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EXHIBIT 10A
THRIFT AND EMPLOYEE STOCK OWNERSHIP PLAN
OF
AMERICAN PETROFINA, INCORPORATED
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THRIFT AND EMPLOYEE STOCK OWNERSHIP PLAN
OF
AMERICAN PETROFINA, INCORPORATED
TABLE OF CONTENTS
Page
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PREAMBLE .......................................... 1
ARTICLE I DEFINITIONS AND CONSTRUCTION ............. 2
Section 1.1 Definitions ................. 2
Section 1.2 Participation ............... 11
ARTICLE II PARTICIPATION ............................ 11
Section 2.1 Participation ............... 11
ARTICLE III CONTRIBUTIONS AND ALLOCATIONS ............ 12
Section 3.1 Participant Elected
Contributions ............... 12
Section 3.2 Employer Matching
Contributions ............... 14
Section 3.3 Tax Credit
Contributions ............... 14
Section 3.4 Payment to Trustee .......... 14
Section 3.5 Crediting of Contribu-
tions and Forfeitures ....... 17
ARTICLE IV TRUST AND INVESTMENT PROVISIONS .......... 20
Section 4.1 Trust and Trustee .......... 20
Section 4.2 Investment of ESOP and
PAYSOP Accounts ............. 20
Section 4.3 Investment of Participant
Thrift, Participant
Deferred, Company Thrift
and Company Matching
Accounts .................... 20
Section 4.4 Purchases of Company and
PSA Stock and Government
Bonds ....................... 21
Section 4.5 Voting Rights ............... 23
ARTICLE V VESTING AND DISTRIBUTION EVENTS .......... 24
Section 5.1 Retirement or Disability .... 24
Section 5.2 Death ....................... 24
Section 5.3 Break in Service ............ 24
ARTICLE VI DISTRIBUTIONS AND FORFEITURES ............ 25
Section 6.1 Time and Form of
Distribution ................ 25
(i)
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Section 6.2 Distribution of Retire-
ment, Disability and
Death Benefits .............. 26
Section 6.3 Withdrawals by Vested
Participants ................ 27
Section 6.4 Withdrawals by Partially
Vested Participants ......... 29
Section 6.5 Withdrawals by Nonvested
Participants ................ 31
Section 6.6 Break in Service
Distribution ................ 32
Section 6.7 Application of
Forfeitures ................. 33
Section 6.8 Distributions to Minors
and Persons Under
Legal Disability ............ 33
ARTICLE VII PLAN ADMINISTRATION ...................... 33
Section 7.1 Appointment to Committee .... 33
Section 7.2 Powers and Duties of the
Committee ................... 34
Section 7.3 Rules, Records and Reports .. 35
Section 7.4 Administration Expenses
and Taxes ................... 35
Section 7.5 Claims Procedure ............ 36
ARTICLE VIII AMENDMENT AND TERMINATION ................ 37
Section 8.1 Amendment ................... 37
Section 8.2 Termination ................. 38
ARTICLE IX MISCELLANEOUS GENERAL PROVISIONS ......... 38
Section 9.1 Spendthrift Provision ....... 38
Section 9.2 Maximum Annual Additional
Limitation .................. 38
Section 9.3 Limitations on
Responsibilities ............ 40
Section 9.4 Committee Indemnification ... 40
Section 9.5 Employment Noncontractual ... 41
Section 9.6 Merger or Consolidation ..... 41
Section 9.7 Employee Stock Ownership
Plan Merger Into Thrift
Plan ........................ 41
Section 9.8 Applicable Law .............. 42
(ii)
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THRIFT AND EMPLOYEE STOCK OWNERSHIP PLAN
OF
AMERICAN PETROFINA, INCORPORATED
THIS THRIFT AND EMPLOYEE STOCK OWNERSHIP PLAN, made and
executed at Dallas, Texas by the undersigned Employers.
WITNESSETH THAT:
WHEREAS, the Employers have 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 (the "Thrift Plan") and a
qualified tax credit employee stock ownership plan known as the
Employee Stock Ownership Plan of American Petrofina,
Incorporated (the "Employee Stock Ownership Plan"); and
WHEREAS, the Employers now desire to continue said employee
benefits plans without interruption by consolidating the Thrift
Plan and the Employee Stock Ownership Plan into a single plan
providing participating employees with the major benefit
features of both Plans and adding thereto a cash or deferred
arrangement qualifying under the provisions of Section 401(k)
of the Internal Revenue Code:
NOW, THEREFORE, subject to the provisions of Section 9.7 of
this Plan and pursuant to the authority reserved to the
Employers pursuant to Section 16.1 of the Thrift Plan and
Section 12.1 of the Employee Stock Ownership Plan, the Thrift
Plan and the Employee Stock Ownership Plan are hereby amended
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and restated in their entirety to merge the Employee Stock
Ownership Plan into the Thrift Plan which, as so amended and
restated in its entirety, shall read as follows:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions. Unless the context clearly
indicates otherwise, when used in this Plan:
(a) "Affiliated Company" means (1) 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)
with respect to which an Employer is also a member, (2) 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), and (3) 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 the Plan; provided, however, that for the
purposes of Section 9.2 of the Plan, Section 414(b) and (c)
of the Code shall be applied as modified by Section 415(h)
of the Code.
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(b) "Basic Compensation" means the base salary and
wages (determined without regard to any Basic Compensation
reduction agreement entered into pursuant to Section 3.1)
regularly payable to a Participant as part of his
Compensation after becoming a Participant in the Plan but
shall not include any employee bonus payments,
straight-time, overtime or premium overtime pay, severance
pay, callback pay, night-shift differential, Matching or
Tax Credit Contributions to this Plan or any prior plan,
automobile allowance, living allowance, premium paid on any
life insurance policy or other form of special remuneration.
(c) "Break In Service" means any Service
Computation Period during which an Employee fails to
complete more than 500 Hours of Service.
(d) "Code" means the Internal Revenue Code of
1954, as amended from time to time, or any successor
revenue code which may hereafter be adopted in lieu
thereof, and references herein to any specific provision of
the Code shall be deemed also to refer to the corresponding
provision of the Code as it may hereafter be so amended or
replaced.
(e) "Committee" means the Committee appointed by
the Board of directors of the Company to administer the
Plan on behalf of the Employers.
(f) "Company" means American Petrofina,
Incorporated.
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(g) "Company Matching Account" means the account
established and maintained under the Plan by the Committee
to record a Participant's interest under this Plan
attributable to (1) Matching Contributions made by an
Employer to this Plan for such Participant and (2)
forfeitures applied pursuant to Section 6.7 to reduce the
Matching Contributions which would otherwise have been made
by an Employer for such Participant.
(h) "Company Thrift 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
Thrift Plan for such Participant.
(i) "Company Stock" means the Class A Common Stock
of the Company.
(j) "Compensation" shall mean the amount of
compensation (within the meaning of Section 415(c) (3) of
the Code) payable to a Participant for personal services
rendered to an Employer.
(k) "Deferred Compensation Contribution" means a
contribution made by an Employer to this Plan on behalf of a
Participant pursuant to Section 3.1(b).
(l) "Employee" means any individual employed by an
Employer. Such term shall not include (1) lessees and
sublessees of service stations and their employees, (2)
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commission agents and their employees, (3) distributors and
jobbers and their employees, (4) contractors and
subcontractors and their employees, or (5) any consultant
or other person who under the normal practice of an
Employer is not considered to be a regular employee.
(m) "Employee Stock Ownership Plan" means that
Employee Stock Ownership Plan of American Petrofina,
Incorporated as in effect prior to January 1, 1984.
(n) "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.
(o) "Employment Date" means the date an Employee
first performs an Hour of Service after December 31, 1975;
provided, however, that the Employment Date for any
Employee employed by or on authorized leave of absence from
an Employer or Affiliated Company on January 1, 1976 shall
be the later of (1) such Employee's most recent date of
commencing employment with an Employer or Affiliated
Company prior to January 1, 1976, or (2) such Employee's
most recent date prior to January 1, 1976 of making a
complete withdrawal under the Thrift Plan. If an Employee
incurs a Break in Service after December 31, 1975, his
Employment Date for the purposes of computing his
subsequent Years of Service under the Plan shall be the
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date he first performs an Hour of Service following his
latest Break in Service.
(p) "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, or any
successor legislation which may hereafter be adopted in
lieu thereof, and references herein to any specific
provision of ERISA shall be deemed also to refer to the
corresponding provision of ERISA as it may hereafter be so
amended or replaced.
(q) "ESOP Account" means the account established
and maintained under this Plan by the Committee to record a
Participant's interest under this Plan attributable to
Company and Matching Employee Contributions made to the
Employee Stock Ownership Plan for or by such Participant.
(r) "Government Bonds" means such class or classes
of United States Government Bonds (including notes or
Series E or similar savings bonds) as the Committee shall
determine to be appropriate investments for the purposes of
the Plan.
(s) "Hour of Service" means a hour for which an
Employee is directly or indirectly compensated or entitled
to compensation (including back pay, regardless of
mitigation of damages) by an Employer for the performance
of duties for an Employer or for reasons (such as vacation,
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sickness or disability) other than the performance of
duties for an Employer. An Employee's Hours of Service
shall be credited to the appropriate Service computation
Periods determined in accordance with the provisions of
Section 2530.200(b)-2b and (c) of the Department of Labor
Regulations, which are incorporated herein by this
reference. In determining Hours of Service for the
purposes of this Plan, periods of employment by an
Affiliated Company shall be deemed to be periods of
employment by an Employer. The foregoing provisions of
this definition to the contrary notwithstanding, each
Employee who is not a vocational trainee or crude oil
production pumper shall be credited with 190 Hours of
Service for each month during which such Employee would
otherwise be required to be credited with at least one Hour
of Service under the foregoing provisions of this
definition.
(t) "Matching Contribution" means a contribution
made by an Employer to this Plan for a Participant pursuant
to Section 3.2.
(u) "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.
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(v) "Nonvested Participant" means a Participant
under the age of sixty-five years who has completed less
than three Years of Service.
(w) "Partially Vested Participant" means a
Participant under the age of sixty-five years who has
completed at least three but less than five Years of
Service.
(x) "Participant" means an Employee who has become
a Participant in this Plan in accordance with Section 2.1
and whose Vested Interest under the Plan has not been fully
distributed.
(y) "Participant Deferred Account" means the
account established and maintained under this Plan by the
Committee to record a Participant's interest under this
Plan attributable to Deferred Compensation Contributions
made by an Employer to this Plan on behalf of such
Participant.
(z) "Participant Thrift Account" means the account
established and maintained under this Plan by the Committee
to record a Participant's interest under this Plan
attributable to (1) Thrift Contributions made by such
Participant to this Plan, (2) contributions made by such
Participant to the Employee Stock Ownership Plan which were
not Matching Employee Contributions thereunder, and (3)
contributions made by such Participant to the Thrift Plan.
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(aa) "PAYSOP Account" means the account established
and maintained under this Plan by the Committee to record a
Participant's interest under this Plan attributable to Tax
Credit Contributions allocated to such Participant pursuant
to this Plan.
(bb) "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 as determined by the Committee. Such incapacity
shall be deemed to exist when certified by a physician who
is acceptable to the Committee.
(cc) "Plan" means this Thrift and Employee Stock
Ownership Plan to American Petrofina, Incorporated as
effective January 1, 1984, and as in effect from time to
time thereafter.
(dd) "Plan Year" means the calendar year.
(ee) "PSA Stock" means the common stock of
Petrofina, S.A., a corporation organized under the laws of
the Kingdom of Belgium.
(ff) "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 years.
(gg) "Service Computation Period" means the period
of twelve consecutive months commencing on an Employee's
Employment Date or any anniversary thereof.
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(hh) "Tax Credit Contribution" means a contribution
made by an Employer pursuant to Section 3.3.
(ii) "Thrift Contribution" means a contribution
made by a Participant to this Plan pursuant to Section
3.1(a).
(jj) "Thrift Plan" means the Thrift Plan for
Employees of American Petrofina, Incorporated and Certain
Subsidiaries as in effect prior to January 1, 1984.
(kk) "Trust" means the trust fund established
pursuant to Section 4.1.
(ll) "Trustee" means the individual and/or
corporate trustee or trustees from time to time appointed
and acting as trustee or trustees of the Trust.
(mm) "Vested Interest" means the portion of an
Account under the Plan which is nonforfeitable at the
particular point in time in question.
(nn) "Vested Participant" means a Participant who
has either attained the age of sixty-five years or
completed at least five Years of Service.
(oo) "Year of Service" means a Service Computation
Period during which an Employee completes at least 1,000
Hours of Service; provided, however, that a Service
Computation Period during which an eligible Employee made
no contribution to this Plan or the Thrift Plan shall be
excluded in determining his Years of Service. An Employee
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shall also be credited with Years of Service for periods of
employment with a corporation any portion of the business
of which is acquired by an Employer by merger or otherwise,
to the extent such credit shall be determined by the Board
of Directors of the Company in its discretion to be given
on a uniform basis to all employees of such corporation.
Section 1.2 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.
ARTICLE II.
PARTICIPATION
Section 2.1 Participation. Each Employee who was
participating in the Thrift Plan or the Employee Stock
Ownership Plan on December 31, 1983 shall be come a Participant
in this Plan on January 1, 1984. Each other Employee shall
become a Participant of this Plan on the first day of any month
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coinciding with or next following the earliest anniversary of
his Employment Date as of which he has completed a Year of
Service; provided, however, that unless the Board of Directors
of the Company shall otherwise provide on a basis uniformly
applicable to all Employees similarly situated, no Employee
shall become a Participant in this Plan if and so long as such
Employee is a member of a collective bargaining unit the
recognized representative of which has not agreed to
participation in the Plan by members of such unit. If an
Employee who is already a Participant becomes a member of a
collective bargaining unit the recognized representative of
which has not agreed to participation in the Plan by members of
such unit, such Participant shall remain a Participant in the
Plan except that, any provision of this Plan to the contrary
notwithstanding, no contribution to the Plan shall be made by,
for or on behalf of such Participant so long as he continues to
be a member of such unit.
ARTICLE III.
CONTRIBUTIONS AND ALLOCATIONS
Section 3.1 Participant Elected Contributions. Each
Participant may, if he wishes, elect:
(a) to make a Thrift Contribution to the Plan for
each pay period in an amount equal to 1%, 2%, 3%, 4% or 5%
of his Basic Compensation for that pay period, and
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(b) to have his Employer make a Deferred Compensation
Contribution to the Plan for each pay period in an amount
equal to such whole percentage point of his Basic
Compensation as does not, when added to any Thrift
Contribution made by such Participant for that pay period,
exceed 10% of such Participant's Basic Compensation for
that pay period.
Thrift Contributions shall be made by uniform payroll
deductions which the Participant shall in writing authorize
his Employer to withhold from his Basic Compensation and
pay over to the Trustee. Deferred Compensation Contributions
shall be made by uniform payroll deductions pursuant to a
Basic Compensation reduction agreement between the Participant
and his Employer which authorizes the Employer to pay such
contribution to the Trustee on behalf of the Participant. A
Participant may change the applicable percentage of payroll
deductions as of any January 1, or as of any payday suspend
for a period of at least six months his election to make
Thrift Contributions or to have Deferred Compensation
Contributions made on his behalf, provided (1) that written
notice of such change or suspension is delivered to his
Employer at least thirty days prior to the effective date
thereof, and (2) that such a suspension may be made by a
Participant only once within any period of thirty-six months.
A Participant's elected contributions shall automatically
resume upon the expiration of his designated
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suspension period. No retroactive contributions may be made by
or on behalf of a Participant.
Section 3.2 Employer Matching Contributions. For each
pay period 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 lessor (1) 5% of such Participant's Basic
Compensation for that pay period, or (2) the total amount of
the Thrift and Deferred Compensation Contributions made by or
on behalf of such Participant for that pay period.
Section 3.3 Tax Credit Contributions. For each Plan Year
commencing after December 31, 1982, each Employer shall, out of
its Net Profits, make a Tax Credit Contribution to the Plan in
an amount equal to the following applicable percentage of the
aggregate Compensation for that Plan Year of all Participants
who were in the employ of such Employer on the last day of that
year, or whose employment with such Employer terminated during
that year by reason of death or by reason of retirement under
the normal or early retirement or disability benefit provisions
of a pension or retirement plan of an Employer or Affiliated
Company:
For Plan Year Applicable Percentage
------------- ---------------------
1983 0.50%
1984 0.50%
1985 0.75%
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For Plan Year Applicable Percentage
------------- ---------------------
1986 0.75%
1987 0.75%
1988 or thereafter 0.00%
The Tax Credit Contribution made to the Plan for a Plan Year
shall be allocated among the Participants who were in the
employ of an Employer on the last day of such year, or whose
employment with such Employer terminated during that year by
reasons of death or by reason of retirement under the normal or
early retirement or disability benefit provisions of a pension
or retirement plan of an Employer or Affiliated Company, in the
proportion that the Compensation received by each such
Participant during that year (disregarding any Compensation in
excess of the first $100,000) bears to the Compensation
received by all such Participants during that year
(disregarding any Compensation in excess of the first $100,000
for any Participant).
Section 3.4 Payment to Trustee. The Thrift and Deferred
Compensation Contributions made to the Plan for a pay period
ending within a particular month shall be paid to the Trustee
in cash no later than thirty days after the end of such month.
The Matching Contribution made to the Plan for a pay period
ending within a particular month may be made in cash or in the
form of Company Stock, or in any combination thereof, and shall
be paid or transferred to the Trustee no later than thirty days
after the end of such month. The Tax Credit Contribution to be
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made to the Plan for a particular Plan Year may be made in cash
or in the form of Company Stock, or any combination thereof,
and shall be paid or transferred to the Trustee no later than
thirty days after the due date (including extensions thereof)
for the filing of the Employers' federal income tax return for
such year. The value of any Company Stock contributed to the
Plan 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, but 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. The value of any Company
Stock contributed to the Plan as a Tax Credit Contribution
shall be the average of the closing price of such stock, as
reported on the composite tape for securities listed on the
American Stock Exchange, Inc., for the twenty consecutive
trading days immediately preceding the date on which such stock
is contributed to the Plan. If any Employer is prevented from
making a contribution which it would otherwise have made under
this Plan by reason of having no Net Profits or because such
Net Profits are less than the contribution which it would
otherwise have made, than so much of the contribution which
such Employer was so prevented from making shall be made for
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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.
Section 3.5 Crediting of Contributions and Forfeitures.
The Committee shall establish and maintain a Participant Thrift
Account, a Company Thrift Account, a Participant Deferred
Account, a Company Matching Account, an ESOP Account and a
PAYSOP Account for each Participant. All Thrift Contributions
made by a Participant pursuant to Section 3.1(a), all Company
Stock and other amounts attributable to contributions made by
such Participant to the Thrift Plan, and all Company Stock and
other amounts attributable to contributions made by such
Participant to the Employee Stock Ownership Plan which were not
Matching Employee Contributions thereunder, shall be allocated
to such Participant's Participant Thrift Account under this
Plan. All Company Stock and other amounts attributable to
Matching Contributions made by an Employer for a Participant
pursuant to Section 3.2, and all forfeitures applied pursuant
to Section 6.7 to reduce the Matching Contributions which would
otherwise have been made by an Employer for such Participant,
shall be credited to such Participant's Company Matching
Account under this Plan. All Company Stock, Company Class B
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Common Stock and other amounts attributable to contributions
made by an Employer to the Employee Stock Ownership Plan for a
Participant, and all Company Stock, Company Class B Common
Stock and other amounts attributable to contributions made by a
Participant to the Employee Stock Ownership Plan which were
Matching Employee Contributions thereunder, shall be credited
to such Participant's ESOP Account under this Plan. All Tax
Credit Contributions allocated to a Participant pursuant to
Section 3.3 shall be credited to such Participant's PAYSOP
Account under this Plan. All Deferred Compensation
Contributions made by an Employer on behalf of a Participant
pursuant to Section 3.1(b) shall be credited to such
Participant's Participant Deferred Account; provided, however,
that if for any Plan Year commencing after December 31, 1983,
the actual deferral percentage for the highest paid one-third
of all Employees eligible to elect to have their Employer make
a Deferred Compensation Contribution to the Plan for them for
that year fails to satisfy one of the following tests:
(a) the actual deferral percentage for said highest
paid one-third of such Employees is not more than the
actual deferral percentage for all other such Employees
multiplied by 1.5, or
(b) the excess of the actual deferral percentage for
said highest paid one-third of all such Employees over the
actual deferral percentage for all other such Employees is
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not more than three percentage points, and the actual
deferral percentage for said highest paid one-third of
such Employees is not more than the actual deferral
percentage for all other such Employees multiplied by 2.5,
then the 10% maximum percentage of Basic Compensation otherwise
permitted to be credited to the Participant Deferred Accounts
of said highest paid one-third of such Employees shall be
reduced in increments of one-half of one percent until the
actual deferral percentage for said highest paid one-third of
such Employees satisfies one of said tests. For the purposes
of this Section, the term "actual deferral percentage" for a
specified group of Employees for a Plan Year means the average
of the ratios (calculated separately for each Employee in such
group) of (1) the sum of the amounts of the Deferred
Compensation Contribution, the Tax Credit Contribution and the
vested portion of the Matching Contributions (determined as of
the last day of the Plan Year) made to the Plan for or on
behalf of each such Employee for that year, to (2) the amount
of such Employee's Compensation for that year. Any Deferred
Compensation Contribution made by an Employer on behalf of a
Participant pursuant to Section 3.1(b) which cannot be credited
to the Participant Deferred Account of such Participant because
of the limitation contained in this Section shall be credited
to such Participant's Participant Thrift Account.
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ARTICLE IV.
TRUST AND INVESTMENT PROVISIONS
Section 4.1 Trust and Trustee. All of the contributions
and other amounts paid to the Trustee pursuant to this Plan,
together with the income therefrom and the increments thereof,
shall be held in trust by the Trustee under the terms and
provisions of the separate trust agreement between InterFirst
Bank Dallas, N.A., as Trustee, and the Employers, a copy of
which is attached hereto and incorporated herein by this
reference for all purposes, establishing a trust fund for the
exclusive benefit of the Participants and their beneficiaries.
Section 4.2 Investment of ESOP and PAYSOP Accounts. All
Tax Credit Contributions credited to a Participant's PAYSOP
Account which are paid to the Trustee in cash shall be used by
the Trustee within thirty days of receipt of purchase Company
Stock for such Account. All cash dividends, stock dividends,
stock splits and other amounts received by the Trustee with
respect to the Company Stock or other property held for an ESOP
or PAYSOP Account shall be credited to (and, if cash or
property other than Company Stock, used as soon as practicable
to purchase Company Stock for) such Account.
Section 4.3 Investment of Participant Thrift, Participant
Deferred, Company Thrift and Company Matching Accounts. Upon
becoming a Participant in the Plan each Participant shall
direct, on a form prescribed by and filed with the Committee,
that:
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(a) The contributions and other amounts credited to his Participant
Thrift and Participant Deferred Accounts be invested, in percentage
multiples authorized by the Committee, in Company Stock, PSA Stock and/or
Government Bonds; and
(b) the contributions and other amounts credited to his Company
Thrift and Company Matching Accounts be invested, in percentage multiples
authorized by the Committee, in Company Stock and/or PSA Stock.
If a Participant fails to give such investment direction,
all contributions and other amounts credited to his Participant
Thrift and Participant Deferred Accounts shall be invested in
Government Bonds, and all contributions and other amounts
credited to his Company Thrift and Company Matching Accounts
shall be invested in Company Stock. A Participant may change
his investment direction with respect to future contributions
or redirect the investment of one or more of said four Account
balances on any January 1, provided that written notice of such
change is delivered to the Committee at least thirty days prior
to the January 1 as of which such change is to become
effective. All cash dividends, stock dividends, stock splits,
interest and other amounts received by the Trustee with respect
to a particular type of security held for a Participant Thrift,
Participant Deferred, Company Thrift or Company Matching
Account shall be credited to (and, if cash or property other
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than the security from which it was derived, used as soon as
practicable to purchase said security for) such Account.
Section 4.4 Purchases of Company and PSA Stock and
Government Bonds. Company Stock may be purchased by the
Trustee in the open market or from the Company. If Company
Stock is purchased from the Company, the price of such Company
Stock shall be the closing price of Company Stock on the open
market as of the date of the purchase if such stock was traded
on the open market on such date, or if such stock was not
traded on the open market as of the date of the purchase, then
the price of such Company Stock shall be the closing price of
Company on the open market as of the date next preceding the
date of the purchase that such stock was traded on the open
market. PSA Stock shall be purchased by the Trustee in the
open market. Investments in Government Bonds shall be made
subject to such rules and regulations as may from time to time
be established by the Committee. Any cash in the hands of the
Trustee at any time and not invested may be held by the Trustee
for the Accounts of the Participants to whom it is attributable
without obligation to credit interest thereon. 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 of securities purchased shall
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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. In case of the redemption of any nontransferrable
Government Bond or on the maturity thereof, the Participant for
whose Account such Government Bond was purchased shall take
such steps as the Trustee may prescribe in order to effect the
redemption or collection thereof by the Trustee.
Section 4.5 Voting Rights. Each Participant shall be
entitled to direct the Trustee as to the manner in which any
rights (including but not limited to voting rights,
subscription rights and conversion privileges) with respect to
the Company Stock and Company Class B Common Stock credited to
such Participant's ESOP and PAYSOP Accounts are to be
exercised. For this purpose, the Committee shall notify each
Participant of each annual or special meeting of the
shareholders of the Company and of any other occasion for the
exercise of voting or other rights by such shareholders, not
later than the date prior to such meeting or other occasion on
which the Company notifies its other shareholders. The
notification shall include a copy of any proxy solicitation
material and other information which the Company distributes to
shareholders regarding the exercise of voting or other rights,
together with a form requesting instructions to the Trustee as
to how the Participant's rights are to be exercised. The
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Trustee shall tabulate the instructions received and shall vote
or otherwise exercise rights with respect to said shares of
stock as instructed. The Trustee shall not vote or otherwise
exercise rights with respect to any of said shares of stock as
to which no instructions from Participants have been duly
received.
ARTICLE V.
VESTING AND DISTRIBUTION EVENTS
Section 5.1 Retirement or Disability. Upon the
Retirement of a Participant or in the event of a Participant's
Permanent Disability while employed by or on authorized leave
of absence from an Employer or Affiliated Company, the amounts
credited to all Accounts maintained for such Participant shall
be fully vested and distributed to him in accordance with the
provisions of Article VI.
Section 5.2 Death. Upon the death of a Participant, the
amounts credited to all Accounts maintained for such
Participant shall be fully vested and distributed to his
beneficiary or beneficiaries in accordance with the provisions
of Article VI.
Section 5.3 Break in Service. If a Participant incurs a
Break in Service prior to his Retirement, Permanent Disability
or death, such Participant shall be entitled to receive the
full amount credited to his Participant Thrift, Participant
Deferred ESOP and PAYSOP Accounts, plus the following portion
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of the amount credited to his Company Thrift and Company
Matching Accounts, depending upon the number of Years of
Service completed by such Participant on the date of such
separation from employment:
Years of Service Percentage Vested
---------------- -----------------
Less Than 3 None
3 60%
4 80%
5 or More 100%
provided, however, that notwithstanding the foregoing schedule,
a Participant's Company Thrift and Company Matching Accounts
shall be fully vested on and after the day such Participant
is entitled to receive under this Section shall be distributed
to such Participant in accordance with the provisions of
Article VI, and the balance of such Participant's Company
Thrift and Company Matching Accounts shall be forfeited.
ARTICLE VI.
DISTRIBUTIONS AND FORFEITURES
Section 6.1 Time and Form of Distribution. The
distribution of amounts withdrawn by or otherwise due to a
Participant or beneficiary under the Plan shall be made as soon
as practicable after such Participant or beneficiary becomes
entitled to distribution, but unless the Participant elects
otherwise with the consent of the Committee, in no event later
than sixty days after the end of the Plan Year during which
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such Participant or beneficiary becomes entitled to such
distribution. 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. The portion of any
Account (other than an ESOP or PAYSOP 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. The portion of any
Account invested in PSA Stock 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. All amounts credited to
an ESOP or PAYSOP Account will be distributed in the form of
Company Stock (with cash in lieu of fractional shares). If any
portion of an ESOP Account is invested in shares of Company
Class B Common Stock and a withdrawal or other distribution
event occurs with respect to said shares, prior to any
distribution from such ESOP Account the Participant or
beneficiary to whom such distribution would otherwise be made
shall instruct the Trustee in writing either to "put" said
shares of stock to the Company for cash or to exchange said
shares of stock with the Company for Company Stock on a
share-for-share basis. If the "put" is elected, the per share
value of Company Class B Common Stock shall be deemed to be
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equal to the average closing price per share of Company Stock,
as reported on the composite tape for securities listed on the
American Stock Exchange, Inc., for the twenty consecutive
trading days immediately preceding the date on which such "put"
is exercised. Any Company or PSA Stock which is to be
converted into cash for distribution to a Participant or
beneficiary shall be sold by the Trustee in the open market
during the month following the date as of which such withdrawal
or other distribution event occurs. The amount of cash to be
distributed to the Participant or beneficiary with respect to
such Company or PSA Stock 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 sale in
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 4.4
for determining the price of Company Stock purchased from the
Company.
Section 6.2 Distribution of Retirement, Disability and
Death Benefits. Any amount payable to a Participant under the
Plan upon his Retirement or Permanent Disability shall be
distributed to such Participant in a single distribution. Any
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amount payable under the plan upon the death of a Participant
shall be distributed in a single distribution to the
beneficiary or beneficiaries designated by such Participant.
Such 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 from with the Committee. If a
Participant fails to so designate a beneficiary, or in the
event all of the designated beneficiaries are individuals who
predeceased the 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.
Section 6.3 Withdrawals by Vested Participants. Subject
to such conditions, limitations and procedures as the Committee
may from time to time prescribe for application to all Vested
Participants on a uniform and nondiscriminatory basis, by
filing a written notice of withdrawal with the Committee prior
to the end of any month a Vested Participant may withdraw:
(a)(1) all or any portion of the amount credited to
his Participant Thrift Account as of the end of such month,
and (2) if no amount will remain credited to his
Participant Thrift Account following such withdrawal, all
or any portion of the amount credited to his Company Thrift
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Account as of the end of such month, and 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 Participant Deferred and
Company Matching Accounts as of the end of such month;
(b) from his ESOP Account, (1) all or any portion of
(i) the Company Stock and/or Company Class B Common Stock
representing Employer contributions which have been
allocated to such Account (or such Participant's Account
under the Employee Stock Ownership Plan) as of the end of
such month for a period of at least 84 months after the
month as of which such allocation was made, (ii) the
Company Stock and/or Company Class B Common Stock
representing Participant contributions which have been
allocated to such Account (or such Participant's Account
under the Employee Stock Ownership Plan) as of the end of
such month for a period of at least 84 months after the
month as of which such allocation was made, and (iii) the
Company Stock which has been purchased with Trust income or
represents dividends paid in Company Stock and which has
been credited to such Account as of the end of such month,
or (2) if such Participant is not in the employ of or on
authorized leave of absence from an Employer or Affiliated
Company at the end of such month, all (but not less than
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all) of the Company Stock and Company Class B Common Stock
credited to such Account;
(c) form his PAYSOP Account, (1) if he has attained
the age of 59-1/2 years, all or any portion of (i) the
Company Stock representing Employer contributions which
have been allocated to such Account as of the end of such
month for a period of at least 84 months after the month as
of which such allocation was made, and (ii) the Company
Stock which has been purchased with Trust income or
represents dividends paid in Company Stock and which has
been credited to such Account as of the end of such month,
or (2) if such Participant is not in the employ of or on
authorized leave of absence from an Employer or Affiliated
Company at the end of such month, all (but not less than
all) of the Company Stock credited to such Account;
(d) from his Participant Deferred and Company
Matching Accounts, if such notice of withdrawal requests a
distribution to alleviate a hardship (within the meaning of
Section 401(k)(2)(B) of the Code and the regulations
promulgated thereunder) of such Vested Participant which is
evidenced to the satisfaction of the Committee, such amount
as the Committee shall determine to be necessary to meet
the immediate financial need created by said hardship and
not reasonably available from other sources.
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Section 6.4 Withdrawals by Partially Vested Participants
Subject to such conditions, limitations and procedures as the
Committee may from time to time prescribe for application to
all Partially Vested Participants on a uniform and
nondiscriminatory basis, a Partially Vested Participant may
withdraw all (but not less than all) of the aggregate value of
his Participant Thrift Account and the vested portion of his
Company Thrift Account as of the end of any month by filing a
written notice of such withdrawal with the Committee prior to
the end of such month. Any provision of this Plan to the
contrary notwithstanding:
(a) 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, (1) no Thrift, Deferred Compensation or
Matching Contributions shall be made by, for or on behalf
of such Partially Vested Participant for a period of six
months following the month as of the end of which such
withdrawal was made, and (2) the vested portion of such
Participant's Company Thrift Account at all times after the
making of such withdrawal shall 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; or
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(b) if the Partially Vested Participant making a withdrawal pursuant
to this Section is not 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, upon such withdrawal the unvested
portion of such Partially Vested Participant's Company Thrift Account
shall be forfeited; provided, however, that if such Partially Vested
Participant repays the full amount of such withdrawal prior to incurring a
Break in Service and within two years of the date he is first credited
with an Hour of Service following such withdrawal, the amount so
forfeited shall be restored to his Company Thrift Account by an additional
Employer contribution.
In addition to the foregoing, a Partially Vested
Participant who is not in the employ of or on authorized leave
of absence from an Employer or Affiliated company may withdraw
all (but not less than all) of the Company Stock and Company
Class B Common Stock credited to his ESOP and PAYSOP Accounts,
and all (but not less than all) of the aggregate value of his
Participant Deferred Account and the vested portion of his
Company Matching Account . Upon the withdrawal by a Partially
Vested Participant of said aggregate value of his Participant
Deferred Account and the vested portion of his Company Matching
Account, the unvested portion of his Company Matching Account
shall be forfeited; provided, however, that if such Partially
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Vested Participant repays the full amount of such withdrawal
prior to incurring a Break in Service and within two years of
the date he is first credited with an Hour of Service following
such withdrawal, the amount so repaid shall be credited to his
Participant Thrift Account and the amount so forfeited shall be
restored to his Company Thrift Account by an additional
Employer contribution.
Section 6.5 Withdrawals by Nonvested Participants.
Subject to such conditions, limitations and procedures as the
Committee may from time to time prescribe for application to
all Nonvested Participants on a uniform and nondiscriminatory
basis, a Nonvested Participant may withdraw all (but not less
than all) of the value of his Participant Thrift Account as of
the end of any month by filing a written notice of such
withdrawal with the Committee prior to the end of such month.
Any provision of this Plan to the contrary notwithstanding, if
a Nonvested Participant makes a withdrawal pursuant to this
Section:
(a) no Thrift, Deferred Compensation or Matching
Contributions shall be made by, for on behalf of such
Nonvested Participant for a period of six months following
the month as of the end of which such withdrawal was made;
and
(b) upon the making of such withdrawal the entire
value of such Nonvested Participant's Company Thrift
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Account shall be forfeited; provided, however, that if such Nonvested
Participant repays the full amount of such withdrawal prior to incurring a
Break in Service and within two years of the date he is first
credited with an Hour of Service following such withdrawal, the amount so
forfeited shall be restored to his Company Thrift Account by an
additional Employer contribution.
In addition to the foregoing, a Nonvested Participant who
is not in the employ of or on authorized leave of absence from
an Employer or Affiliated Company may withdraw all (but not
less than all) of the Company Stock and Company Class B Common
Stock credited to his ESOP and PAYSOP Accounts, and all (but
not less than all) of the value of his Participant Deferred
Account. Upon the withdrawal by a Nonvested Participant of the
value of his Participant Deferred Account, the entire value of
his Company Matching Account shall be forfeited; provided,
however, that if such Nonvested Participant repays the full
amount of such withdrawal prior to incurring a Break in Service
and within two years of the date he is first credited with an
Hour of Service following such withdrawal, the amount so repaid
shall be credited to his Participant Thrift Account and the
amount so forfeited shall be restored to his Company Thrift
Account by an additional Employer contribution.
Section 6.6 Break in Service Distribution. The Vested
Interest of a Participant which has not been previously
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distributed or withdrawn in accordance with the provisions of
this Article shall be distributed in a single distribution to
such Participant upon his incurring a Break in Service. The
then unvested portions of a Participant's Company Thrift and
Company Matching Accounts shall be permanently forfeited when
he incurs a Break in Service.
Section 6.7 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 credited ratably
among the Accounts (other than ESOP and PAYSOP Accounts)
remaining in the Plan at the time of such termination.
Section 6.8 Distributions to Minors and Persons Under
Legal Disability. If any distribution under the Plan becomes
payable to a minor or other person under a legal disability,
such distribution shall be made to the duly appointed guardian
or other legal representative of the estate of such minor or
person under legal disability.
ARTICLE VII
PLAN ADMINISTRATION
Section 7.1 Appointment of Committee. This Plan shall be
administered on behalf of all Employers by a Committee composed
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of at least three 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 7.2 Powers and Duties of the Committee. The
Committee shall interpret and implement the provisions of the
Plan, and shall perform all of the duties and may exercise all
of the powers and discretion granted to it under the terms of
the Plan. The Committee shall act by a majority of its members
at the time in office and such action may be taken either by a
vote at a meeting or in writing without a meeting. 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. Every interpretation,
choice, determination or other exercise by the Committee of any
power or discretion given either expressly or by implication to
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it shall be conclusive and binding on all parties directly or
indirectly affected, without restriction, however, on the right
of the Committee to reconsider and redetermine such actions.
In performing any duty or exercising any power herein
conferred, the Committee shall in no event perform such duty or
exercise such power in any manner which discriminates in favor
of Employees who are officers, shareholders or highly
compensated employees of an Employer.
Section 7.3 Rules, Records and Reports. The Committee
may adopt such rules and regulations for the administration of
the Plan as are consistent with the terms hereof, and shall
keep adequate records of its proceedings and acts and of the
status of the Participants' Accounts. The Committee may employ
such agents, accountants and legal counsel (who may be agents,
accountants or legal counsel for an Employer) as may be
appropriate for the administration of the Plan. The Committee
shall annually provide each Participant with a report
reflecting the status of his Accounts under the Plan and shall
cause such other information, documents or reports to be
prepared, provided and/or filed as may be necessary to comply
with the provisions of the Code, ERISA or other applicable law.
Section 7.4 Administration Expenses and Taxes. Unless
otherwise paid by the Employers in their discretion, the
Committee shall direct the Trustee to pay all reasonable and
necessary expenses (including the fees of agents, accountants
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and legal counsel) incurred by the Committee in connection with
the administration of the Plan. Should any tax of any
character (including transfer taxes) be levied upon the Trust
assets or the income therefrom, such tax shall be paid from and
charged against the assets of the Trust.
Section 7.5 Claims Procedure. If any Participant or
beneficiary (hereinafter called the "claimant") feels that he
is being denied a benefit to which he is entitled under the
Plan, such claimant may file a written claim for said benefit
with any member of the Committee. Within sixty days after the
receipt of such claim the Committee shall determine and notify
the claimant as to whether he is entitled to such benefit.
Such notification shall be in writing and, if denying the claim
for benefit, shall set forth the specific reason or reasons for
the denial, make specific reference to the pertinent provisions
of the Plan, and advise the claimant that he may, within sixty
days of the receipt of such notice, in writing request to
appear before the Committee or its designated representative
for a hearing to review such denial. Any such hearing shall be
scheduled at the mutual convenience of the Committee or its
designated representative and the claimant, and at such hearing
the claimant and/or his duly authorized representative may
examine any relevant documents and present evidence and
arguments to support the granting of the benefit being
claimed. The final decision of the Committee with respect to
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the claim being reviewed shall be made within sixty days
following the hearing thereon and the Committee shall in
writing notify the claimant of its final decision, again
specifying the reasons therefor and the pertinent provisions of
the Plan upon which such decision is based. The final decision
of the Committee shall be conclusive and binding upon all
parties having or claiming to have an interest in the claim
being reviewed.
ARTICLE VIII.
AMENDMENT AND TERMINATION
Section 8.1 Amendment. 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. However, in no event shall any amendment
or new trust permit any portion of the trust fund to be used
for or diverted to any purpose other than the exclusive benefit
of the Participants and their beneficiaries, nor shall any
amendment or new trust deprive any Participant of his Vested
Interest under the Plan. The Employers shall in writing notify
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the Committee of any amendment or change in the provisions of
the Plan.
Section 8.2 Termination. Each Employer may at any time
terminate this Plan as it applies to the Participants of such
Employer by giving written notice thereof to the Committee and
Trustee. Any provisions of this Plan to the contrary
notwithstanding, upon the termination or partial termination of
the Plan as to any Employer, or in the event any Employer
should completely discontinue making contributions to the Plan
without formally terminating it, all amounts credited to the
Accounts of the affected participants of that particular
Employer shall be fully vested and nonforfeitable.
ARTICLE IX.
MISCELLANEOUS GENERAL PROVISIONS
Section 9.1 Spendthrift Provision. No right or interest
of any Participant or beneficiary under this Plan may be
assigned, transferred or alienated, in whole or in part, either
directly or by operation of law, and no such right or interest
shall be liable for or subject to any debt, obligation or
liability of such Participant or beneficiary.
Section 9.2 Maximum Annual Additional Limitation. Any
provision of this Plan to the contrary notwithstanding, the sum
of (a) the Employer contributions, (b) the lesser of one-half
of the Participant's contributions (excluding rollover
contributions) or the Participant's contributions (excluding
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rollover contributions) in excess of 6% of Compensation and (c)
the forfeitures allocated to the Accounts of any Participant
with respect to a Plan Year shall in no event exceed the lesser
of $30,000 adjusted to take into account any cost-of-living
adjustment authorized pursuant to Section 415(d) of the Code,
or 25% of such Participant's Compensation for that year. For
the purposes of applying the limitation imposed by this
Section, an Employer and its Affiliated Companies shall be
considered a single employer, and all defined contribution
plans (meaning plans providing for individual accounts and
benefits based solely on the amounts contributed to such
accounts and any forfeitures, income, expenses, gains and
losses allocated to such accounts) described in Section 415(k)
of the Code, whether or not terminated, maintained by an
Employer or an Affiliated Company shall be considered a single
plan. If the total amount allocable to a Participant's
Accounts for a Plan Year would, but for this sentence, exceed
the limitation imposed by this Section, such Participant's
Thrift Contributions for such year (with the Deferred
Compensation Contributions made on behalf of such Participant
for that year being reclassified as Thrift Contributions to the
extent necessary) shall be refunded to such Participant to the
extent necessary to permit the maximum permissible allocation
of ESOP and Matching Contributions to such Participant for that
year. Any remaining amount which cannot be allocated to a
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particular Participant for a Plan Year because of the
limitation imposed by this Section shall be credited to a
Suspense Account and thereafter reallocated (prior to the
allocation of forfeitures) to reduce the earliest subsequent
Matching Contributions the Employers would otherwise be
required to make to the Plan.
Section 9.3 Limitations on Responsibilities. The
Employers do not guarantee or indemnify the Trust against any
loss or depreciation of its assets which may occur, nor
guarantee the payment of any amount which may become payable to
a Participant or his beneficiaries pursuant to the provisions
of this Plan. All payments to Participants and their
beneficiaries shall be made by the Trustee at the direction of
the Committee solely from the assets of the Trust and the
Employer shall have no legal obligation, responsibility or
liability for any such payments.
Section 9.4 Committee Indemnification. The Company will
indemnify and hold harmless each member of the Committee
against any claim, cost, expense (including attorney's fees),
judgment or liability (including any sum paid in settlement of
a claim with the approval of the Company) arising out of any
act or omission to act as a member of the Committee under this
Plan, except in the case of willful misconduct.
Section 9.5 Employment Noncontractual. The establishment
of this Plan shall not enlarge or otherwise affect the terms of
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any Employee's employment with an Employer and an Employer may
terminate the employment of any Employee as freely and with the
same effect as if this Plan had not been adopted.
Section 9.6 Merger or Consolidation. In no event shall
this Plan be merged or consolidated into or with any other
plan, nor shall any of its assets or liabilities be transferred
to any other plan, unless each Participant would be entitled to
receive a benefit if the plan in which he then participates
terminated immediately following such merger, consolidation or
transfer, which is equal to or greater than the benefit he
would have been entitled to receive if the Plan had been
terminated immediately prior to such merger, consolidation or
transfer.
Section 9.7 Employee Stock Ownership Plan Merger Into
Thrift Plan. The merger of the Employee Stock Ownership Plan
into the Thrift Plan as contemplated in this Plan is contingent
upon receiving a determination letter from the Internal Revenue
Service that this Plan and its related Trust qualify under the
provisions of Sections 401(a) and (k), 409A and 501(a) of the
Code. Any provision of this Plan to the contrary
notwithstanding, if such determination cannot be obtained
without the making of amendments to the Plan or its related
Trust which the Company is unwilling to make, then this Plan
and its related Trust shall be null and void and the Employee
Stock Ownership Plan, the Thrift Plan and their respective
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trust agreements shall remain in full force and effect in
accordance with their respective terms as in effect on December
31, 1983, with all Thrift and Deferred Compensation
Contributions made hereunder being considered to have been made
by Participants to the Thrift Plan, with all Matching
Contributions made hereunder being considered to have been made
by the Employers to the Thrift Plan, and with all Tax Credit
Contributions made hereunder being considered to have been made
to the Employee Stock Ownership Plan.
Section 9.8 Applicable Law. This Plan shall be governed
and construed in accordance with the laws of the State of Texas
except where superseded by federal law.
IN WITNESS WHEREOF, this Plan has been executed at Dallas,
Texas, on this ______ day of __________________, 1983, to be
effective as of January 1, 1984.
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