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EXHIBIT 10 h
FINA CAPITAL ACCUMULATION PLAN
TABLE OF CONTENTS
ARTICLE I PLAN DESIGN CHARACTERISTIC
Section 1.1. General ................................................ 2
Section 1.2. Participation Service Requirements ..................... 2
Section 1.3. Pre-Tax Contributions Range ............................ 2
Section 1.4. After-Tax Contributions Range .......................... 2
Section 1.5. Time for Making or Changing Pre-Tax
and/or After-Tax Elections .......................... 2
Section 1.6. Suspension of Contribution Elections ................... 2
Section 1.7. Employer Matching Contributions ........................ 2
Section 1.8. Frequency of Change of Directed Investments ............ 3
Section 1.9 Vesting Rules .......................................... 3
ARTICLE II PARTICIPATION
Section 2.1. Participation Service Requirements ..................... 3
Section 2.2. Compensation for Plan Year of Entry .................... 4
Section 2.3. Reemployment of Prior Participant ...................... 4
Section 2.4. Special Rules for Change in Status ..................... 4
ARTICLE III PARTICIPANT AND EMPLOYER CONTRIBUTIONS
Section 3.1. Participant Elections .................................. 5
Section 3.2. Employer Matching Contributions Subject to the
Limitations of Article IV ........................... 7
Section 3.3. Payment to Trustee ..................................... 7
Section 3.4. Limitations ............................................ 8
ARTICLE IV LIMITATION ON ANNUAL ADDITIONS
Section 4.1. Limitation on Annual Additions ........................ 14
Section 4.2. Multiple Plan Reduction ............................... 15
Section 4.3. Definitions Relating to Annual Addition Limitations ... 16
Section 4.4. Reduction of Annual Additions ......................... 17
ARTICLE V PLAN ACCOUNTING, RECORDKEEPING AND DIRECTED INVESTMENTS
Section 5.1. Plan Accounting Records ................................ 17
Section 5.2. Trust and Directed Investment Accounts ................. 18
Section 5.3. Purchases of Company and PSA Stock ..................... 21
ARTICLE VI VESTING AND PAYMENT OF BENEFITS
Section 6.1. Early Retirement Date ................................. 21
Section 6.2. Disability Retirement ................................. 21
Section 6.3. Vesting ............................................... 22
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Section 6.4. Commencement of Benefits .............................. 25
Section 6.5. Vesting Years of Service .............................. 27
ARTICLE VII SETTLEMENT OPTIONS
Section 7.1. Methods of Distribution ............................... 28
Section 7.2. Date for Determining Value of Account Balance ......... 29
Section 7.3. Qualified Domestic Relations Order .................... 29
Section 7.4. Effect of Death of Beneficiary ........................ 29
Section 7.5. Minors and Persons Under Other Legal Disability ....... 29
ARTICLE VIII PLAN ADMINISTRATION
Section 8.1. Appointment of Committee .............................. 30
Section 8.2. General Rights, Powers and Duties of Committee ........ 30
Section 8.3. Action by the Committee ............................... 31
Section 8.4. Fiduciary Obligations ................................. 31
Section 8.5. Information to be Furnished to Committee............... 31
Section 8.6. Uniform Application ................................... 31
Section 8.7. Allocation and Delegation of Certain Fiduciary Duties.. 32
Section 8.8. Indemnification of the Committee by the Company ....... 32
Section 8.9. Limitation on Responsibilities ........................ 32
Section 8.10. Appointment of Qualified Investment Manager ........... 32
ARTICLE IX CLAIM FOR BENEFITS PROCEDURE AND LAPSED BENEFITS
Section 9.1. Claim for Benefits .................................... 33
Section 9.2. Request for Review of a Denial of a Claim for Benefits 33
Section 9.3. Decision Upon Claim for Review of a Denial of Claim for
Benefits ........................................... 33
Section 9.4. Domestic Relations Order .............................. 34
Section 9.5. Lapsed Benefits ....................................... 34
ARTICLE X LIMITATION UPON REVERSION
Section 10.1. Exclusive Benefit .................................... 35
Section 10.2. Permissible Reversions ............................... 35
ARTICLE XI AMENDMENT
Section 11.1. In General ............................................ 36
Section 11.2. Amendments to Vesting Schedule ........................ 37
ARTICLE XII TERMINATION OF THE PLAN AND TRUST
Section 12.1. Right to Terminate Plan and Trust .................... 37
Section 12.2. Right to Discontinue Contributions ................... 38
Section 12.3. Vesting Upon Termination of Plan or Complete
Discontinuance of Contributions .................... 38
Section 12.4. Merger or Consolidation of Plan and Trust ............ 38
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ARTICLE XIII STAND-BY TOP HEAVY RULES
Section 13.1. Determination of Top Heavy or Super Top Heavy Status . 38
Section I3.2. Minimum Allocation Requirement for Top Heavy Plan .... 42
Section 13.3. Top Heavy Vesting Rule ............................... 44
ARTICLE XIV WITHDRAWALS
Section 14.1. Withdrawals by Participants ......................... 44
Section 14.2. Loans to Participants ............................... 45
ARTICLE XV MISCELLANEOUS
Section 15.1. Inalienability of Benefits .......................... 46
Section 15.2. No Implied Rights ................................... 46
Section 15.3. Status of Employment Relations ...................... 46
Section 15.4. No Guarantee ........................................ 47
Section 15.5. Service in More than One Capacity ................... 47
Section 15.6. Adoption by Others .................................. 47
Section 15.7. Actions by the Company or an Employer ............... 47
Section 15.8. Binding Effect ...................................... 47
Section 15.9. Governing Laws ...................................... 47
Section 15.10. Counterparts ........................................ 47
ARTICLE XVI HOURS OF SERVICE AND LEAVES OF ABSENCE
Section 16.1. Hour of Service Defined .............................. 48
Section 16.2. Determination of Hours of Service for Reasons
Other Than the Performance of Duties............... 49
Section 16.3. Crediting of Hours of Service to Computation Periods.. 49
Section 16.4. Effect of Maternity or Paternity Leave of Absence
on One Year Break in Service ....................... 49
ARTICLE XVII DEFINITIONS AND CONSTRUCTION
Section 17.1. "Account"............................................. 50
Section 17.2. "Accrual Computation Period".......................... 50
Section 17.3. "Act" or "ERISA"...................................... 50
Section 17.4. "Affiliated Company" ................................. 50
Section 17.5. "Agent for Service of Process"........................ 51
Section 17.6. "Basic Compensation".................................. 51
Section 17.7. "Beneficiary" or "Beneficiaries"...................... 51
Section 17.8. "Code" ............................................... 51
Section 17.9. "Committee"........................................... 51
Section 17.10. "Company"............................................. 51
Section 17.11. "Company Stock" ...................................... 51
Section 17.12. "Compensation" ....................................... 51
Section 17.13. "Determination Date" ................................. 52
Section 17.14. "Eligibility Computation Period"...................... 52
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Section 17.15. "Employee" .......................................... 52
Section 17.16. "Employee After-Tax Account" ........................ 52
Section 17.17. "Employee After-Tax Contribution" ................... 52
Section 17.18. "Employee Pre-Tax Account"........................... 52
Section 17.19. "Employee Pre-Tax Contribution"...................... 53
Section 17.20. "Employer" .......................................... 53
Section 17.21. "Excess Aggregate Contributions"..................... 53
Section 17.22. "Excess Contributions"............................... 53
Section 17.23. "Family Member"...................................... 53
Section 17.24. "First Thrift Plan".................................. 53
Section 17.25. "Government Bonds" .................................. 53
Section 17.26. "Highly Compensated Employee"........................ 53
Section 17.27. "Non-Highly Compensated Employee".................... 55
Section 17.28. "Key Employee"....................................... 55
Section 17.29. "Non-Key Employee" .................................. 56
Section 17.30. "Leased Employees" .................................. 56
Section 17.31. "Match Accounts"..................................... 57
Section 17.32. "Matching Contribution".............................. 57
Section 17.33. "Named Fiduciary".................................... 57
Section 17.34. "Net Profits"........................................ 57
Section 17.35. "One Year Break in Service" ......................... 57
Section 17.36. "Participant" ....................................... 57
Section 17.37. "Permanent Disability"............................... 57
Section 17.38. "Plan" .............................................. 58
Section 17.39. "Plan Year" ......................................... 58
Section 17.40. "Post-83 Match Account" ............................. 58
Section 17.41. "Pre-84 Match Account" .............................. 58
Section 17.42. "PSA Stock" ......................................... 58
Section 17.43. "Qualified Investment Manager" ...................... 58
Section 17.44. "Retirement" ........................................ 58
Section 17.45. "Super Top Heavy Plan" .............................. 58
Section 17.46. "Super Top Heavy Plan Year" ......................... 58
Section 17.47. "Top Heavy Plan" .................................... 58
Section 17.48. "Top Heavy Plan Year ................................ 59
Section 17.49. "Termination of Employment" ......................... 59
Section 17.50. "Trust" or "Trust Fund" ............................. 59
Section 17.51. "Trustee" ........................................... 59
Section 17.52. "Valuation Date" .................................... 59
Section 17.53. "Vested Benefit" or "Vested Interest" ............... 59
Section 17.54. "Vested Participant" ................................ 59
Section 17.55. "Vesting Computation Period" ........................ 59
Section 17.56. "Construction" ...................................... 59
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FINA CAPITAL ACCUMULATION PLAN
THIS PLAN, made, executed, and restated at Dallas, Texas by the
undersigned Employers,
WITNESSETH THAT:
WHEREAS, the Employers had heretofore adopted for the benefit of
their employees a qualified profit sharing plan known as the Thrift
Plan for Employees of American Petrofina, Incorporated and Certain
Subsidiaries which has been amended from time to time; and
WHEREAS, it is desirable to change the name of such plan to the
FINA CAPITAL ACCUMULATION PLAN (sometimes herein referred to also as
the "Capital Accumulation Plan" or just the "Plan");
WHEREAS, changes to and by the Internal Revenue Code of 1986
necessitate additional amendments in order to maintain the qualified
status of the Capital Accumulation Plan; and
WHEREAS, the Company desires to make certain additional changes
to the design of the Capital Accumulation Plan.
NOW, THEREFORE, pursuant to the provisions of Section 8.1 of the
Plan as in existence on the date immediately preceding the adoption
of this amendment and restatement, said Plan is hereby amended and
restated in its entirety and as so amended and restated in its
entirety, shall read as follows:
FINA CAPITAL ACCUMULATION PLAN - 1
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ARTICLE I
PLAN DESIGN CHARACTERISTIC
Section 1.1. General. In order to both facilitate
administration of this Plan by stating in one Article the principal
design characteristics of this Plan and to facilitate any future
technical or administrative amendments to this Plan, this Article
contains those Plan design specifications that may only be amended by
action of the Board of Directors of the Company, any other amendments
being within the scope of authority of the President or the Vice
President responsible for employee benefit matters. The
specifications stated in this Article may be further clarified or
limited by other sections of this document. Any such limitation shall
be controlling.
Section 1.2. Participation Service Requirements. The first day
of the month (sometimes called an "Entry Date") after the last day of
the Eligibility Computation Period during which an Eligible Employee
completes 1,000 or more Hours of Service.
Section 1.3. Pre-Tax Contributions Range. The range of
permissible Pre-Tax Contributions is not less than one percent (1%)
nor more than ten percent (10%) of a Participant's Basic
Compensation.
Section 1.4. After-Tax Contributions Range. The range of
After-Tax Contributions is not less than one percent (1%) nor more
than five percent (5%) of a Participant's Basic Compensation (plus
any amounts redirected to After-Tax Contributions pursuant to Section
3.1(a)(i)), but when added to the Employee Pre-Tax Contributions made
on behalf of the Participant, the total may not exceed ten percent
(10%) of his Basic Compensation.
Section 1.5. Time for Making or Changing Pre-Tax and/or
After-Tax Elections. A Participant may change his rate of
Contributions effective on any January 1 or July 1.
Section 1.6. Suspension of Contribution Elections. Suspensions
of either Pre-Tax or After-Tax Contributions may be made by a
Participant at any time, provided such suspension(s) is (are) for a
period of at least six (6) months.
Section 1.7. Employer Matching Contributions.
(a) General Rule.
The Employer Matching Contribution shall be the lessor of,
(1) five percent (5%) of such Participant's Basic
Compensation for that pay period, or
FINA CAPITAL ACCUMULATION PLAN - 2
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(2) the total amount of the Employee After-Tax and Employee Pre-Tax
Contributions made by or on behalf of such Participant for that
pay period.
(b) Increased Match. (Effective as set forth in Section 3.2)
The Employer Matching Contribution shall be the greater of,
(1) the Employee Pre-Tax Contributions (including redirected to
After-Tax Contributions pursuant to Section 3.1(a)(ii)) made on
behalf of the Participant for the same period but not more than
six percent (6%) of such Participant's Basic Compensation, or
(2) the amount described in the preceding Subsection (a) of
this Section.
Section 1.8. Frequency of Chance of Directed Investments. A Participant
may change directed investments as follows:
(a) Future Contributions
January 1 or July 1
(b) Part or All of Account Balances
January 31 or July 31
Section 1.9 Vesting Rules.
(a) Full Vesting at Early Retirement Age. Regardless of Years
of Service, a person shall be fully (100%) vested and can retire at
any time after reaching age 55 ("Early Retirement Age").
(b) See Section 6.3 for general vesting rules upon attaining specified
Years of Service, at Disability Retirement or Death.
ARTICLE II
PARTICIPATION
Section 2.1. Participation Service Requirements. Effective on
and after January 1, 1991, every Eligible Employee who was a
Participant in the Plan on December 31, 1990 shall continue as a
Participant in the Plan and every other Eligible Employee shall
become a Participant in the Plan after satisfying the participation
service requirements of Section 1.2 with an Employer or an Affiliated
Company; provided, however, if he is not employed by an Employer as
an Eligible Employee on such Entry Date, he will not become a
Participant until the first date thereafter on which he so completes
an Hour of Service with an Employer.
FINA CAPITAL ACCUMULATION PLAN - 3
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Section 2.2. Compensation for Plan Year of Entry. For purposes
of Article III, the Compensation of a Participant (for the Plan Year
in which he becomes a Participant) shall not include his Compensation
prior to his Entry Date.
Section 2.3. Reemployment of Prior Participant. Any Participant
who is reemployed following his Termination of Employment shall
recommence participation as of the first day of the month following
the date he first completes an Hour of Service with the Employer
after his reemployment.
Section 2.4. Special Rules for Change in Status.
(a) Participation.
Change to Eligible Employee Status. A person who changes status
from an Ineligible Person (as defined at Section 17.15) to Eligible
Employee (as defined in Section 17.15) shall become a Participant in
the Plan on the later of:
(i) the first day of the month following the date on which he
first completes an Hour of Service as an Eligible Employee,
or
(ii) the Entry Date coincident with or next following the date on
which he becomes a Participant in accordance with the
requirements of
Section 2.1.
Allocation of the Employer Contribution and Forfeitures, if any,
for such a Participant for the Plan Year during which such change in
status occurs shall be based solely on his Compensation as determined
in accordance with Section 2.2 and his Employee After-Tax and/or
Employee Pre-Tax Contributions.
(b) Change to Ineligible Person Status. A Participant who ceases to
be an Eligible Employee but continues to be an Employee (including a
Participant who becomes a member of a collective bargaining unit the
recognized representative of which has not agreed to participation in
the Plan by members) shall continue to participate in the Plan for
all purposes except that he shall not accrue any further benefit nor
shall he be entitled to make further Employee After-Tax or Employee
Pre-Tax Contributions (if any are otherwise permitted). However, a
Participant who ceases to be an Eligible Employee shall be entitled
to share in the Employer Contributions and Forfeitures (if otherwise
herein applicable) for the Plan Year during which such change in
status occurs based solely on his Compensation, and Employee
After-Tax and/or Employee Pre-Tax Contribution (made prior to such
change in status) for such Plan Year as an Eligible Employee.
FINA CAPITAL ACCUMULATION PLAN - 4
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ARTICLE III
PARTICIPANT AND EMPLOYER CONTRIBUTIONS
Section 3.1. Participant Elections. Except as herein limited,
each Eligible Employee who has satisfied the requirements for
participation may file a written election, on forms to be provided by
the Committee, directing his Employer to:
(a) Pre-Tax Contributions. Withhold a uniform amount
from his Basic Compensation and make an Employee Pre-Tax
Contribution of a corresponding amount to the Plan. Such
salary deferral election may only direct the withholding
from the Participant's Basic Compensation within the range
set forth at Section 1.3. Such salary deferral elections
must be elected in even one percent (1%) increments. All
such Employee Pre-Tax Contributions shall be credited to
the Participant's Employee Pre-Tax Account.
(i) Calendar Year Individual Pre-Tax ($7,000) Limitation.
Notwithstanding any other provision of the Plan, for each
calendar year (regardless of the Plan Year) no Participant
shall contribute an amount through an Employee Pre-Tax
Contribution which exceeds $7,000 (adjusted from time to
time for any cost-of-living increase adjustment provided
pursuant to Code Section 4O2(g)(5)).
If the Plan would otherwise receive an amount of a
Participant's Pre-Tax Contribution in excess of the
foregoing limit, such amount shall, depending on the
Participant's prior election, either (A) be deducted
each pay period and contributed as Employee After-Tax
Contributions described in Subsection (b) in addition to
the Participant's other After-Tax Contributions or (B) if
no such election has been made, be deemed an "Excess
Deferral" and be dealt with as provided at Subparagraph
(ii) immediately below.
(ii) No Distribution of Excess Deferrals. If any portion of
a Participant's Pre-Tax Contributions under this Plan is
designated an Excess Deferral, such Excess Deferral shall
not be distributed until the time it would have been
distributed if such designation had not been made.
(b) After-Tax Contribution. Make an Employee After-Tax
Contribution to the Plan for each pay period in an amount,
within the range set forth at Section 1.4, of such Basic
Compensation. Such employee After-Tax Contribution election
must be elected in even one percent (1%) increments.
FINA CAPITAL ACCUMULATION PLAN - 5
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(c) Time for Making or Changing Pre-Tax and/or After-Tax Elections.
The applicable percentage of payroll deductions semiannually
(as of any date set forth in Section 1.5, or such other semiannual
dates as the Committee may from time to time establish, upon
reasonable notification to Participants) by providing written notice
to the Committee on a form, in a manner and at such time prior to the
payroll period to which it applies as prescribed by the Committee.
(d) Suspension of Contribution Elections. Notwithstanding the limitations
at Subsection 3.1(c) above, at such time(s) and for such minimum
period as provided in Section 1.6, suspend his Employee Pre-Tax
and/or After-Tax Contributions, by providing written notice to the
Committee (on a form and in a manner prescribed by the Committee) at
such time prior to the first payroll period to which such suspension
applies as the Committee may from time to time administratively
establish, provided reasonable notice of such deadline is provided to
Participants.
Participant's Employee Pre-Tax Contributions or Employee After-Tax
Contributions shall resume automatically at the prior rate(s) or if
such Participant chooses (within the permissible range of such
contributions) by filing an appropriate written election at the time
and in the manner set forth above for such Participant elections, at
any different rate selected by the Participant. No retroactive
contributions may be made by or on behalf of a Participant.
(e) Omission of Eligible Employee. Notwithstanding the preceding
provisions of this Section 3.1, if, in any Plan Year, any Employee
who should be included as a Participant in the Plan is
erroneously omitted through an administrative error, such omission
shall be corrected as soon as administratively feasible. If the
omission is discovered after a contribution by the Employer for the
year has been made, then the Employer shall make a subsequent
contribution with respect to the omitted Employee in the amount which
the Employer alone would have contributed with respect to him had he
not been omitted and assuming solely for these purposes that the
omitted Employee had made the maximum permissible Employee Pre-Tax
Contribution and Employee After-Tax Contribution. Such Employer
contribution shall be made regardless of whether or not it is
deductible in whole or in part by the Employer in any taxable year
under applicable provisions of the Code.
(f) Inclusion of Ineligible Employee. If any person is erroneously
included and such incorrect inclusion is discovered after an Employee
After-Tax Contribution or Employee Pre-Tax Contribution (or both)
or after an Employer Matching Contribution for the year has been
made, the Employee After-Tax and/or Employee Pre-Tax Contributions
shall be treated as made under a mistake of fact and the Employee
After-Tax or Employee Pre-Tax Account(s) resulting therefrom shall be
returned to the
FINA CAPITAL ACCUMULATION PLAN - 6
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individual, as soon as administratively feasible, but such returned
monies shall not exceed the actual amount contributed as Employee
After-Tax and Employee Pre-Tax Contributions. Further, the Employer
shall not be entitled to recover the Employer Matching Contribution
made with respect to the Ineligible Person regardless of whether
or not a deduction is allowable with respect to such contribution.
In such case, the amount of Employer Matching Contribution with
respect to the Ineligible Person shall constitute a forfeiture for
the Plan Year in which the discovery is made.
Section 3.2. Employer Matching Contributions Subject to the Limitations
of Article IV.
(a) General Rule. An Employer shall, out of its Net Profits,
make a Matching Contribution to the Plan for each Participant in its
employ in an amount which, when added to any forfeiture amount being
credited to such Participant for that pay period, will equal the
amount determined at Section 1.7(a).
(b) Increased Match. Effective July 1, 1991, the Employer
Matching Contribution shall be the amount determined at Section
1.7(b).
Section 3.3 Payment to Trustee. The Employee After-Tax and
Employee Pre-Tax Contributions for a pay period ending within a
particular month shall be sent to the Trustee in cash no later than
30 days after the end of such month. The Matching Contribution may
be made in cash or in the form of Company Stock, or in any
combination thereof, and shall be sent to the Trustee no later than
30 days after the end of such month. The value of any Company Stock
contributed as a Matching Contribution shall be the closing price of
such stock on the open market as of the date of contribution if such
stock was traded on the open market on such date. If such stock was
not traded on the open market as of the date of the contribution,
then the value of the Company Stock shall be the closing price of
such stock on the open market as of the date next preceding the date
of the contribution that such stock was traded on the open market.
If any Employer is prevented from making a contribution which it
would otherwise have made by reason of having no Net Profits or
because Net Profits are less than the contribution which it would
otherwise have made, then so much of the contribution which such
Employer was prevented from making shall be made for the benefit of
the Participants in the employ of such Employer by the other
Employers to the extent of their Net Profits in such proportions as
such other Employers may determine.
FINA CAPITAL ACCUMULATION PLAN - 7
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Section 3.4. Limitations.
(a) Limitation on Employee Pre-Tax Contribution.
(1) Notwithstanding anything herein to the contrary, if
the Actual Deferral Percentage of Highly Compensated
Participants exceeds the greater of:
(i) 1.25 times the Actual Deferral Percentage of all
Non-Highly Compensated Participants for such Plan
Year, or
(ii) 2 times the Actual Deferral Percentage of
Non-Highly Compensated Participants, provided
that the Actual Deferral Percentage for
Participants who are Highly Compensated Employees
does not exceed the Actual Deferral Percentage of
Non-Highly Compensated Participants by more than
two (2) percentage points,
or if total Employer Contributions for one or more
Participants exceed the applicable limitations of
Section 4.1, then the Committee shall take the actions
described in paragraphs (2) through (4) below.
In determining a Highly Compensated Participant or
Non-Highly Compensated Participant for purposes of
this Section, only Employees who have satisfied the
eligibility requirements of Section 2.1, whether or
not they made a before tax Salary Deferral
Contribution, shall be considered.
(2) First, reduce the Employee Pre-Tax Contributions
allocable to each affected Participant so as to
satisfy the applicable Code Section 415 limitations of
Section 4.1.
(3) Next, in accordance with Reg. Section 1.401(k)-1(f)(2),
reduce the Employee Pre-Tax Contributions of those
Highly Compensated Participants whose deferral
percentages are the highest (working in descending
order) which, once reduced, will be sufficient to
comply with paragraph (a)(1) above.
Example of Reduction Method: If Employees A, B and C
(all Highly Compensated Participants) had the
following compensation and deferral percentages:
FINA CAPITAL ACCUMULATION PLAN - 8
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Employee Compensation Deferral
A $100,000 7.0%
B $200,000 3.5%
C $200,000 3.0%
ADP 4.5%
If necessary to achieve an ADP of 3.3, it would only be
necessary to reduce Employee A to 3.5 (3.5 + 3.5 + 3.0 = 3.3).
If it were necessary to reduce the ADP below 3.3, then it would
it become necessary to reduce both Employee A and B.
Nothing herein shall be deemed to prohibit the Committee from
soliciting additional Employee Pre-Tax Contributions from
Non-Highly Compensated Participants.
(4) If contributions exceed the Actual Deferral Percentage limits
provided for in Subsection 3.4(a)(1) (called "Excess
Contributions" in the Code) at the end of the Plan Year, such
Excess Contribution (and any income allocable to such
contribution) shall be returned to the Highly Compensated
Employees whose Pre-Tax Contributions were reduced at paragraph
(3) above, if administratively reasonable, within 2-1/2 months
after the close of such Plan Year, but in no event later than
the end of the next Plan Year.
Income allocable to such Excess Contributions is equal to the
sum of the allocable gain or loss for the Plan Year and the
allocable gain or loss for the period from the end of the
Plan Year until the date of distribution. Income allocable to
Excess Contributions for the Plan Year is determined by
multiplying the total income for the Plan Year attributable to
Pre-Tax Contributions by a fraction the numerator of which is
the Excess Contributions on behalf of the Highly Compensated
Employee for the Plan Year and the denominator of which is
such Employee's Pre-Tax Account balance at the end of the Plan
Year reduced by any gain allocable to such Account for the Plan
Year and increased by any loss allocated to such Account for the
Plan Year. Income allocable to the period between the end of
the Plan Year and the date of distribution of the Excess
Contribution is 10% of the income for the Plan Year multiplied
by the number of months that have elapsed since the end of the
Plan Year. For this purpose a distribution will be treated as
made on the last day of the preceding month if it is made on or
before the 15th day of the month and at the end of the month
if it is made after the 15th day of that month.
FINA CAPITAL ACCUMULATION PLAN - 9
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(5) If the Employer has a plan or plans that must be treated
(with this Plan) as one plan for purposes of Sections 401(a)(4)
and 410(b) of the Code, all elective (401(k)) contributions
made under this Plan and such plans shall be treated as made
under a single plan.
(6) If for any Plan Year any Highly Compensated Employee is
eligible to participate in more than one cash or deferred
(401K)) arrangement of an Employer, the Actual Deferral
Percentage shall be calculated by treating all cash or deferred
arrangements in which such Highly Compensated Employee is
eligible to participate as one arrangement.
(b) Definitions. For purposes of this Article III, the following
terms shall have the following designated meanings:
(i) "Actual Deferral Percentage" for each Plan Year means
the average of the fractions of each Participant, where
the numerator of the fraction is the amount allocated to
the Participant Employee's Pre-Tax Contribution Account
and the denominator is his or her Compensation for such
Year. For purposes of determining the ratio of Employee
Pre-Tax Contributions to Compensation of a Highly
Compensated Participant who is a five percent (5%) owner
or one of the ten (10) Employees paid the highest
compensation during the year, the Employee Pre-Tax
Contributions and Compensation of such Highly Compensated
Employee shall include the Employee Pre-Tax Contributions
and Compensation of Family Members of such Highly
Compensated Employee, and such Family Members shall be
disregarded in determining the "actual deferral percentage"
for Participants who are not Highly Compensated Employees.
Employee Pre-Tax Contributions may be taken into account
for a Plan Year only if they are actually allocated to the
Participant's Account as of a day within that Plan Year.
(ii) "Highly Compensated Participant" means an Employee who has
satisfied the eligibility requirements of Section 2.1
whether or not he or she has made an Employee Pre-Tax
Contribution election and who is further defined as a
Highly Compensated Employee in Section 17.26 of this Plan.
Application of this test shall be made with reference to
the rules at Code Section 414(q) and any applicable
regulations thereto.
(iii)"Non-Highly Compensated Participant" means an Employee
who has satisfied the eligibility requirements of Section
2.1 whether or not he or she has made an Employee Pre-Tax
FINA CAPITAL ACCUMULATION PLAN - 10
15
Contribution election and who is further defined as a
Non-Highly Compensated Employee in Section 17.27 of this
Plan.
(C) Limitation on Matching Contributions and Employee After-Tax
Contribution.
(1) Notwithstanding anything herein to the contrary, if the
Average Contribution Percentage of Highly Compensated
Participants exceeds the greater of:
(i) 1.25 times the Average Contribution Percentage of all
Non-Highly Compensated Participants for such Plan Year, or
(ii) 2 times the Average Contribution Percentage of Non-Highly
Compensated Participants, provided that the Average
Contribution Percentage for Participants who are Highly
Compensated Employees does not exceed the Average
Contribution Percentage of Non-Highly Compensated
Participants by more than two (2) percentage points,
or if total Employer Contributions for one or more Participants
exceed the applicable limitations of Section 4.1, then the
Committee shall take the actions described in paragraphs (2)
through (4) below.
In determining who is a Highly Compensated Participant or
Non-Highly Compensated Participant for purposes of this Section,
only such Employees who have satisfied the eligibility
requirements of Section 2.1, Whether or not they made a Pre-Tax
Salary Deferral Contribution, shall be considered.
(2) First, reduce the Employee After-Tax Contributions and Matching
Contributions allocable to each affected Participant so as to
satisfy the applicable Code Section 415 limitations of Section
4.1.
(3) Next, in accordance with Reg. Section 1.401(m)-1(e)(2), reduce
the Employee After-Tax Contributions and Matching Contributions
of those Highly Compensated Participants whose contribution
percentages are the highest (working in descending order) which,
once reduced, will be sufficient to comply with paragraph (c)(1)
above.
This same reduction process shall be used to the extent
necessary to reduce the Average Contribution Percentage of
Highly Compensated Employees to the extent necessary to comply
with the
FINA CAPITAL ACCUMULATION PLAN - 11
16
requirements of Section 1.401(m)-2 of the Income Tax Regulations
precluding multiple use of the alternative [two percent (2%)]
limitation of Section 3.4(a)(1)(ii) and (c)(1)(ii).
(4) If contributions exceed the Average Contribution Percentage
limits provided for in Section 3.4(c)(1) (called "Excess Aggregate
Contributions" in the Code) at the end of the Plan Year, the amount
of the Excess Aggregate Contribution for such Plan Year (and any
income allocable to such contribution) shall be dealt with as
follows:
(i) First, Employee After-Tax Contributions that were not matched
by Matching Contributions shall be treated as Excess Aggregate
Contributions, to the extent of such Excess Aggregate
Contributions and distributed to the Highly Compensated
Employee;
(ii) Next, any remaining Excess Aggregate Contributions shall be
allocated pro rata to remaining Employee After-Tax
Contributions and Matching Contributions. Excess Aggregate
Contributions so allocated to Employee After-Tax Contributions
shall be distributed to the Highly Compensated Employees on
whose behalf they were contributed not later than two and
one-half (2-1/2) months after the close of the plan year for
which they were contributed. Matching Contributions made with
respect to such returned Employee After-Tax Contributions
shall be forfeited if forfeiture is permissible under Section
411 of the Code or, if forfeiture is not permitted by Section
411, distributed (with any income allocable thereto) at the
same time the Employee After-Tax Contributions are distributed.
Income allocable to such Excess Aggregate Contributions is
equal to the sum of the allocable gain or loss for the Plan
Year and the allocable gain or loss for the period from the end
of the Plan Year until the date of distribution. Income
allocable to Excess Aggregate Contributions for the Plan Year
is determined by multiplying the total income for the Plan Year
attributable to Employee After-Tax Contributions and Matching
Contributions by a fraction the numerator of which is the
Excess Aggregate Contributions on behalf of the Highly
Compensated Employee for the Plan Year and the denominator of
which is such Employee's Post-83 Match and Employee After-Tax
Account balances at the end of the Plan Year reduced by any
gain allocable to such Account for the Plan Year and increased
by any loss allocated to such Accounts for the Plan Year.
Income allocable to the period
FINA CAPITAL ACCUMULATION PLAN - 12
17
between the end of the Plan Year and the date of distribution of
the excess contribution is 10% of the income for the Plan Year
multiplied by the number of months that have elapsed since the
end of the Plan Year. For this purpose a distribution will be
treated as made on the last day of the preceding month if it is
made on or before the 15th day of the month and at the end of
the month if it is made after the 15th day of that month.
(5) If an Employer has a plan or plans that must be treated (with this
Plan) as one plan for purposes of Sections 401(a)(4) and 410(b)
of the Code, all Employee After-Tax and Employee Matching
Contributions made under this Plan and such plans shall be treated as
made under a single plan.
(6) If for any Plan Year any Highly Compensated Employee is eligible to
participate in more than one arrangement of an Employer subject to
Section 401(m) of the Code, the Average Contribution Percentage shall
be calculated by treating all such arrangements in which such Highly
Compensated Employee is eligible to participate as one arrangement.
(7) For purposes of this Subsection 3.4(c):
(i) "Average Contribution Percentage" means for each Plan Year the
average of the fractions of each Participant, where the
numerator of the fraction is the amount allocated to the
Participant's After-Tax Account and Post-83 Match Account and
the denominator is his or her Compensation for such Year. For
purposes of determining the ratio of Employee After-Tax
Contributions and Matching Contributions to Compensation of a
Highly Compensated Employee who is a five percent (5%) owner or
one of the ten (10) Employees paid the highest compensation
during that year, the Employee After-Tax Contributions,
Matching Contributions and Compensation of such Highly
Compensated Employee shall include the Employee After-Tax
Contributions, Matching Contributions and Compensation of
Family Members of such Highly Compensated Employee, and such
Family Members shall be disregarded in determining the Average
Contribution Percentage for Participants who are not Highly
Compensated Employees.
Employee After-Tax Contributions and Matching Contributions may
be taken into account for a Plan Year only if they are actually
allocated to the Participant's Account as of a day within that
Plan Year.
FINA CAPITAL ACCUMULATION PLAN - 13
18
ARTICLE IV
LIMITATION ON ANNUAL ADDITIONS SECTION
4.1. LIMITATION ON ANNUAL ADDITIONS.
(a) General Rule. Notwithstanding any other provision of the Plan,
the sum of the Annual Additions for each Participant for any Limitation Year
shall not exceed the lesser of:
(i) $30,000 adjusted for each Limitation Year to take into
account any cost-of-living increase adjustment provided for the Limitation
Year pursuant to Section 415(d) of the Code; or
(ii) 25% of the Participant's Limitation Year Compensation.
(b) Annual Additions Defined. The term "Annual Additions" means
the sum of the following amounts allocated to a Participant's accounts as of
any date during the Limitation Year under this Plan or any other Defined
Contribution Plan maintained by any Employer:
(i) forfeitures and Employer contributions (which includes
Participant Pre-Tax Contributions, which are for these purposes employer
contributions); plus
(ii) Employee After-Tax Contributions, if any (other than rollover
contributions, if any); plus
(iii)amounts allocated after March 31, 1984, to any individual
medical account as defined in Code Section 415(i)(1) which is part of any
qualified defined benefit plan maintained by the Company, and
(iv) amounts derived from contributions paid or accrued after
December 31, 1985 in Plan Years ending after that date which are attributable
to post-retirement medical benefits allocated to the separate account of any
Key Employee, under a welfare benefit fund as defined in Code Section 419(e)
by any Employer.
However, amounts described in (iii) and (iv) above do not
apply in determining the percentage limit of Section 4.1(a)(ii).
FINA CAPITAL ACCUMULATION PLAN - 14
19
Section 4.2. Multiple Plan Reduction.
(a) General Rule. If any Participant under this Plan is a Participant
in one or more Defined Benefit Plans and one or more Defined Contribution
Plans maintained by any Employer, the sum of his Defined Benefit Plan Fraction
and the Defined Contribution plan Fraction as defined by Sections 415(e)(2)
and (3) of the Code) for any such Limitation Year may not exceed 1.0.
(b) The Defined Benefit Plan Fraction for any Limitation Year is a
fraction in which the: (i) numerator is the projected Annual Benefit {as
defined at Subsection 4.2(g)} of the Participant under the Plan (determined as
of the close of the Plan Year), and (ii) the denominator is the lesser of: (A)
product of 1.25 multiplied by the maximum dollar limitation in effect under
Section 415(b)(1)(A) of the Code for such Limitation Year, or (B) the product
of 1.4 multiplied by the amount which may be taken into account under Section
415(b)(1)(B) of the Code for such Limitation Year.
(c) The Defined Contribution Plan Fraction for any Limitation Year is a
fraction in which the: (i) numerator is the sum of the "annual additions" to
the Participant's Account as of the close of the Plan Year and the (ii)
denominator is the sum of the lesser of the following amounts determined for
such year and each prior year of service with any Employer: (A) the product
of 1.25 multiplied by the dollar limitation in effect under Section
415(c)(1)(A) of the Code for such Limitation Year (determined without regard
to Section 415(c)(6) of the Code), or (B) the product of 1.4 multiplied by the
amount which may be taken into account under Section 415(c)(1)(B) or Section
415(c)(7), if applicable, of the Code for such Limitation Year (For Limitation
Years beginning prior to January 1, 1987, annual additions shall not be
recomputed to treat all employee contributions as annual additions).
(d) For purposes of the preceding Subsection (c), the term
"Participant's Account" shall mean the account(s) established and maintained
for each Participant with respect to his total interest in the Defined
Contribution Plan maintained by the Employer resulting from the Employer's
contribution.
(e) Effect of Top Heavy Plan Status on Multiple Plan Reduction Rule.
Notwithstanding any other provision of this Plan, for any Top Heavy Plan Year,
unless the Secondary Minimum Annual Allocation is provided pursuant to
Subsection 13.2, and the secondary minimum annual allocation or benefit
(whichever is applicable under Code Section 416(h)) is provided under all
plans of the Required Aggregation Group (as defined at Subsection 13.1(f)(i)
(or the 7-1/2 percent rule of Subsection 13.2, if applicable, is complied
with), then in computing the denominators
FINA CAPITAL ACCUMULATION PLAN - 15
20
of the Defined Benefit and Defined Contribution Plan Fractions, a
factor of 1.0 shall be substituted for 1.25 in Subsections 4.2(b)
and (c). For any Super Top Heavy Plan Year 1.0 shall be substituted
for 1.25 in any event.
(f) Excessive Benefit - Adjustment. If the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction
shall exceed 1.0 in any Limitation Year for any Participant in this
Plan, the Committee shall reduce the Annual Additions to this Plan to
the extent necessary to assure that the sum of both fractions shall
not exceed 1.0 in any Limitation Year for such Participant, but only
if the pension plan or plans do not provide for a reduction in
benefit accruals to satisfy this limitation.
(g) Annual Benefit as used in this Article shall mean the
pension benefit payable from the Pension Plan adjusted in accordance
with Section 1.415-3(b)(1) of the Income Tax Regulations.
Section 4.3. Definitions Relating to Annual Addition Limitations.
For purposes of the Plan, the following definitions shall apply:
(a) "Retirement Plan" means (i) any pension, profit sharing,
or stock bonus plan described in Section 401(a) of the Code, which
includes a trust exempt from tax under Section 501(a) of the Code,
(ii) any annuity plan or annuity contract described in Sections
403(a) or 403(b) of the Code, (iii) any qualified bond purchase plan
described in Section 405(a) of the Code, and (iv) unless exempt
pursuant to Code Section 415(c)(2), any individual retirement
account, individual retirement annuity or retirement bond described
in Sections 408(a), 408(b) or 409 of the Code and any simplified
employee pensions described in Section 408(k) of the Code.
(b) "Defined Contribution Plan" means a Retirement Plan
(whether or not terminated) which provides for an individual account
for each participant and for benefits based solely on the amount
contributed to the participant's account, and any income, expenses,
gains and losses, and any forfeiture of accounts of other
participants which may be allocated to such participant's account.
(c) "Defined Benefit Plan" means any Retirement Plan
(whether or not terminated) which is not a Defined Contribution Plan;
provided, however, that if a Defined Benefit Plan provides for
voluntary employee contributions, such voluntary employee
contributions shall be considered as a separate Defined Contribution
Plan for purposes of applying the limitations of Section 415 of the
Code and the provisions of this Article.
(d) "Limitation Year" means the twelve consecutive month period
ending on the last day of the Plan Year.
FINA CAPITAL ACCUMULATION PLAN - 16
21
(e) "Limitation Year Compensation" means all amounts actually paid
or made available by the Company during a Limitation Year for
services and includable in the Participant's gross income, including
bonuses, overtime pay, vacation pay and disability pay, but excluding
deferred compensation, stock options and other distributions which
are excluded from gross income or receive special tax benefits.
Section 4.4. Reduction of Annual Additions. If it is determined
that the Annual Additions to a Participant's accounts for any
Limitation Year would exceed the limitations of this Article, such
Annual Additions shall be reduced to bring them within such
limitations in the following manner:
(a) Employee After-Tax Contributions which are included in
such Annual Additions shall be returned to the Participant to the
extent permitted by Article III.
(b) If further reductions are necessary, then such
Participant's allocable share of the Employer's contribution and/or
forfeitures which have been applied in reduction of an Employer's
obligations for the Plan Year ending within the Limitation Year shall
be reduced. The amount of such reduction shall be credited to an
Unallocated Employer Contribution Account. Such Account shall not be
subject to adjustment pursuant to Article V and shall be deemed an
Employer contribution for the succeeding Plan Year.
Notwithstanding the foregoing, if a Participant in this Plan is also
a participant in another qualified plan maintained by an Employer,
the Committee may agree with the named fiduciaries of such other
plans that adjustments to the Participant's accounts and/or benefits
under such other plans shall be made in addition to or in lieu of the
adjustments otherwise required by this Section in order to comply
with the limitations of this Article and Section 415 of the Code.
ARTICLE V
PLAN ACCOUNTING, RECORDKEEPING
AND DIRECTED INVESTMENTS
Section 5.1. Plan Accounting Records. The Committee shall, in
conjunction with the Plan's recordkeeper, establish and maintain a
set of accounting records for the Plan for the purpose of accounting
for the benefit of Participants and their beneficiaries under the
Plan and for all receipts, disbursements and liabilities of the Plan.
All Employee After-Tax Contributions made by a Participant
pursuant to Subsection 3.1(b), and all Company Stock and other
amounts attributable to
FINA CAPITAL ACCUMULATION PLAN - 17
22
contributions made by such Participant to the First Thrift Plan,
shall be allocated to such Participant's Employee After-Tax Account
under this Plan.
All Company Stock and other amounts attributable to
contributions made by an Employer to the First Thrift Plan for a
Participant shall be credited to such Participant's Pre-84 Match
Account under this Plan. All amounts attributable to Matching
Contributions made by an Employer for a Participant pursuant to
Section 3.2, and all forfeitures applied pursuant to Subsection
6.3(c)(iv) to reduce the Matching Contributions which would otherwise
have been made by an Employer for such Participant, shall be credited
to such Participant's Post-83 Match Account under this Plan.
All accounts maintained for a Participant shall sometimes be
collectively referred to as "Account" or "Accounts". All of the same
type of Accounts maintained for a Participant shall sometimes be
collectively referred to in the singular. In addition, the Plan's
accounting records shall otherwise be organized and contain such
information as is necessary and desirable for the preparation of
financial and other reports and information as required under the
Plan or by law.
The fair market value of trust assets shall be determined at
least once in each Plan Year in accordance with a method consistently
followed and uniformly applied, and the Accounts of all Participants
shall be adjusted in accordance with the valuation.
Section 5.2. Trust and Directed Investment Accounts.
(a) General Rules With Regard to Direction of Investments.
The Committee shall notify all Participants that they may direct or
redirect investment of their Accounts as herein set forth by filing a
written direction with the Committee. The Committee, in its sole and
absolute discretion, shall establish and communicate to the
Participants uniform and nondiscriminatory rules and policies in
connection therewith which, by way of illustration only and not by
way of limitation, may:
(i) require that each Participant who directs the
investment of his Accounts must control the investment of such entire
Accounts;
(ii) limit the periods during which amounts may be
transferred and their frequency of transfer to the first month of
each quarter of the Plan Year, or to semiannual dates etc.
(iii) limit the right of direction to investment in a
qualified category of assets.
Notwithstanding anything herein to the contrary, a
Participant may direct the investment of his Accounts only in
investments which are permitted under the provisions of the Plan and
Trust which would
FINA CAPITAL ACCUMULATION PLAN - 18
23
not constitute a prohibited transaction pursuant to the Act or Code.
(b) Investment of Employee After-Tax. Employee Pre-Tax, Pre-84 and
Post-83 Match Accounts. For investment purposes, the Trust may be
divided into such number and kind of separate and distinct investment
funds as the Committee may from time to time authorize in its
absolute discretion ("Investment Funds"); provided, however, that no
common or preferred stock of a corporation other than that of either
an Employer or PSA Stock shall be acquired and held for any such
Investment Fund. Subject to said stock investment limitation, the
Trust assets allocated to a particular Investment Fund shall be
invested by the Trustee in such type of property, whether real,
personal or mixed as the Trustee is directed to acquire and hold for
such Investment Fund.
(c) Direction. Upon becoming a Participant in the Plan each
Participant shall direct, on a form prescribed by and filed with the
Committee, that:
(i) the contributions and other amounts credited to his
Employee After-Tax and Employee Pre-Tax Accounts be invested, in percentage
multiples authorized by the Committee, in one or more of the following:
Company Stock, PSA Stock, or one or more of the Investment Funds authorized
from time to time by the Committee; and
(ii) the contributions and other amounts credited to his Pre-84
and Post-83 Match Accounts be invested, in percentage multiples authorized by
the Committee, in Company Stock and/or PSA Stock.
(d) Failure to Direct. If a Participant fails to give any such
investment direction in accordance with Subsection (c) above, all
contributions and other amounts credited to his Employee After-Tax
Account, and Employee Pre-Tax Account shall be invested in such money
market Investment Fund(s) as the Committee shall from time to time in
its absolute discretion designate, and all contributions and other
amounts credited to his Pre-84 and Post-83 Match Accounts shall be
invested in Company Stock.
(e) Change of Directed Investments.
(i) Future Contributions. A Participant may change his investment
direction with respect to future contributions to his Pre-Tax and/or After-Tax
Accounts on such date(s) as set forth at Section 1.8(a) above (or at such
other times as the Committee may from time to time in its sole and absolute
discretion establish upon reasonable notice to Participants), provided that
the written notice of such Participant's change is delivered to the Committee
FINA CAPITAL ACCUMULATION PLAN - 19
24
by such date prior to the effective date of such change as the
Committee may from time to time, in its sole and absolute discretion
establish, also upon reasonable notice of such deadline to
Participants.
(ii) Part or All of Account Balances. In addition, a Participant
may redirect the investment of part or all of his/her Account balances, such
change(s) to be processed on such date(s) as set forth at Section 1.8(b) above
(or at such other times as the Committee may from time to time, in its sole
and absolute discretion establish upon reasonable notice of such date(s) to
the Participants and, provided that the written notice of such Participant's
change is delivered to the Committee, by such date prior to the effective date
of such change as the Committee may from time to time in its sole and absolute
discretion establish, also upon reasonable notice of such deadline to
Participants.
(f) Dividends on Company Stock. All cash dividends, stock
dividends, stock splits, interest and other amounts received by the
Trustee with respect to the Company's Stock or PSA Stock held for an
Employee After-Tax, Employee Pre-Tax, Pre-84 or Post-83 Match Account
shall be credited to (and, if cash or property other than the
security from which it was derived, used as soon as practicable to
purchase said security for), such Account. At the end of each month
the portion of any Account invested in a particular Investment Fund
shall be adjusted to reflect its proportionate share of the fair
market value of the assets then held by the Trustee for that
particular Investment Fund.
(g) Government Bonds. Effective upon the attainment of the general
guarantee base rate maturity for Government Bonds or as soon
thereafter as administratively feasible, the Trustee shall surrender
and redeem all Government Bonds. Coincident with such redemption,
the Trustee shall provide affected Participants an election to invest
the proceeds of such surrendered Government Bonds allocable to their
respective Participant's Account into one or more of the other
Investment Fund(s).
If a Participant fails to timely direct the investment
of the proceeds of the surrendered Government Bonds allocable to such
Participant's Account, then such proceeds shall be invested in such
money market Investment Fund(s) as the Committee shall, in its sole
discretion, have directed for investment of funds for which
Participant direction was not provided. No additional monies
(whether from other Investment Funds or from additional contributions
to the Plan from any source) may be directed to be invested into
Government Bonds.
FINA CAPITAL ACCUMULATION PLAN - 20
25
The Participant for whose Account such Government Bond was
previously purchased shall take such steps as the Trustee may prescribe in
order to effect the surrender and redemption thereof by the Trustee.
Section 5.3. Purchases of Company and PSA Stock. Company Stock
may be purchased by the Trustee in the open market or from the
Company.
If Company Stock is purchased from the Company on a day such
stock was traded on the open market, the price of such Company Stock
shall be the closing price of Company Stock on the open market on
such day. If such stock was not traded on the open market on the
date of the purchase from the Company, then the price of such Company
Stock shall be the closing price of Company Stock on the open market
on the nearest date next preceding the date of the purchase. PSA
Stock shall be purchased by the Trustee in such market or markets as
may exist from time to time.
The Trustee shall add to the cost of securities purchased any
brokerage commissions, transfer taxes and other charges or expenses
incident thereto, or deduct from the gross proceeds from the sale of
securities, any such charges incident thereto. The cost to a
Participant's Account for securities purchased shall be the average
cost of all securities of the particular issue purchased by the
Trustee during the calendar month in which the securities shall have
been purchased for Participants' Accounts.
ARTICLE VI
VESTING AND PAYMENT OF BENEFITS
Section 6.1. Early Retirement Date. The Retirement Date means
the date the Participant reaches the age set forth in Section 1.9.
A Participant who continues employment beyond his Retirement
Date shall continue to participate herein.
Section 6.2. Disability Retirement. "Disability Retirement"
shall mean the Participant's Termination of Employment because of
permanent disability. A Participant will be considered permanently
disabled for purposes of the Plan if he is considered (or would be
considered if he were covered thereunder) disabled under the
Company's long-term disability plan.
FINA CAPITAL ACCUMULATION PLAN - 21
26
Section 6.3. Vesting.
(a) Employer Contribution Accounts (Pre-84 and Post-83 Match
Accounts). Subject to Subsection 6.3(e) and Section 13.3, if a Participant
incurs 5 consecutive Breaks in Service prior to his Retirement, Disability
Retirement or death, such Participant shall be entitled to receive the full
amount credited to his Employee After-Tax and Employee Pre-Tax Accounts, plus
a portion of the amount credited to his Pre-84 and Post-83 Match Accounts, as
set forth in the applicable schedule in (i) or (ii) below, depending upon the
number of Years of Service completed by such Participant on the date of such
separation from employment:
(i) Discharge for Cause or Post-Termination Adverse Conduct. If
such Participant was not a Participant on the date this amendment and
restatement was executed but subsequently became a Participant and if his
employment with an Employer or Affiliated Company was terminated for Cause, as
defined in Subsection 6.3(e), or such Participant voluntarily incurred a
termination of employment whereupon Cause for termination is demonstrated, he
shall be vested in a percentage of his Pre-84 and Post-83 Match Accounts in
accordance with the following schedule:
Years of Service Percentage Vested
Less than 3 None
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
(ii) General Rule. All other Participants shall be entitled to
vesting in their Pre-84 and Post-83 Match Accounts in accordance with the
following schedule:
Years of Service Percentage Vested
Less than 3 None
3 but less than 4 60%
4 but less than 5 80%
5 or more 100%
provided, however, that notwithstanding the foregoing schedules,
a Participant's Pre-84 and Post-83 Match Accounts shall be fully vested on and
after the day such Participant dies, retires by reason of disability, or
attains the age of 55 years. The amount a Participant is entitled to
FINA CAPITAL ACCUMULATION PLAN - 22
27
receive under this Section shall be distributed to such Participant
in accordance with the provisions of Articles VI and VII, and the
balance of such Participant's Pre-84 and Post-83 Match Accounts shall
be forfeited.
(b) Employee Pre-Tax and Employee After-Tax Contributions. A
Participant shall at all times have a nonforfeitable right in 100% of
his Employee Pre-Tax Account and his Employee After-Tax Account.
(c) Forfeitures.
(i) Upon the earlier of (A) the Participant's Termination
of Employment and subsequent receipt of a total distribution of the
Vested portion of his Match Account(s), or (B) the last day of the
Plan Year during which such Participant incurs five (5) consecutive
one year Breaks-in-Service, the forfeitable (non-vested) portions of
his Match Account(s) shall be designated a "forfeiture" as of the
last day of such Plan Year.
(ii) The amount of any forfeiture shall be based upon the
balance in the applicable Accounts as of the Valuation Date
immediately preceding the date on which the forfeiture occurs. For
purposes of this Article VI, a forfeiture shall be charged to the
applicable Accounts as if it were a distribution on the date the
forfeiture occurred and, accordingly, that portion of the Account
which is forfeited shall not share in trust fund earnings.
(iii) A Participant whose Match Account(s) shall be charged
with a forfeiture under Subsection 6.3(c)(i) above shall at all times
have a nonforfeitable right in 100% of the balance in his Match
Account(s) after the charge for the forfeiture. Since such
Participant's nonforfeitable right in any of the Employer
contributions and forfeitures subsequently allocated to him shall be
determined in accordance with Subsection 6.3(a), such allocations
shall be credited to a separate Match Contribution Account
established for this purpose.
(iv) Application of Forfeitures. Any forfeitures resulting
under the provisions of this Article shall be credited to a
Forfeiture Account and thereafter applied to reduce the earliest
subsequent Matching Contributions the Employers would otherwise be
required to make to the Plan; provided, however, that if the Plan is
terminated, any forfeited amounts not then so applied shall be
allocated among and credited to the Post-83 Accounts of the
Participants in the employ of or on authorized leave of absence from
an Employer or Affiliated Company on the date of such termination, in
the proportion that the Basic Compensation received by each
FINA CAPITAL ACCUMULATION PLAN - 23
28
such Participant during the portion of the then current Plan Year
prior to said termination bears to the Basic Compensation received by
all such Participants during the portion of the then current Plan
Year prior to said termination.
(d) Reinstatement of Forfeiture/Repayment.
(i) If a Participant shall terminate employment and receive a
total distribution of the vested portion of his Account(s) (whether
or not he was fully vested in his Match Account(s)) but then is
reemployed before he has five (5) consecutive One Year Breaks in
Service after the receipt of his prior distribution, the Participant
will have a special repayment right. The Participant may, prior to
the earlier of the end of the five (5) year period beginning on such
Participant's resumption of employment or said five (5) consecutive
One Year Breaks in Service, repay in one single sum payment all, but
not less than all, of the amount he received as a distribution from
his Match Account(s).
If the Participant repays the distribution as provided
in the first paragraph then the previously forfeited (if any) portion
of his or her Accounts shall be reinstated as of the last day of the
Plan Year in which the repayment is made. However, the repayment and
reinstatement will be considered made after the trust fund earnings
have been allocated, which means that the repaid and reinstated
amounts will not share in income, gains or losses for the Plan
Year(s) since the date of distribution. Also, to the extent that all
or part of the repaid distribution was properly included in the
Participant's gross income, in a year of distribution, such part
shall be allocated to the Participant's Employee After-Tax Account as
of the date of repayment.
(ii) The amount to be reinstated shall be taken in the Plan
Year of repayment from the following sources (in each year exhausting
each source before using a subsequent source):
(A) forfeitures;
(B) trust fund earnings not specifically otherwise
allocable, if any.
(C) If the above sources are not sufficient to
completely reinstate one or more Participants' forfeitures, the
Employer shall make such further contribution as shall be necessary
to complete the reinstatement.
FINA CAPITAL ACCUMULATION PLAN - 24
29
(iii) The amount reinstated shall not be considered an Employer
Contribution (or an Employee contribution) for purposes of
calculating a Participant's Annual Additions under Section 4.1
hereof.
(e) Discharge for Cause or Post Termination Adverse Conduct.
Notwithstanding anything herein to the contrary, any Participant who:
(i) has been discharged by the Employer for Cause or
(ii) voluntarily incurs a termination of employment
whereupon Cause for discharge is demonstrated, shall not be entitled
to any distribution prior to the earlier of:
(iii) sixty (60) days after the end of the calendar
year in which either the Participant attains age 55 or terminates
employment, whichever is later or
(iv) April 1 of the year after the year the
Participant attains age 70-1/2.
"Cause" is defined as any misdemeanor or felony or other act
evidencing theft, embezzlement, extortion, conversion,
misappropriation or fraud.
Section 6.4. Commencement of Benefits.
(a) Distribution Upon Termination, Retirement, Disability and
Death Benefits Any amount payable to a Participant under the Plan upon his
Termination of Employment, Retirement or Disability shall be
distributable to such Participant in a single distribution. Any
amount payable under the Plan upon the death of a Participant who was
married at the time of his death shall be distributed in a single
distribution to the surviving spouse of such Participant unless such
Participant had designated otherwise with the written consent of his
spouse which is witnessed by a member of the Committee or a notary
public.
Any amount payable under the Plan upon the death of a
Participant who is not married or who is married but has designated,
as provided above, a Beneficiary other than his spouse, shall be
distributed in a single distribution to the Beneficiary or
Beneficiaries so designated by the Participant.
Designation of Beneficiary or Beneficiaries shall be
made in writing on a form prescribed by the Committee and, when filed
with the Committee, shall become effective and remain in effect until
changed by the Participant by the filing of a new Beneficiary
designation form with the Committee.
FINA CAPITAL ACCUMULATION PLAN - 25
30
If an unmarried Participant fails to so designate a Beneficiary, or
in the event all of the designated beneficiaries are individuals who
predecease such Participant, then the Committee shall direct the
Trustee to distribute the amount payable under the Plan in a single
distribution to the estate of such deceased Participant.
(b) Latest Benefit Commencement Date.
(i) General Latest Date. Unless the Participant shall
otherwise elect pursuant to Subsection 6.4(b) or 6.4(c)(ii),
distribution of the nonforfeitable portion of his Accounts shall be
made or commence (in accordance with Article VII), not later than the
60th day following the last day of the Plan Year during which the
later of the following events occur:
(A) the Participant attains age 55, or
(B) the Participant's Termination of Employment.
(ii) Nonascertainable Distribution. If the amount of a
required distribution cannot be ascertained, a distribution
retroactive to the required commencement date may be made no later
than 60 days after the earliest date on which the amount of such
distribution can be ascertained under the Plan.
(c) TEFRA/DEFRA Supervening Distribution Requirements.
(i) General Life-Time Rule. Notwithstanding any provision
in this Section or elsewhere in this Plan to the contrary, a
Participant's entire interest in this Plan shall be distributed to
him generally not later than the April 1st of the calendar year
following the calendar year in which he attains age 70-1/2.
(ii) Grandfather Rule -- Tax Reform Act of 1986.
Notwithstanding Subsection 6.4(c)(i), in the case of an Employee
(other than a Five Percent Owner as defined at Article I at anytime
during the 5-Plan Year period ending in the calendar year in which
such Five Percent Owner attains age 70), such distribution may begin
as late as the April 1st of the calendar year following the calendar
year in which he retires if such individual was both; already age 70
before January 1, 1988 and was not a Five Percent Owner at any time
during or after the Plan Year ending with or within the calendar year
in which such Five Percent Owner attained age 66.
FINA CAPITAL ACCUMULATION PLAN - 26
31
(iii) Grandfather Rule -- TEFRA. Notwithstanding Subsection
6.4(c)(i) or (ii) above, if such person has had in effect a valid
designation made under Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act of 1982, such designation shall control.
(iv) General Post-Death Rule.
(A) If Benefits Began During Lifetime.
Notwithstanding any provision in this Plan to the contrary, if a
Participant's benefits have commenced as provided at Subsection
6.4(c)(i) above and the Participant dies before his entire interest
has been distributed to him, the remaining portion of such interest
will be distributed at least as rapidly as under the method of
distribution being used under Subsection 6.4(c)(i) above on the date
of his death.
(B) If Benefits Did Not Begin Before Death -
Five-Year Rule. If a Participant dies before his or her
distributions have commenced, such Participant's entire interest will
be distributed within five (5) years after his/her death.
(C) Exception To Five-Year Rule. If the Beneficiary
is the Participant's spouse, the distribution need only be made by
the date on which the Participant would have attained age 70-1/2
provided, however, if the surviving spouse then dies before payments
are required to begin, then the entire interest must be distributed
within five (5) years of the surviving spouse's death.
Section 6.5. Vesting Years of Service.
(a) Vesting Year of Service Defined. A "Vesting Year
of Service" means any Plan Year during which an Employee or
Participant completes 1,000 or more Hours of Service with the Company
or an Affiliated Company, provided that no "Vesting Year of Service"
shall be credited for any Plan Year in which the Employee is eligible
to make but fails to make any Pre-Tax or After-Tax Contribution.
(b) Determination of Vesting Years of Service.
(i) Post-Break Service - Pre-Break Account. All of a
Participant's Vesting Years of Service shall be taken into account;
provided, however, if a Participant incurs a One Year Break in
Service during the Plan Year in which his Termination of Employment
occurs or the immediately following Plan Year, his
FINA CAPITAL ACCUMULATION PLAN - 27
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Vesting Years of Service completed after such One Year Break in
Service shall be disregarded for purposes of determining his
forfeitable right in the balance of his pre-break Match Account(s) as
of the date he incurs five (5) Consecutive One Year Breaks in
Service.
(ii) Pre-Break Service. No Participant shall ever lose
credit for previously credited Vesting Years of Service (this Plan
does not contain a vesting "rule of parity").
(iii) Vesting Transition Rule. Notwithstanding Subsection
6.5(b)(i) above, for purposes of Section 11.2, (with regard to plan
amendment) all of a Participant's Vesting Years of Service shall be
taken into account.
(iv) Ineligible Person's Hours of Service for Vesting. For
purposes of determining Vesting Years of Service, all Hours of
Service with an Employer or an Affiliated Company shall be counted
regardless of status as an Ineligible Person.
ARTICLE VII
SETTLEMENT OPTIONS
Section 7.1. Methods of Distribution.
(a) General. Distribution by the Trustee of the nonforfeitable
portion of a Participant's Accounts will be made or commence at the
time prescribed by Article VI in a single distribution.
(b) Government Bonds. The portion of any Account invested in
Government Bonds will be distributed in the form of such bonds or in
cash, or in any combination thereof, as determined by the Committee
in its absolute discretion.
(c) Company Stock. The portion of any Account invested in Company
Stock will be distributed in the form of such stock or in cash, or in
any combination thereof, as determined by the Committee in its
absolute discretion.
(d) PSA Stock. The portion of any Account invested in PSA Stock or
PSA American Depository Receipts ("ADR's") will be converted into
cash and distributed in the form of cash or in the form of Company
Stock, or in any combination thereof, as determined by the Committee
in its absolute discretion. Any Company or PSA Stock or PSA ADR's
which is to be converted into cash for distribution to a Participant
or beneficiary shall
FINA CAPITAL ACCUMULATION PLAN - 28
33
be sold by the Trustee in the open market during the month preceding
the date as of which such withdrawal or other distribution occurs.
The amount of cash to be distributed to the Participant or
beneficiary with respect to such Company or PSA Stock or PSA ADR's
shall be determined on the basis of the average net proceeds per
share (i.e., gross proceeds from the sale less any brokerage
commissions, transfer taxes and other expenses incident thereto)
realized by the Trustee upon such sales during said month. In lieu
of making such sales on the open market, the Trustee in its
discretion may match such sales with purchases to be made for such
month pursuant to the Plan, with the prices of any such matched sales
and purchases being determined in the same manner as provided in
Section 5.3 for determining the price of Company Stock purchased from
the Company.
The portion of any Account invested in an Investment Fund
authorized by the Committee will be converted into and distributed in
the form of cash.
Section 7.2. Date for Determining Value of Account Balance.
Notwithstanding the date or dates upon which distributions from a
Participant's Accounts are made, such distributions shall be based
upon the value of his Accounts as of the immediately preceding
Valuation Date as determined from time to time by the Committee.
Section 7.3. Qualified Domestic Relations Order. The
provisions of this Article shall not apply to the extent they
conflict with a Qualified Domestic Relations Order as determined by
the Committee pursuant to its Qualified Domestic Relations Order
procedure.
Section 7.4. Effect of Death of Beneficiary. In the event any
person entitled to receive death benefits survives the Participant
but dies prior to his/her receipt of all of the benefits to which
he/she is entitled, the balance of such benefits shall be paid (in
accordance with Article VI) to such person's estate.
Section 7.5. Minors and Persons Under Other Legal Disability.
Distributions to a minor or a person under other legal disability
shall be made by the Trustee at the direction of the Committee:
(a) to either one or both of the natural or adoptive
parents, the legal guardian or conservator of such person, or any
other person who, as a matter of local law, is responsible for the
financial affairs of the minor; or
(b) to a custodian for such person under any Uniform Gifts
to Minors Act or Gifts of Securities to Minors Act.
FINA CAPITAL ACCUMULATION PLAN - 29
34
ARTICLE VIII
PLAN ADMINISTRATION
Section 8.1. Appointment of Committee. This Plan shall be
administered on behalf of all Employers by a Committee composed of at
least three (3) individuals appointed by the Board of Directors of
the Company. Each member of the Committee so appointed shall serve
in such office until his death, resignation, or removal by the Board
of Directors of the Company. The Board of Directors of the Company
may remove any member of the Committee at any time by giving written
notice thereof to the members of the Committee. Vacancies shall
likewise be filled from time to time by the Board of Directors of the
Company. The members of the Committee shall receive no remuneration
from the Plan for their services as Committee members.
Section 8.2. General Rights, Powers and Duties of Committee. The
Committee shall be responsible for the management, operation and
administration of the Plan. In addition to any powers, rights and
duties set forth elsewhere in the Plan, the Committee shall:
(a) construe and interpret the Plan, implement the provisions of
the Plan and resolve all questions arising under the Plan;
(b) adopt such rules and regulations consistent with the
provisions of the Plan as it deems necessary for the proper and
efficient administration of the Plan;
(c) enforce the Plan in accordance with its terms and any rules
and regulations it establishes;
(d) maintain records concerning the Plan adequate to prepare
reports, returns and other information required by the Plan or by
law;
(e) direct the Trustee as to the payment of benefits under the
Plan and give such other directions and instructions necessary for
the proper administration of the Plan;
(f) employ or retain agents, attorneys, actuaries, accountants
or other persons (who also may be employed by or represent the
Company).
FINA CAPITAL ACCUMULATION PLAN - 30
35
Section 8.3. Action by the Committee.
(a) All actions of the Committee shall be taken pursuant to the
decision of a majority of the persons then serving on the Committee.
(b) The Committee may by such majority action authorize any one
or more of its members to execute any document or documents on behalf
of the Committee, in which event the Committee shall notify the
Trustee in writing of such action and the name or names of its member
or members so authorized to act.
Section 8.4. Fiduciary Obligations. The Committee (and any other
fiduciary with respect to the Plan) shall discharge its duties
hereunder solely in the interest of the Participants and their
beneficiaries and --
(a) for the exclusive purposes of:
(i) providing benefits to Participants and their
beneficiaries; and
(ii) defraying reasonable expenses of administering the
Plan and Trust; and
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of
an enterprise of like character and with like aims.
Section 8.5. Information to be Furnished to Committee. The
Employer shall furnish the Committee such data and information as it
may require. The records of the Employer shall be determinative as to
an Employee's or Participant's period of employment, Termination of
Employment and the reason therefor, leave of absence, reemployment
and Compensation. Participants and their beneficiaries shall furnish
to the Committee such evidence, data or information and execute such
documents as the Committee requests.
Section 8.6. Uniform Application. In managing, operating and
administering the Plan, the Committee shall apply the provisions of
the Plan and any rules, regulations, and interpretations adopted by
it in a uniform and nondiscriminatory manner so that all persons
similarly situated shall be similarly treated and shall not
discriminate in favor of Employees who are officers, shareholders, or
Highly Compensated Employees of any Employer.
FINA CAPITAL ACCUMULATION PLAN - 31
36
Section 8.7. Allocation and Delegation of Certain Fiduciary Duties.
(a) The Committee shall have the authority to delegate any of its
rights, powers and duties hereunder. Such delegation shall be in
writing, shall be signed by the Committee, shall name the person or
persons being designated and shall set forth the rights, powers and
duties being delegated. Either the Company or the Committee may
revoke any delegation made pursuant to this Subsection by written
notification to the person or persons to whom the delegation has been
made and to the Company (if the revocation is made by the Committee)
or to the persons serving as the Committee (if the revocation is made
by the Company).
(b) Copies of all instruments allocating or delegating rights,
powers and duties of the Committee or the revocation thereof shall be
provided to the Trustee by the Company.
Section 8.8. Indemnification of the Committee by the Company. To
the extent permitted by law, the Company hereby agrees to indemnify a
member of the Committee who is also an Employee of the Employer for
and to hold him harmless against any and all liabilities, losses,
costs or expenses (including legal fees and expenses) of whatsoever
kind and nature which may be imposed on, incurred by or asserted
against him at any time by reason of his service under the Plan if he
did not act dishonestly or otherwise in willful violation of the law
under which such liability, cost or expense arises. This indemnity
shall not preclude such other indemnities as may be available under
insurance purchased or provided by the Company or under any bylaw,
agreement, action of stockholders or disinterested directors or
otherwise, to the extent permitted by law. Payments of any indemnity,
expenses or fees under this Section shall be made solely from assets
of the Company and shall not be made directly or indirectly from
Trust Fund assets.
Section 8.9. Limitation on Responsibilities. The functions of
any agent, attorney, actuary, accountant or other person engaged
pursuant to Section 8.2 and Qualified Investment Manager, if any,
engaged pursuant to Section 8.10 shall be limited to the specific
services and duties for which they are engaged, and such persons
shall have no other duties or obligations under the Plan or Trust.
Such persons shall exercise no discretionary authority or control
respecting management of the Plan and Trust and, unless engaged as
the Qualified Investment Manager, shall exercise no authority or
control respecting management or disposition of the assets of the
Trust. A member of the Committee who is an Employee shall be free
from all liability for his acts and conduct in the administration of
the Plan and Trust except for acts of willful misconduct; provided,
however, that the foregoing shall not relieve him from any
responsibility or liability for any responsibility, obligation or
duty he may have pursuant to the Act.
Section 8.10. Appointment of Qualified Investment Manager. The
Company may appoint Qualified Investment Managers to manage, invest
and reinvest any part or all of the assets of the Trust Fund in the
same manner and to the same
FINA CAPITAL ACCUMULATION PLAN - 32
37
extent as the Trustee is empowered pursuant to the terms of the
Trust. Such appointment shall be in writing, signed by an officer of
the Company, and the Qualified Investment Manager and shall set forth
the rights, powers and duties of the Qualified Investment Manager and
contain an acknowledgment by the Qualified Investment Manager that he
is a fiduciary with respect to the Plan and Trust. The Company may
revoke the appointment of a Qualified Investment Manager at any time
by written notification to that person. The Company shall notify the
Trustee and the Committee in writing of the appointment or removal of
a Qualified Investment Manager and of the rights, powers and duties
given to a Qualified Investment Manager.
ARTICLE IX
CLAIM FOR BENEFITS PROCEDURE AND LAPSED BENEFITS
Section 9.1. Claim for Benefits. Any claim for benefits under
the Plan shall be made in writing to the Committee. If such claim
for benefits is wholly or partially denied by the Committee, it
shall, within a reasonable period of time, but no later than 60 days
after receipt of the claim, notify the claimant of the denial of the
claim. Such notice of denial shall be in writing and shall contain
(a) the specific reason or reasons for denial of the claim, (b) a
specific reference to the pertinent Plan and, if applicable, Trust
provisions upon which the denial is based, (c) a description of any
additional material or information necessary for the claimant to
perfect the claim, together with an explanation of why such material
or information is necessary and (d) an explanation of the Plan's
claims review procedure.
Section 9.2. Request for Review of a Denial of a Claim for
Benefits. Upon the receipt by the claimant of the written notice of
denial of the claim or if the claim has not been granted within 60
days, the claimant may, not later than 90 days thereafter, file a
written request with the Committee that the Committee conduct a full
and fair review of the denial of the claimant's claim for benefits,
which shall include a hearing if deemed necessary by the Committee.
In connection with the claimant's appeal of the denial of his claim,
he may review pertinent documents and may submit issues and comments
in writing.
Section 9.3. Decision Upon Claim for Review of a Denial of a
Claim for Benefits. The Committee shall render a decision on the
claim review promptly, but not later than 60 days after the receipt
of the claimant's request for review, unless special circumstances
(such as the need to hold a hearing, if necessary) require an
extension of time for processing, in which case the 60 day period (by
written notice to the claimant within the 60-day period) shall be
extended to 120 days. Such decision shall (a) include specific
reasons for the decision, (b) be written in a manner calculated to be
understood by the claimant and (c) contain specific references to the
pertinent Plan and, if applicable, Trust provisions upon which the
decision is based. The decision of the Committee shall be final and
binding on all persons and shall not be
FINA CAPITAL ACCUMULATION PLAN - 33
38
overturned by any court unless said court first finds such decision
to be arbitrary and capricious.
Section 9.4. Domestic Relations Order. The Committee shall
from time to time establish such written procedures for evaluating
and determining the status of any domestic relations order and shall
give due notice to any affected parties (Participants and alternate
payees as defined at Code Section 414(p)(8)), as required by law.
Notwithstanding anything herein to the contrary, an alternate payee
shall have no right to direct the investment of a Participant's
Account.
Section 9.5. Lapsed Benefits.
(a) General. If the Committee mails by registered or
certified mail, return receipt requested, to a Participant or
beneficiary entitled to a distribution hereunder at his last known
address, a notification that he is so entitled and said notification
is returned as being undeliverable because the addressee cannot be
located at said address, and if, by the last day of the Plan Year
coinciding with or immediately following the third (3rd) anniversary
of the date as of which such person first could not be located, said
person has not informed the Committee of his whereabouts, his entire
interest in this Plan shall become a forfeiture and shall be
reallocated as provided in Subsection 9.5(c). Thereafter such person
shall have no further right or interest therein except as provided in
Section 9.5(b).
(b) Reinstatement. If a Participant or a beneficiary prior
to the Plan Year in which the Plan and Trust terminate, duly claims
and proves entitlement to a benefit which otherwise lapsed pursuant
to Subsection (a) above, such benefits as shall then be due,
unadjusted for trust fund earnings and/or losses subsequent to the
date of forfeiture, shall be paid by the Plan as soon as is
administratively feasible.
(c) Source of Reinstatement. The reinstatement of lapsed
benefits shall first be derived from forfeitures which otherwise
occur in the Plan Year of the reinstatement pursuant to Subsection
(b) above and if such forfeitures are not sufficient, such
reinstatement to the extent necessary shall then next be made from
trust fund earnings (if any) which are not specifically allocable to
Participant directed Accounts, and if further funds are necessary
then from Employer contributions.
(d) Disposition of Lapsed Benefits in Plan Year and Trust Termination.
In the event a Participant's entire interest in the Plan is forfeitable and
lapses pursuant to Subsection 9.5(a) in the Plan Year in which both the Plan
and Trust terminate, if the Committee after having complied with the notice
requirements at Subsection 9.5(a) is unable to locate Participants (or their
beneficiaries) entitled to a distribution hereunder by the close of such Plan
Year, then the following rules of this
FINA CAPITAL ACCUMULATION PLAN - 34
39
Subsection 9.5(d) shall supersede so much of the rules of Subsections
9.5(a), (b) and (c) as conflict herewith. Such person's entire
interest in the Plan shall be remitted under appropriate transmittal
to such appropriate state or commonwealth agency responsible for
unclaimed assets and escheat (as provided below), to be held and
disposed of by them in accordance with the laws of such state or
commonwealth. Once so remitted to such state or commonwealth, any
such Participant (or other person claiming by, through, or under the
rights of such Participant) shall have no further claim against this
Plan and the Trust and such person's rights to any such funds
otherwise distributable from the Plan and the Trust shall solely be
pursuant to such rights and legal remedies as exist under the laws of
such state or commonwealth with respect to funds so remitted, as from
time to time exists.
It is intended that this provision comply with the requirements of
Internal Revenue Code Section 411 and in particular regulation
Section 1.411(a)-4(b)(6) regarding escheat of benefits to a state,
thus permitting orderly cessation of all Plan and Trust activity as
the Trustees deem is consistent with the greatest protection of the
interest of Participants in the Plan. In the event of distributions
to a state or commonwealth pursuant to this Subsection (d), so much
of the foregoing Section 9.5 as is inconsistent herewith shall be
deemed null and void.
The appropriate state or commonwealth to which assets
shall be remitted hereunder and thereafter escheat, shall be the
state or commonwealth shown on the last address record with the
Employer as the address of the Participant; and if more than one
concurrent address is shown, the one presumed by the Committee to be
the permanent residence.
ARTICLE X
LIMITATION UPON REVERSION
Section 10.1. Exclusive Benefit. Except as otherwise provided
by the Code and this Article, no part of the corpus or income of the
Trust shall revert to the Company or be used for, or directed to,
purposes other than for the exclusive benefit of Participants and
their beneficiaries and defraying reasonable expenses of
administering the Plan and Trust.
Section 10.2. Permissible Reversions.
(a) Mistake of Fact. If an Employer contribution is made to
the Trust due to a good faith mistake of fact, then within one year
of the date of payment of such Employer contribution to the Trust an
amount equal to the excess of (i) the amount of such Employer
contribution over (ii) the amount which would have been contributed
had a mistake of fact not
FINA CAPITAL ACCUMULATION PLAN - 35
40
occurred (the "Excess Contribution"), shall be returned to the
Employer. If the trust incurred a loss attributable to such Excess
Contribution, then the amount of such Excess Contribution shall be
reduced by such loss.
(b) Disallowance of Deduction. If an Employer contribution
is made to the Trust conditioned upon its deductibility under Section
404 of the Code and a good faith mistake is made in determining the
deductibility of such contribution, then within one year of the date
of disallowance of the deduction of such Employer contribution to the
Trust an amount equal to the excess of (i) the amount of such
Employer contribution over (ii) the amount which would have been
contributed had a mistake not occurred in determining the
deductibility of such contribution (the "Excess Contribution"), shall
be returned to the Employer. If the trust incurred a loss
attributable to such Excess Contribution, then the amount of such
Excess Contribution shall be reduced by such loss.
(c) Charge to Accounts - Limitation on Excess Contribution.
If a Valuation Date has occurred between the date of an Excess
Contribution and the date of its return pursuant to Subsections
10.2(a) or (b), then the Match Account(s) of each Participant shall
be charged with a portion of the Excess Contribution based upon the
proportion which the Employer Contribution allocated to each
Participant on such Valuation Date bears to the total Matching
Contribution allocated on such date; provided, however, that if the
charge to the Match Account(s) of any Participant would cause the
balance of such account to be reduced to less than the balance which
would have been in such Account had the Excess Contribution not been
contributed, then the amount of the Excess Contribution shall be
limited so as to avoid any such reduction.
ARTICLE XI
AMENDMENT
Section 11.1. In General. The Company shall have the right and
power at any time and from time to time to amend this Plan, in whole
or in part, on behalf of all Employers. With the consent of the
Company, each Employer shall have the right and power at any time and
from time to time to amend this Plan, in whole or in part, with
respect to the Plan's application to the Participants of the
particular amending Employer and the assets held in the Trust for
their benefit, or to transfer such assets or any portion thereof to a
new trust for the benefit of such Participants. The Employers shall
in writing notify the Committee of any amendment or change in the
provisions of the Plan. Notwithstanding the foregoing, no amendment
shall:
(a) vest in any Employer, directly or indirectly, any
interest, ownership or control in any assets of the Trust;
FINA CAPITAL ACCUMULATION PLAN - 36
41
(b) with respect to an Employee who is a Participant on the later
of the date such amendment is adopted or effective, have the effect
of reducing his nonforfeitable percentage as of such date in his
Match Account(s); provided, however, that any rights accrued or
vested under the Plan and Trust may be adjusted among Participants by
amendments made prior to securing or in order to secure the continued
approval of the Plan and Trust by the Internal Revenue Service as a
qualified plan and exempt trust under Sections 401(a) and 501(a),
respectively, of the Code; or
(c) affect the rights, responsibilities or duties of the
Trustee without the Trustee's written consent. A copy of any
amendment shall be delivered to the Committee and the Trustee.
Section 11.2. Amendments to Vesting Schedule.
(a) Availability of Election. If the Plan's vesting schedule
is amended, each Participant whose nonforfeitable percentage in his
Match Account(s) is determined under such schedule as amended, and
who has completed at least three Vesting Years of Service (prior to
the expiration of the election period described in this Section) may
irrevocably elect to have such nonforfeitable percentage determined
under the Plan without regard to such amendment. The Committee shall
provide each such Participant with written notice of the adoption of
the amendment and the availability of the election.
(b) Election Requirements. The election referred to in
Subsection (a) must be in writing and must be filed with the
Committee during the period beginning on the date the amendment is
adopted and ending on the latest of the following:
(i) the date 60 days after the date the amendment is
adopted;
(ii) the date 60 days after the date the amendment
becomes effective; or
(iii) the date 60 days after the date the Participant
is issued written notice of the amendment by the Company or the
Committee.
ARTICLE XII
TERMINATION OF THE PLAN AND TRUST
Section 12.1. Right to Terminate Plan and Trust. Each
Employer reserves the right to terminate the Plan and Trust with
respect to its sponsorship at any time by written notification to the
Committee and the Trustee. Upon receipt of such notice, the Trustee
shall proceed to pay all liabilities of the Trust other than to
FINA CAPITAL ACCUMULATION PLAN - 37
42
Participants or their beneficiaries. On a date mutually determined
by the Committee and the Trustee, the Committee shall make the
appropriate Account adjustments as if such date were a Valuation
Date. As soon thereafter as practicable, the Trustee shall
completely distribute each affected Participant's Accounts to him or
his beneficiaries.
Section 12.2. Right to Discontinue Contributions. Each
Employer reserves the right to permanently discontinue its own
contributions to the Trust at any time by written notification to the
Committee and the Trustee. Thereafter, the provisions of the Plan
and Trust shall continue in full force and effect (other than the
provisions relating to contributions by such Employer) until the
benefits of all Participants and beneficiaries have been distributed
to them in accordance with the provisions of the Plan, at which time,
as to such Employer(s), the Plan and Trust shall terminate.
Section 12.3. Vesting Upon Termination of Plan or Complete
Discontinuance of Contributions. Upon the termination of the Plan or
the complete discontinuance of contributions by an Employer, each
Participant employed by such Employer shall have a nonforfeitable
right in 100% of his/her Match Account(s). Upon a partial
termination of the Plan (as determined under the facts and
circumstances then applicable) each affected Participant shall have a
nonforfeitable right to 100% of his/her Match Account(s).
Section 12.4. Merger or Consolidation of Plan and Trust.
Neither the Plan nor the Trust may be merged or consolidated with,
nor may their assets or liabilities be transferred to, any other plan
or trust, unless each Participant would receive a benefit immediately after
the merger, consolidation or transfer which is equal to or greater
than the benefit he would have been entitled to receive immediately
before the merger, consolidation or transfer (if the Plan and Trust
had then terminated).
ARTICLE XIII
STAND-BY TOP HEAVY RULES
Section 13.1. Determination of Top Heavy or Super Top Heavy
Status.
(a) Top Heavy. This Plan shall be a Top Heavy Plan for any
Plan Year commencing after December 31, 1983 in which, as of the
Determination Date, (1) the Present Value of Accrued Benefits of Key
Employees and/or (2) the sum of the Aggregate Accounts of Key
Employees under this Plan and any plan of a Required Aggregation
Group, exceeds sixty percent (60%) of the Present Value of Accrued
Benefits and/or the Aggregate Accounts of all Participants under this
Plan and any plan of a Required Aggregation Group.
FINA CAPITAL ACCUMULATION PLAN - 38
43
(b) Super Top Heavy. This Plan shall be a Super Top Heavy Plan
for any Plan Year commencing after December 31, 1983 (and such Plan
Year shall be a "Super Top Heavy Plan Year") in which, as of the
Determination Date, (1) the Present Value of Accrued Benefits of Key
Employees and/or (2) the sum of the Aggregate Accounts of Key
Employees under this Plan and any plan of a Required Aggregation
Group, exceeds ninety percent (90%) of the Present Value of Accrued
Benefits and/or the Aggregate Accounts of all Participants under this
Plan and any plan of a Required Aggregation Group.
(c) Effect of Change in Status to Non-Key Employee. If any
Participant (or Beneficiary) is a Non-Key Employee (after first
taking into account the fact that one is a Key Employee if he was a
Key Employee in any of the four (4) preceding Plan Years) for any
Plan Year, but such Participant (or Beneficiary) was a Key Employee
for any prior Plan Year, such Participant's Aggregate Account Balance
and/or Present Value of Accrued Benefit shall not be taken into
account for purposes of determining whether this Plan is a Top Heavy
Plan or Super Top Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top Heavy Aggregation Group).
(d) Benefits Not Considered if No Service Performed for Last
Five (5) Years. If an individual has not performed any service for
the Company at any time during the five (5) year period ending on the
Determination Date, any Accrued Benefit or Account of such individual
shall be ignored for determining Top Heavy or Super Top Heavy status.
(e) Aggregate Account. A Participant's Aggregate Account as of
the Determination Date is the sum of:
(i) the value (as of the Plan's most recent Valuation Date
occurring within the twelve (12) month period ending on the
Determination Date) of all accounts maintained on behalf of the
Participant, whether attributable to Employer or Employee
Contributions; plus
(ii) an adjustment for any Employer contributions due as of the
Determination Date (including, in the case of Plans subject to the
minimum funding requirements of Code Section 412, contributions
waived in prior years). Such adjustment shall be the amount of any
Employer contribution actually made after the Valuation Date, but
before the Determination Date, provided, however, that for the first
Plan Year, such adjustment shall also reflect the amount of any
Employer contribution made after the Determination Date that is
allocated as of a date in that first Plan Year; plus
(iii) Any Plan distributions made within the Plan Year, that
includes the Determination Date or within the four (4) preceding Plan
FINA CAPITAL ACCUMULATION PLAN - 39
44
Years. However, in the case of distributions made after the
Valuation Date and prior to the Determination Date, such
distributions are not included as distributions for Heavy or Super
Top Heavy purposes to the extent that such distributions are already
included in the Participant's Aggregate Account balance as of the
Valuation Date. Notwithstanding anything herein to the contrary, all
distributions, including distributions made prior to January 1, 1984,
if any, will be counted; plus
(iv) Any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax deductible qualified
voluntary employee contributions (as had been provided for at
repealed Section 219(e)(2) of the Code) shall not be considered to be
a part of the Participant's Aggregate Account Balance.
(v) With respect to unrelated rollovers and plan-to-plan
("portability") transfers (ones which are both initiated by the
Employee and made from a plan maintained by one company to a plan
maintained by another company), if this Plan provides for rollovers
or plan-to-plan transfers, it shall always consider such rollover or
plan-to-plan transfers as a distribution for the purposes of this
Section. If this Plan is the plan accepting such rollovers or
plan-to-plan transfers, it shall not consider such rollovers or
plan-to-plan transfers accepted after December 31, 1983, as part of
the Participant's Aggregate Account balance. However, rollovers or
plan-to-plan transfers accepted prior to January 1, 1984, shall be
considered as part of the Participant's Aggregate Account balance.
(vi) With respect to related rollovers and plan-to-plan
transfers (ones either not initiated by the Employee or made to a
plan maintained by the same company), if this Plan made the rollover
or plan-to-plan (portability) transfer, it shall not be counted as a
distribution for purposes of this Section; if this Plan is the plan
accepting such rollover or plan-to-plan (portability) transfer, it
shall be treated as part of the Participant's Aggregate Account
balance, irrespective of the date on which such rollover or
plan-to-plan (portability) transfer is received.
(vii) Notwithstanding Subsection 13.1(e)(iii), or anything
else herein to the contrary, benefits paid on account of death which
exceed the present value of accrued benefits existing immediately
prior to death will not be treated as distributions inclusive for
these purposes.
(f) Aggregation Group means either a Required Aggregation Group or
a Permissive Aggregation Group as hereinafter determined.
FINA CAPITAL ACCUMULATION PLAN - 40
45
(i) Required Aggregation Group. In determining a Required
Aggregation Group hereunder, each plan of the Company in which a Key Employee
is a participant, and each other plan of the Company which enables any plan in
which a Key Employee participates to meet the requirements of Code Sections
401(a)(4) (includes comparability of benefits or contributions) or 410, will
be required to be aggregated. Such group shall be known as a "Required
Aggregation Group."
In the case of a Required Aggregation Group, each plan
in the group will be considered a Top Heavy Plan or Super Top Heavy
Plan (respectively) if the Required Aggregation Group is a Top Heavy
Aggregation Group or a Super Top Heavy Aggregation Group
(respectively). No plan in the Required Aggregation Group will be
considered a Top Heavy Plan or Super Top Heavy Plan if the Required
Aggregation Group is not a Top Heavy Group or Super Top Heavy Group
(respectively).
(ii) Permissive Aggregation Group. The Company may also
include any other plan not required to be included in the Required
Aggregation Group, provided the resulting group, taken as a whole,
would continue to satisfy the provisions of Code Section 401(a)(4)
(including comparability of benefits or contributions) and 410. Such
group shall be known as a "Permissive Aggregation Group."
In the case of a Permissive Aggregation Group, only a
plan that is part of the Required Aggregation Group will be
considered a Top Heavy Plan if the Permissive Aggregation Group is a
Top Heavy Group. No plan in the Permissive Aggregation Group will be
considered a Top Heavy Plan if the Permissive Aggregation Group is
not a Top Heavy Aggregation Group.
(iii) Method of Aggregating Plans. First the Present Value and
Sum of the Aggregate Accounts is determined separately for each plan as of
each plan's Determination Date. The plans are then aggregated by adding the
results of each plan as of the Determination Dates for such plans which fall
within the same calendar year. The combined results will determine whether or
not a Top Heavy Aggregation Group exists.
(g) Present Value of Accrued Benefit. In the case of a Defined
Benefit Plan(s), a Participant's Present Value of Accrued Benefits
shall be determined under a uniform method that applies to all
defined benefit plans maintained by the Employer. If no single accrual
method is used
FINA CAPITAL ACCUMULATION PLAN - 41
46
by all such plans, the method shall be determined as if the benefits
accrued at the slowest accrual rate permitted under Section
411(b)(1)(C) of the Code.
(h) "Top Heavy Aggregation Group" means an Aggregation Group in
which, as of the Determination Date, the sum of:
(i) the Present Value of Accrued Benefits of Key Employees
under all Defined Benefit Plans included in the group, and
(ii) the Aggregate Accounts of Key Employees under all
Defined Contribution Plans included in the group, exceeds sixty
percent (60%) of a similar sum determined for all Participants. If
the foregoing determined percentage exceeds ninety percent (90%), the
Aggregation Group shall be deemed a Super Top Heavy Aggregation
Group.
Section 13.2. Minimum Allocation Requirement for Top Heavy Plan.
(a) Minimum Annual Allocation. Notwithstanding any provision at
Article IV to the contrary, for any Top Heavy Plan Year, the
following Minimum Annual Allocation shall be credited to the Account
of each Non Key Employee unless such minimum annual allocation
requirement is otherwise satisfied by another plan of the Company or
by another plan in the Aggregation Group. Minimum Annual Allocation
shall mean the Primary Minimum Annual Allocation or both the Primary
Minimum Annual Allocation and the Secondary Minimum Annual Allocation
as the context so requires. Compensation as used in this Section
shall mean the Participant's Limitation Year Compensation as defined
in Section 4.3(e).
(b) The Primary Minimum Annual Allocation, consisting of the sum of
Employer Contributions and Forfeitures allocated to the Participant's
Account shall be equal to the lesser of (i) 3% of each Non-Key
Employee's Compensation or (ii) the largest percentage allocation of
Employer Contributions (including Employee Pre-tax Contributions and
Match Contributions) and Forfeitures allocated to the Account of any
Key Employee where such percentage allocation is determined as a
percentage of the first $200,000 (or such larger amount as may be
permitted to be considered by regulation) of such Key Employee's
Compensation.
FINA CAPITAL ACCUMULATION PLAN - 42
47
(c) Secondary Minimum Annual Allocation for Top Heavy Plans in
Order to Retain Higher Code Section 415 Plan Limits (Other Than Super
Top Heavy Plans). If a Key Employee is a Participant in both a
defined contribution plan and a defined benefit plan that are both
plans of a Top Heavy Aggregation Group (but neither of such plans is
a Super Top Heavy plan), the defined contribution and the defined
benefit fractions set forth in Subsections 4.2(b) and (c) shall
remain unchanged as provided for at Subsection 4.2(e) provided that
for each Top Heavy Plan Year in which one or more Key Employees is a
Participant in both the defined benefit and defined contribution
plans which are part of a Top Heavy Aggregation Group each Non-Key
Employee Participant's Account receives a Secondary Minimum Annual
Allocation in addition to the Primary Minimum Annual Allocation
equal to one percent (1%) of the such Non-Key Employee's
Compensation.
(d) Minimum Annual Allocation Despite Ineligibility for Normal
Allocations. For any Top Heavy Plan Year, the minimum allocations
set forth above shall be allocated to the Participant's Account of
all Non-Key Employees who are Participants and who are employed by an
Employer on the last day of the Plan Year, including Non-Key
Employees who (i) failed to be credited with a Year of Service, or
(ii) declined to make mandatory contributions (if required) to the
Plan.
(e) Nonduplication of Minimum Contributions and Annual Benefits. If
a Non-Key Employee participates in both a defined benefit plan and a
defined contribution plan included in a Top Heavy Aggregation Group,
the Employer is not required to provide such Non-Key Employee with
both the full and separate Minimum Annual Benefits and the full and
separate Minimum Annual Allocations. By elevating the Minimum Annual
Allocation for any such Non-Key Employee to five percent (5%) (seven
and one-half percent (7 1/2%) in order to retain the higher 1.25
factor of Subsection 4.2(e)) of such Non-Key Employee's compensation,
both plans will be presumed to satisfy the Code Section 416 minimums.
The first time the issues raised by this Subsection become relevant,
the Company shall select, by Board Resolution (which choice cannot
thereafter be changed absent a plan amendment) whether to elevate the
Minimum Annual Addition to five percent (5%) or seven and one-half
percent (7-1/2%) or to adopt the floor offset approach described in
regulation 1.416-1. If a Non-Key Employee participates in two defined
contribution plans included in a Top Heavy Aggregation Group, only
one such plan must provide the defined contribution Minimum
Allocations. The Committee shall arrange coordination between plans
to the extent permitted by law.
FINA CAPITAL ACCUMULATION PLAN - 43
48
Section 13.3. Top Heavy Vesting Rule.
(a) Top Heavy Vesting Schedule Overrides Plan Regular Vesting
Schedule. Notwithstanding the vesting schedules at Subsection
6.3(a)(i) and (ii), for any Top Heavy Plan Year, the vested portion
of any Participant's Match Account(s) (including amounts, if any,
credited to such Account(s) prior to the effective date of Code
Section 416 and prior to the Plan becoming Top Heavy and regardless
of whether a similar schedule applies to such Participant's interest
in any other plan) shall be determined on the basis of the
Participant's number of Vesting Years of Service according to the
following schedule:
Vesting Schedule
Vesting Years of Service Percentage
Less than 2 years 0%
2 years but less than 3 20%
3 years but less than 4 60%
4 years but less than 5 80%
5 years or more 100%
(b) Discretion to Discontinue Top Heavy Schedule For
Non-Top-Heavy Plan Years. If in any Plan Year subsequent to a Top
Heavy Plan Year, the Plan ceases to be a Top Heavy Plan, the
Committee may, in its sole and absolute discretion, elect to: (1)
continue to apply the Top Heavy vesting schedule at Subsection
13.3(a) above, in determining the Vested portion of any Participant's
Match Account(s) balance(s), or (2) revert to the vesting schedule in
effect before this Plan became a Top Heavy Plan. Any such reversion
shall be treated as a Plan Amendment pursuant to the terms of Code
Section 411(a)(1) as set forth at Section 11.2 of the Plan.
(c) The Top Heavy vesting rule at Subsection 13.3(a) does
not apply to the interest of any Participant who has not actually
worked an Hour of Service after the Plan becomes Top Heavy.
ARTICLE XIV
WITHDRAWALS
Section 14.1. Withdrawals by Participants. By filing a written
notice of withdrawal with the Committee prior to the end of any
month, a Vested Participant may, subject to the limitations at
Section 14.1(d) and (e) below, withdraw:
FINA CAPITAL ACCUMULATION PLAN - 44
49
(a) all or any portion of the amount credited to his
Employee After-Tax Account as of the end of such month; and
(b) if no amount remains credited to his Employee After-Tax
Account following such withdrawal, all or any portion of the vested
amount credited to his Pre-84 Match Account as of the end of such
month; and
(c) if such Participant has either attained the age of
59-1/2 years or is not in the employ of or on authorized leave of
absence from an Employer or Affiliated Company, all or any portion of
the amounts credited to his Employee Pre-Tax and Employee After-Tax
Match Accounts as of the end of such month;
(d) provided, however, that no withdrawals may be made on or
after July 1, 1991, for any sum less than five hundred dollars
($500.00) and provided further that a Participant may not obtain more
than two (2) withdrawals in any twelve (12) consecutive month period
nor more than five (5) withdrawals in any sixty (60) month period;
and
(e) if the Partially Vested Participant making a withdrawal
pursuant to this Section is in the employ of or on authorized leave
of absence from an Employer or Affiliated Company at the end of the
month as of which such withdrawal is made, the vested portion of such
Participant's Pre-84 Match Account and/or Post-83 Match Account, from
which the withdrawal was made, shall at all times after the making of
such withdrawal be determined by the formula P(AB+D)-D, where P is
such Participant's vested percentage at the relevant time, AB is the
value of said Account at the relevant time, and D is the total amount
previously withdrawn from said Account.
Section 14.2. Loans to Participants. Subject to such
conditions and limitations as the Committee may from time to time
prescribe for application to all Participants on a uniform basis to
ensure repayment, at the request of a Participant the Committee shall
direct the Trustee to loan to such Participant from his or her
Employee Pre-Tax Account an amount of money which does not exceed the
least of: (a) $50,000 reduced by the total outstanding balance of all
other loans to such Participant from the Trust, or the highest
outstanding balance of all such loans for the one year period ending
the day before the date of the loan (if greater), or (b) one-half of
such Participant's Vested Interest under the Plan (but excluding in
such determination such Employee's After-Tax Account), or (c) the
amount that may otherwise be loaned to such Participant without being
treated under the provisions of Section 72(p) of the Code as having
been received by such Participant as a distribution under the Plan.
Any such loan made to a Participant shall be made from proceeds
liquidated from the Participant's Account in a priority from time to
time established by the Committee, shall be evidenced by a promissory
note payable to the Trustee, shall bear
FINA CAPITAL ACCUMULATION PLAN - 45
50
a reasonable rate of interest, shall be secured by the borrowing
Participant's Vested Interest under the Plan and shall be repayable
in equal installments (not less frequently than quarterly) over a
period not to exceed five (5) years from the date of the loan;
provided, however, that if such loan is to be used to acquire or
Construct any dwelling unit which, within a reasonable time, is to be
used as a principal residence of the Participant, the Committee may
direct the Trustee to make such loan repayable over such period
greater than five (5) years.
Any provision of this Plan to the contrary notwithstanding, (a)
the promissory note evidencing any such loan shall be held by the
Trustee as a segregated investment allocated to and made solely for
the benefit of the Employee Pre-Tax Account of the borrowing
Participant, and (b) no withdrawal pursuant to any of the withdrawal
provisions of this Plan may be made by a Participant to whom a loan
is outstanding from the Trust unless the Committee is satisfied that
such loan will remain nontaxable and fully secured by the withdrawing
Participant's Vested Interest under the Plan following such
withdrawal.
ARTICLE XV
MISCELLANEOUS
Section 15.1. Inalienability of Benefits. Except as may
otherwise be provided herein, and except with respect to a Qualified
Domestic Relations Order defined at Code Section 414(p) and
determined to be so under Section 9.4, the right of any Participant
or beneficiary to any benefit or payment under the Plan or Trust or
to any separate account maintained as provided by the Plan shall not
be subject to voluntary or involuntary transfer, alienation, pledge,
assignment or other disposition and shall not be subject to
attachment, execution, garnishment, sequestration or other legal or
equitable process. Any attempt to transfer, alienate, pledge, assign
or otherwise dispose of such right or any attempt to subject such
right to attachment, execution, garnishment, sequestration or other
legal or equitable process shall be null and void.
Section 15.2. No Implied Rights. Neither the establishment of
the Plan and Trust nor any modification thereof, nor the creation of
any fund, trust or account, shall be construed as giving any
Participant, Employee, beneficiary or other person any legal or
equitable right unless such right shall be specifically provided for
in the Plan or conferred by affirmative action of the Company in
accordance with the terms and provisions of the Plan.
Section 15.3. Status of Employment Relations. The adoption
and maintenance of the Plan and Trust shall not be deemed to
constitute a contract between the Company and its Employees or to be
consideration for, or an inducement or condition of, the employment
of any person. Nothing contained herein shall be deemed to:
FINA CAPITAL ACCUMULATION PLAN - 46
51
(a) give to any Employee the right to be retained in the
employ of the Company;
(b) affect the right of an Employer to discipline or
discharge any Employee at any time;
(c) give the Employer the right to require any Employee to
remain in its employ; or
(d) affect any Employee's right to terminate his employment
at any time.
Section 15.4. No Guarantee. Nothing contained in the Plan and
Trust shall constitute a guarantee by the Company, Committee or
Trustee that the assets of the Trust will be sufficient to pay any
benefit to any person. Prior to the time that distributions are made
in conformity with the Plan and Trust, the Participants, Employees,
beneficiaries or other persons shall receive no distribution of cash
or other thing of current or exchangeable value, either from the
Company, Committee or Trustee, on account of, or as a result of the
Trust created hereunder.
Section 15.5. Service in More than One Capacity. Any person
or group of persons may serve in more than one fiduciary capacity
with respect to the Plan and Trust.
Section 15.6. Adoption by Others. Any corporation or other
business entity which is acceptable to the Company may adopt the Plan
and Trust by executing an agreement with the Company, the Trustee and
any other business entity which has adopted the Plan and Trust. If a
successor to the Company elects to continue the Plan and Trust, such
successor shall be substituted for the Company under the Plan and
Trust.
Section 15.7. Actions by the Company or an Employer. All
actions by the Company or an Employer under this Plan and Trust shall
be by resolution of its respective Board of Directors or by a person
or persons designated by such Board(s).
Section 15.8. Binding Effect. The provisions of the Plan
shall be binding on the Company, an Employer, the Committee and their
successors and on all persons entitled to benefits under the Plan and
their respective heirs, legal representatives and successors in
interest.
Section 15.9. Governing Laws. The Plan shall be construed and
administered according to the laws of the State of Texas to the
extent that such laws are not preempted by the laws of the United
States of America.
Section 15.10. Counterparts. The Plan may be executed in
any number of counterparts, each of which shall be deemed an
original, and no other counterparts need be produced.
FINA CAPITAL ACCUMULATION PLAN - 47
52
ARTICLE XVI
HOURS OF SERVICE AND LEAVES OF ABSENCE
Section 16.1. Hour of Service Defined. "Hour of Service" means
each hour for which an Employee is:
(a) paid, or entitled to payment, for the performance of duties,
(b) awarded back pay or for which back pay has been agreed to,
irrespective of mitigation of damages; provided, however, that the
same Hour of Service shall not be credited both under Subparagraph
16.1(a) or Subparagraph 16.1(c) as the case may be, and under this
Subparagraph 16.1(b), and
(c) paid, or entitled to payment, 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 (except as may otherwise be
provided at Section 16.4 with respect to maternity or paternity
leaves); provided, however, that
(i) 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 him 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
(ii) Hours of Service shall not be credited for a payment
which solely reimburses an Employee for medical or medically related
expenses incurred by him.
For purposes of this Subsection 16.1(c), a payment shall be
deemed to be made or due from the Employer regardless of whether such
payment is made by or due from the Employer directly, or is made or
due indirectly through a trust fund, or insurer, to which the
Employer contributes or pays premiums. A payment shall also be deemed
made or due from the Employer whether it is made or due to the trust
fund, insurer or other entity for the benefit of particular employees
or for the benefit of a group of employees in the aggregate.
FINA CAPITAL ACCUMULATION PLAN - 48
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Section 16.2. Determination of Hours of Service for Reasons Other
Than the Performance of Duties. In the case of a payment which is
made or due on account of a period during which an Employee performs
no duties, and which results in the crediting of Hours of Service
under Subsection 16.1(c), or in the case of an award or agreement for
back pay, to the extent that such award or agreement is made with
respect to a period described in Subsection 16.1(b), the number of
Hours of Service to be credited shall be determined in accordance
with the provisions of Department of Labor Regulation Section
2530.200b-2(b).
Section 16.3. Crediting of Hours of Service to Computation
Periods.
(a) Except as provided in Subsection 16.3(d), Hours of Service
described in Subsection 16.1(a) shall be credited to the Computation
Period in which the duties are performed.
(b) Except as provided in Subsection 16.3(d), Hours of Service
described in Subsection 16.1(b) shall be credited to the Computation
Period or periods to which the award or agreement for back pay
pertains, rather than to the Computation Period in which the award,
agreement or payment is made.
(c) Except as provided in Subsection 16.3(d), Hours of Service
described in Subsection 16.1(c) shall be credited as follows:
(i) Hours of Service credited to an Employee on account of a
payment which is calculated on the basis of units of time, such as
hours, days, weeks or months, shall be credited to the Computation
Period or Computation Periods in which the period during which no
duties are performed occurs, beginning with the first unit of time to
which the payment relates.
(ii) Hours of Service credited to an Employee by reason of a
payment which is not calculated on the basis of units of time shall
be credited to the Computation Period in which the period during
which no duties are performed occurs.
(d) In the case of Hours of Service to be credited to an Employee
in connection with a period of no more than 31 days which extends
beyond one Computation Period, all such Hours of Service shall be
credited to the second such Computation Period.
Section 16.4. Effect of Maternity or Paternity Leave of Absence
on One Year Break in Service. Solely for purposes of determining
whether a One Year Break in Service has occurred, in the case of an
Employee whose absence commences on or after October 11, 1984 and
such absence is attributable to either; (i) the pregnancy of such
Employee, (ii) the birth of a child of such Employee, (iii) the
placement of a child with that Employee in connection with the
adoption of that child
FINA CAPITAL ACCUMULATION PLAN - 49
54
by such Employee, or (iv) the care of a child for a period beginning
immediately following such birth or placement, such Employee shall be
deemed to be credited with the number of Hours of Service he or she
normally (but for such absence) would have been credited with during
the applicable Computation Period in which such absence began, up to
but not exceeding 501 Hours of Service, provided further, however,
that if such Employee does not need such credit in such Computation
Period in order to prevent a One Year Break in Service in the Plan
Year in which the maternity or paternity leave commenced, such credit
shall be given in the next subsequent Plan Year. In the event the
normal Hours of Service the Employee would have been credited with
are not determinable, the Employee will be credited with eight (8)
Hours of Service for each normal working day during such maternity or
paternity leave.
As a condition of crediting Hours of Service under this
Section, the Committee may require (applied in a uniform and
nondiscriminatory manner) that the Employee provide on a timely
basis, suitable information (which may include a doctor's statement)
establishing that the absence is for an allowable period and reason;
unless such information is already accessible to the Committee
without the Employee's submission of same.
ARTICLE XVII
DEFINITIONS AND CONSTRUCTION
Section 17.1 "Account" refers to one or more of the
following: Post-83 Match Account, Pre-84 Match Account, Employee
Pre-Tax Account, and Employee After-Tax Account.
Section 17.2. "Accrual Computation Period" means the Plan
Year.
Section 17.3. "Act" or "ERISA" means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
Section 17.4. "Affiliated Company" means (a) any corporation
or organization, other than an Employer, which is a member of a
controlled group of corporations (within the meaning of Section
414(b) of the Code) or of an affiliated service group (within the
meaning of Section 414(m) of the Code) to which an Employer is also a
member, (b) any incorporated or unincorporated trade or business
which along with an Employer is under common control (within the
meaning of the regulations from time to time promulgated by the
Secretary of the Treasury pursuant to Section 414(c) of the Code),
(c) any other entity required to be aggregated with an Employer
pursuant to regulations under Section 414(o) of the Code, and (d) any
other incorporated or unincorporated trade or business which is
designated by the Board of Directors of the Company as an Affiliated
Company for the purposes of this Plan; provided, however, that for
the purposes of Article V of the Plan, Section 414(b) and (c) of the
Code shall be applied as modified by Section 415(h) of the Code.
FINA CAPITAL ACCUMULATION PLAN - 50
55
If a business entity becomes an Affiliated Company or if a
portion of a business entity is acquired by an Employer, whether
service with such entity, prior to either becoming an Affiliated
Company or being acquired by an Employer, shall be considered for
purposes of Article II (Participation) or Article VI (Vesting) shall
be determined by the Board of Directors of the Company or by the
Board of Directors of any other Employer that is a 100% owned
subsidiary of the Company or by the Committee in their sole and
absolute discretion applied on a uniform basis to all employees of
such acquired business. A determination to grant such past service
credit shall be evidenced by affixing such Board of Directors or
Committee resolution to this Plan as an Exhibit hereto.
Section 17.5. "Agent for Service of Process". The Trustee of the
Plan is designated as the agent responsible for the receipt of legal
"service of process."
Section 17.6. "Basic Compensation" means the base salary and
wages (determined without regard to any Basic Compensation reduction
agreement entered pursuant to Section 3.1) regularly payable to a
Participant as part of his Compensation, but shall not include any
employee bonus payments, straight-time overtime or premium overtime
pay, severance pay, callback pay, night-shift differential or
Matching Contributions to this Plan or any prior plan, automobile or
other allowances (e.g., all expatriate differentials), premium paid
on any life insurance policy or other form of special remuneration.
Section 17.7. "Beneficiary" or "Beneficiaries" means the person
or persons designated as provided in Articles VI and VII to receive
the benefits which are payable under the Plan upon or after the death
of a Participant.
Section 17.8. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
Section 17.9. "Committee" means the Committee appointed by
the Board of Directors of the Company to administer the Plan on
behalf of the Employers.
Section 17.10. "Company" means FINA, Inc.
Section 17.11. "Company Stock" means the Class A Common Stock
of the Company.
Section 17.12. "Compensation" means the total remuneration paid
by an Employer and any Affiliated Company to an Employee during the
calendar year which is required to be reported on the Employee's Form
W-2 or its successor, plus (for all purposes except Article IV) any
remuneration that is excludable from the Employee's gross income by
reason of the application of Sections 125, 402(a)(8) or 402(h)(1)(B)
of the Code. However, for years beginning after December 31, 1988,
Compensation in excess of $200,000 (as adjusted by the Secretary of
the Treasury, at the same time and in the same manner as provided in
Section 415(d) of the Code) shall be disregarded. In determining the
Compensation of a Participant for purposes of this limitation, the
FINA CAPITAL ACCUMULATION PLAN - 51
56
rules of Section 414(g)(6) of the Code shall apply except in applying
such rules, the term family shall include only the spouse of the
Participant and any lineal descendants of the Participant who have
not attained age 19 before the close of the year.
Section 17.13. "Determination Date" for purposes of determining
if the Plan is a Top Heavy Plan or a Super Top Heavy Plan as defined
herein means (a) the last day of the preceding Plan Year, or (b) in
the case of the Plan's first Plan Year, the last day of such Plan
Year.
Section 17.14. "Eligibility Computation Period" means, for each
Employee, (a) the 12 consecutive month period beginning on the date
such Employee first completes an Hour of Service with an Employer or
an Affiliated Company (from and after the date of affiliation) and
(b) the Plan Year which includes the first anniversary of the date
the Employee first completed an Hour of Service with an Employer or
an Affiliated Company (from and after the date of affiliation), and
(c) if additional Eligibility Computation Periods are necessary,
succeeding Plan Years.
Section 17.15. "Employee" means any person who is employed by
an Employer.
"Eligible Employee" means each Employee of an Employer other
than an Ineligible Person.
"Ineligible Person" means any persons who are (a) lessees and
sublessees of service stations and their employees, (b) commission
agents and their employees, (c) distributors and jobbers and their
employees, (d) contractors and subcontractors and their employees,
(e) leased employees within the meaning of Section 414(n) of the Code
or the regulations under Section 401(o), (f) any consultant or other
person who under the normal practice of an Employer is not considered
to be a regular employee or (g) an Employee who is a member of a
collective bargaining unit the recognized representative of which has
not agreed to participation in the Plan by its members.
Section 17.16. "Employee After-Tax Account" means the account
established and maintained under this Plan by the Committee to record
a Participant's interest under this Plan attributable to (a) Employee
After-Tax Contributions made by such Participant to this Plan, and
(b) contributions made by such Participant to the First Thrift Plan.
Section 17.17. "Employee After-Tax Contribution" means a
contribution made by a Participant to this Plan pursuant to Section
3.1(b).
Section 17.18. "Employee Pre-Tax Account" means the account
established and maintained under this Plan by the Committee to record
a Participant's interest under this Plan attributable to Employee
Pre-Tax Contributions made by an Employer to this Plan on behalf of
such Participant.
FINA CAPITAL ACCUMULATION PLAN - 52
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Section 17.19. "Employee Pre-Tax Contribution" means a
contribution made by an Employer to this Plan on behalf of a
Participant pursuant to Subsection 3.1(a).
Section 17.20. "Employer" shall include the Company and
any other incorporated or unincorporated trade or business which may
adopt this Plan with the consent of the Board of Directors of the
Company.
Section 17.21. "Excess Aggregate Contributions" means the sum
of Employee After-Tax Contributions and related Matching
Contributions that are required to be distributed to a Highly
Compensated Employee pursuant to Subsection 3.4(c).
Section 17.22. "Excess Contributions" means Employee
Pre-Tax Contributions that may not be allocated to a Highly
Compensated Employee pursuant to Section 3.4(a).
Section 17.23. "Family Member" means, with respect to any
Employee or former Employee, a person who, on any day of the year,
was such Employee's or former Employee's spouse, lineal ascendant or
descendant, or the spouse of such lineal ascendant or descendant.
Section 17.24. "First Thrift Plan" means the Thrift Plan for
Employees of American Petrofina, Incorporated and Certain
Subsidiaries as in effect prior to January 1, 1984.
Section 17.25. "Government Bonds" means such class or classes
of United States Government Bonds (including notes or Series EE or
similar savings bonds) as the Committee shall in its sole and
absolute discretion from time to time determine to be appropriate
investments for the purposes of the Plan.
Section 17.26. "Highly Compensated Employee" means any person who
is employed by the Company who, during the Plan Year or the preceding
Plan Year.
(a) was a Five Percent Owner of the Employer (as defined in
Code Section 416(i) and Section 17.20 hereof); or
(b) received more than $75,000 (as adjusted for cost of
living increases) in annual compensation (within the meaning of Code
Section 414(q)(7)) from the Employer (and from each employer required
to be aggregated under Code Section 414(b), (c), (m) or (o)); or
(c) received more than $50,000 (as adjusted for cost of
living increases) in annual compensation from the Employer (and from
each employer required to be aggregated under Code Section 414(b),
(c), (m) or (o)), and was a member of the "Top-Paid Group" of the
Company (as defined at Subsection (e) immediately below) for such
Plan Year; or
FINA CAPITAL ACCUMULATION PLAN - 53
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(d) was an officer of the Employer (as defined in Code Section
416(i)) and received compensation from the Company (and from each
employer required to be aggregated under Code Section 414(b), (c),
(m) or (o)) for such Plan Year greater than 50% of the dollar
limitation at Code Section 415(b)(1)(A).
(e) Special Rule for Current Year. In the year for which the
relevant determination is being made, if an employee is not described
in Subsections (b), (c), or (d) immediately above of this Section for
the preceding year (without regard to this Subsection) such person
shall not be treated as described in Subparagraph (b), (c), or (d)
unless such employee is also a member of the group consisting of the
100 employees paid the greatest compensation during the year for
which such determination is being made.
(f) Top Paid Group. An employee is in the Top-Paid Group of
employees for any year if such employee is in the group consisting of
the top 20 percent of the employees when ranked on the basis of
compensation paid during such year.
(g) Special Rules for Treatment of Officers.
(i) Not more than 50 Officers Taken into Account. For
purposes of this Section, no more than 50 employees (or, if lesser, the
greater of 3 employees or 10 percent of the employees) shall be treated as
officers.
(ii) At least One Officer Taken into Account. If for any
year no officer of the Company is described in Subsection (d) above, then
the single highest paid officer of the Company for such year shall be treated
as described in such subsection.
(h) Treatment of Certain Family Members.
(i) In General. If any individual is a member of the
"Family" of a Five Percent Owner or of a Highly Compensated Employee in the
group consisting of the 10 Highly Compensated Employees paid the greatest
compensation during the year, then for purposes of this Section:
(A) such individual shall not be considered a separate
employee, and
(B) any compensation paid to such individual (and any
applicable contribution or benefit on behalf of such individual)
shall be treated as if it were paid to (or on behalf of) the Five
Percent Owner or Highly Compensated Employee.
FINA CAPITAL ACCUMULATION PLAN - 54
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(ii) Family. For purposes of this Subsection, the term "Family"
means, with respect to any employee, such employee's spouse and
lineal ascendants or descendants and the spouses of such lineal
ascendants or descendants.
(i) Former Employees. A former employee shall be treated as a
Highly Compensated Employee if --
(i) such employee was Highly Compensated Employee when
such employee separated from service, or
(ii)such-employee was a Highly Compensated Employee at
any time after attaining age 55.
Section 17.27. "Non-Highly Compensated Employee" means each
Employee of the Company other than a Highly Compensated Employee.
Section 17.28. "Key Employee" means any Employee or former
Employee (and his Beneficiaries) if at any time during the Plan Year
containing the Determination Date for the Plan Year in question or
any of the preceding four (4) Plan Years (the "testing period") the
Employee (or former Employee [and his Beneficiaries]) is (was):
(a) an "Officer" (as defined in this section below) of an
Employer (or of any company required to be aggregated under Code
Section 414(b), (c), (m) or (o)) having annual compensation for the
Plan Year greater than fifty percent (50%) of the amount in effect
under Code Section 415(b)(1)(A) for the calendar year in which such
Plan Year ends. Further, for these purposes, after aggregating all
employees required to be aggregated under Code Sections 414(b), (c),
(m) and (o), no more than 50 employees - or if lesser, the greater of
3 employees or 10% of the employees - shall be treated as Officers.
Determination of who is an officer shall be made by the Committee
based on all the facts and circumstances, including, but not limited
to, the source of authority, the term, the nature and extent or
limits of duty. Generally the term "Officer" means an administrative
executive in regular and continuous service and effective for Plan
Years beginning after February 28, 1985, such determination is made
regardless of whether the company or Affiliated Company is
incorporated.
(b) one of the ten Employees having annual compensation from an
Employer for the Plan Year, in excess of the limitation in effect
under Code Section 415(c)(1)(A) for the calendar year in which the
Plan Year ends, owning (or considered as owning within the meaning of
Code Section 318, as modified by Code Section 416(i)(1)(B)(iii)(I))
both more than a 1/2 percent ownership interest and the largest
interests in an Employer or any Affiliated Company. If two or more
Employees have the same percentage interest during the "testing
period," the Employee having greater annual compensation, from the
FINA CAPITAL ACCUMULATION PLAN - 55
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Employer or any Affiliated Company for the Plan Year during any part
of which that ownership interest existed, shall be treated as having
a larger interest.
(c) a "Five Percent Owner" of the Employer. "Five Percent Owner"
means any person who owns (or is considered as owning within the
meaning of Code Section 318, as modified by Code Section
416(i)(1)B)(iii)(I)) more than five percent (5%) of the outstanding
stock of the Company or stock possessing more than five percent (5%)
of the total combined voting power of all stock of the Employer (if
the Employer is not a corporation, any person who owns more than 5%
of the capital or profits interest in an Employer). In determining
percentage ownership hereunder, employers that would otherwise be
aggregated under Code Sections 414(b), (c), (m) and (o) shall be
treated as separate employers.
(d) a "One Percent Owner" of an Employer having an annual
Compensation from the Company of more than $150,000. "One Percent
Owner" means any person who owns (or is considered as owning within
the meaning of Code Section 318 as modified by Code Section
416(i)(1)(B)(iii)(I)) more than one percent (1%) of the outstanding
stock of an Employer or stock possessing more than one percent (1%) of
the total combined voting power of all stock of an Employer (if the
Company is not a corporation, any person who owns more than one
percent (1%) of the capital or profits interest in the Company). In
determining percentage ownership hereunder, employers that would
otherwise be aggregated under Code Sections 414(b), (c), (m) and (o)
shall be treated as separate employers. However, in determining
whether an individual has Compensation of more than $150,000,
Compensation from each employer required to be aggregated under Code
Sections 414(b), (c), (m) and (o) shall be taken into account.
(For purposes of determining whether the Plan is a Top Heavy Plan
or a Super Top Heavy Plan, a Beneficiary of a deceased Participant
shall be deemed a Key Employee if the Participant from whom he takes
was a Key Employee, or a Non-Key Employee if the Participant from
whom he takes was a Non-Key Employee.)
Section 17.29. "Non-Key Employee" means any Employee or former
Employee who is not a Key Employee.
Section 17.30. "Leased Employees" means any person (other than
an employee of the recipient company) who, pursuant to an agreement
between the recipient company and any other person ("leasing
organization"), has performed services for recipient company (or for
the recipient company and 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 and such services are of a
type historically performed by employees in the business field of the
recipient company. Solely for purposes of Code Section 401(a)(3),
(4), (7), (16), (17) and (26) and Code Sections 408(k), 410, 411, 415
and 416, and not for purposes of participation in this Plan, any
leased employee shall
FINA CAPITAL ACCUMULATION PLAN - 56
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be treated as an employee of the recipient company; however,
contributions or benefits provided by the leasing organization which
are attributable to services performed for the recipient company
shall be treated as provided by the recipient company.
If 20 percent or less of the recipient company's "non-highly
compensated workforce" as defined at Code Section 414(n)(5)(C)(ii),
are leased employees, then the preceding sentence shall not apply to
any leased employees who participated in a money purchase pension
plan maintained by the leasing organization providing terms not less
favorable than: (1) a nonintegrated company contribution at the rate
of 10 percent of compensation, (2) immediate participation, and (3)
full and immediate vesting (the "safe harbor plan"). Any leased
employee whose compensation from the leasing organization is less
than one thousand dollars ($1,000) during the Plan Year and in each
of the three (3) prior Plan Years need not be covered by the safe
harbor plan, nor treated as an employee of the recipient company.
Section 17.31. "Match Accounts" means the Pre-84 Match Account
and the Post-83 Match Account.
Section 17.32. "Matching Contribution" means a contribution
made by an Employer to this Plan for a Participant pursuant to
Section 3.2.
Section 17.33. The "Named Fiduciary" of the Plan within the
meaning of Section 402(a) of the Act shall be the Committee.
Section 17.34. "Net Profits" means an Employer's current
profits or accumulated earned surplus as determined under generally
accepted accounting principles and without regard to whether such
Employer has current or accumulated earnings and profits for federal
income tax purposes.
Section 17.35. "One Year Break in Service" means a Vesting
Computation Period during which a Participant completes 500 or fewer
Hours of Service with an Employer. No One Year Break in Service will
occur where an Employer, pursuant to an established nondiscriminatory
policy, authorizes a leave of absence occasioned by illness, military
service or any other reason.
Section 17.36. "Participant" means an Employee who becomes
a Participant in accordance with the provisions of the Plan and whose
vested account under the Plan has not been fully distributed.
Section 17.37. "Permanent Disability" means the total and
permanent incapacity of a Participant to perform the usual duties of
his employment with an Employer or Affiliated Company. A Participant
is considered permanently disabled under this Plan if he is
considered totally and permanently disabled under the Company's
long-term disability plan (or would be so considered if he were
covered under that plan).
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Section 17.38. "Plan" means this employee benefit plan as
captioned above which is a profit sharing plan with a qualified cash
and deferred arrangement.
Section 17.39. "Plan Year" means the period January 1 -
December 31.
Section 17.40. "Post-83 Match Account" means the account
established and maintained under the Plan by the Committee to record
a Participant's interest under this Plan attributable to (a) Matching
Contributions made by an Employer to this Plan for such Participant
and (b) forfeitures applied pursuant to Section 3.2 to reduce the
Matching Contributions which would otherwise have been made by an
Employer for such Participant.
Section 17.41. "Pre-84 Match Account" means the account
established and maintained under the Plan by the Committee to record
a Participant's interest under this Plan attributable to
contributions made by an Employer to the First Thrift Plan for such
Participant.
Section 17.42. "PSA Stock" means the common stock of Petrofina,
S.A., a corporation organized under the laws of the Kingdom of
Belgium.
Section 17.43. "Qualified Investment Manager" means an
investment adviser registered under the Investment Advisers Act of
1940, a bank as defined in that statute, or an insurance company
qualified to perform investment management services under the laws of
more than one State.
Section 17.44. "Retirement" means retirement under the
provisions of a pension or retirement plan of an Employer or
Affiliated Company on or after attaining the age of fifty-five (55)
years.
Section 17.45. "Super Top Heavy Plan" means, for the Plan Years
commencing after December 31, 1983, that as of the Determination Date
(as defined above), (1) the sum of the Aggregate Accounts of Key
Employees, and/or (2) the Present Value of Accrued Benefits of Key
Employees under this Plan (and any plan of a "Required Aggregation
Group") exceeds ninety percent (90%) of the Present Value of Accrued
Benefits and/or the Aggregate Accounts of all Participants under this
Plan and any plan of a "Required Aggregation Group".
Section 17.46. "Super Top Heavy Plan Year" means that for a
particular Plan Year (starting with the Plan Year beginning on
January 1, 1984), the Plan is a Super Top Heavy Plan.
Section 17.47. "Top Heavy Plan" means, for Plan Years (starting
with the Plan Year beginning on January 1, 1984), that, as of the
Determination Date, (1) the sum of the Aggregate Accounts of Key
Employees and/or (2) the Present Value of Accrued Benefits of Key
Employees under this Plan and any plan of a Required Aggregation
Group, exceeds sixty percent (60%) of the Present Value of Accrued
FINA CAPITAL ACCUMULATION PLAN - 58
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Benefits and/or the Aggregate Accounts of all Participants under this
Plan and any plan of a Required Aggregation Group.
Section 17.48. "Top Heavy Plan Year" means that, for a
particular Plan Year (starting with the Plan Year beginning on
January 1, 1984), the Plan is a Top Heavy Plan.
Section 17.49. "Termination of Employment" means termination of
employment with an Employer, whether voluntarily or involuntarily.
Section 17.50. "Trust" or "Trust Fund" means the legal entity
which is established by separate agreement and which forms a part of
this Plan.
Section 17.51. "Trustee" means the party or parties, individual
or corporate, named in the separate Trust Agreement and any duly
appointed additional or successor Trustee(s).
Section 17.52. "Valuation Date" means those date(s) on which
the assets of the plan are valued.
Section 17.53. "Vested Benefit" or "Vested Interest" means any
nonforfeitable right of a Participant in his Account(s).
Section 17.54. "Vested Participant" means a Participant who has
either attained the age of 55 years or completed at least five (5)
Years of Service.
Section 17.55. "Vesting Computation Period" means the Plan
Year.
Section 17.56. "Construction". The titles to the Articles and
the headings of the Sections in this Plan are placed herein for
convenience of reference only and in case of any conflict the text of
this instrument, rather than such titles or headings, shall control.
Whenever a noun or pronoun is used in this Plan in plural form and
there be only one person or entity within the scope of the words so
used, or in singular form and there be more than one person or entity
within the scope of the word so used, such word or pronoun shall have
a plural or singular meaning as appropriate under the circumstance.
Masculine pronouns shall include their feminine counterparts and vice
versa.
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IN WITNESS WHEREOF, this amendment and restatement has been
executed by FINA, Inc. on behalf of all Employers and its corporate
seal affixed and attested this 9th day of December, 1991, effective
January 1, 1987 except as otherwise stated above.
FINA, INC.
(SEAL)
By: Glenn E. Selvidge
Vice President
ATTEST:
Linda Middleton
Asst. Secretary
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