be used by the Trustee to
purchase Class A Shares. Such additional Class A Shares
purchased with dividends on Shares allocated to a
Participant's account shall be allocated to such
Participant in the same proportion as the number of
Shares (including fractional Shares) which were credited
to such Participant's account immediately prior to the
record date of the dividend bears to the total number of
Shares (including fractional Shares) then credited to all
such accounts. Except as provided in Section 9.1(a)
below, additional Class A Shares purchased with dividends
and allocated to a Participant's account shall be
distributed from such account at the same time and manner
as are the Shares with respect to which said dividends
were allocated. Such additional Class A Shares purchased
with dividends on Shares not allocated to a Participant's
account shall be held with such unallocated Shares and
allocated or otherwise distributed or withdrawn from the
Trust Fund at the same time and manner as are said
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Shares.
SECTION 6. Voting Rights.
6.1 Voting by Participants. Each Participant shall be entitled to
direct the Trustee as to the manner in which any rights--including but not
limited to voting rights, subscription rights and conversion privileges--with
respect to any Shares allocated to such Participant's account are to be
exercised. For this purpose, the Committee shall notify each Participant of
each annual or special meeting of the shareholders of the Company and of any
other occasion for the exercise of voting or other rights by such shareholders
not later than the date, prior to such meeting or other occasion, on which the
Company so notifies its other shareholders. The notification shall include a
copy of any proxy solicitation material and any other information which the
Company distributes to shareholders regarding the exercise of voting or other
rights, together with a form requesting instructions to the Trustee as to how
the Participant's rights are to be exercised. The Committee shall tabulate and
certify to the Trustee the instructions received, and the Trustee shall vote or
otherwise exercise rights with respect to Shares as
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instructed. The Trustee shall not vote or otherwise
exercise rights with respect to any Shares as to which
no instructions from Participants have been duly received
and certified.
SECTION 7. Expenses.
7.1 In General. Except as otherwise provided
below, all expenses of establishing and administering the
Plan and Trust Fund shall be paid by the Company.
7.2 Expenses of Establishment. As
reimbursement for the expenses of establishing the Plan,
the Company may withhold from the amount of the total
Company Contribution for 1976 so much of the amounts paid
or incurred in connection with the establishment of the
Plan as does not exceed the sum of (i) 10% of the first
$100,000 of such Company Contribution for 1976 and (ii)
5% of any amount in excess of such first $100,000;
provided, that such withholding shall not reduce the
additional investment credit to which the Company would
otherwise be entitled under Internal Revenue Code Section
46(a)(2)(B).
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7.3 Expenses of Administration. As
reimbursement for the expenses of administering the Plan,
the Company may withhold from the amount of the total
Company Contribution for any Year so much of the amounts
paid or incurred during said Year, as expenses of
administering the Plan as does not exceed the smaller of
(i) the sum of 10% of the first $100,000 and 5% of any
amount in excess of $100,000 of the income from dividends
paid to the Plan with respect to Shares during said Year
or (ii) $100,000; provided, that such withholding shall
not reduce the additional investment credit to which the
Company would otherwise be entitled under Internal
Revenue Code Section 46(a)(2)(B).
7.4 Payment by Trust Fund. In lieu of
withholding amounts from the Company Contributions, as
specified in Sections 7.2 and 7.3 above, the Committee
may direct that said specified amounts shall instead be
paid in whole or in part directly from the Trust Fund,
other than from Shares purchased with Employee
Contributions.
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SECTION 8. Vesting.
8.1 Full Vesting. Each Participant shall at
all times have a nonforfeitable right to all Shares or
other assets allocated or credited to his account, except
to the extent that Shares or other assets may be
withdrawn from the Trust Fund as provided in Sections
3.6(b)(iii) or 7.4.
SECTION 9. Distributions from the Trust Fund.
9.1 Withdrawals in Respect of Company
Contributions and Dividends on Shares. (a) Once each
Year, each Participant may irrevocably elect in writing
to withdraw from the Trust Fund all or any whole number
of:
(i) those Shares transferred to the Trust
Fund as Company Contributions or purchased with
Company Contributions in cash, which, as of December
31 of such Year, have been allocated to and have
remained in the Participant's account for a period
of at least 84 months after the month in which such
Shares were allocated to his account, and
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(ii) those Shares which were purchased with cash
dividends or constitute dividends in Shares on Shares
(whether derived from Company Contributions or Employee
Contributions) and which have been allocated to his
account as of December 31 of such Year;
provided, that such election shall be made prior to
December 1 in the election Year. Shares referred to in
(i) above shall be eligible for the election to withdraw
only in the Year in which they first satisfy said 84-
month requirement, and Shares referred to in (ii) above
shall be eligible for the election to withdraw only in
the Year in which they first were allocated to the
Participant's account.
(b) Shares which a Participant has elected to
withdraw pursuant to Section 9.1(a) above shall be
distributed to him in a single distribution as soon as
reasonably practicable in the Year following the Year in
which the election is made.
9.2 Withdrawals in Respect of Employee
Contributions. Each Participant may at any time elect
in writing to withdraw from his account in the Trust Fund
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as of the last day of the next June or December following
the month in which such election is made all or any whole
number of those Shares which were purchased with his
Employee Contributions; provided, that Shares purchased
with Matching Employee Contributions may be withdrawn
only after such Shares have been allocated to and have
remained in the Participant's account for a period of at
least 84 months after the month in which such Shares were
originally so allocated. Such Shares shall be
distributed as soon as reasonably practicable following
such June or December, as the case may be.
9.3 Distribution Upon Termination of
Employment. Shares allocated to a Participant's account
which such Participant has not elected to withdraw under
Sections 9.1 or 9.2 above shall be distributed to him
commencing as soon as reasonably practicable after he
terminates employment for any reason, other than death,
either (i) in a single distribution or (ii) in not more
than 10 equal annual installments, at the Participant's
election. Such election shall be made in writing at any
time prior to the Participant's date of termination of
employment, and any such election may be revoked and
another election made at any time prior to such date.
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If no election is in effect at the date of termination
of employment, distribution shall be in a single
distribution.
9.4 Distribution Upon Death. Upon the death
of any Participant to whose account any Shares remain
credited at the date of death, such remaining Shares
shall be distributed to his beneficiary or beneficiaries
designated pursuant to Section 13.2 commencing as soon
as reasonably practicable after the date of death, either
(i) in a single distribution or (ii) in not more than 10
equal annual installments, at the Participant's election.
Such election shall be made in writing at any time prior
to death, and any such election may be revoked and
another election made at any time prior to death. If no
election is in effect at the date of death, such Shares
shall be distributed as soon as practicable thereafter
to the Participant's designated beneficiary or
beneficiaries in a single distribution. If no
beneficiary is designated at the date of death, such
Shares shall be distributed as soon as practicable
thereafter to the Participant's estate in a single
distribution.
33
9.5 Fractional Shares. In lieu of any
fractional Shares distributable under this Section 9, the
Trustee shall distribute cash equal to the fair market
value of such fractional Shares, determined as of the
date of distribution.
9.6 Time of Final Distribution. Except as a
Participant may otherwise elect in writing pursuant to
the terms of the Plan, no distribution shall commence
later than 60 days after the close of the Year in which
the Participant terminates employment for any reason;
provided, that in the case of a Participant who
terminates employment prior to allocation to his account
of any Shares to which he is entitled under the
provisions of Section 4, such Shares shall be distributed
to him as soon as practicable after allocation is
completed.
9.7 Disability and Hardship Distributions. (a)
In case of disability, a Participant may apply in writing
to the Committee at any time for the immediate
distribution of all or any whole number of Shares not
otherwise distributable from the Trust Fund.
34
(b) In case of hardship, a Participant or any
beneficiary designated by a deceased Participant may so
apply for the immediate distribution of all or any whole
number of such Shares, not otherwise distributable from
the Trust Fund, except that no Shares contributed to the
Trust Fund as Company Contributions or purchased with
Company Contributions in cash shall be distributable to
any Participant or designated beneficiary on account of
hardship unless such Shares have been allocated to and
have remained in the Participant's account for at least
the 84-month period specified in Section 9.1(a)(i) above.
(c) Subject to the sole discretion of the
Committee and to the limitations in (b) above, there may
be distributed to such Participant or designated
beneficiary referred to in (a) or (b) above such number
of Shares in the Participant's account as the Committee
may determine is necessary to alleviate the burdens of
such disability or of such hardship. In making such a
determination the Committee shall use its best efforts
to follow uniform and nondiscriminatory practices, and its
determination shall be final and binding. For the
purposes of this Section 9.7, (i) disability shall mean
incapacity (whether temporary or permanent) from gainful
35
employment and (ii) hardship shall mean a need for
financial assistance in meeting obligations incurred or
to be incurred by a Participant or designated beneficiary
for his health or welfare or for the health or welfare
of members of his immediate family.
9.8 Special Conditions on Class B Shares.
Prior to any distribution of Class B Shares from the
Trust Fund, the Participant or the designated beneficiary
or beneficiaries of a deceased Participant, as the case
may be, shall instruct the Trustee in writing either to
"put" such Class B Shares to the Company for cash or to
exchange such Shares with the Company for Class A Shares
on a Share-for-Share basis. If the "put" is elected, the
value of the Class B Shares shall be deemed to be equal
to the fair market value of the same number of Class A
Shares, determined by taking the average of closing sale
prices of the Class A Shares, as reported-by the
composite tape for securities listed on the American
Stock Exchange, Inc., for the 20 consecutive trading days
immediately preceding the date on which such "put" is
exercised. Following such "put" or exchange, as the case
may be, the Trustee shall distribute the assets in the
Participant's account in accordance with the terms of the
36
Plan.
9.9 Special Condition on Class A Shares. Class
A Shares held in the Trust Fund may be sold by the
Trustee, in order to obtain cash or otherwise, only to
the Company.
SECTION 10. The Trust Fund.
10.1 The Trust Agreement. The Company shall
enter into a Trust Agreement which shall contain such
provisions as shall render it impossible for any part of
the corpus of the trust or income therefrom to be at any
time used for, or diverted to, purposes other than for
the exclusive benefit of Participants, except as provided
in Sections 3.6(b)(iii) or 7.4. Any or all rights or
benefits accruing to any person under the Plan with
respect to any Company Contributions and Employee
Contributions deposited under the Trust Agreement shall
be subject to all the terms and provisions of the Trust
Agreement.
10.2 Management of Trust Fund. The Trustee
shall have exclusive authority to manage and control the
assets of the Trust Fund, except as otherwise provided
herein.
37
10.3 Investment of Trust Fund. The Trustee is
hereby directed to invest the assets of the Trust Fund
exclusively in Shares. While it is intended that the
Trust Fund be invested exclusively in Shares, the Trustee
is empowered to invest such cash as it may from time to
time receive in any form of liquid investment earning
interest, whether or not authorized by law for the
investment of trust funds and including investment
through the medium of any common, collective, or
commingled trust fund maintained by the Trustee which is
qualified under Sections 401(a) and 501(a) of the
Internal Revenue Code and the investments of which
consist of interest-bearing liquid investments, pending
application thereof to the purchase of Shares.
SECTION 11. Committee of Administration.
11.1 In General.
(a) The general administration of the Plan
shall be placed in a Committee, the members of which
shall be appointed from time to time by, and shall
serve at the pleasure of, the Board of Directors.
The Committee shall consist of not less than five
persons all of whom shall be directors or officers
38
or both or other employees of the Company or a
Participating Company.
(b) The Committee shall be the Plan's
"named fiduciary", as such term is defined in ERISA
Section 3(21).
(c) The Committee shall be the Plan's
"administrator", as such term is defined in ERISA
Section 3(16).
(d) Every member of the Committee and each
person to whom Fiduciary Responsibilities are
delegated under Section 11.4 shall be bonded if and
as required by ERISA Section 412.
11.2 Quorum; Vote Required. A majority of the
members of the Committee at the time in office shall
constitute a quorum for the transaction of business. All
resolutions or other actions taken by the Committee at
any meeting shall be by vote of a majority of those
present at any such meeting or may be by consent in
writing of a majority of the Committee without a meeting.
39
11.3 Rules and Regulations. Subject to the
limitations set forth in the Plan, the Committee may from
time to time establish uniform and nondiscriminatory
rules and regulations for the transaction of its business
and for the administration of the Plan.
11.4 Procedure and Performance of Fiduciary
Duties.
(a) The members of the Committee shall
elect one of their number as Chairman and shall elect
a Secretary who may, but need not, be a member of the
Committee; may appoint from their number such
committees with such powers as they shall determine;
may authorize one or more of their number or any
agent to execute or deliver any instrument in their
behalf, and may employ such counsel and agents as
they may require in carrying out the provisions of
the Plan.
(b) The Fiduciary Responsibilities of the
Committee may be allocated among its members or
delegated to persons who are not members of the
Committee; provided, however, that in order to be
effective such allocation or delegation of duties
40
must (i) be made by a resolution of the Committee
unanimously adopted by the members thereof present
at a meeting of the Committee at which a quorum is
present, (ii) be specifically accepted in writing by
the person or persons to whom such duties are
allocated or delegated and (iii) be approved by the
Board of Directors. Upon an allocation or delegation
of Fiduciary Responsibilities, the person or persons
to whom such Fiduciary Responsibilities are allocated
or delegated shall be solely responsible for the
performance of such Fiduciary Responsibilities, and
the other members of the Committee shall not in any
respect be responsible for the performance of such
Fiduciary Responsibilities, except as provided in the
following sentences. The Committee shall, at least
annually, review the performance of any person or
persons to whom any Fiduciary Responsibility has been
allocated or delegated. A review may be instigated
at the request of any member of the Committee. In
the event such review is satisfactory to the
Committee, the Committee may by resolution,
unanimously approved by the voting members,
specifically approve the performance of such person
during the past term and extend for an additional
41
twelve-month period the allocation or delegation of
Fiduciary Responsibilities to such person or persons.
The Committee shall report to the Board of Directors
any such resolution and the extension will be
effective unless the Board of Directors disapproves
it. In the event the Committee does not adopt an
extension resolution, the allocation or delegation
shall become immediately null and void and such
Fiduciary Responsibilities shall revert immediately
to the committee. The Committee shall perform its
allocation and delegation functions in the same
manner as it performs all of its other Fiduciary
Responsibilities pursuant to paragraph (c) below.
(c) The Committee shall perform all of the
Fiduciary Responsibilities with respect to the Plan
except those Fiduciary Responsibilities which are
allocated or delegated pursuant to paragraph (b) above
and those Fiduciary Responsibilities which are to be
performed by the Trustee pursuant to the Trust
Agreement.
42
11.5 Power to Interpret. The Committee shall
have the exclusive right to interpret the Plan and to
determine any question arising under or in connection
with the administration of the Plan. Its decision or
action in respect thereof shall be conclusive and binding
upon all persons having an interest in the Trust Fund or
under the Plan.
11.6 Accounts. The Trustee shall cause to be
maintained accounts showing transactions under the Plan
and the interests of Participants and any beneficiary or
beneficiaries. A separate account shall be maintained
by the Trustee for each Participant and any beneficiary
to which there shall be credited the Shares and other
assets allocated to him, and to which there shall be
charged the amount of any payments made with respect to
his interest. At least annually the Trustee shall
furnish to each Participant and any beneficiary having
an interest in the Trust Fund a summary statement of the
transactions of the Trust Fund since the date of the last
previous statement so furnished and of his interest in
the Trust Fund. Any such Participant or beneficiary who
does not notify the Trustee as to any objection which he
may have with respect to any such statement within 90
43
days after the date of distribution thereof shall be
conclusively presumed to have approved the transactions
reflected therein.
11.7 Indemnification. The Company will
indemnify and save harmless each member of the Committee
and any other person to whom Fiduciary Responsibilities
are allocated or delegated under Section 11.4(b) against
any claim, cost, expense (including attorney's fees) or
liability (including any sum paid in settlement of a
claim with the approval of the Company) arising out of
any act or omission to act as a member of the Committee,
or as a delegate, except in the case of willful
misconduct.
SECTION 12. Amendment, Suspension and Termination;
Merger, Consolidation and Transfer.
12.1 Amendment.
(a) The provisions of the Plan may be
amended at any time and from time to time by the
Board of Directors (for the Company and for the other
Participating Companies), but no such amendment shall
have the effect of reinvesting in the Company or any
Participating Company any part of the Trust Fund or
44
of diverting any part of the Trust Fund to any
purpose other than for the exclusive benefit of the
Participants or, subject to Section 12.1(b), of
reducing any interest of any Participant in the Trust
Fund which has accrued prior to any such amendment
or increasing the eligibility of officers with
respect to allocation of Company Contributions under
the Plan. Without limiting the generality of the
foregoing, any such amendment relating to the manner
of determining the amount of the Company
Contributions may be made applicable to the
computation of such contribution for the entire Year
in which the amendment is adopted by the Board of
Directors, irrespective of the date on which such
amendment is adopted.
(b) Notwithstanding anything to the
contrary herein contained, the Board of Directors may
make any and all changes or modifications
(retroactively, if necessary) which in the opinion
of the Board of Directors are necessary or advisable
in order to comply with the provisions of the
Internal Revenue Code, ERISA, the Tax Reduction Act
or any other applicable law or regulation pertaining
45
to employee stock ownership plans.
12.2 Suspension and Termination. The Company
reserves the right, by action of the Board of Directors
prior to the timely filing of the Company's Federal
income tax return for any Year, to suspend the operation
of the Plan by omitting all Company Contributions for
such Year. In the event the operation of the Plan is so
suspended for any Year or Years all the provisions of the
Plan and Trust Agreement, other than those relating to
Company Contributions for such Year or Years, shall
continue in effect. The Company further reserves the
right, by action of its Board of Directors, to terminate
the Plan either completely or partially, or to
discontinue completely Company Contributions thereto, at
any time, but no such action may be made effective as of
a prior Year. In the event of any such termination,
partial termination or complete discontinuance of Company
Contributions, the Board of Directors may either continue
the Trust Agreement in effect with respect to
contributions theretofore made or terminate the Trust
Agreement as well as the Plan. If the Trust Agreement
is terminated, the assets of the Trust Fund shall be
distributed among the Participants (with the interest of
46
any Participant who has died being distributed to his
designated beneficiary or beneficiaries) in proportion
to the respective interests in the Trust Fund of such
Participants; provided, that any Participant or
designated beneficiary having an interest in the Trust
Fund may request the Trustee in writing to convert said
interest entirely into cash prior to distribution thereof
and the Trustee shall comply with such requests, on a
uniform and non-discriminatory basis among such
Participants and designated beneficiaries, to the extent
practicable, as determined by the Trustee. In the event
of any such termination or partial termination of the
Plan, or complete discontinuance of Company Contributions
thereto, all Participants' interests in the Trust Fund
shall be 100% nonforfeitable, except to the extent that
Shares or other assets may be withdrawn from the Trust
Fund as provided in Sections 3.6(b)(iii) or 7.4.
12.3 Merger, Consolidation or Transfer. In the
event of any merger or consolidation with, or transfer
in whole or in part of the assets and liabilities of the
Trust Fund to, any other trust plan (the "New Plan") of
deferred compensation maintained or to be established for
the benefit of all or some of the Participants of this
47
Plan, the assets and liabilities of the Trust Fund
applicable to such Participants shall be transferred to
the New Plan only if:
(i) Each such Participant would receive
a benefit immediately after the merger, consolidation
or transfer (if the New Plan had then terminated)
which is equal to or greater than the benefit such
Participant would have been entitled to receive
immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
(ii) Resolutions of the Board of Directors
(for the Company and for the Participating
Companies), or of the board of directors of any new or
successor employer of the affected Participants, shall
authorize such transfer of assets; and, in the case of
the new or successor employer of the affected
Participants, its resolutions shall include an
assumption of liabilities with respect to such
Participants' inclusion in the New Plan; and
(iii) The New Plan and Trust, if any, are
qualified under Sections 401 and 501 of the Internal
Revenue Code.
48
SECTION 13. Miscellaneous.
13.1 Benefits Payable from Trust Fund. All
persons with any interest in the Trust Fund shall look
solely to the Trust Fund for any payments with respect
to such interest.
13.2 Designation of Beneficiary. Each
Participant may designate a beneficiary or beneficiaries
and may change such designation from time to time by
filing a written designation of beneficiaries with the
Secretary of the Committee on a form to be prescribed by
it, provided that no such designation shall be effective
unless so filed prior to the death of such Participant.
13.3 Elections. Elections hereunder shall be
made by a Participant in writing by the completion and
delivery to the Secretary of the Committee of forms
prescribed by the Committee for such purposes, within the
time limits set forth hereunder with respect to each such
election or, if no time limit is set forth, as may be
established by the Committee.
49
13.4 No Right to Continued Employment. Neither
the establishment of the Plan nor the payment of any
benefits thereunder nor any action of the Company, any
Participating Company, the Board of Directors or the
board of directors of any Participating Company, the
Committee or the Trustee shall be held or construed to
confer upon any person any legal right to be continued
in the employ of the Company or any Participating
Company, and the Company and each Participating Company
expressly reserves the right to discharge any employee
whenever the interest of any such company in its sole
judgment may so require without liability to the Company,
any Participating Company, the Board of Directors or the
board of directors of any Participating Company, the
Committee or the Trustee except as to any rights which
may be conferred upon such employee under the Plan with
respect to his interest in the Trust Fund.
13.5 Inalienability of Benefits and Interests.
No benefit payable under the Plan or interest in the
Trust Fund shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any such attempted
action shall be void and no such benefit or interest
50
shall be in any manner liable for or subject to debts,
contracts, liabilities, engagements or torts of any
Participant or beneficiary. If any Participant or
beneficiary shall become bankrupt or shall attempt to
anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge any benefit payable under the Plan or
interest in the Trust Fund, then, to the extent permitted
by law, the Committee in its discretion may hold or apply
such benefit or interest or any part thereof to or for
the benefit of such Participant, or his beneficiary, his
spouse, children, blood relatives, or other dependents,
or any of them, in such manner and in such proportions
as the Committee may consider proper. Notwithstanding
the foregoing, any Participant may direct that benefits
payable pursuant to Section 9 from the Trust Fund shall
be paid to the trustee of a trust created by him for his
own benefit or for the benefit of his immediate family.
13.6 Payments Due Infants or Incompetents. If
any person to whom a benefit is payable hereunder is an
infant, or if the Committee determines that any person to
whom a benefit is payable is incapable by reason of
physical or mental disability of taking care of his own
affairs, the Committee shall have power to cause the
51
payments becoming due to such person to be made to
another for his benefit without responsibility of the
Committee or the Trustee to see to the application of
such payments. Payments made pursuant to such power
shall operate as a complete discharge of the obligation
of the Company, any Participating Company, the Trust
Fund, the Trustee and the Committee to make such
payments.
13.7 Payments for Exclusive Benefits of
Participants. Payments of benefits in respect of the
interest of a Participant under the Plan to any person
other than such Participant in accordance with the
provisions of the Plan shall be deemed to be for the
exclusive benefit of such Participant.
13.8 Procedure for Denial of Claims. Subject
to such regulations as may be prescribed by the Secretary
of Labor, the Committee shall provide written notice to
any Participant or surviving beneficiary whose claim for
benefits under the Plan has been denied, setting forth
the specific reasons for such denial. The Committee
shall afford a reasonable opportunity to any such person
whose claim for benefits has been denied for a full and
fair review by the Committee of the decision denying the
52
claim.
13.9 Profit Sharing or Bonus Payments Outside
of the Plan. The adoption of the Plan shall not be
construed as limiting the authority of the Board of
Directors to pay bonuses to, and to establish from time
to time, and to amend or discontinue, profit sharing,
stock bonus or other supplemental compensation plans for,
persons employed by the Company or by any branch thereof
or by any affiliate of the Company who are not eligible to
participate in the Plan and to pay bonuses or other
supplemental compensation to Participants in addition to
any amounts allocated to them hereunder if deemed
advisable by the Board of Directors.
13.10 Agent for Service of Process. The
Secretary of the Company shall be the Plan's designated
agent for service of legal process.
13.11 Texas Law to Govern. This Plan shall be
construed and enforced in accordance with the laws of the
State of Texas and applicable Federal law.
53
AMENDMENT NO. 1 TO THE EMPLOYEE STOCK
OWNERSHIP PLAN OF AMERICAN PETROFINA, INCORPORATED
Pursuant to the provisions of Section 12.1 thereof,
the Employee Stock Ownership Plan of American Petrofina,
Incorporated (the Plan) is hereby amended in the following
respects only:
FIRST:Section 3.4 of the Plan is hereby amended by
restatement in its entirety to read as follows:
"3.4 Initial Plan Qualification.
Notwithstanding anything contained herein to the contrary,
if an application for an initial determination that
the Plan satisfies the requirements of Sections
301(d) and 3O1(e) of the Tax Reduction Act and
Internal Revenue Code Section 401(a) is filed with
the Internal Revenue Service not later than 90
days following the date on which the Company's
tax credit under Internal Revenue Code Section 38
for 1976 with respect to the Plan is allowed, and
if such an initial determination is not issued, then
all Company Contributions made to the Trust Fund
may be returned to the Company and the
Participating Companies within 12 months after
the date on which the Internal Revenue Service
issues notice to the Company that the Plan does
not satisfy the foregoing requirements or otherwise
advises the Company that it refuses to issue a
favorable determination."
SECOND: Section 4. 2(a)(i) of the Plan is hereby
amended by restatement in its entirety to read as follows:
"(i) the sum of (A) $26,825, adjusted by the
Secretary or his delegate for each Year to take
into account any cost-of-living increase provided
for that Year under Section 415(d) of the Internal
Revenue Code, plus (B) the lesser of $26,825, as
so adjusted, or the amount of the Company
Contributions for the Year, or"
EXHIBIT A
54
THIRD: Section 4.3 of the Plan is hereby amended by
adding at the end thereof the following sentence:
"No gains or losses shall be allocated to
Participants' accounts with respect to shares
held in the unallocated account."
FOURTH: Section 10 of the Plan is hereby amended by
adding the following as a new paragraph 10.4:
"10.4 Borrowing by Trustee. The Trustee
may borrow funds on behalf of the Trust provided,
however;
(1) Such loan must be at a reasonable rate of
interest;
(2) Any collateral pledged to the creditor by
the Trust Fund shall consist only of the assets
purchased with the borrowed funds (although in
addition to such collateral, the Company may
guarantee repayment of the loan);
(3) Under the terms of the loan, the creditor
shall have no recourse against the Trust Fund
except with respect to such collateral, contributions
(other than contributions of Shares) from the
Company which are made under a plan to make
such contributions sufficient to meet the obligations
of the Trust Fund under the loan, and earnings
attributable to the investment of such securities;
(4) The loan shall be repaid only from those
amounts contributed by the Company to the Trust
Fund and from amounts earned on trust investments;
(5) The employer must contribute to the Trust
Fund amounts sufficient to enable the Trust Fund
to pay each installment of principal and interest on
the loan on or before the date such installment is
due, even if no tax benefit results from such
contributions;
EXHIBIT A
55
(6) Upon the payment of any portion of the
balance due on the loan, the assets originally
pledged as collateral for such portion shall be
released from encumbrance and allocated to the
accounts of the employees participating in the Plan
during the year such portion is paid off in the manner
provided in Section 4 above."
FIFTH: Section 12.2 of the Plan is hereby amended by
substituting the following sentence for the last sentence
thereof:
"In the event of termination or partial
termination of the Plan, or complete discontinuance of
Company Contributions thereto, all participants'
interests in the Trust Fund shall be 100% nonforfeitable,
except to the extent that Shares or
other assets may be withdrawn from the Trust
Fund as provided in Section 3.6(b)(iii) or 7.4."
EXHIBIT A
56
AMENDMENT NO. 2 TO THE
EMPLOYEE STOCK OWNERSHIP PLAN
OF AMERICAN PETROFINA, INCORPORATED
Pursuant to the provisions of Section 12.1 thereof,
the Employee Stock Ownership Plan of American Petrofina,
Incorporated is hereby amended in the following respects
only:
FIRST: Section 1.15 is hereby amended by restatement
in its entirety to read as follows:
"1.15 `Matching Employee Contributions' shall
mean for any Year the aggregate of the Employee Contributions
for such Year which qualify to be matched
by Company Contributions under Internal Revenue Code
Section 48(n)."
SECOND: Sections 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 are
hereby amended by restatement in their entirety to read as
follows:
"3.1 Company Contributions. For each Year
commencing after December 31, 1978, the Company and
each Participating Company shall contribute, in such
proportions as such companies shall together agree, to
the Trust Fund cash or Class A Shares of an aggregate
value equal to the additional investment credit, if
any, claimed under Internal Revenue Code Section
46(a)(2)(A)(iii) with respect to the aggregate qualified
investment of the Company and all Participating
Companies, as determined under Internal Revenue Code
Sections 46(c) and 46(d) (the "Company Contribution").
To the extent that a Company Contribution is in cash,
such cash shall be used by the Trustee within 30 days
of receipt to purchase Class A Shares. Except as
provided in Section 3.5, no other contributions to the
Trust Fund shall be required or permitted."
"3.2 Time of Company Contributions. Company
Contributions in cash and in Class A Shares shall be
transferred to the Trust Fund no later than 30 days
57
after the due date (including extensions) for filing
the Company's Federal income tax return for the Year
for which the Company Contributions are made;
provided, that if any additional investment credit of
the Company or any Participating Company determined
under Internal Revenue Code Section 46(a)(2) exceeds
the limitations on allowable tax credit under Internal
Revenue Code Section 46(a)(3), then
(i) that portion of the Company Contribution
allocable to investment credit carrybacks of such
excess credit shall be transferred to the Trust
Fund within the time prescribed in Section 3.2
above for the Company Contribution for the unused
credit year, as defined in Internal Revenue Code
Section 46(b), and
(ii) that portion of Company Contribution
allocable to investment credit carryovers of such
excess credit shall be transferred to the Trust
Fund within the time prescribed in Section 3.2
above for the Year to which such portion is
carried over."
"3.3 Valuation of Share Contributions. For
purposes of Section 3.1 above, Company Contributions in
Class A Shares shall be valued by taking the average
of closing sale prices of the Class A Shares, as
reported by the composite tape for securities listed
on the American Stock' Exchange, Inc., for the 20
consecutive trading days immediately preceding the
date on which the Company's Federal income tax return
is filed for the Year with respect to which such
Company Contributions are made."
"3.4 Initial Plan Qualification. Any provision
of this Plan to the contrary notwithstanding, if an
application for a determination that the Plan
satisfies the requirements of Internal Revenue Code
Section 409A is filed with the Internal Revenue
Service not later than 90 days following the date on
which the Company's 1979 tax credit under Section 38
of the Internal Revenue Code is claimed, and if such
determination is not issued, then, no later than one
year after the date on which the Internal Revenue
Service issues notice to the Company that the Plan
does not satisfy said requirements, all Company
Contributions made to the Trust Fund
58
with respect to Years Commencing after December 31,
1978, to the extent not previously distributed to
Participants or beneficiaries, shall be returned to
the Company and the Participating Companies by the
Trustee at the direction of the Committee.
"3.5 Employee Contributions. For each Year
commencing after December 1, 1978, each Participant may
elect to make voluntary Employee Contributions in cash
to the Trust Fund in an amount not less than 2% nor
more than 10% of the Participant's Compensation for
the Year; provided, that such Participant must
designate in writing that his Employee Contributions
for that Year shall be available as Matching Employee
Contributions. Such Employee Contributions shall be
made by payroll deductions or such other means as the
Committee may prescribe. Employee Contributions shall
be accumulated and held by the Company, without
interest, and shall be transferred to the Trust Fund
at the end of each quarter of the Year. Employee
Contributions shall be used by the Trustee as soon as
reasonably practicable, but in no event later than 60
days after the due date (including extensions) for the
filing of the Company's Federal income tax return for
the Year for which said Employee Contributions were
made, to purchase Class A Shares."
"3. 6 Credit Recapture or Redetermination. If
any amount of the credit claimed by the Company or a
Participating Company for a prior Year under Internal
Revenue Code Section 38 is recaptured under Internal
Revenue Code Section 47, or if such credit is reduced
because of a redetermination of Federal income tax for
such prior Year which becomes final during the current
Year, and Company Contributions were made to the Trust
Fund for such prior Year, then the Company or
Participating Company (i) may reduce the amount of its
Company Contribution otherwise due the Plan for the
current Year, or for any succeeding Year, by an amount
equal to the portion of the amount so recaptured, or
the portion of the amount of such reduction in the
credit or increase in tax, which is attributable to
its Company Contribution to the Trust Fund, or (ii) to
the extent not taken in account under phase (i) above,
may deduct an amount equal to such portion subject to
the limitations of Internal Revenue Code Section 404."
59
THIRD: Section 4.1 is hereby amended by restatement
in its entirety to read as follows:
"4.1 Proportionate Allocation. (a) All Class A
Shares directly attributable to Company Contributions
which may be made without regard to any Matching Employee
Contributions for the Year, as determined under
Internal Revenue Code Sections 46(a)(2) and
48(n)(1)(A), shall be allocated (to the nearest 1/100
of a Share) as of the end of each such Year to the
account of each Participant who completed at least
1,000 Hours of Service while a Participant during such
Year in an amount which bears substantially the same
proportion to the amount of all such Shares allocated
for such Year to all such Participants as the amount
of such Participant's Compensation for that Year (not
in excess of $100,000) bears to the Compensation paid
to all such Participants during that Year
(disregarding each Participant's Compensation in
excess of $100,000)."
"(b) All Class A Shares directly attributable to
Company Contributions which may be made only to match
Matching Employee Contributions for the Year, as
determined under Internal Revenue Code Sections
46(a)(2) and 48(n)(1)(B), shall be allocated as of the
end of such Year to the account of each Participant
eligible to share in the allocation under Section
4.1(a) above, in an amount equal to such Participant's
share of the Matching Employee Contributions to the
Trust Fund for such Year."
"(c) All Class A Shares purchased with Employee
Contributions shall be allocated, as soon as
reasonably Practicable after they are purchased by the
Trustee, to the accounts of the Participants who made
such Employee Contributions."
FOURTH: Effective with respect to allocations made
for Years commencing after December 31, 1979, Paragraph
(a) of Section 4.1 is hereby further amended by
restatement in its entirety to read as follows:
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"(a) All Class A Shares directly attributable to
Company Contributions which may be made without regard to
any Matching Employee Contributions for the Year, as
determined under Internal Revenue Code Sections 46(a)(2) and
48(n)(1)(A), shall be allocated (to the nearest 1/100 of a
Share) as of the end of each such Year to the account of
each Participant who either was in the employ of the
Company or a Participating Company on the last day of such
Year, or whose employment with the Company or a Participating
Company terminated during such Year by reason of
death or by reason of retirement under the normal or early
retirement or disability benefit provisions of the Pension
Plan for Non-Represented Employees of American Petrofina,
Incorporated and Certain Subsidiaries, in an amount which
bears substantially the same proportion to the amount of
all such Shares allocated for such Year to all such
Participants as the amount of such Participant's Compensation
for that Year (not in excess of $100,000) bears to the
Compensation paid to all such Participants during that
Year (disregarding each Participant's Compensation in
excess of $100,000)."
FIFTH: The reference in Section 7.3 to "Internal
Revenue Code Section 46(a)(2)(B)" is hereby amended to
make reference to "Internal Revenue Code Section
46(a)(2)(A)."
SIXTH: The reference in Section 8.1 to "Sections
3.6(b)(iii) or 7.4" is hereby amended to make reference to
"Section 7.4."
SEVENTH: Paragraph (a) of Section 9.1 is hereby
amended by restatement in its entirety to read as follows:
"(a) At any time prior to December 1 in each
Year, a Participant may irrevocably elect in writing to
withdraw from the Trust Fund all or any whole number of
the Shares which, as of December 31 of such Year, have
been allocated to and have remained in such Participant's
account for a period of at least 84 months after the month
in which such Shares were allocated to his account;
provided, however, that the Shares referred to in this
Section 9.1(a) shall be eligible for the election to
withdraw only in the Year in which such Shares first
satisfy said 84-month requirement."
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EIGHTH: Section 9.7 is hereby amended by
restatement in its entirety to read as follows:
"9.7 Disability and Hardship Distributions. In
case of disability, a Participant may apply in writing
to the Committee at any time for the immediate
distribution of all or any whole number of Shares not
otherwise distributable from the Trust Fund. In case
of hardship, any beneficiary designated by a deceased
Participant may so apply for the immediate
distribution of all or any whole number of Shares not
otherwise distributable from the Trust Fund.
Distributions pursuant to this Section 9.7 shall be
made only to the extent that the Committee, in its
absolute discretion, determines such to be necessary
to alleviate the burdens of such disability or
hardship. In making such determinations the Committee
shall use its best efforts to follow uniform and
nondiscriminatory practices, and its determinations
shall be final and binding. For the purposes of this
Section 9.7, (i) disability shall mean incapacity
(whether temporary or permanent) from gainful employment
and (ii) hardship shall mean a need for financial
assistance in meeting obligations incurred or to be
incurred by a designated beneficiary of a deceased
Participant for his health or welfare or for the
health or welfare of members of his immediate family."
NINTH: The reference in the last sentence of Section
12.2 to "Sections 3.6(b)(iii) or 7.4" is hereby amended to
make reference to "Section 7.4".
IN WITNESS WHEREOF, this Amendment has been executed
by the Company on behalf of itself and all Participating
Companies on this 12th day of September, 1980, the FOURTH
and SEVENTH provisions hereof to be effective as of
January 1, 1980, and the remaining provisions hereof to be
effective as of January 1, 1979.
AMERICAN PETROFINA, INCORPORATED
By Joe A. Moss, Vice President