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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 11-K
ANNUAL REPORT
[X] ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the Fiscal Year Ended September 30, 1993
[ ] TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
Commission File Number 1-2918
Full title of Plan: ASHLAND OIL, INC. EMPLOYEE THRIFT PLAN
Name of issuer of the securities held pursuant to the plan
and the address of its principal office:
ASHLAND OIL, INC.
1000 ASHLAND DRIVE
RUSSELL, KENTUCKY 41169
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Trustees (or other persons who administer
the employee benefit plan) have duly caused this annual
report to be signed on its behalf by the undersigned hereunto
duly authorized.
ASHLAND OIL, INC. EMPLOYEE
THRIFT PLAN
Date: January 21, 1994 By /S/ Philip W. Block
_____________________
Philip W. Block,
Administrative Vice President
of Ashland Oil, Inc.
Chairman of the Staff
Administrative Committee
of the Plan
INDEX
Financial Statements and Exhibits
Financial statements and schedules
Page
Report of independent auditors ...................... 3
Statements of financial condition ................... 4
Statements of income and changes in Plan equity ..... 5
Notes to financial statements ....................... 6
Schedule of assets held for investment ..............11
Schedule of transactions or series of
transactions in excess of 5% of the
current value of plan assets ......................13
Schedule I, for which provision is made in the applicable
regulation of the Securities and Exchange Commission, is
omitted as the information is included in the schedule of
assets held for investment. Schedules II and III, for
which provision is made in the applicable regulation of
the Securities and Exchange Commission, are omitted as the
information is included in the financial statements.
Exhibits
23 - The consent of Ernst & Young, independent auditors.
28(a) - Copy of Fourth Amended and Restated Ashland Oil,
Inc. Employee Thrift Plan, as amended.
28(b) - Copy of Trust Agreement under Ashland Oil, Inc.
Employee Thrift Plan.
Report of Independent Auditors
The Administrator
Ashland Oil, Inc. Employee Thrift Plan
We have audited the financial statements of the Ashland Oil,
Inc. Employee Thrift Plan listed in the accompanying index to
financial statements. These financial statements are the
responsibility of the Plan's management. Our responsibility
is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about
whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements listed in the
accompanying index to financial statements present fairly, in
all material respects, the financial position of the Ashland
Oil, Inc. Employee Thrift Plan at September 30, 1993 and
1992, and the income and changes in plan equity for each of
the three years in the period ended September 30, 1993 in
conformity with generally accepted accounting principles.
Our audits were made for the purpose of forming an opinion on
the financial statements taken as a whole. The accompanying
supplemental schedules of assets held for investment and
reportable transactions as of or for the year ended September
30, 1993 are presented for purposes of complying with the
Department of Labor's Rules and Regulations for Reporting and
Disclosure under the Employee Retirement Income Security Act
of 1974, and are not a required part of the financial
statements. The supplemental schedules have been subjected
to the auditing procedures applied in our audit of the 1993
financial statements and, in our opinion, are fairly stated
in all material respects in relation to the 1993 financial
statements taken as a whole.
Ernst & Young
Louisville, Ky.
January 7, 1994
-3-
Financial Statements and Schedules consisting of pages 4-13
were filed with the Securities and Exchange Commission
on January 21, 1994 under cover of Form SE.
Consent of Independent Auditors
We consent to the incorporation by reference in the
Registration Statement (Form S-8 No. 33-7501) pertaining to
the Employee Thrift Plan of Ashland Oil, Inc. and in the
related Prospectus of our report dated January 7, 1994 with
respect to the financial statements and schedules of the
Ashland Oil, Inc. Employee Thrift Plan included in this Annual
Report (Form 11-K) for the year ended September 30, 1993.
Ernst & Young
Louisville, Ky.
January 19, 1994
-14-
FOURTH AMENDED AND RESTATED
ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
Effective October 1, 1985
(Conformed Copy Showing Amendments 1-15)
September, 1993
FOURTH AMENDED AND RESTATED
ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
WHEREAS, Ashland Oil, Inc. established the Ashland Oil,
Inc. Employee Thrift Plan originally effective June 1, 1964 for
the benefit of employees eligible to participate therein;
WHEREAS, the aforesaid Plan was amended from time to
time and, as so amended, was completely amended and restated
effective October 1, 1976 to comply with the provisions of the
Employee Retirement Income Security Act of 1974;
WHEREAS, the aforesaid amended and restated Plan was
further amended from time to time and was completely amended and
restated effective October 1, 1980 and again restated effective
October 1, 1983;
WHEREAS, Article 20 of the aforesaid third amended and
restated Plan, reserves to Ashland Oil, Inc. the right to
further amend the Plan; and
WHEREAS, Ashland Oil, Inc. desires to make further
amendments to the Plan and to incorporate such amendments into a
completely restated Plan;
NOW, THEREFORE, Ashland Oil, Inc. does hereby further
amend and restate the Ashland Oil, Inc. Employee Thrift Plan in
accordance with the following terms and conditions:
ARTICLE 1
PURPOSE OF PLAN
1.1 Designation. The Plan is designated the "Ashland Oil,
Inc. Employee Thrift Plan."
1.2 Purpose. The purpose of the Plan is to provide
retirement, disability, death, employment termination, thrift
and cash or deferred arrangement benefits for the Participating
Companies' eligible employees and their beneficiaries. To
provide such benefits, the Participating Companies propose to
make contributions from their Net Profits in accordance with the
provisions of the Plan. Such contributions and any income
derived therefrom shall be for the exclusive benefit of
participants and their beneficiaries and shall not be used for,
or diverted to, any other purpose.
ARTICLE 2
DEFINITIONS
2.1 As used in the Plan:
(a) "Account" shall mean all of the separate accounts
maintained for each Member under the provisions of Article 10 of
the Plan (excepting, however, the accounts which comprise such
Members' Tax Deferred Account, and, if any, Frozen Tanner
Account) reflecting such Member's contributions to the Trust
under the provisions of Article 5 of the Plan and reflecting
Participating Company contributions to the Trust allocated to
such Member under the provisions of Article 7 of the Plan as
adjusted in accordance with the provisions of Section 10.3 of
the Plan.
(b) "Actual Deferral Percentage" shall mean, for the
Highly Compensated Eligible Employees and the Non-Highly
Compensated Eligible Employees for a Plan Year, the average of
the ratios, calculated separately for each person in each such
group, of the amount of contributions, if any, allocated to such
individual's Tax Deferred Account for such Plan Year to the
person's Actual Deferral Percentage Compensation for such Plan
Year.
(c) "Actual Deferral Percentage Compensation"
shall mean (i) compensation received by an Employee during the
Plan Year, other than compensation in the form of qualified or
previously qualified deferred compensation, that is currently
includible in the gross income of the Employee for income tax
purposes and (ii) all elective contributions made by the
Sponsoring Company on behalf of its Employee during the Plan
Year that are not includible in the gross income of the Employee
under sections 125 or 402(a)(8) of the Code.
(d) "Affiliated Company" shall mean (i) a member of a
controlled group of corporations of which a Participating
Company is a member or (ii) an unincorporated trade or business
which is under common control with a Participating Company as
determined in accordance with Section 414(c) of the Code and
regulations issued thereunder. For purposes hereof, a
"controlled group of corporations" shall mean a controlled group
of corporations as defined in Sections 1563(a) of the Code,
determined without regard to Sections 1563(a)(4) and (e)(3)(C),
except that, with respect to the limitations on annual additions
set forth in Sections 7.2 and 7.3 of the Plan, instead of 80%,
the applicable percentage shall be 50% wherever such percentage
appears in Section 1563(a)(1) of the Code. Notwithstanding
anything to the contrary contained herein, from and after the
time Ashland Coal, Inc. ceased to be an 80% owned subsidiary of
Ashland Oil, Inc., for purposes of determining an Employee's
eligibility to participate hereunder and for purposes of
determining a Member's vested benefit hereunder, but not for
purposes of determining whether an individual is entitled to
accrue a benefit hereunder for a particular Plan Year, Ashland
Coal, Inc. and the entities with which it is aggregated and
considered as a single employer under Sections 414(b), (c), (m),
and (o) of the Code shall be included within the meaning of
'Affiliated Company' hereunder.
(e) "Beneficiary" shall mean the person or persons
entitled to receive benefits which are payable under the Plan
upon or after a Member's death.
(f) "Code" shall mean the Internal Revenue Code of
1954, as amended from time to time. References to any Section
of the Code shall include any successor provision thereto.
(g) "Compensation" shall mean the salary and wages
(or, if an Employee is not paid a fixed salary or wages, such
other compensation as determined by the Sponsoring Company) paid
by a Participating Company to an Employee during the Plan Year
for the period while such Employee has been a Member of the Plan
including commissions, payroll continuation for sickness,
overtime pay, shift premium, and vacation pay, if any, any
amounts contributed to the Member's Tax Deferred Account, and
any amounts excluded from the Member's income under section 125
of the Code; provided, however, Compensation shall not include
(i) incentive compensation bonuses, (ii) amounts contributed by
a Participating Company or Affiliated Company under any employee
benefit plan (other than amounts contributed to a Member's Tax
Deferred Account under this Plan), (iii) amounts paid to a
Member under the Ashland Oil, Inc. ERISA Forfeiture Plan or any
successor plan thereto, (iv) amounts paid to a Member as stock
appreciation rights through the Ashland Oil, Inc. Long Term
Incentive Plan or the Amended Stock Incentive Plan for Key
Employees of Ashland Oil, Inc. and its Subsidiaries or any
successor or similar plans thereto, (v) allowances paid by
reason of foreign assignment, which are not a part of such
Member's base United States salary as determined by the
Sponsoring Company; and (vi) remuneration determined to be
disregarded under this paragraph (g) by the Sponsoring Company
under rules uniformly applicable to all employees similarly
situated; and (vii) severance pay paid on or after November 1,
1992; and provided further, that for any Plan Year beginning on
or after October 1, 1989, Compensation shall not exceed $200,000
or the dollar limitation as determined by the United States
Secretary of the Treasury or his delegate pursuant to Section
402 of the Code to reflect increases in the cost of living and
to be adjusted no more than annually.
(h) "Disability" shall mean total physical and/or
mental incapacity of such a nature that it prevents any gainful
employment by a Member determined by the Sponsoring Company
based upon medical evidence satisfactory to it.
(i) "Employee" shall mean any person who is an
employee of one or more Participating Companies; provided,
however, that Employee shall not include: (i) any person
included in a unit of employees covered by a collective
bargaining agreement between employee representatives and one or
more Participating Companies unless such bargaining agreement
specifically provides otherwise; (ii) any person who is a
non-resident alien and who receives no earned income (within the
meaning of Section 911(b) of the Code) which constitutes income
from sources within the United States (within the meaning of
Section 861(a)(3) of the Code) from any Participating Company
and (iii) any person who is compensated on an hourly rate or
other rate basis if such employee is not included in a
designated eligible payroll classification code so designated by
the Sponsoring Company. For pur-poses of this paragraph (i), a
United States citizen who is an employee (i) of a foreign
subsidiary (as defined in Section 3121(l)(8) of the Code) of a
domestic Participating Company which is the subject of an
agreement entered into by such domestic Participating Company
under Section 3121(l) of the Code and as to whom contributions
under a funded plan of deferred compensation are not provided by
any person other than such domestic Participating Company with
respect to the remuneration paid to such United States citizen
by such foreign subsidiary, or (ii) of a domestic subsidiary (as
defined in Section 407(a)(2)(A) of the Code) of a domestic
Participating Company and as to whom contributions under a
funded plan of deferred compensation are not provided by any
person other than such domestic Participating Company with
respect to the remuneration paid to such United States citizen
by such domestic subsidiary, shall be deemed to be an employee
of such domestic Participating Company. For purposes of this
paragraph (i), under rules of general application, a former
employee of a Participating Company who is temporarily on leave
of absence from employment with such Participating Company in
order to render services to an Affiliated Company or other
affiliate of a Participating Company, may be deemed an Employee
of such Participating Company during such absence if such
absence is determined by the Sponsoring Company to be in the
interest of a Participating Company or an Affiliated Company.
(j) "Employment Commencement Date" shall mean the date
on which an employee (whether or not such employee is an
Employee within the meaning of paragraph (i) of this Section
2.1) first performs an Hour of Service for a Participating
Company or an Affiliated Company.
(k) "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. References
to any Section of ERISA shall include any successor provision
thereto.
(l) "Hour of Service" shall mean each hour for which
an employee is paid, or entitled to payment, by a Participating
Company or an Affiliated Company for the performance of duties
as an employee.
(m) "Highly Compensated Eligible Employee" shall mean,
with respect to a Plan Year, any Employee eligible to make
contributions under Article 5 of the Plan at any time during
such Plan Year and who is a highly compensated employee within
the meaning of section 414(q) of the Code for such Plan Year.
(n) "Investment Manager" shall mean any party that: (i)
is (A) registered as an investment advisor under the Investment
Advisors Act of 1940, or (B) a bank (as defined in the
Investment Advisors Act of 1940), or (C) an insurance company
qualified to manage, acquire and dispose of Plan assets under
the laws of more than one state; (ii) acknowledges in writing
that it is a fiduciary with respect to the Plan; and (iii) is
granted the power to manage, acquire or dispose of any asset of
the Plan pursuant to Article 15 of the Plan.
(o) "Member" shall mean an eligible Employee who
becomes a Member of the Plan as provided in Article 4 of the
Plan. A Member ceases to be a Member when all funds in his
Account and Tax Deferred Account to which he is entitled under
the Plan have been distributed in accordance with the Plan.
(p) ^
(q) "Non-Highly Compensated Eligible Employee" shall
mean, with respect to a Plan Year, any Employee eligible to make
Basic and Supplemental Contributions under Article 5 of the Plan
at any time during such Plan Year who is not a Highly
Compensated Eligible Employee.
(r) "One Year Period Of Severance" shall mean a
12-consecutive-month period beginning on an employee's Severance
from Service Date and ending on the first anniversary of such
date provided that the employee during such 12-consecutive-month
period does not perform an Hour of Service for a Participating
Company or an Affiliated Company.
(s) "Participating Company" shall mean (i) the
Sponsoring Company and (ii) a company which adopts the Plan
pursuant to Article 19 of the Plan.
(t) "Period of Severance" shall mean the period of
time commencing on an employee's Severance from Service Date and
ending on the date such employee again performs an Hour of
Service. With respect to any Period of Severance which began on
or after October 1, 1985, periods during which an employee is
absent from employment with a Participating Company or an
Affiliated Company between the first anniversary and second
anniversary (or such shorter period as may be allowed by
regulations) of the first date on which absence began (i) by
reason of the pregnancy of the employee, (ii) by reason of the
birth of a child of the employee, (iii) by reason of the
placement of a child with the employee in connection with the
adoption of such child by such employee, or (iv) for purposes of
caring for such child for a period beginning immediately
following such birth or placement, shall not be included in such
Period of Severance; provided, however, no such period of
absence shall be disregarded unless the employee furnishes to
the Sponsoring Company such information in such form and at such
time as it may from time to time require that such absence is
for the reasons specified in this sentence and the number of
days for which there was such an absence.
(u) "Period of Service" shall mean a period of
employment with a Participating Company or an Affiliated Company
commencing on an employee's Employment Commencement Date or
Reemployment Commencement Date, whichever is applicable, and
ending on such employee's Severance from Service Date; provided,
however, Period of Service shall also include any Period of
Severance immediately following a Period of Service if the
employee completes an Hour of Service within 12 months of the
date on which the employee was first absent from service.
Notwithstanding the foregoing provisions of this paragraph (u),
Period of Service shall not include the period between the first
anniversary and the second anniversary of the first date of
absence from work (i) by reason of the pregnancy of the
employee, (ii) by reason of the birth of a child of the
employee, (iii) by reason of the placement of a child with the
employee in connection with the adoption of such child by such
employee, or (iv) for purposes of caring for such child for a
period immediately following birth or placement.
(v) "Plan" shall mean the Ashland Oil, Inc. Employee
Thrift Plan as set forth herein and as it may be amended from
time to time.
(w) "Plan Year" shall mean the 12-consecutive month
period beginning on October 1 and ending on the following
September 30.
(x) "Reemployment Commencement Date" shall mean the
first date, following the Severance from Service Date, on which
an employee performs an Hour of Service.
(y) "Severance from Service Date" shall mean the
earlier to occur of (i) the date on which an employee quits,
retires or is discharged from employment with a Participating
Company or an Affiliated Company, or dies; or (ii) except as
otherwise provided in clause (iii), the first anniversary of the
first date of a period during which an employee remains absent
from service (with or without pay) with a Participating Company
or an Affiliated Company for any reason other than quit,
retirement, discharge or death; or (iii) the second anniversary
(or such shorter period as may be allowed by regulations) of the
first date of a period in which an employee remains absent from
service with a Participating Company or an Affiliated Company by
reason of a pregnancy, birth, placement or caring described in
paragraph (t) of this Section 2.1 if the employee furnishes the
information required of him under such paragraph.
Notwithstanding the preceding sentence, (A) if an employee is
absent from service with a Participating Company or an
Affiliated Company solely by reason of temporary leave of
absence determined by the Sponsoring Company under uniform,
non-discriminatory rules to be in the interest of a
Participating Company or an Affiliated Company, such employee
shall be deemed not to have quit or been absent from service
with such Participating Company or Affiliated Company so long as
such employee complies with the terms and conditions of such
temporary leave of absence; and (B) if an employee is absent
from service with a Participating Company or an Affiliated
Company solely by reason of military service under circumstances
by which such employee is afforded reemployment rights under any
applicable federal or state statute or regulation, such employee
shall be deemed not to have quit or have been absent from
service with such Participating Company or Affiliated Company if
such employee returns to service with such Participating Company
or Affiliated Company before the expiration of such reemployment
rights; provided, however, in the event that such employee fails
to comply with the terms and conditions of a temporary leave of
absence or fails to return to service with such Participating
Company or Affiliated Company before the expiration of such
reemployment rights, such employee shall be deemed to have quit
on the first day on which such employee was first absent from
service with such Participating Company or Affiliated Company by
reason of such temporary leave of absence or such military
service.
(z) "Sponsoring Company" shall mean Ashland Oil, Inc.
including any successor by merger, purchase or otherwise.
(aa) "Tax Deferred Account" shall mean all the
separate accounts maintained under the provisions of Article 10
to which are allocated, on behalf of a Member, contributions to
the Trust under the provisions of Section 6.1 of the Plan as
adjusted in accordance with the provisions of Section 10.3 of
the Plan.
(ab) "Termination of Employment" shall mean
termination of employment with any Participating Company or any
Affiliated Company, whether voluntarily or involuntarily, for
any reason other than by reason of a Member's transfer to a
Participating Company or an Affiliated Company. With respect to
amounts held in a Member's Tax Deferred Account, a Member shall
be deemed to have incurred a Termination of Employment upon (i)
the date of the sale by a Participating Company or an Affiliated
Company of substantially all of the assets (within the meaning
of section 409(d)(2) of the Code) used by such Company in a
trade or business of such Company even though such Member
continues employment with the purchaser of such assets, or (ii)
the date of the sale of the stock of a Participating Company or
an Affiliated Company even though such Member continues
employment with such Company.
(ac) "Trust" shall mean the legal entity resulting
from the trust agreement between the Sponsoring Company, on its
own behalf and as agent for all other Participating Companies,
and the Trustee which receives the Participating Companies' and
Members' contributions, and holds, invests, and disburses funds
to or for the benefit of Members and their Beneficiaries.
(ad) "Trust Fund" shall mean the total
contributions made by the Participating Companies and Members to
the Trust pursuant to the Plan, increased by profits, gains,
income and recoveries received, and decreased by losses,
depreciation, benefits paid and expenses incurred in the
administration of the Trust. Trust Fund includes all assets
acquired by investment and reinvestment which are held in the
Trust by the Trustee.
(ae) "Trustee" shall mean the party or parties,
individual or corporate, named in the trust agreement and any
duly appointed additional or successor Trustee or Trustees
acting thereunder.
(af) "Valuation Date" shall mean the last business
day of each calendar month.
(ag) "Actual Contribution Percentage" shall mean, for
the Highly Compensated Eligible Employees and the Non-Highly
Compensated Eligible Employees for a Plan Year, the average of
the ratios, calculated separately for each person in each such
group, of the amount, if any, of Member contributions under
Article 5 and Participating Company contributions allocated to
such person's Account for such Plan Year to the person's Actual
Deferral Percentage Compensation for such Plan Year.
(ah) "Frozen Tanner Account" shall mean all the
separate accounts originally maintained in Fund A and Fund E, as
such Funds existed at the time of the merger of the Tanner
Savings and Investment Plan into this Plan, effective April 1,
1989, to which were allocated 75% of an affected Member's
company contributions made to the said Tanner Plan, as adjusted
in accordance with Section 10.3 of the Plan.
2.2 Wherever appropriate, words used in the Plan in the
singular shall mean the plural, the plural shall mean the
singular, and the masculine shall mean the feminine.
ARTICLE 3
REQUIREMENTS FOR ELIGIBILITY
3.1 Service. Each Member of the Plan on July 31, 1990
shall continue to be a Member subject to the provisions of the
Plan. Subject to the provisions of Article 4 of the Plan, and
subject to the next sentence of this Section 3.1, an Employee
who was not a Member on July 31, 1990 shall be eligible to
become a Member of the Plan as of the first day of the calendar
month coinciding with or next following the date on which he
completes a 12-month Period of Service (as more specifically
provided in Section 3.3 of the Plan) provided such Employee is
an Employee of a Participating Company on such first day.
However, any Employee who was not a Member on July 31, 1990 and
who, as of such date, was credited with any Period of Service
shall be eligible to become a Member of the Plan as of the first
day of the calendar month coinciding with or next following the
date on which he completes a six-month Period of Service (as
more specifically provided in Section 3.3 of the Plan), provided
such Employee is an Employee of a Participating Company on such
first day and the Period of Service for which he was credited as
of such date has not since been disregarded under the terms of
the Plan. Notwithstanding the foregoing provisions of this
Section 3.1, any Member who incurs a Termination of Employment
and who is subsequently reemployed as an Employee of a
Participating Company shall be eligible to again become a
Member, subject to the provisions of Article 4, as of the first
day of the calendar month coincident with or next following the
date he again becomes an Employee; and if the date upon which an
Employee would be eligible to be a Member falls within a Period
of Severance of 12 months or less or during a period of absence
for any other reason which is taken into account as a Period of
Service under Sections 2.1(u) and/or 3.3 of the Plan, then,
provided he is an Employee, he shall be eligible to become a
Member, subject to Article 4, as of the first day of the
calendar month coincident with or next following the date on
which the Period of Severance ends.
3.2 Service With A Predecessor Employer. If the Plan had
previously been maintained by a predecessor of a Participating
Company, whether a corporation, partnership, sole proprietorship
or other business entity, any period of service with such
predecessor shall be treated as a period of service with a
Participating Company. If the Plan had not been previously
maintained by a predecessor of a Participating Company, service
with such predecessor shall not be taken into account, except to
the extent required pursuant to regulations prescribed by the
United States Secretary of the Treasury or his delegate.
Notwithstanding the foregoing, service by a sole proprietor or
partner shall not be counted as a period of service with a
Participating Company.
3.3 Eligibility Service Period. ^ In computing an
employee's Period of Service for purposes of this Section 3.3
all of an employee's Periods of Service (whether or not
consecutive) with a Participating Company or an Affiliated
Company shall be taken into account except as otherwise provided
in this Section 3.3. Any non-successive Periods of Service
shall be aggregated and any less than whole month Periods of
Service (whether or not consecutive) shall be aggregated on the
basis that 30 days of service equal a whole month of service;
provided, however, in the case of any employee who has a
One-Year Period of Severance which began before October 1, 1985,
such employee's Periods of Service with a Participating Company
or any Affiliated Company before such One-Year Period of
Severance shall not be taken into account if such employee's
latest Period of Severance equals or exceeds his prior aggregate
Periods of Service completed before the date on which such
Period of Severance began and such prior aggregate Period of
Service shall not include any Period of Service not required to
be taken into account under this Section 3.3 by reason of any
prior One-Year Period of Severance; and provided further,
however, in the case of any employee who has a One-Year Period
of Severance which began on or after October 1, 1985, such
employee's Periods of Service with a Participating Company or an
Affiliated Company before any such One-Year Period of Severance
shall not be taken into account if such employee's latest Period
of Severance equals or exceeds the greater of (A) 5 years or (B)
his prior aggregate Periods of Service completed before the date
on which such One-Year Period of Severance began, and such prior
aggregate Periods of Service shall not include any Period of
Service not required to be taken into account under this Section
3.3 by reason of any prior One-Year Period of Severance (whether
commencing before, on or after October 1, 1985); provided,
however, that if an employee incurs a Period of Severance before
August 23, 1984 and such employee returns to work on or after
October 1, 1985, and if as of December 31, 1984 his prior Period
of Service could not be disregarded under this Section 3.3, then
the provisions of this Section shall apply as if the employee's
Period of Severance began after October 1, 1985 for purposes of
this Section 3.3; and provided further, however, any Period of
Service, or part thereof, with an Affiliated Company (other than
a Participating Company) during a period of time during which
such Affiliated Company was not an Affiliated Company shall be
disregarded except that the following shall not be disregarded:
(i) service as provided in Section 3.2 of the Plan, (ii) service
with an Affiliated Company by an Employee who was transferred
from an Affiliated Company to a Participating Company, and (iii)
service with an Affiliated Company by an employee which is
determined by the Sponsoring Company under uniform,
non-discriminatory rules to be not disregarded.
ARTICLE 4
PARTICIPATION IN THE PLAN
Any Employee eligible to participate in the Plan in
accordance with the provisions of Article 3 of the Plan shall
become a Member on the first day of the calendar month
coincident with or next following the date on which he has filed
a completed application to participate in such form and manner
and at such time as the Sponsoring Company may from time to time
prescribe provided that he is an Employee of a Participating
Company on such day. Each such application shall (i) authorize
the automatic deduction of such Member's contributions and any
contributions allocable to his Tax Deferred Account from such
Member's Compensation or authorize such other method of making
contributions as may be required by the Sponsoring Company, (ii)
designate such Member's investment election under the provisions
of Section 8.2 of the Plan, (iii) designate one or more
Beneficiaries pursuant to the provisions of Article 11 of the
Plan, and (iv) contain such other information, conditions,
understandings, declarations or agreements as the Sponsoring
Company shall from time to time require.
The Tanner Savings and Investment Plan ("Tanner Plan") is
merged into and becomes a part of the Ashland Oil, Inc. Employee
Thrift Plan ("Ashland Plan"). Participant contributions in the
Tanner Plan shall be consolidated into the Account or Tax
Deferred Account, as the case may be, in the Ashland Plan and
shall be treated as such for all purposes of the Ashland Plan.
25% of each participant's company contributions in the Tanner
Plan shall be consolidated into the Account of such participant
in Fund A and Fund E of the Ashland Plan and shall be treated as
a part of such participant's Account for all purposes of the
Ashland Plan. 75% of each participant's company contributions
in the Tanner Plan shall be separately accounted for in Fund A
and Fund E of the Ashland Plan and shall be termed the "Frozen
Tanner Account" for purposes of the Ashland Plan.
ARTICLE 5
MEMBER CONTRIBUTIONS
5.1 Rate. Each Member may elect to contribute to the Plan
by means of payroll deduction (or other method as may be
required by the Sponsoring Company) an amount not less than 1%
nor more than 16% (in whole number percentages) of his
Compensation, for each payment of Compensation he receives
beginning with that payment of Compensation which occurs or is
arranged for (determined by taking into account the various pay
periods and the various administrative procedures utilized by
Participating Companies in the production and distribution of
paychecks for Employees) next following the date such Member
commenced participation in the Plan under the provisions of
Articles 3 and 4 of the Plan. Contributions pursuant to this
Article 5 which are less than or equal to 6% of Compensation are
designated Basic Contributions, and contributions which are in
excess of 6% of Compensation are designated Supplemental
Contributions. All Member contributions shall be paid into the
Plan not less frequently than monthly and shall be allocated to
such Member's Account or Tax Deferred Account as provided in the
Plan.
5.2 Change of Rate. A Member may elect to change his
contribution rate within the limits set forth in Section 5.1
effective on the first day of a calendar quarter for payments of
Compensation occurring or arranged for (determined by taking
into account the various pay periods and the various
administrative procedures utilized by Participating Companies in
the production and distribution of paychecks for Employees)
after such first day by filing such election in such form and
manner and at such time (not less than 15 days prior to the date
upon which such election is to be effective) as the Sponsoring
Company may from time to time prescribe. For purposes of this
Section 5.2, the following shall not be deemed a change in a
Member's contribution rate: (i) a Member's initial election to
contribute to the Plan under Article 4 of the Plan; and (ii) any
automatic discontinuance of contributions under Section 5.4 of
the Plan.
5.3 Election to Suspend Contributions. A Member may
elect to suspend his Basic Contributions and his Supplemental
Contributions, if any, effective on the first day of a calendar
month for payments of Compensation occurring or arranged for
(determined by taking into account the various pay periods and
the various administrative procedures utilized by Participating
Companies in the production and distribution of paychecks for
Employees) after such first day for a period of time, specified
by such Member, of not less than 3 calendar months or more than
12 calendar months, by filing such election at such time (not
less than 15 days prior to the date upon which such election is
to be effective) as the Sponsoring Company may from time to time
prescribe.
5.4 Automatic Discontinuance of Contributions. If a Member
ceases to be an Employee, his Basic Contributions and
Supplemental Contributions, if any, shall be automatically
discontinued as of the date on which such Member no longer
receives Compensation. If a Member elects to withdraw an amount
from his Account pursuant to the provisions of Section 13.2,
Section 13.3 or Section 13.4 of the Plan, such Member's Basic
Contributions and Supplemental Contributions, if any, shall be
automatically discontinued effective for payments of
Compensation occurring or arranged for (determined by taking
into account the various pay periods and the various
administrative procedures utilized by Participating Companies in
the production and distribution of paychecks for Employees)
after the date on which such withdrawal is effective under the
provisions of Section 13.2, Section 13.3 or Section 13.4 of the
Plan. If a Member's Basic Contributions are voluntarily or
automatically suspended, such Member's Supplemental
Contributions shall be automatically suspended. In no event
shall the Actual Contribution Percentage for the Highly
Compensated Eligible Employees exceed the greater of (i) the
Actual Contribution Percentage for the Non-Highly Compensated
Eligible Employees multiplied by 1.25; or (ii) the lesser of (A)
the Actual Contribution Percentage for the Non-Highly
Compensated Eligible Employees plus 2.00, or (B) the Actual
Contribution Percentage for the Non-Highly Compensated Eligible
Employees multiplied by 2. The Sponsoring Company may, without
notice to any Member, discontinue or refund or forfeit (together
with any earnings) the contributions of any one or more Highly
Compensated Eligible Employees when such discontinuance, refund
or forfeiture is deemed necessary or advisable to establish
and/or preserve the Plan as qualified under the provisions of
Section 401(a) of the Code and related provisions. To the
extent permitted by regulations issued by the Secretary of the
Treasury of the United States or his delegate, such
discontinuance, refund or forfeiture by the Sponsoring Company
may be retroactive and/or be by way of distribution of Member
contributions and forfeiture of any associated Participating
Company contributions.
5.5 Resumption of Contributions after Suspension or
Discontinuance. In the event a Member's Basic Contributions are
suspended pursuant to the provisions of Section 5.3, effective
for payments of Compensation occurring or arranged for
(determined by taking into account the various pay periods and
the various administrative procedures utilized by Participating
Companies in the production and distribution of paychecks for
Employees) after the date the suspension period specified by the
Member expires, such Member's contributions shall be
automatically resumed at the same rate at which such Member's
contributions were made immediately prior to the Member's
election to suspend. In the event a Member's contributions are
discontinued under Section 5.4 of the Plan (other than by reason
of transfer to an Affiliated Company which has not adopted the
Plan or transfer to an employee classification whereby such
Member is no longer an Employee), such Member may not resume
contributions prior to that payment of Compensation occurring or
arranged for (determined by taking into account the various pay
periods and the various administrative procedures utilized by
Participating Companies in the production and distribution of
paychecks for Employees) next following the first day of the
calendar month coincident with or next succeeding the expiration
of:
(i) 6 months from the date on which such discontinuance
became effective, if such discontinuance resulted
from a withdrawal pursuant to Section 13.2 of the
Plan; or
(ii) 12 months from the date on which such discontinuance
became effective if such discontinuance resulted from
a withdrawal pursuant to Section 13.3 or Section 13.4
of the Plan.
Any resumption of Basic and Supplemental Contributions may be
made only by a Member who is eligible to participate under the
provisions of Article 3 and Article 4 of the Plan and must be
made within the limits and in the manner set forth in this
Article 5.
ARTICLE 6
SALARY REDUCTION CONTRIBUTIONS
6.1 Salary Reduction Election. Subject to the provisions
of Section 6.3 and the limitations of Section 7.2 and Section
7.3, each Member may elect to reduce his remuneration from a
Participating Company by designating (in whole number
percentages of his Compensation) an amount to be allocated to
his Tax Deferred Account out of his Basic and Supplemental
Contributions, if any, paid to the Trust beginning with the
payments of Basic and Supplemental Contributions occurring next
following the first day of the calendar quarter or calendar
month, as the case may be, as of which such election is
effective under this Section 6.1. Amounts allocated to a
Member's Tax Deferred Account on behalf of such a Member
pursuant to this Section 6.1 shall come first from such Member's
Basic Contributions and shall retain their character as Basic
Contributions or Supplemental Contributions for purposes of
Section 7.1 of the Plan. An election under this Section 6.1
shall be filed in such form and manner and at such time (not
less than 15 days prior to the first day of the calendar quarter
upon which such election is to be effective) as the Sponsoring
Company may from time to time prescribe; provided, however, in
the case of an initial enrollment of a Member under Article 4 of
the Plan any salary reduction election of such Member under this
Section 6.1 shall be effective as of the first day of the
calendar month on which such Member becomes a Member. In no
event shall any Member cause contributions under this section
6.1 to be made in excess of $7000 in any calendar year, or,
effective as of January 1, 1988, and each succeeding January 1
thereafter, the dollar limitation as determined by the United
States Secretary of the Treasury or his delegate pursuant to
Section 402 of the Internal Revenue Code to reflect increases in
the cost of living and to be adjusted no more than annually;
provided however, if a Member receives a withdrawal under the
provisions of Section 13.4 of the Plan (a 'hardship
withdrawal'), for the calendar year immediately following the
calendar year in which such Member receives such hardship
withdrawal, such Member shall not cause contributions under this
Section 6.1 to be made in excess of the above-described dollar
limitation for such following calendar year less the amount of
such Member's contributions for the calendar year of the
hardship withdrawal.
6.2 Change or Suspension/Resumption of Salary Reduction
Rate. A Member may elect to change or resume his rate of salary
reduction contributions within the limits allowed by Section
6.1, or to suspend completely his salary reduction election, as
the case may be, effective on the first day of a calendar
quarter for payments of Basic and/or Supplemental Contributions
occurring after such first day by filing such election in such
form and manner and at such time (not less than 15 days prior to
the date upon which such election is to be effective) as the
Sponsoring Company may from time to time prescribe. For
purposes of this Section 6.2, the following shall not be deemed
a change in a Member's salary reduction rate: (i) a Member's
initial election of salary reduction under Section 6.1 of the
Plan; and (ii) imposition of the limits of Section 6.3 of the
Plan.
6.3 Automatic Suspension or Discontinuance of Salary
Reduction. If a Member ceases or suspends making contributions
or reduces the rate of Member Basic and Supplemental
Contributions below the then applicable rate of such Member's
salary reduction, such Member's rate of salary reduction
contributions shall be discontinued to the extent such then
applicable rate of salary reduction contributions exceeds the
rate of such Member's contributions. In no event shall the
Actual Deferral Percentage for the Highly Compensated Eligible
Employees exceed the greater of (i) the Actual Deferral
Percentage for the Non-Highly Compensated Eligible Employees
multiplied by 1.25; or (ii) the lesser of (A) the Actual
Deferral Percentage for the Non-Highly Compensated Eligible
Employees plus 2.00, or (B) the Actual Deferral Percentage for
the Non-Highly Compensated Eligible Employees multiplied by 2.
The Sponsoring Company may, without notice to any Member,
discontinue the salary reduction contributions of any one or
more Highly Compensated Employees when such discontinuance is
deemed necessary or advisable to establish and/or preserve the
Plan as qualified under the provisions of Section 401(a) and
Section 401(k) of the Code. To the extent permitted by
regulations issued by the Secretary of the Treasury of the
United States or his delegate, such discontinuance by the
Sponsoring Company may be retroactive and/or be by way of
reclassification of Member contributions and/or by way of
distributions to Members. If salary reduction contributions are
discontinued pursuant to the terms of this Section 6.3, the
payroll deductions which were related to such contributions
shall continue at the same rate for each affected Member, and
such contributions, from and after the date of such
discontinuance, shall be deemed to be contributions made under
and subject to the provisions of Article 5, including, but not
limited to, the limitations applicable to such contributions
under Section 5.4 of the Plan. If the Sponsoring Company
determines to allow salary reduction contributions to resume for
any or all of the Highly Compensated Eligible Employees, the
rate of the contributions being made as of the day prior to such
resumption which related to the original discontinuance of the
salary reduction contributions shall cease to be made under the
provisions of Article 5 and shall, from and after the date of
such resumption, be made under the terms of this Article 6 at a
rate for each Member equal to the lesser of the rate at which
such contributions were being made prior to their prior
discontinuance or such rate as is prescribed by the Sponsoring
Company, pursuant to the terms of this Section 6.3.
6.4 Resumption of Salary Reduction After Automatic
Suspension or Discontinuance. In the event a Member's salary
reduction is automatically suspended pursuant to the provisions
of Section 6.3 because of a Member's suspension of Basic and
Supplemental Contributions under Section 5.3, effective for
payments of Basic and Supplemental Contributions after the date
the suspension period specified by the Member under Section 5.3
expires, such Member's salary reduction contributions shall be
automatically resumed at the same rate at which such Member's
salary reduction contributions occurred immediately prior to the
Member's election to suspend under Section 5.3. In the event
and to the extent that a Member's rate of salary reduction
contributions is discontinued under Section 6.3 because of the
cessation, suspension or reduction in such Member's rate of
Basic and Supplemental Contributions, such Member may elect to
resume salary reduction contributions (subject, however, to the
provisions Section 6.3, Section 7.2 and Section 7.3) effective
as of the first day of the calendar month coincident with the
date on which such Member's cessation, suspension or rate
reduction no longer limits such Member's rate of salary
reduction contributions; provided, however, if such Member does
not elect to resume salary reduction contributions as of such
first available day, such Member's election to resume salary
reduction contributions shall be treated as a change of rate of
salary reduction contributions under the provisions of Section
6.2.
ARTICLE 7
PARTICIPATING COMPANY CONTRIBUTIONS
7.1 Participating Company Contributions. The Participating
Companies shall contribute to the Trust, out of Net Profits, for
payments of Compensation for which there are Member Basic
Contributions, in cash, an amount equal to 70% (20% in the case
of Members working in a classification eligible to participate
in the Ashland Oil, Inc. Leveraged Employee Stock Ownership
Plan) of the aggregate amount of all such Member Basic
Contributions less forfeitures, if any, then to be taken as an
offset against Participating Company contributions under the
Plan. The determination of the amount of the aggregate
Participating Company contributions, and the payment thereof,
for each payment of Compensation for which a contribution is to
be made shall be made as soon as practicable after the end of
the calendar month in which falls such payment of Compensation.
Subject to the limitations of Section 7.2 and Section 7.3 of the
Plan, the aggregate Participating Company contributions for
payments of Compensation ending within any calendar month shall
be allocated to the Account of each Member making Basic
Contributions for such payments ending within such month, in the
proportion that the Basic Contributions (if any) of each such
Member for such month bears to the total Basic Contributions of
all such Members for such month. Each Participating Company's
share of the aggregate Participating Company contributions as to
any calendar month shall equal the sum of the allocations
pursuant to this Section 7.1 of such aggregate Participating
Company contributions to the Accounts of the Members employed by
such Participating Company during such calendar month.
7.2 Limitation on Annual Additions.
(a) Notwithstanding any other provision of the Plan,
the sum of the Annual Additions (as hereinafter defined) to a
Member's Account and Tax Deferred Account for a Limitation Year
(as defined in Section 7.4) ending after January 1, 1984 shall
not exceed the lesser of: (i) $30,000, or if greater, 1/4 of the
dollar limitation in effect under section 415(b)(1)(A) of the
Code, or such higher amount to which such amount may be adjusted
in accordance with regulations prescribed by the United States
Secretary of the Treasury or his delegate pursuant to Section
415(d) of the Code to reflect increases in the cost of living;
or (ii) 25% of such Member's Limitation Year Compensation (as
defined in Section 7.4). The term Annual Additions to a
Member's Account for any Limitation Year shall mean the sum of:
(1) such Member's allocable share of the total aggregate
Participating Company contributions for the Plan Year ending
within such Limitation Year; (2) amounts allocated under Section
6.1 to such Member's Tax Deferred Account for the Plan Year
ending within such Limitation Year; and (3) the amount of such
Member's total Basic Contributions and Supplemental
Contributions to his account for the Plan Year ending within
such Limitation Year.
(b) In the event that it is determined that, but for
the limitations contained in paragraph (a) of this Section 7.2,
the Annual Additions to a Member's Account and Tax Deferred
Account for any Limitation Year would be in excess of the
limitations contained herein, such Annual Additions shall be
reduced to the extent necessary to bring such Annual Additions
within the limitation contained in paragraph (a) of this Section
7.2 in the following order:
(1) Any employee contributions by a Member to his
Account which are included in such Annual Additions
shall be returned to such Member together with any gain
attributable to such returned employee contributions
unless the return of employee contributions under this
subparagraph (1) results in discrimination in favor of
employees of the Sponsoring Company, or other
Participating Company which is not an Affiliated
Company of the Sponsoring Company, who are officers or
highly compensated;
(2) If there are no such employee contributions, or,
if such employee contributions cannot be returned or
are not sufficient to reduce such Annual Additions to
the limitations contained herein, to the extent
permitted by the Code and/ or regulations issued
thereunder, contributions allocated to a Member's Tax
Deferred Account which are included in such Annual
Additions shall be paid to such Member together with
any gain attributable to such contributions;
(3) If there are no such allocations, or, if such
allocations cannot be paid to such Member or are not
sufficient to reduce such Annual Additions to the
limitations contained herein, such Member's allocable
share of the aggregate Participating Company
contributions for the Plan Year ending within such
Limitation Year shall be reduced.
(c) To the extent that the amount of any Member's
allocable share of the aggregate Participating Company
contributions is reduced in accordance with the
provisions of paragraph (b) of this Section 7.2, the
amount of such reductions shall be treated as a
forfeiture under the Plan and shall be applied to
reduce Participating Company contributions made or to
be made after the date on which such reduction arose
or, if there are no such contributions made, shall be
returned to the Participating Companies.
7.3 Limitation on Annual Additions for Participating
Companies or Affiliated Companies Maintaining Other Defined
Contribution Plans. In the event that any Member of this Plan
is a participant under any other Defined Contribution Plan (as
defined in Section 7.4) maintained by a Participating Company or
an Affiliated Company (whether or not terminated), the total
amount of Annual Additions to such Member's accounts under all
such Defined Contribution Plans shall not exceed the limitations
set forth in Section 7.2; provided, however, if any such Defined
Contribution Plan is subject to a special limitation in addition
to, or instead of, the regular limitations described in Sections
415(b) and 415(c) of the Code: (i) the total amount of Annual
Additions to such Member's Account and Tax Deferred Account in
this Plan (only) shall not exceed the limitations set forth in
Section 7.2, (ii) the combined limitations for all such Defined
Contribution Plans (including this Plan) shall be the larger of
such special limitation or the limitations set forth in Section
7.2 and (iii) if any such other Defined Contribution Plan is a
tax credit employee stock ownership plan under which the amount
allocated to such Member for a Limitation Year is equal to the
limitation set forth in Section 7.2, no part of the total
aggregate Participating Company contributions for such
Limitation Year may be allocated to such Member under this Plan.
If it is determined that as a result of the limitations set
forth in this Section 7.3 the Annual Additions to a Member's
Account and Tax Deferred Account in this Plan must be reduced,
such reduction shall be accomplished in accordance with the
provisions of Section 7.2.
7.4 Definitions Relating to Annual Additions Limitations.
For purposes of Section 7.2, Section 7.3 and this Section 7.4,
the following definitions shall apply:
(a) "Retirement Plan" shall mean (i) any profit
sharing, pension or stock bonus plan described in Sections
401(a) and 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, (iv) any individual retirement account,
individual retirement annuity or retirement bond described in
Sections 408(a), 408(b) or 409(a) of the Code and (v) any
simplified employee pension.
(b) "Defined Contribution Plan" shall mean (i) a
Retirement Plan which provides for an individual account for
each participant therein and for benefits based solely on the
amount contributed to the participant's account, and any income,
expenses, gains and losses, and any forfeitures of accounts of
other participants which may be allocated to such participant's
account and (ii) mandatory and/or voluntary employee
contributions to a defined benefit plan to the extent of such
employee contributions.
(c) "Limitation Year" shall mean the Plan Year.
(d) "Limitation Year Compensation" shall mean the
Member's wages, salaries, fees for professional service and
other amounts received for personal services actually rendered
in the course of employment with the Participating Companies and
Affiliated Companies during a Limitation Year including, but not
limited to, commissions paid salesmen, compensation for services
on the basis of a percentage of profits, and bonuses.
Limitation Year Compensation shall not include deferred
compensation amounts (other than amounts received by a Member
pursuant to an unfunded non-qualified plan in the year such
amounts are includable in the gross income of the Member for
federal income tax purposes); amounts allocated to a Member's
Tax Deferred Account; allowances paid by reason of foreign
assignment; amounts realized from the exercise of non-qualified
stock options or when restricted stock (or property) held by a
Member becomes freely transferable or is no longer subject to a
substantial risk of forfeiture; amounts realized from the sale,
exchange or other disposition of stock acquired under a
qualified stock option; and other amounts which receive special
tax benefits.
7.5 Multiple Use of Alternative Limitations.
Notwithstanding the limitations imposed on Actual Contribution
Percentage in Section 5.4 of the Plan and on Actual Deferral
Percentage in Section 6.3 of the Plan, the sum of the Actual
Deferral Percentage of the entire group of Highly Compensated
Eligible Employees and the Actual Contribution Percentage of the
entire group of Highly Compensated Eligible Employees shall not
exceed the sum of:
(a) 125 percent of the greater of (i) the Actual
Deferral Percentage of the group of Non-Highly Compensated
Eligible Employees for the Plan Year, or (ii) the Actual
Contribution Percentage of the group of Non-Highly Compensated
Eligible Employees for the same Plan Year, and
(b) two (2) plus the lesser of (i) the Actual Deferral
Percentage of the group of Non-Highly Compensated Eligible
Employees for the Plan Year, or (ii) the Actual Contribution
Percentage of the Non-Highly Compensated Eligible Employees for
the same Plan Year; provided however, that the amount under this
subsection (b) shall not exceed two hundred percent (200%) of
the lesser of clause (i) or (ii) of this subsection (b).
ARTICLE 8
INVESTMENT OF CONTRIBUTIONS
8.1 Investment Funds. The Trust Fund shall be
invested by the Trustee in the following funds, in accordance
with provisions of Section 8.2 of the Plan:
(a) Fund A shall be a fund consisting of common
stock of the Sponsoring Company contributed by one or
more Participating Companies or purchased by the
Trustee (i) on the open market; (ii) by the exercise of
stock rights; (iii) through participation in any
dividend reinvestment program of the Sponsoring
Company, including any such program which involves the
direct issuance or sale of common stock by the
Sponsoring Company (if no commission is charged with
respect to such direct issuance or sale); or (iv) from
the Sponsoring Company whether in treasury stock or
authorized but unissued stock. Stock purchased by the
Trustee pursuant to clause (iii) of this paragraph (a)
shall be valued pursuant to such dividend reinvestment
program and shall be purchased in accordance with all
of the terms and conditions of such program. Stock
contributed by a Participating Company or purchased by
the Trustee pursuant to clause (iv) of this paragraph
(a) shall be valued at the closing price of such stock
on the New York Stock Exchange composite tape for the
trading day immediately preceding the date on which
such stock is contributed or sold to the Plan. In no
event shall a commission be charged with respect to a
purchase pursuant to clause (iv). The Trustee may, to
the extent it is mutually agreed upon by the Trustee
and the Sponsoring Company, maintain a portion of the
investment in Fund A in cash and/or cash equivalents,
in accordance with the terms of the Trust Agreement,
for the purpose of fund liquidity and to accommodate
distributions.
(b) Fund B shall be a fixed income fund invested
(i) with one or more insurance companies, banks, trust
companies or other financial institutions designated
from time to time by the Sponsoring Company (or an
Investment Manager appointed by the Sponsoring Company
in accordance with the Plan and the Trust Agreement)
under an agreement or agreements which shall contain
provisions that the insurance company, bank, trust
company or other financial institution will make
repayment in full of such amount transferred to them
plus interest at a fixed and/or variable rate or
greater for a specified period; provided, however,
that this shall not be construed to impair the right
of the Sponsoring Company (or an Investment Manager
appointed by the Sponsoring Company) to terminate any
such contract before its expiration or maturity, or to
replace it with a contract with a different maturity
or expiration date and/or a different annual rate or
(ii) in one or more pooled separate accounts or one or
more common, collective, or commingled trust funds
established by the Trustee (or any Investment Manager
having trust powers appointed by the Sponsoring
Company) for collective investment in fixed income
issues as described above (which fund is exempt from
tax under Section 501 or Section 584 or other relevant
provision of the Code).
(c) Fund C shall be a fund invested in securities
of a short to intermediate duration issued by the
United States of America or any agency or
instrumentality thereof, including interests of one or
more pooled separate accounts of an insurance company
appointed by the Sponsoring Company (or an Investment
Manager appointed by the Sponsoring Company in
accordance with the Plan and the Trust Agreement) or
of one or more common, collective, or commingled trust
funds established by the Trustee (or any Investment
Manager having trust powers appointed by the
Sponsoring Company) for collective investment in such
securities (which fund is exempt from tax under
Section 501 or Section 584 or such other relevant
provision of the Code).
(d) Fund D shall be a diversified equities fund
invested in (i) common or capital stock; (ii) bonds,
notes, debentures or preferred stocks convertible into
common stocks; or (iii) interests of one or more
pooled separate accounts of an insurance company
appointed by the Sponsoring Company (or an Investment
Manager appointed by the Sponsoring Company in
accordance with the Plan and the Trust Agreement) or
of one or more common, collective, or commingled trust
funds established by the Trustee (or any Investment
Manager having trust powers appointed by the
Sponsoring Company) for collective investment in such
securities (which fund is exempt from tax under
Section 501 or Section 584 or other relevant provision
of the Code).
(e) Fund E shall be an equity investment fund the
investment goal of which is to track the total return
of the Standard & Poor's Composite Index or such other
broad equity index as is from time to time deemed
appropriate, and such fund shall be invested with one
or more insurance companies, banks, trust companies or
other financial institutions designated from time to
time by the Sponsoring Company (or an Investment
Manager appointed by the Sponsoring Company in
accordance with the Plan and the Trust Agreement) or in
one or more pooled separate accounts or one or more
common, collective, or commingled trust funds
established by the Trustee (or any Investment Manager
having trust powers appointed by the Sponsoring
Company) for collective investment in such a fund
(which fund is exempt from tax under Section 501 and
Section 584 or such other relevant provision of the
Code).
(f) Fund F shall be an open-end fund (or funds)
of an investment company (or companies) registered
under the Investment Company Act of 1940, as
designated by the Sponsoring Company, from time to
time. Such designation and any changes or additions
thereto shall be made in writing to the Trustee. Upon
written direction from the Sponsoring Company to the
Trustee, one or more of the investments under Funds C,
D, E and G may be transferred to and used to purchase
shares in the fund(s) of one or more open-end
investment companies registered under the Investment
Company Act of 1940 which has investment objectives
similar to the investment medium from which such
amounts were transferred. The investment advisor for
such an open-end investment company may be an existing
fiduciary with respect to the Plan, provided that the
terms and conditions of P.T. Class Exemption 77-4 are
met and such arrangement is otherwise permitted by law.
(g) Fund G shall be a fixed income fund designed
to offer current yields from a diversified portfolio
of longer term maturity investment grade fixed income
securities, including but not limited to, securities
issued by corporations or by any governmental unit of
the United States of America or any state thereof,
invested in bonds, notes or debentures, and such fund
shall be invested in or with one or more insurance
companies, banks, trust companies or other financial
institutions designated from time to time by the
Sponsoring Company (or an Investment Manager appointed
by the Sponsoring Company in accordance with the Plan
and the Trust Agreement) or in one or more pooled
separate accounts or one or more common, collective, or
commingled trust funds established by the Trustee (or
any Investment Manager having trust powers appointed by
the Sponsoring Company) for collective investment in
such a fund (which fund is exempt from tax under
Section 501 or Section 584 or such other relevant
provision of the Code.
Amounts held in any of the foregoing described investment funds
may temporarily be held in cash or cash equivalents or be held
in short-term securities issued by the Untied States of America
or any agency or instrumentality thereof or any other
investments of a short-term nature, including corporate
obligations or participations therein and interim collective or
common investment funds.
8.2 Allocation of Contributions to Funds. A Member's Basic
Contributions, Supplemental Contributions (if any), including
amounts to be allocated to a Member's Tax Deferred Account (if
any), and his allocable share of the aggregate Participating
Company contributions shall be invested in Fund A, Fund B, Fund
C, Fund D, Fund E, Fund F and/or Fund G in multiples of 10%, as
elected by the Member pursuant to Article 4 (Participation in
the Plan), or as subsequently changed in accordance with Section
8.3 (Change in Investment Options); provided, however, in the
event no permissible Member election has been made, the
Sponsoring Company may, in its sole discretion, deem the Member
to have elected that 100% of his Basic Contributions,
Supplemental Contributions (if any), including amounts to be
allocated to a Member's Tax Deferred Account (if any), and his
allocable share of the aggregate Participating Company
contributions shall be invested in Fund C. An account shall be
established for each Member under each Fund to which such
Member's contributions have been allocated and a separate
account shall be established under each such Fund in respect of
any salary reduction contributions under Article 6 of the Plan.
8.3 Change in Investment Options. A Member may elect to
change his investment option for future contributions, within
the limits set forth in Section 8.2, as of the first day of a
calendar month by filing such election in such form and manner
and at such time (not later than the date on which such election
is to be effective) as the Sponsoring Company may from time to
time prescribe; provided, however, no such change pursuant to
this Section 8.3 shall be effective within 3 months of a
Member's prior change of his investment option under this
Section 8.3.
8.4 Transfer Between Investment Funds. A Member may elect
to transfer all or a portion (in multiples of 10%) of his
Account and Tax Deferred Account within Funds A, B, C, D, E, F,
and/or G to any other Fund, as of any Valuation Date, by filing
such election in such form and manner and at such time (not less
than 7 calendar days prior to the end of the calendar month in
which fall the Valuation Date as of which such election is to be
effective) as the Sponsoring Company may from time to time
prescribe; provided, however, that (i) no Member may elect to
transfer all or a portion of his Account or Tax Deferred Account
from Fund B into Fund C and (ii) if a Member elects to transfer
all or a portion of his Account or Tax Deferred Account from
Fund B into Funds A, D, E, F and G, such Member shall thereafter
be permitted to transfer only that portion of his Account or Tax
Deferred Account invested in Funds A, D, E, F and/or G from
Funds A, D, E, F, and/or G into Fund C in an amount that is
equal to the excess of that amount which was transferred from
Fund B until the passing of at least two Valuation Dates
following the Valuation Date for which the transfer from Fund B
is effective (the "Waiting Time"), though such amounts
transferred from Fund B and invested in Funds A, D, E, F and/or
G may be transferred between those Funds A, D, E, F, and/or G or
back to Fund B during such Waiting Time.
3. Paragraph (b) of Section 8.5 of the Plan is
amended in its entirety as follows:
(b) LESOP Diversification. In connection with
the making of investment directions under Section 7.5
of the Ashland Oil, Inc. Leveraged Employee Stock
Ownership Plan, the Plan shall accept direct transfers
of shares of common stock of the Sponsoring Company
for investment in Fund A hereunder, valued as of the
date of such transfer under the rules applicable under
such plan, and notwithstanding Section 8.4 of the
Plan, the Plan shall recognize and act upon the
investment direction made under such Section 7.5 by
either converting such shares to an investment under
Fund B, C, D, E, F, or G, or by leaving such shares as
an investment under Fund A, as was elected. Except
for purposes of the rules for determining the amount
of and the limitations on Participating Company
contributions under Articles 7 and 25 of the Plan,
such direct transfers of shares shall be treated in
the same manner as Participating Company contributions
made to the Plan with respect to an Employee.
4. The phrases "Fund E or Fund F" and "or debentures"
contained in Section 14.4 of the Plan are hereby deleted.
8.4A Liquidation of Tanner Fund E. Effective March 1,
1990, all amounts allocated to Fund E, as it existed on the day
prior to such date, shall be transferred to and allocated among
the various investment funds maintained pursuant to Section 8.1
of the Plan in the manner hereinafter provided. A reasonable
time prior to March 1, 1990, Members with amounts in said Fund E
shall be informed of such Fund's impending liquidation and the
procedures by which the amounts invested therein may be
transferred, pursuant to an election made by each such Member,
in such manner as prescribed by the Sponsoring Company, to
another investment fund maintained under the Plan. In a manner
consistent with the allocation procedures prescribed under
Section 8.2 of the Plan, each affected Member may elect to
transfer a specified percentage, in increments of 10%, to
another investment option available under the Plan. Any such
Member who fails to make a timely election shall have the entire
amount of his interest in said Fund E transferred to Fund B.
All transfers under this Section 8.4A shall be based upon the
February 28, 1990 Valuation Date.
8.5 Trustee to Trustee Transfers.
(a) PAYSOP Termination. In connection with the
termination of the portion of the Ashland Oil, Inc. PAYSOP,
effective January 31, 1991, the Plan shall accept direct
transfers of shares of common stock of the Sponsoring
Company for investment in Fund A hereunder, valued as of
the date of such transfer under the rules applicable under
such PAYSOP, with respect to Employees who are eligible to
participate in the Plan. Except for purposes of the rules
for determining the amount of and the limitations on
Participating Company contributions under Articles 7 and 25
of the Plan, such direct transfers of shares shall be
treated in the same manner as Participating Company
contributions made to the Plan with respect to an Employee.
(b) LESOP Diversification. In connection with the
making of investment directions under Section 7.5 of the
Ashland Oil, Inc. Leveraged Employee Stock Ownership Plan,
the Plan shall accept direct transfers of shares of common
stock of the Sponsoring Company for investment in Fund A
hereunder, valued as of the date of such transfer under the
rules applicable under such plan, and notwithstanding
Section 8.4 of the Plan, the Plan shall recognize and act
upon the investment direction made under such Section 7.5
by either converting such shares to an investment under
Fund B, C or D, or by leaving such shares as an investment
under Fund A, as was elected. Except for purposes of the
rules for determining the amount of and the limitations on
Participating Company contributions under Articles 7 and 25
of the Plan, such direct transfers of shares shall be
treated in the same manner as Participating Company
contributions made to the Plan with respect to an Employee.
(c) Subject to the satisfaction of the following
requirements, a Member may make a voluntary and informed
election directing that his entire vested Account be
transferred directly from the Trustee of this Plan to the
trustee of another plan ("transferee plan") which is
qualified under section 401(a) of the Code. The
requirements which must be satisfied are as follows:
(i) The Member shall have the option to allow his
Account to remain in this Plan for the maximum
period of time allowed under Sections 14.1 and
17.1 of the Plan.
(ii) The Account, when transferred to the
transferee
plan, must be fully vested thereunder and,
immediately after such transfer, the Member would
receive from the transferee plan, on a termination
basis, a benefit therefrom which is at least equal
to the benefit to which he would have been
entitled, on a termination basis, from this Plan
immediately before such transfer, within the
meaning of the provisions of section 414(1) of the
Code.
(iii) The transfer of the Member's Account shall be
in cash, except to the extent the Member would be
entitled to receive a distribution in kind. To
the extent that a Member is so entitled to receive
a distribution in kind, the Member may direct that
the transfer be made in kind. The amount of cash
or in kind assets transferred shall be determined
in the same manner as any other distribution under
the Plan.
(iv) The Member shall otherwise be entitled
to a
distribution pursuant to the provisions of Article
12 and Article 14.
(v) The Member provides such evidence from the
transferee plan to the Plan Administrator, as
prescribed by the Plan Administrator, which is
sufficient to demonstrate that the transferee
plan is qualified under section 401(a) of the
Code, that the terms of the transferee plan allow
it to accept such a transfer in the form in which
it will be made as prescribed under (iii) above,
and that the transferee plan meets the applicable
provisions of (ii) above.
ARTICLE 9
VALUATION OF TRUST FUND
The Trustee shall value each Investment Fund described in
Article 8 at fair market value as of the close of business on
each Valuation Date. In making such valuation, the Trustee
shall deduct all charges, expenses and other liabilities, if
any, contingent or otherwise, then chargeable against each such
Fund, in order to give effect to income realized and expenses
paid or incurred, losses sustained and unrealized gains or
losses constituting appreciation or depreciation in the value of
Trust investments in each such Fund since the last previous
valuation. As soon as practicable after such valuation, the
Trustee shall deliver in writing to the Sponsoring Company a
certified valuation of each such Investment Fund together with a
statement of the amount of net income or loss (including
appreciation or depreciation in the value of Trust investments
in each such Fund) since the last previous valuation.
ARTICLE 10
SEPARATE ACCOUNTS
10.1 Separate Accounts. Separate accounts under each
investment fund described in Section 8.1 shall be maintained
under the Plan for each Member. The amount contributed by or on
behalf of a Member or allocated to such Member shall be credited
to his Account, or his Tax Deferred Account, in the manner set
forth in Articles 5, 6, 7 and 8 of the Plan. No amounts
allocated to a Member's Account shall be reallocated to such
Member's Tax Deferred Account, and, except as otherwise allowed
by Section 6.3 of the Plan and/or law, regulation or ruling, no
amount allocated to a Member's Tax Deferred Account shall be
reallocated to such Member's Account. All payments from the
Plan to a Member or his Beneficiary shall be charged first
against the Account of such Member until exhausted and then
charged against his Tax Deferred Account and Frozen Tanner
Account. Except as otherwise provided in the Plan, each Member
has a nonforfeitable right to amounts in his Account and his Tax
Deferred Account and Frozen Tanner Account.
10.2 Accounts of Members Transferred to an Affiliated
Company. If a Member is transferred to an Affiliated Company
which is not a Participating Company, the amount credited to his
Account and/or his Tax Deferred Account shall continue to share
in the earnings or losses of each Investment Fund for which such
Member has an account(s) and such Member's rights and
obligations with respect to his Account and/or his Tax Deferred
Account shall continue to be governed by the provisions of the
Plan and Trust.
10.3 Monthly Adjustment of Members' Accounts. As soon
as reasonably practicable after the presentation of the
Trustee's certified valuation, as provided in Article 9 of the
Plan, the Account, Tax Deferred Account and Frozen Tanner
Account of each Member shall be adjusted so that the amount of
net income, loss, appreciation or depreciation in the value of
each Investment Fund for which such Member has an account(s) for
the period (hereinafter referred to as the "Valuation Period")
from the last previous valuation to the date of such certified
valuation shall be credited to or charged against the Member's
Fund accounts in the ratio that (i) the balance in each Fund
account of each Member as of the first day of such Valuation
Period minus the amount distributable to such Member from such
Fund account during such Valuation Period bears to (ii) the
balance in all such Members' accounts as of the first day of
such Valuation Period minus the total amounts distributable to
all such Members from all such Fund accounts during such
Valuation Period. ^
ARTICLE 11
BENEFICIARIES
11.1 Designation by Member. Each Member may designate
one or more Beneficiaries and contingent Beneficiaries by
delivering a written designation thereof over his signature to
the Sponsoring Company in such form and manner as the Sponsoring
Company may from time to time prescribe. Upon the death of a
Member, his Beneficiaries shall be entitled to payment of
benefits in an amount and in the manner provided by the Plan. A
Member may designate different Beneficiaries at any time by
delivering a new written designation under this Section 11.1
over his signature to the Sponsoring Company. Any designation
under this Section 11.1 shall become effective only upon receipt
by the Sponsoring Company but, upon such receipt, shall be
effective retroactively to the date the Member signed such
designation. The last effective designation received by the
Sponsoring Company shall supersede all prior designations. A
designation of a Beneficiary shall be effective only if the
designated Beneficiary survives the Member. A designation of a
Beneficiary other than the spouse of a Member shall not be
effective unless such spouse consents in writing to such
designation, and the spouse's consent acknowledges the effect of
such designation and is witnessed by a Plan representative or a
notary public or it is established to the satisfaction of the
Sponsoring Company that the spouse's consent may not be obtained
because there is no spouse, because the spouse cannot be
located, or because of such other circumstances as regulations
under the Code may allow.
11.2 Failure of Member to Designate. If a Member fails
to designate a Beneficiary, or if no designated Beneficiary
survives the Member or dies simultaneously with the Member or
under circumstances making it impossible to determine whether
such Beneficiary survived such Member, the Member shall be
deemed to have designated one of the following as Beneficiary
(if living at the time of the Member's death) in the following
order of priority: (1) surviving spouse, and (2) Member's
estate. If the Sponsoring Company shall be in doubt as to the
right of any person as a Beneficiary under this Article 11,
payment may be made to the Member's estate and such payment
shall be in full satisfaction of any and all liability of the
Plan (or any other person or entity) to any person claiming
under or through such Member.
11.3 Beneficiaries' Rights. Whenever the rights of
a Member are stated or limited in the Plan, his Beneficiaries
shall be bound thereby.
ARTICLE 12
TERMINATION OF EMPLOYMENT BENEFITS
If a Member incurs Termination of Employment, such Member
(or Beneficiary in the case of the death of a Member) shall be
entitled to receive a benefit equal to the total amount in the
Member's Account, Tax Deferred Account and Frozen Tanner Account
as determined in accordance with the provisions of Section 14.2
of the Plan. Such benefit shall be paid in a single lump sum or
otherwise in accordance with one of the forms of payment
available to such Member or Beneficiary as set forth in Section
14.3 of the Plan.
ARTICLE 13
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
13.1 Partial Withdrawal. A Member may elect as of any
Valuation Date to withdraw all or any part of the value (as of
such Valuation Date) of his Account which is not in excess of
the value of (i) such Member's aggregate unwithdrawn
Supplemental Contributions, if any, allocated to his Account,
(ii) one-half of such Member's aggregate unwithdrawn Basic
Contributions, if any, allocated to his Account prior to January
1, 1987, and (iii) one-half of such Member's aggregate
unwithdrawn Basic Contributions attributable to contributions
made on and after January 1, 1987, allocated to his Account (all
such values being determined using information as of the latest
Valuation Date for which the Sponsoring Company has such
information at the time the Member's election is filed), by
filing such election in such form and manner and at such time
(prior to the Valuation Date as of which such withdrawal is to
be effective) as the Sponsoring Company may from time to time
prescribe; provided, however, no such election under this
Section 13.1 shall be effective within 12 calendar months of a
Member's (x) election to participate in the Plan under Article
4, (y) resumption of Basic Contributions under Section 5.5 (if
such Member had made Basic Contributions for less than 60 months
at the time of such resumption) or (z) prior withdrawal under
this Section 13.1 or Section 13.2. Payment of a withdrawal
under this Section 13.1 shall be made in a lump sum, in cash or
in kind (as allowed by Section 14.4), as soon as reasonably
practicable after the date on which such election is filed and
shall be withdrawn from the Member's Account in the following
order: first, from all Supplemental Contributions made by such
Member prior to January 1, 1987; second, from one-half of the
value (determined using the latest Valuation Date for which the
Sponsoring Company has information at the time the Member's
election is filed) of the Basic Contributions made by such
Member prior to January 1, 1987; third, from all Supplemental
Contributions made by the Member on and after January 1, 1988
and earnings thereon apportioned in accordance with the Code and
Treasury Regulations promulgated thereunder; fourth, from
one-half of the value (determined as described in the second
category above) of the Member's Basic Contributions made on or
after January 1, 1988 and earnings thereon apportioned in
accordance with the Code and Treasury Regulations promulgated
thereunder; fifth, from all Supplemental Contributions made by
the Member during calendar year 1987 and earnings attributable
to all Supplemental Contributions made prior to January 1, 1988
apportioned in accordance with the Code and Treasury Regulations
promulgated thereunder; and sixth, from one-half of the value
(determined as described in the second category above) of the
Member's Basic Contributions made during calendar year 1987 and
earnings attributable to all Basic Contributions made prior to
January 1, 1988 apportioned in accordance with the Code and
Treasury Regulations promulgated thereunder. That portion of
such Member's Account not withdrawn pursuant to this Section
13.1 shall remain in the Trust Fund in such Member's investment
fund accounts allocated to his Account.
13.2 Partial Withdrawal After 60 Months of
Participation. In addition to whatever withdrawal is available
to a Member pursuant to the provisions of Section 13.1, a Member
may elect as of any Valuation Date to withdraw all or any part
of the value (as of such Valuation Date) of his Account which is
in excess of the maximum amount available for withdrawal under
Section 13.1 but is not in excess of the total amount of such
Member's aggregate unwithdrawn Supplemental Contributions and
aggregate unwithdrawn Basic Contributions allocated to his
Account (both determined using information as of the latest
Valuation Date for which the Sponsoring Company has such
information at the time the Member's election is filed), by
filing such election in such form and manner and at such time
(prior to the Valuation Date as of which such withdrawal is to
be effective) as the Sponsoring Company may from time to time
prescribe; provided, however, no such election under this
Section 13.2 shall be effective within (i) 60 months of the
later of: (A) a Member's election to participate in the Plan
under Article 4 or (B) a Member's resumption of Basic
Contributions under Section 5.5 (if such Member had made Basic
Contributions for less than 60 months at the time of such
resumption), or (ii) 12 calendar months of a Member's prior
withdrawal under Section 13.1 or this Section 13.2. Payment of
a withdrawal under this Section 13.2 shall be made in a lump
sum, in cash or in kind (as allowed by Section 14.4), as soon as
reasonably practicable after the date on which such election is
filed and shall be withdrawn from the Member's Account in the
following order: first, from all Supplemental Contributions
made by such Member prior to January 1, 1987; second, from all
Basic Contributions made by such Member prior to January 1,
1987, third, from all Supplemental Contributions made by the
Member on and after January 1, 1988 and earnings thereon
apportioned in accordance with the Code and Treasury Regulations
promulgated thereunder; fourth, from all of the value
(determined using the latest Valuation Date for which the
Sponsoring Company has information at the time the Member's
election is filed) of the Member's Basic Contributions made on
or after January 1, 1988 and earnings thereon apportioned in
accordance with the Code and Treasury Regulations promulgated
thereunder; fifth, from all Supplemental Contributions made by
the Member during calendar year 1987 and earnings attributable
to all Supplemental Contributions made prior to January 1, 1988
apportioned in accordance with the Code and Treasury Regulations
promulgated thereunder; and sixth, from all of the value
(determined as described in the fourth category above) of the
Member's Basic Contributions made during calendar year 1987 and
earnings attributable to all Basic Contributions made prior to
January 1, 1988 apportioned in accordance with the Code and
Treasury Regulations promulgated thereunder. That portion of
such Member's Account not withdrawn pursuant to this Section
13.2 shall remain in the Trust Fund in such Member's investment
fund accounts allocated to his Account.
13.3 Total Withdrawal. A Member may elect as of any
Valuation Date to withdraw all (but not less than all) of the
value (as of such Valuation Date) of his Account and his Tax
Deferred Account (if such Member has attained age 59-1/2
(determined as hereinafter described in this Section 13.3) on or
before such Valuation Date) by filing such election in such form
and manner and at such time (prior to the Valuation Date as of
which such withdrawal is to be effective) as the Sponsoring
Company may from time to time prescribe. Payment of a
withdrawal under this Section 13.3 shall be made in a lump sum,
in cash or in kind (as allowed by Section 14.4), as soon as
reasonably practicable after the Valuation Date as of which such
withdrawal is effective. Notwithstanding the foregoing
provisions of this Section 13.3, in the event a Member withdraws
the entire amount in his Account and, if applicable, his Tax
Deferred Account, under this Section 13.3 within 24 months of
such Member's (i) election to participate in the Plan under
Article 4 or (ii) resumption of Basic Contributions under
Section 5.5 (if such Member had made Basic Contributions for
less than 60 months at the time of such resumption), the amount
of such withdrawal shall be equal to the value (as hereinabove
determined) of his Account and Tax Deferred Account, if
applicable, less such Member's allocable share of the aggregate
Participating Company contributions made within and any amounts
allocated to his Tax Deferred Account within 2 years of the
Valuation Date as of which such withdrawal is effective. Any
portion of such Member's Account and/or Tax Deferred Account not
withdrawn pursuant to this Section 13.3 shall remain in the
Trust Fund in such Member's investment fund accounts allocated
to his Account and/or Tax Deferred Account as the case may be.
Unless such Member has resumed contributions to the Plan under
Article 5, the then value thereof shall be paid, in cash or in
kind (as allowed by Section 14.4), to the Member as of the
Valuation Date of the 24th calendar month following either the
calendar month in which the Member's election to participate in
the Plan was effective under Article 4 or the calendar month in
the Member's resumption of Basic Contributions was effective
under article 5, as the case may be. For purposes of this
Section 13.3, a member shall be deemed to have attained age
59-1/2 on the Valuation Date of the sixth calendar month
following the month in which occurs his 59th birthday.
13.4 Hardship Withdrawal. (a) A Member may apply for a
withdrawal as of any Valuation Date on account of hardship (as
hereinafter defined in this Section 13.4) of all or a part of
the value of his Tax Deferred Account (as of such Valuation
Date) that is in excess of earnings credited to his Tax Deferred
Account on or after January 1, 1989 by filing such application
in such form and manner and at such time (prior to the Valuation
Date as of which such hardship withdrawal is to be effective) as
the Sponsoring Company may from time to time prescribe. An
application for a hardship withdrawal under this Section 13.4
may be submitted only by a Member who has no balance in his
Account or is withdrawing the entire amount which he is eligible
to withdraw under the provisions of Section 13.3 in conjunction
with his application for a hardship withdrawal. Payment of an
amount withdrawn under this Section 13.4 shall be made in a lump
sum, in cash, as soon as reasonably practicable after the date
on which such withdrawal is approved by the Sponsoring Company.
That portion of such Member's Tax Deferred Account not withdrawn
pursuant to this Section 13.4 shall remain in the Trust Fund in
such Member's investment fund accounts allocated to his Tax
Deferred Account.
(b) For purposes of this Section 13.4, hardship shall
be determined in the sole discretion and judgment of the
Sponsoring Company in a uniform and nondiscriminatory manner and
shall be deemed to exist, on the basis of all relevant facts and
circumstances, only in the case of an immediate and heavy
financial need of the Member. An immediate and heavy financial
need of the Member will be deemed to exist if the application
for withdrawal is on account of:
(i) medical expenses described in section 213(d)
of the Code incurred by the Member, the Member's
Spouse, or any dependents of the Member (as defined in Code
section 152);
(ii) the purchase (excluding mortgage payments)
of
a principal residence for the Member;
(iii) the payment of tuition for the next
semester or quarter of post-secondary education for the
Member, Member's spouse or Member's children or dependents;
(iv) other events which are adopted by the
Sponsoring Company and which are deemed immediate and heavy
financial needs by the Commissioner of Internal Revenue
through the publication of revenue rulings, notices, and
other documents of general applicability; or
(vi) any other set of relevant facts and
circumstances which, in the sole discretion of the
Sponsoring Company, constitutes an immediate and heavy
financial need.
In no event shall an amount withdrawn under this Section
13.4 exceed the amount required to relieve the immediate
financial need created by the hardship or which would be
reasonably available (determined in the sole discretion of the
Sponsoring Company) from other resources of the Member. To
satisfy the Sponsoring Company that the amount to be withdrawn
under this Section 13.4 is necessary to satisfy the immediate
financial need, each Member applying for a withdrawal under this
Section 13.4 shall swear out a statement before a notary public
representing that such need cannot be relieved:
(A) through reimbursement or compensation by insurance
or otherwise;
(B) by reasonable liquidation of the Member's assets,
to the extent such liquidation would not itself cause an
immediate and heavy financial need;
(C) by cessation of elective contributions or employee
contributions under the Plan; or
(D) by other distributions or nontaxable (at the time
of the loan) loans from plans maintained by the Sponsoring
Company or by any other employer, or by borrowing from
commercial sources on reasonable commercial terms.
13.5 Repayment of Withdrawn Amounts Prohibited.
Repayment of amounts withdrawn by a Member or Beneficiary
pursuant to the provisions of Article 12 or Article 13 of the
Plan, are not permitted.
ARTICLE 14
PAYMENT OF BENEFITS
14.1 General Rule. Notwithstanding any other provision
of the Plan, and in accordance with Section 401(a)(9) of the
Code and regulations promulgated thereunder (including Treas.
Reg. section 1.401(a)(9)-2) and other regulations that may be
prescribed by the Commissioner of Internal Revenue, and for
purposes of the incidental death benefits requirements of the
Code, the entire interest of a Member will be distributed either
(i) not later than April 1 of the calendar year following the
later of (A) the calendar year in which he attains age 70 1/2 or
(B) if he is not a 5% owner of the Sponsoring Company as defined
in Section 416 of the Code, the calendar year in which he
retires (clause (i) hereinafter being called the "required
beginning date") or (ii) over a period beginning no later than
the required beginning date and not extending beyond the life
expectancy of such Member. If the Member dies after the
distribution of his interest has begun under this Section 14.1
and before his entire interest has been distributed to him, in
accordance with the Plan, the remaining portion of such Member's
interest shall be distributed at least as rapidly as over a
period not extending beyond the life expectancy of the Member
determined as of the date of the Member's death. If the Member
dies before his required beginning date (whether or not the
distribution of his interest has begun), the entire remaining
interest of the Member shall be distributed to his Beneficiary
over a period not exceeding 5 years after the death of the
Member; provided, however, if the Member's Beneficiary is the
Member's surviving spouse, such remaining interest shall be
distributed, in accordance with the Plan and regulations under
the Code, over a period beginning not later than the later of
(y) December 31 of the calendar year following the calendar year
in which the Member died or (z) December 31 of the calendar year
in which the Member would have attained age 70 1/2 and extending
not later than the life expectancy of such Beneficiary. Life
expectancy used in calculating distributions under this Section
14.1 shall be recalculated each year for which a distribution is
made.
14.2 Termination of Employment Benefits. The
Sponsoring Company shall cause to be made distribution of the
benefits payable to a Member or his Beneficiary upon Termination
of Employment, based upon the value of such Member's Account,
Tax Deferred Account and Frozen Tanner Account as of the
Valuation Date coincident with or immediately following the
later of (i) the date on which such Member's Termination of
Employment occurs or (ii) the date on which a claim for such
benefits is filed pursuant to Article 17 of the Plan.
14.3 Methods of Payment of Termination of Employment
Benefits. The Sponsoring Company shall cause to be made a
distribution of benefits pursuant to Section 14.2 of the Plan in
accordance with one of the available methods of distribution set
forth in this Section 14.3, as elected by the Member (or
Beneficiary in the case of the death of a Member) in such form
and manner and at such time (not later than 30 days after such
Member's Termination of Employment except as otherwise provided
in paragraph (b) of this Section 14.3) as the Sponsoring Company
may from time to time prescribe. The available methods of
distribution are as follows:
(a) Installment Payments or Lump Sum Distribution.
(1) Subject to the limitations described in Section
14.1 of the Plan, benefits may be paid in the
form of one or more installments (each paid not
more frequently than one within any 12 month
period) over a fixed (as specified by the Member
or Beneficiary) number of calendar years
comprising not less than 1 calendar year nor more
than 20 calendar years without regard to the
duration of the life of the Member or
Beneficiary. Each such installment shall equal
the value of the Member's Account and Tax
Deferred Account as of the Valuation Date as of
which such installment is paid multiplied by a
fraction whose numerator is one and whose
denominator is the number of specified
installments remaining in such specified number
of years and shall be charged first against such
member's Account. In respect of all then unpaid
amounts in his Account and Tax Deferred Account,
a Member may make an election to change his prior
election under this subparagraph (1) by filing
such change in such form and manner and at such
time as the Sponsoring Company may from time to
time prescribe; provided, however, no such change
under this sentence shall be effective (i) within
12 calendar months of a previous election or
previous change under this subparagraph (1) or
(ii) in respect of any installment to be paid as
of a Valuation Date less than 30 days after the
date on which such change is filed.
(2) Death of a Member Before Receiving Complete
Payment of his Account. Subject to the
limitations described in Section 14.1 of the
Plan, in the event of the death of a Member before
receiving all installments under the provisions
of subparagraph (1) of this paragraph (a) to
which he would otherwise become entitled, such
Member's Beneficiary may elect (not later than 90
days after the death of the Member) one or more
payments in respect of all then unpaid amounts in
such Member's Account and Tax Deferred Account
pursuant and subject to the provisions of
subparagraph (1) of this paragraph (a).
(b) Annuity.
(1) Normal form for Married Members. Unless the
election under subparagraph (2) of this paragraph
(b) is made, an annuity benefit payable under this
paragraph (b) shall be paid by the purchase from
a life insurance company and distribution to a
Member of a single premium non-transferable
annuity contract having the effect of a qualified
joint and survivor annuity (as hereinafter
defined) with respect to any Member who begins to
receive payment of an annuity benefit under this
paragraph (b) provided that such Member and such
Member's spouse have been married to each other
throughout either of the earlier of (A) the 1
year period ending on the date as of which such
payment begins or (B) the 1 year period ending on
the date of such Member's death. For purposes of
this paragraph (b), if a Member marries within 1
year before the date as of which payment of his
annuity benefit begins and such Member and such
Member's spouse in such marriage have been
married for at least the 1-year period ending on
the date of the Member's death, such Member and
such spouse shall be treated as having been
married throughout the 1-year period ending on
the date as of which payment of his annuity
benefit begins. The term "qualified joint and
survivor annuity" means a monthly, quarterly or
annual benefit which is payable for the life of
the Member and upon the Member's death, if such
Member is survived by the spouse to whom such
Member was married on the date payments
commenced, for the life of such spouse, in amount
equal to 50% of the benefit payable to such
Member. The benefit payable to such spouse shall
not be terminated on account of such spouse's
subsequent remarriage.
(2) A Member described in subparagraph (1) of this
paragraph (b), may elect during the election
period described in subparagraph (3) of this
paragraph (b), not to receive his annuity benefit
under this paragraph (b) in the form of a
qualified joint and survivor annuity. Any such
election made under this subparagraph (2) shall
be made in writing on forms designated by the
Sponsoring Company for that purpose and shall
clearly indicate that the Member is electing to
receive his annuity benefit under this paragraph
(b) in a form other than that of a qualified
joint and survivor annuity. The election may be
revoked in writing before the expiration of the
election period and another election (including
the election of a qualified joint and survivor
annuity) may be made prior to the expiration of
the election period. In addition to the
foregoing requirements of this subparagraph (2),
any election made under this subparagraph (2) on
or after January 1, 1985 shall not take effect
unless (i) the spouse of the Member consents in
writing to such election and such spouse's
consent acknowledges the specific nonspouse
beneficiary (including any class of beneficiaries
or any contingent beneficiary) and the effect of
such election while being witnessed by a Plan
representative or a notary public, or (ii) the
Member establishes to the satisfaction of the
Sponsoring Company that such spouse's consent
cannot be obtained because there is no spouse,
because the spouse cannot be located, or because
of such other circumstances as may be allowed
under regulations adopted by the Secretary of the
United States Treasury or his delegate. Any
consent by a spouse (or establishment that such
consent cannot be obtained) under the preceding
sentence of this subparagraph (2) shall be
effective only with respect to such spouse. A
Member may not subsequently change a non-spouse
beneficiary without the spouse's written consent
meeting the requirements of this subparagraph
(2).
(3) Election Period. The election period with
respect to any Member described in subparagraph
(1) of this paragraph (b) shall begin on the date
the Sponsoring Company furnishes to such Member a
written notification of such Member's right to
elect to receive an annuity benefit in a form
other than a qualified joint and survivor
annuity. Such notice shall include a general
description or explanation of the qualified joint
and survivor annuity, the circumstances in which
it will be provided unless the Member has
rejected it, a general explanation of the
relative financial effect on the Member's annuity
of his election, and the availability, upon
written request of the Member, of a written
explanation of the terms and conditions of the
qualified joint and survivor annuity and the
financial effect upon the Member's annuity
benefit (in terms of dollars per periodic
payment) of making an election not to receive an
annuity benefit in the form of a qualified joint
and survivor annuity. Effective on and after
October 1, 1985 such written notification shall
include a written explanation of the terms and
conditions of the qualified joint and survivor
annuity, the Member's right to make, and the
effect of, an election to waive the qualified
joint and survivor annuity form of benefit, the
rights of a Member's spouse to consent to such
election and the Member's right to make, and the
effect of, a revocation of an election under
subparagraph (2). The election period shall end
on the 90th day after the date on which it begins
but in no event shall the election period end
earlier than the later of (i) the annuity
starting date or (ii) the 90th day after the
above referred to written explanation of the
terms and conditions of the qualified joint and
survivor annuity is provided pursuant to a
Member's written request.
(4) Normal Annuity Form for Unmarried Participants and
Optional Form for Married Participants. An
annuity benefit under this paragraph (b) may be
paid by the purchase from a life insurance
company and distribution to a Member of a single
premium non-transferable annuity contract
providing for a periodic benefit which is payable
for the life of the Member only or upon such
other terms as shall be agreed upon by the Member
and the insurance company; provided, however, the
option selected must be such that, in accordance
with the regulations prescribed by the United
States Secretary of the Treasury or his delegate,
the Member's benefit will be distributed
commencing not later than the calendar year in
which such Member attains age 70-1/2 and over a
period not extending beyond the life expectancy
of such Member and his spouse.
14.4 Distribution in Kind. A Member or Beneficiary who
(i) receives a distribution pursuant to the provisions of
Article 12 and Section 14.2 of the Plan, or (ii) elects to
withdraw all or a part of his interest in the Plan under Section
13.1, Section 13.2 or Section 13.3 of the Plan, may elect, in
such form and manner and at such time as the Sponsoring Company
may from time to time prescribe, to receive (instead of cash)
all or a part of the distributable value of such Member's
accounts in Fund A, Fund E or Fund F in whole shares or
debentures and cash in lieu of any fractional shares of the
stock or debentures of the Sponsoring Company to be distributed
from the Plan. The number of whole shares of such stock or
debentures distributable hereunder shall be determined based
upon the unit value of such stock or debentures used to
determine the value of such Member's accounts for purposes of
distribution from the Plan.
14.5 Lost Member/Beneficiary. Notwithstanding any
other provision of the Plan, in the event the Sponsoring
Company, after reasonable effort, is unable to locate a Member
or Beneficiary to whom a benefit is payable under the Plan, such
benefit shall be forfeited; provided, however, that such benefit
shall be reinstated (in an amount equal to the amount forfeited)
upon proper claim made by such Member or Beneficiary prior to
termination of the Plan. Benefits forfeited under this Section
14.5 shall be used to reduce the Sponsoring Company
contributions under Article 7 of the Plan or, if there are no
such contributions, shall be returned to the Sponsoring Company.
Restorations under this Section 14.5 shall be made by way of
special Sponsoring Company contribution or by way of offsetting
forfeitures then to be applied to reduce aggregate Sponsoring
Company contributions.
ARTICLE 15
TRUST FUND
15.1 Trust Fund. All the funds of the Plan shall be
held by the Trustee appointed from time to time by the
Sponsoring Company, in one or more trusts under a trust
agreement entered into between the Trustee and the Sponsoring
Company for use in providing the benefits of the Plan and paying
any expenses of the Plan not paid directly by the Participating
Companies. The fact that separate accounts are maintained for
each Member shall not be deemed to segregate for such Member, or
to give such Member any direct interest in, any specific asset
or assets in the Trust Fund.
15.2 Administration of the Trust Fund and Funding
Policy. Except as otherwise provided in the Plan or the trust
agreement and subject to the direction and control of the
Sponsoring Company (or other fiduciary identified by the
Sponsoring Company for such purpose), the Trustee shall have
exclusive authority and discretion to manage and control the
assets of the Trust Fund. The Sponsoring Company shall have the
authority to appoint an Investment Manager to manage (including
the power to acquire and dispose of) all or any part of the
assets of the Trust Fund. The Sponsoring Company shall be
responsible for establishing a funding policy and method
consistent with the objectives of the Plan and the requirements
of Title I of ERISA.
15.3 Benefits Payable Solely by Trust. All benefits
payable under the Plan shall be paid or provided for solely from
the Trust. The Participating Companies assume no liability or
responsibility therefor.
15.4 Exclusive Benefit of Trust Fund. Except as
otherwise allowed under Section 403(c)(2)(A) and (C) of ERISA,
the assets of the Trust Fund shall not inure to the benefit of
any Participating Company and shall be held for the exclusive
purposes of providing benefits to Members and their
Beneficiaries and defraying reasonable expenses of administering
the Plan.
ARTICLE 16
ADMINISTRATION OF THE PLAN
16.1 Plan Administrator and Administration of the Plan.
The Sponsoring Company shall manage, operate and administer the
Plan. The Sponsoring Company shall be the "administrator" (as
defined in Section 3(16) of ERISA) of the Plan, and shall be
responsible for the performance of all reporting and disclosure
obligations under ERISA and all other obligations required or
permitted to be performed by the Plan administrator under ERISA.
The Sponsoring Company shall have all powers necessary to
administer the Plan in accordance with its terms, including the
power to construe the Plan and determine all questions that may
arise thereunder except as otherwise provided in the Plan and/or
trust agreement. The Sponsoring Company shall be the designated
agent for service of legal process.
16.2 Delegation of Responsibility. The Sponsoring
Company may delegate (and may give to its delegatees the
authority to redelegate) to any person or persons any
responsibility, power, or duty whether ministerial or fiduciary;
provided, however, no responsibility in the Plan or trust
agreement to manage or control the assets of the Plan (other
than a power to appoint an Investment Manager) may be delegated
to anyone other than a fiduciary identified pursuant to Section
15.2 of the Plan. The Sponsoring Company, the Trustee or any
delegatee, redelegatee or designee of either of them may employ
one or more persons to render advice or perform ministerial
duties with regard to any responsibility such fiduciary has
under the Plan.
16.3 Liability. The board of directors of the
Sponsoring Company and any delegatee, redelegatee or designee
(other than any Investment Manager or Trustee), and any employee
of a Participating Company or Affiliated Company serving the
Plan in any capacity within the scope of his employment shall be
free from all liability for their 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 any of them from any responsibility or liability for any
responsibility, obligation or duty that they may have pursuant
to ERISA.
16.4 Indemnity by Participating Companies. In the
event and to the extent not insured against by any insurance
company pursuant to provisions of any applicable insurance
policy, the Participating Companies shall indemnify and hold
harmless any person from any and all claims, demands, suits or
proceedings made or threatened by reason of the fact that he,
his testator or intestate (i) is or was a director or officer of
a Participating Company or an Affiliated Company or (ii) is or
was an employee of a Participating Company or an Affiliated
Company who serves or served the Plan or Trust in any capacity
within the scope of his employment and as a delegatee (or
redelegatee) of the Sponsoring Company, provided such person
acted, in good faith, in what he reasonably believed to be the
best interest of the Plan. Expenses against which such person
may be indemnified hereunder include, without limitation, the
amount of any settlement or judgment, costs, counsel fees and
related charges reasonably incurred in connection with a claim
asserted or proceeding brought or settlement thereof. A
Participating Company from which indemnification may be sought
hereunder may, at its expense, settle any such claim, demand,
suit or proceeding made or threatened when such settlement
appears to be in the best interest of such Participating
Company. This Section 16.4 shall not be construed to limit
whatever rights of indemnity to which the persons specified in
this Section 16.4 and such other persons not described in the
foregoing provisions of this Section 16.4 who are or were (or
claim under or through) employees of a Participating Company or
an Affiliated Company may be entitled by law, corporate by-law
or otherwise.
16.5 Payment of Fees and Expenses. The Trustee, the
board of directors of the Sponsoring Company and any delegatee,
redelegatee or designee shall be entitled to payment from the
Trust Fund for all reasonable fees, costs, charges and expenses
incurred by them in the course of performance of their duties
under the Plan and the Trust, except to the extent that such
fees and costs are paid by any Participating Company or
Affiliated Company. Notwithstanding any other provision of the
Plan or Trust, no person who is a "disqualified person" within
the meaning of Section 4975(e)(2) of the Code, or a "party in
interest" within the meaning of Section 3(14) of ERISA and who
receives full-time pay from any Participating Company or
Affiliated Company shall receive compensation from the Trust
Fund, except for reimbursement of expenses properly and actually
incurred.
16.6 Voting of Shares. Each Member having all or a
part of his Account, Tax Deferred Account and/or Frozen Tanner
Account invested in Fund A under Section 8.1 of the Plan may
direct the Trustee as to the manner in which the common stock in
Fund A allocable to such Member's Account, Tax Deferred Account
and/or Frozen Tanner Account is to be voted. Before each annual
or special meeting of shareholders of the Sponsoring Company
there shall be sent to each such Member a copy of the proxy
soliciting material for the meeting, together with a form
requesting instructions to the Trustee on how to vote the stock
allocable to that part of such Member's Account, Tax Deferred
Account and/or Frozen Tanner Account in Fund A. The Trustee, in
its discretion, may vote the combined fractional shares of such
stock to the extent possible to reflect the directions of the
Members with allocated fractional shares. Upon receipt of such
instructions, the Trustee shall vote such shares as instructed.
In lieu of voting Members' allocable fractional shares as
instructed by Members, the Trustee may vote the combined
allocable fractional shares to the extent possible to reflect
the directions of Members with allocable fractional shares. The
Trustee shall vote shares of Stock in Fund A for which the
Trustee received no valid voting instructions in the same manner
and in the same proportion as the shares of Stock in Fund A with
respect to which the Trustee received valid voting instructions
are voted.
ARTICLE 17
BENEFIT CLAIMS PROCEDURE
17.1 Claims for Benefits. To be eligible for any
benefit under this Plan a Member or Beneficiary must submit a
claim therefor; provided, however that in the event a Member or
Beneficiary otherwise entitled to a benefit under the Plan
declines or fails to submit a claim within 90 days of a request
to do so, and the value of such Member's Accounts equals or is
less than $3,500, the Sponsoring Company may, within its sole
discretion, deem such Member or Beneficiary to have submitted a
claim for such benefit and to have elected a lump sum
distribution in cash. Any claim for benefits under the Plan
shall be made in writing to the Sponsoring Company. If such
claim for benefits is wholly or partially denied, the Sponsoring
Company shall, within 90 days after receipt of the claim, notify
the Member or Beneficiary of the denial of the claim. Such
notice of denial (i) shall be in writing, (ii) shall be written
in a manner calculated to be understood by the Member or
Beneficiary, and (iii) shall contain (A) the specific reason or
reasons for denial of the claim, (B) a specific reference to the
pertinent Plan provisions upon which the denial is based, (C) a
description of any additional material or information necessary
to perfect the claim, along with an explanation of why such
material or information is necessary, and (D) an explanation of
the claim review procedure, in accordance with the provisions of
this Article 17.
17.2 Request for Review of Claim Denial. Within 60
days after the receipt by the Member or Beneficiary of a written
notice of denial of the claim, or such later time as shall be
deemed reasonable taking into account the nature of the benefit
subject to the claim and any other attendant circumstances, the
Member or Beneficiary may file a written request with the
Sponsoring Company that it conduct a full and fair review of the
denial of the claim for benefits. Such written request shall be
filed in such form and manner and at such time as the Sponsoring
Company may from time to time prescribe.
17.3 Decision on Review of Claim Denial. The
Sponsoring Company shall make its determination in accordance
with the documents governing the Plan insofar as such documents
are consistent with the provisions of Title I of ERISA. The
Sponsoring Company shall deliver to the Member or Beneficiary
its written decision on the claim within 60 days after the
receipt of the aforesaid request for review, except that if
there are special circumstances (such as a conference with the
Member, Beneficiary or his representative) which require an
extension of time, the aforesaid 60-day period shall be extended
to 120 days. Such decision shall (i) be written in a manner
calculated to be understood by the Member or Beneficiary, (ii)
include the specific reason or reasons for the decision, and
(iii) contain a specific reference to the pertinent Plan
provisions upon which the decision is based.
ARTICLE 18
INALIENABILITY OF BENEFITS
The right of any Member 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, to the fullest
extent permitted by law, be subject to voluntary or involuntary
anticipation, transfer, alienation or assignment, attachment,
execution, garnishment, levy, sequestration or other legal or
equitable process. In the event a Member or Beneficiary who is
receiving or is entitled to receive benefits under the Plan
attempts to assign, transfer or dispose of such right, or if an
attempt is made to subject said right to such process, such
assignment, transfer or disposition shall be null and void.
Notwithstanding the foregoing provisions hereof, expressly
permitted are: (i) any arrangement to which the Sponsoring
Company consents for the direct deposit of benefit payments to
any account in a bank, savings and loan association or credit
union, provided such arrangement is not part of an arrangement
constituting an assignment or alienation; (ii) the recovery by
the Plan of overpayment of benefits previously made to a Member
or Beneficiary; or (iii) effective on and after January 1, 1985,
the creation, assignment, or recognition of a right to any
benefit payable pursuant to a qualified domestic relations court
order as defined in ERISA.
ADOPTION OF PLAN BY OTHER COMPANIES
ARTICLE 19
Any company may, with the approval of the Sponsoring
Company, adopt this Plan pursuant to appropriate written
resolutions of the board of directors or other managing body of
such company and by executing such documents with the Trustee as
may be necessary to make such company a party to the Trust as a
Participating Company. A company which adopts the Plan is
thereafter a Participating Company with respect to its Employees
for purposes of the Plan.
ARTICLE 20
WITHDRAWAL OF PARTICIPATING COMPANY FROM PLAN
20.1 Notice of Withdrawal. Subject to provisions of
Section 20.4, any Participating Company, with the consent of the
Sponsoring Company, may at any time withdraw from the Plan upon
giving the Sponsoring Company and the Trustee at least 30 days
notice in writing of its intention to withdraw.
20.2 Segregation of Trust Assets Upon Withdrawal. Upon
the withdrawal of a Participating Company pursuant to Section
20.1, the Trustee shall segregate the allocable share of the
assets in the Trust Fund, the value of which shall equal the
total credited to the accounts of Members employed by the
withdrawing Participating Company. Such segregation shall occur
upon a Valuation Date or such other date as may be specified by
the Sponsoring Company.
20.3 Exclusive Benefit of Members. Except as
otherwise allowed by law, neither the segregation and transfer
of the Trust assets upon the withdrawal of a Participating
Company nor the execution of a new agreement and declaration of
trust by such withdrawing Participating Company shall operate to
permit any part of the Trust Fund to be used for or diverted to
purposes other than for the exclusive benefit of the Members and
their Beneficiaries.
20.4 Applicability of Withdrawal Provisions. The
withdrawal provisions contained in this Article 20 shall be
applicable only if the withdrawing Participating Company
continues to cover its Members and eligible Employees in another
defined contribution plan and trust qualified under Sections 401
and 501 of the Code. Otherwise, the termination provisions of
Article 22 of the Plan shall apply.
ARTICLE 21
AMENDMENT OF THE PLAN
The Sponsoring Company may amend the Plan with respect to
any or all Participating Companies at any time, and from time to
time, by action of the board of directors of the Sponsoring
Company or its delegatee; provided, however, except as otherwise
allowed by law, no such amendment shall operate to permit any
part of the Trust Fund to be used for or diverted to purposes
other than for the exclusive benefit of the Members and their
Beneficiaries.
ARTICLE 22
PERMANENCY OF THE PLAN AND PLAN TERMINATION
22.1 Merger or Consolidation of Plan. The Plan may not
be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan, unless each
Member would (if the Plan then terminated) 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 had then terminated).
22.2 Right to Terminate Plan. The Sponsoring Company
reserves the right to terminate either the Plan or both the Plan
and the Trust as to any or all Participating Companies.
22.3 Discontinuance of Contributions. Whenever the
Sponsoring Company determines that it is impossible or
inadvisable for any Participating Company to make further
contributions as provided in the Plan, such Participating
Company may, without terminating the Plan and/or Trust,
temporarily or permanently discontinue all further contributions
by such Participating Company. Thereafter, the Sponsoring
Company and the Trustee shall continue to administer all the
provisions of the Plan which are necessary and remain in force,
other than the provisions relating to contributions by such
Participating Company. However, the Trust shall remain in
existence with respect to such Participating Company and all of
the provisions of the Trust Agreement shall remain in force.
22.4 Termination of Plan and Trust. If the Sponsoring
Company determines to terminate (as to any Participating
Company) the Plan and Trust completely, they shall be terminated
insofar as they are applicable to such Participating Company as
of the date of such termination. Upon such termination of the
Plan and Trust, after payment of all expenses and proportional
adjustment of accounts of Members employed by such Participating
Company to reflect such expenses, Trust Fund profits or losses,
and allocations of any previously unallocated funds to the date
of termination, such Participating Company's Members shall be
entitled to receive the amount then credited to their respective
Accounts, Tax Deferred Accounts and Frozen Tanner Account in the
Trust Fund. The Sponsoring Company, in its sole discretion, may
cause payment of such amount to be made in cash, or in assets of
the Trust Fund. Any amounts unallocable to such Participating
Company's Members shall be returned to the Sponsoring Company.
ARTICLE 23
MISCELLANEOUS
23.1 Status of Employment Relations. Nothing herein
contained shall be deemed (i) to give to any employee the right
to be retained in the employ of a Participating Company; (ii) to
affect the right of a Participating Company to terminate or
discharge any employee at any time; (iii) to give a
Participating Company the right to require any employee to
remain in its employ; or (iv) to affect any employee's right to
terminate his employment at any time.
23.2 Applicable Law. To the extent that State law
shall not have been preempted by ERISA or any other laws of the
United States, the Plan shall be construed, regulated,
interpreted and administered according to the laws of the
Commonwealth of Kentucky.
23.3 Legal Effect. The Plan described herein shall
amend and supersede, as of October 1, 1985, all provisions in
the Plan as in effect on September 30, 1985, except as otherwise
provided herein and further excepting that the rights of former
Members who terminated employment or retired prior to October 1,
1985, or made a total withdrawal prior to October 1, 1985 while
employed, shall be governed by the terms of the Plan in effect
at the time of termination of employment or retirement, or in
effect on September 30, 1985 in the case of total withdrawals
while employed, as the case may be, unless otherwise provided
herein.
ARTICLE 24
TENDER OFFER
24.1 Applicability. The provisions of this Article
24 shall apply in the event any person, either alone or in
conjunction with others, makes a tender offer, or exchange
offer, or otherwise offers to purchase or solicits an offer to
sell to such person 1% or more of the outstanding shares of the
stock of the Sponsoring Company (herein jointly and severally
referred to as a "tender offer").
24.2 Instructions to Trustee. The Trustee may not
take any action in response to a tender offer except as
otherwise provided in this Article 24. Each Member having all
or a part of his Account, Tax Deferred Account and/or Frozen
Tanner Account invested in Fund A of the Plan (determined as of
the latest Valuation Date for which record processing has been
completed at the time instructions under this Article 24 are
requested of Members) may direct the Trustee to sell, offer to
sell, exchange or otherwise dispose of all the shares of stock
in Fund A allocable to such Member's Account, Tax Deferred
Account and/or Frozen Tanner Account in accordance with the
provisions, conditions and terms of such tender offer and the
provisions of this Article 24. Such instructions shall be in
such form and shall be filed in such manner and at such time as
the Sponsoring Company and the Trustee may prescribe.
24.3 Trustee Action on Member Instructions. The
Trustee shall sell, offer to sell, exchange or otherwise dispose
of the shares held in Fund A with respect to which it has
received directions to do so under this Article 24 from Members.
The number of shares to be sold, offered for sale, exchanged or
otherwise disposed of by the Trustee under this Section 24.3
pursuant to a Member's direction shall reflect the value of such
Member's Account, Tax Deferred Account and/or Frozen Tanner
Account invested in Fund A (excluding all investments in Fund A
other than the shares to be sold, offered or exchanged)
determined as of the latest Valuation Date for which record
processing has been completed at the time of the Trustee's
disposition of shares. Each Member directing the Trustee to
dispose of his allocable shares under this Article 24 shall also
be deemed to have elected a transfer of the total value of his
Account, Tax Deferred Account and/or Frozen Tanner Account in
Fund A to a new investment fund under the Plan. For purposes of
this Article 24, such deemed transfers shall be effective as of
and shall use values as of the Valuation Date used to determine
the number of shares to be sold, offered for sale, exchanged or
otherwise disposed of by the Trustee under this Section 24.3.
Any gain or loss, whether realized or unrealized, on the
directed disposition of shares shall be allocated (in accordance
with the provisions of Section 10.3) among the members who have
directed such a disposition under this Article 24. The proceeds
derived from dispositions directed under this Article 24 shall
be invested by the Trustee in accordance with Section 24.4.
Except for the provisions of Section 8.2 (dealing with
contributions to the Plan) and Section 8.4 (dealing with
interfund transfers) all the provisions of the Plan and trust
agreement shall apply to such new investment fund. Any shares
becoming allocable to a Member's Account, Tax Deferred Account
and/or Frozen Tanner Account in Fund A after the latest
Valuation Date for which record processing has been completed at
the time of the Trustee's disposition of shares shall remain a
part of such Member's Account, Tax Deferred Account and/or
Frozen Tanner Account in Fund A subject to all the provisions of
the Plan other than this Article 24.
24.4 Investment of Proceeds. Any securities received
in connection with a disposition directed under this Article 24
shall remain a part of the new investment fund subject, however,
to the Sponsoring Company's right to amend the Plan in
accordance with its provisions. Any cash proceeds of a
disposition directed under this Article 24 and any income from
investments under the new investment fund shall remain a part of
the new investment fund and shall be invested in such securities
as the Sponsoring Company (or other fiduciary identified by the
Sponsoring Company for such purpose) may from time to time
direct; provided, however, in the absence of any direction from
the Sponsoring Company or other fiduciary the Trustee may in its
discretion invest the cash proceeds in short-term securities
issued by the United States of America or any agency or
instrumentality thereof or any other investments of a short-term
nature, including corporate obligations or participations
therein and interim collective or common investment funds.
24.5 Action With Respect to Members Not Instructing
the Trustee or Not Issuing Valid Instructions. To the extend to
which Members do not instruct the Trustee or do not issue valid
directions to the Trustee to sell, offer to sell, exchange or
otherwise dispose of the shares of stock of the Sponsoring
Company allocable to their Account, Tax Deferred Accounts and/or
Frozen Tanner Account in Fund A, such Members shall be deemed to
have directed the Trustee that such shares remain invested in
Fund A subject to all provisions of the Plan other than this
Article 24.
ARTICLE 25
SPECIAL RULES IN THE EVENT PLAN BECOMES TOP HEAVY
25.1 General. Effective for the Plan Years beginning
on and after October 1, 1984, notwithstanding any other
provision of the Plan, this Article 25 shall apply to each Plan
as to which the Plan is "Top-Heavy" (as hereinafter defined in
this Article 25), hereinafter called "Top-Heavy-Year", and, to
the extent provided in this Article 25, to each Plan Year
following a Plan Year as to which the Plan is Top-Heavy.
25.2 Minimum Benefits. The Participating Company
Contributions allocated to the account of each Member who is not
a Key Employee for the Top Heavy Year shall not be less than 3%
of such Member's Limitation Year Compensation (not to exceed
$200,000). Notwithstanding the preceding sentence, the
foregoing percentage for any Top Heavy Year shall not exceed the
percentage at which Participating Company Contributions are
allocated to the Account of the Key Employee for whom such
percentage is the highest for such Top Heavy Year; provided,
however, that all defined contribution plans within an
Aggregation Group shall be treated as one plan and this sentence
shall not apply to any plan required to be included in an
Aggregation Group if such plan enables a defined benefit plan
required to be included in such Group to meet the requirements
of Section 401(a)(4) or 410 of the Code.
25.3 Compensation Limitation. Compensation (as defined
in paragraph (g) of Section 2.1 of the Plan) shall not exceed
the limitation prescribed under Section 416(d) of the Code.
25.4 Definitions. For purposes of this Article 25, the
following definitions shall apply:
(a) "Aggregation Group" shall mean (i) each plan of a
Participating Company or an Affiliated Company in which a Key
Employee is a participant and (ii) each other plan of a
Participating Company or an Affiliated Company which enables any
plan described in clause (i) of this paragraph (a) to meet the
requirements of Section 401(a)(4) or 410 of the Code.
(b) "Determination Date" shall mean, with respect to any
Plan Year, the last day of the preceding Plan Year.
(c) "Key Employee" shall mean a "key employee" within the
meaning of Section 416(i) of the Code.
(d) "Top-Heavy" shall mean, with respect to any Plan Year,
that the Plan falls within a Top-Heavy-Group or that, as of the
Determination Date, the Top Heavy Ratio exceeds 60%.
(e) "Top-Heavy Group" shall mean, with respect to any Plan
Year, any Aggregation Group if (as of the Determination Date)
the sum of the Top Heavy Ratios for each plan falling within the
Aggregation Group exceeds 60%.
(f) "Top Heavy Ratio" shall mean, with respect to any
Determination Date,
(1) For any defined benefit plan the ratio of the
present value of the cumulative accrued benefits (including
any benefits derived from employee contributions) under the
plan for all Key Employees to the present value of the
cumulative accrued benefits (including any benefits derived
from employee contributions) under the plan for all
employees. Such present value shall be consistently and
uniformly determined under regulations under Section 416 of
the Code (i) by using the actuarial assumptions used by the
plan for purposes of minimum funding standards under
Section 412 of the Code (modified as necessary to conform
with the requirements of Section 416 of the Code and
regulations thereunder); (ii) as of the most recent
valuation date used for computing plan costs for purposes
of minimum funding under Section 412 of the Code falling
within a 12 month period ending on the Determination Date;
(iii) by including distributions made within the Plan Year
in which falls the Determination Date and the 4 preceding
Plan Years; and (iv) on the basis that each employee
terminated employment on the valuation date.
(2) For any defined contribution plan the ratio of the
sum of the account balances under the plan as of the
Determination Date for Key Employees to the sum of the
account balances under the plan as of the Determination Date
for all employees.
IN WITNESS WHEREOF, the Sponsoring Company has caused this
Plan to be executed this ______ day of _____________________,
__________.
ATTEST: ASHLAND OIL, INC.
___________________________ By:__________________________
Secretary
TRUST AGREEMENT
UNDER
ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
THIS AGREEMENT made as of the 31st day of March, 1985, by
and between Ashland Oil, Inc., a Kentucky corporation
(hereinafter referred to as the "Company") on its own behalf
and as agent for all companies participating in the Plan and
AMERITRUST COMPANY NATIONAL ASSOCIATION (hereinafter called
the "Trustee").
WITNESSETH:
WHEREAS, the Company established the Ashland Oil, Inc.
Employee Thrift Plan (hereinafter called the "Plan")
originally effective June 1, 1964 for the benefit of employees
eligible to participate therein and amended from time to time
thereafter, and most recently amended and restated effective
October 1, 1983; and
WHEREAS, the Company has previously entered into a Trust
Agreement with Chemical Bank, New York to hold and administer
the Trust Fund in accordance with the provisions of the Plan;
WHEREAS, the Company has determined to remove Chemical
Bank as Trustee and to appoint AmeriTrust Company National
Association as Successor Trustee, and to amend and restate the
provisions of the Trust Agreement effective as of March 31,
1985;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained, the Company and the
Trustee do hereby covenant and agree as follows:
1. Trust Fund. The Trustee shall receive from the prior
Trustee and the Company cash or other property acceptable to
it. All assets so received together with the income therefrom
and any other increment thereon (hereinafter called the "Trust
Fund") shall be held, managed and administered by the Trustee
pursuant to the terms hereof without distinction between
principal and income. The Trustee shall not be responsible
for the collection of any contributions to be made under the
Plan. The Trustee shall be under no duties whatsoever in
respect of the administration of the Plan other than as
provided in Paragraph 7 hereof, it being intended to state
expressly in this Agreement the powers, rights, duties and
obligations of the Trustee hereunder, and the Trustee shall be
responsible only for money or other property received by it
pursuant to this Agreement. The Trust Fund shall be comprised
of six separate funds, as hereinafter described.
A. Fund A shall be a fund consisting of common stock of
the Company contributed by one or more Participating
Companies (as defined in the Plan) or purchased by the
Trustee (i) on the open market; (ii) by the exercise of
stock rights; (iii) through participation in any dividend
reinvestment program of the Company, including any such
program which involves the direct issuance or sale of
common stock by the Company (if no commission is charged
with respect to such direct issuance or sale); or (iv)
upon the direction of the Company, from the Company
whether in treasury stock or authorized but unissued
stock, all as more fully set forth in Article 8 of the
Plan. Stock purchased by the Trustee pursuant to clause
(iii) of this Subparagraph A shall be valued pursuant to
such dividend reinvestment program and shall be purchased
in accordance with all of the terms and conditions of such
program. Stock contributed by a Participating Company or
purchased by the Trustee pursuant to clause (iv) of this
paragraph (a) shall be valued at the closing price of
such stock on the New York Stock Exchange composite tape
for the trading day immediately preceding the date on
which such stock is contributed or sold to the Plan. In no
event shall a commission be charged with respect to a
purchase pursuant to clause (iv).
B. Fund B shall be a fixed income fund invested with
one or more insurance companies, banks, or trust companies
designated from time to time by the Company under an
agreement or agreements which shall contain provisions
that the insurance company, bank, or trust company will
guarantee repayment in full of such amounts transferred to
them plus interest at a fixed annual rate or greater for a
specified period; provided, however, that this shall not
be construed to impair the right of the Company to
terminate any such contract before its expiration or
maturity, or to replace it with a contract with a
different maturity or expiration date and/or a different
annual rate.
C. Fund C shall be a fund invested in securities issued
by the United States of America or any agency or
instrumentality thereof, including interests of one or
more pooled separate accounts of an insurance company
appointed by the Company or of one or more common,
collective, or commingled established by the Trustee (or
any Investment Manager having trust powers) appointed by
the Company for collective investment in such securities
(which fund is exempt from tax under Section 501 of the
Code).
D. Fund D shall be a diversified equities fund invested
in (i) common or capital stock; (ii) bonds, notes,
debentures or preferred stocks convertible into common
stocks; or (iii) interests of one or more pooled separate
accounts of an insurance company appointed by the Company
or of one or more common, collective, or commingled trust
funds established by the Trustee (or any Investment
Manager having trust powers) appointed by the Company for
collective investment in such securities (which fund is
exempt from tax under Section 501 of the Code); excluding,
however, any stocks or other securities of any
Participating Company or Affiliated Company, except that
this limitation to the extent it pertains to securities of
a Participating Company and an Affiliated Company shall
not apply to any investment not proscribed by applicable
law in a pooled account or commingled trust as hereinabove
described.
E. Fund E shall be a fund invested in Ashland Oil,
Cumulative Preferred Stock, $4.50 Series of 1980.
F. Fund F shall be a fund invested in Ashland Oil, Inc.
11.10% Subordinated Debentures Due 2004.
In any Investment Fund, the Trustee may temporarily hold
cash or make investments in short-term securities issued by
the United States of America or any agency or instrumentality
thereof or any other investments of a short-term nature,
including corporate obligations or participations therein and
interim collective or common investment funds.
2. Distributions. Subject to the provisions of Paragraphs
4 and 6, the Trustee shall from time to time on the directions
of the administering entity of the Plan as provided for in
Article 16 thereof (hereinafter called "Plan Administrator")
make distributions out of the Trust Fund to such persons,
whether natural or legal (hereinafter called "Persons"), in
such manner, in such amounts, and for such purposes, including
the purchase of life insurance and/or annuity contracts, as
may be specified in the directions of the Plan Administrator.
The Trustee shall be under no duty to make inquiries as to
whether any distribution directed by the Plan Administrator is
made pursuant to the provisions of the Plan.
The Trustee may withhold, or require the withholding, from
any distribution such sum as the Trustee may reasonably
estimate as necessary to cover any taxes for which the Trust
may be liable, which are, or may be, assessed with regard to
such distribution. Upon discharge or settlement of such tax
liability, the Trustee shall distribute the balance of such
sum, if any, to the distributee from whose distribution it was
withheld, or if such distributee is then deceased, to such
beneficiary of the Participant from whose share it was
withheld as the Company shall direct.
3. Contributions. All contributions made under the Plan
shall be delivered to the Trustee. The Trustee shall be
accountable for all contributions received by it but shall
have no duty to require any contributions to be made to it or
to determine that the contributions received comply with the
Plan. Where the Company or a Participating Company acquires a
business, or the assets and employees of the business, and
where there was a comparable thrift plan for the employees of
the business operation so acquired in which such employees
have become vested, such funds may be transferred into the
Trust Fund and become part of the Plan; provided, however,
that the Trustee shall maintain a separate accounting for such
transferred funds or securities until the respective employees
have achieved a vested status in the Plan as provided therein.
No company contribution shall be made with respect to any such
funds or securities so transferred from the thrift plan of the
acquired business.
4. Prohibition against Diversion. Notwithstanding
anything to the contrary contained in this Agreement, or in
any amendment thereto, it shall be impossible, at any time
prior to the satisfaction of all liabilities with respect to
the participants under the Plan or their beneficiaries, for
any part of the Trust Fund, other than such part as is
required to pay taxes and administration fees and expenses,
to be used for, or diverted to, purposes other than for the
exclusive use of the participants under the Plan or their
beneficiaries. In making a distribution upon a direction as
authorized in paragraph 2, the Trustee may accept such
direction as a certification that such payment complies with
the provisions of this Paragraph 4 and need make no further
investigation.
5. Powers, Duties and Immunities of Trustee. The Trustee
shall invest all contributions made under the Plan and
delivered to the Trustee by the Company for the accounts of
the Participants as provided in Articles IV and VIII of the
Plan. Except as to Funds E and F, income from investments in
each Fund comprising the Trust Fund shall be reinvested in
such Fund. Income from Funds E and F shall be invested in
accordance with the affected Participants' investment
directives. Subject to the limitations on investment
authority with respect to each of the six Funds, the Trustee
is empowered with respect to the Trust Fund:
A. To invest and reinvest all or any part of the Trust
Fund without distinction between principal and income,
in each and every kind of property, whether real,
personal or mixed, tangible or intangible, whether
income or non-income producing, whether secured or
unsecured, and wherever situated, including, but not
limited to, real estate, shares of common and preferred
stock, securities and obligations of any kind issued by
the Company, mortgages and bonds, leases (with or
without option to purchase), notes, debentures,
equipment or collateral trust certificates, and other
corporate, individual or government securities or
obligations, time deposits (including savings deposits
and certificates of deposit in AmeriTrust Company
National Association or its affiliates if such deposits
bear a reasonable rate of interest) annuity and
insurance contracts (including, but not limited to,
retirement income contract(s) or contract(s) with an
insurance company or companies of the deposit
administration type) and in units of AmeriTrust Company
National Association Retirement Trust or in units of
any other common trust fund heretofore or hereafter
created and administered by the Trustee or its
affiliates. As long as the Trustee holds any such
units hereunder, the instrument establishing such
common trust fund (including all amendments thereto)
shall be deemed to have been adopted and made a part of
this Trust;
B. At such time or times, and upon such terms and
conditions as the Trustee shall deem advisable, to
sell, convert, redeem, exchange, grant options for the
purchase or exchange of, or otherwise dispose of, any
property held hereunder, at public or private sale, for
cash or upon credit, with or without security, without
obligation on the part of any Person dealing with the
Trustee to see to the application of the proceeds of or
to inquire into the validity, expediency, or propriety
of any such disposal;
C. To manage, operate, repair, partition, and improve and
mortgage or lease (with or without an option to
purchase) for any length of time any property held in
the Trust Fund; to renew or extend any mortgage or
lease, upon such terms as the Trustee may deem
expedient; to agree to reduction of the rate of
interest on any mortgage; to agree to any modification
in the terms of any lease or mortgage or of any
guarantee pertaining to either of them; to exercise and
enforce any right of foreclosure; to bid on property in
foreclosure; to take a deed in lieu of foreclosure with
or without paying consideration therefor and in
connection therewith to release the obligation on the
bond secured by the mortgage; and to exercise and
enforce in any action, suit, or proceeding at law or in
equity any rights, covenants, conditions or remedies
with respect to any lease or mortgage or to any
guarantee pertaining to either of them or to waive any
default in the performance thereof;
D. To exercise, personally or by general or limited proxy,
the right to vote any shares of stock or other
securities held in the Trust Fund, provided that all
voting rights pertaining to any shares of any Ohio
financial institution shall be exercised by the Trustee
only if and as directed in writing by the Committee;
to delegate discretionary voting power to trustees of a
voting trust for any period of time; and to exercise or
sell, personally or by power of attorney, any
conversion or subscription or other rights appurtenant
to any securities or other property held in the Trust
Fund;
E. To join in or oppose any reorganization,
recapitalization, consolidation, merger or liquidation,
or any plan therefor, or any lease (with or without an
option to purchase), mortgage or sale of the property
of any organization the securities of which are held in
the Trust Fund; to pay from the Trust Fund any
assessments, charges or compensation specified in any
plan of reorganization, recapitalization,
consolidation, merger or liquidation; to deposit any
property with any committee or depository; and to
retain any property allotted to the Trust Fund in any
reorganization, recapitalization, consolidation, merger
or liquidation;
F. To compromise, settle, or arbitrate any claim, debt or
obligation of or against the Trust Fund; to enforce or
abstain from enforcing any right, claim, debt, or
obligation; and to abandon any property determined by
it to be worthless;
G. To employ agents who are not regular employees of
Trustee and delegate to them such ministerial and
limited discretionary duties (other than the
responsibility to manage or control the assets of the
Plan) as the Trustee sees fit; the Trustee shall not be
responsible for any loss occasioned by any such agents
selected by it with reasonable care;
H. To consult with legal counsel (who may be counsel for
the Company) concerning any question which may arise
with reference to its powers or duties under this
Agreement, and the written opinion of such counsel
shall be full and complete protection with respect to
any action taken or suffered by the Trustee in good
faith and in accordance with the written opinion of
such counsel;
I. Consistent with its obligations as Trustee hereunder,
to continue to hold any property of the Trust Fund,
whether or not productive of income; to reserve from
investment and keep unproductive of income, without
liability for interest, such cash as it deems advisable
and to hold such cash in a demand deposit in
AmeriTrust Company National Association;
J. To hold property of the Trust Fund in bulk, in bearer
form, in its own name or in the name of a nominee,
without disclosure of this trust, and to deposit
property with any depository, but no such holding or
depositing shall relieve the Trustee of its
responsibility for the safe custody and disposition of
the Trust Fund in accordance with the provisions of
this Agreement, and the Trustee's records shall at all
times show that such property is part of the Trust
Fund;
K. To make, execute and deliver, as Trustee, any deeds,
conveyances, leases (with or without option to
purchase), mortgages, options, contracts, waivers or
other instruments that the Trustee shall deem necessary
or desirable in the exercise of its powers under this
Agreement;
L. To pay out of the Trust Fund all taxes imposed or
levied with respect to the Trust Fund and in its
discretion may contest the validity or amount of any
tax, assessment, penalty, claim, or demand respecting
the Trust Fund; however, unless the Trustee shall have
first been indemnified to its satisfaction, it shall
not be required to contest the validity of any tax, or
to institute, maintain, or defend against any other
action or proceeding either at law or in equity; and
M. To borrow, if requested by the Company, to pay benefits
upon such terms and conditions as the Company shall
determine or approve.
N. To do all other acts that the Trustee may deem
necessary for the proper administration of this
Agreement.
The Trustee shall discharge its duties hereunder 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 a like character and with like aims. Subject to
the provisions of Paragraph 1, the Trustee shall diversify the
investments under this Trust so as to minimize the risk of
large losses unless under the circumstances it is clearly
prudent not to do so.
6. Compensation and Expenses of Trustee. The Trustee
shall be entitled to receive reasonable fees for its services
hereunder in accordance with its schedule of fees then in
effect and shall be entitled to receive reimbursement for all
reasonable expenses incurred by it in the administration of
the Trust Fund. Such fees and all expenses of administration
of the Trust Fund including, but not limited to, fees of
agents
and counsel shall be paid by the Trustee out of the Trust Fund
unless paid by the Company.
7. Accounting by Trustee. The Trustee shall maintain such
accounts and records as the Plan Administrator and the Trustee
shall agree upon. The Trustee shall render from time to time
accounts of its transactions to the Plan Administrator, and
the Plan Administrator may approve such accounts by an
instrument in writing delivered to the Trustee. In the absence
of the filing in writing with the Trustee by the Plan
Administrator of exceptions or objections to any such account
within six (6) months, the Company shall be deemed to have
approved such account; and in such case, or upon the written
approval by the Plan Administrator of any such account, the
Trustee shall be released, relieved and discharged as to the
Company with respect to all matters and things set forth in
such account as though such account had been settled by the
decree of a court of competent jurisdiction. No person other
than the Company may require an accounting.
8. Reliance of Trustee on Plan Administrator. The Trustee
shall be fully protected in relying upon a certification
signed by one or more of such individuals as shall be
designated in writing by the Plan Administrator to have
certain ministerial or fiduciary powers, as provided in
Article 16 of the Plan, with respect to any instruction,
direction or approval of the Plan Administrator, and in
continuing to rely upon such certification and/or instrument
until a subsequent one is filed with the Trustee. The Trustee
shall be fully protected by the Company in acting upon any
instrument, certificate, or paper believed by it to be
genuine and to be signed or presented by the proper
person(s), and the Trustee shall be under no duty to make any
investigation or inquiry as to any statement contained in any
such writing but may accept the same as conclusive evidence
of the truth and accuracy of the statements therein contained.
The Trustee shall have no duty to see to the proper
application of any part of the Trust Fund if distributions are
made in accordance with the written directions of the Plan
Administrator as herein provided, nor shall the Trustee be
responsible for the adequacy of the Trust Fund to meet and
discharge any and all distributions and liabilities under the
Plan. All persons dealing with the Trustee are released from
inquiry into the decisions or authority of the Trustee and
from seeing to the application of any moneys, securities, or
other property paid or delivered to the Trustee.
9. Tender Offer. The provisions of this Paragraph 9 shall
apply in the event any person, either alone or in conjunction
with others, makes a tender offer, or exchange offer, or
otherwise offers to purchase or solicits an offer to sell to
such person 5% or more of the outstanding shares of the stock
of the Company (herein jointly and severally referred to as a
"tender offer") .
A. Instructions to Trustee. The Trustee may not take any
action in response to a tender offer except as otherwise
provided in this Paragraph 9. Each Participant in the Plan
having all or a part of his account invested in Fund A of the
Plan (determined as of the latest date for which record
processing has been completed at the time instructions under
this Paragraph 9 are requested of Participants) may direct the
Trustee to sell, offer to sell, exchange or otherwise dispose
of all the shares of stock in Fund A allocable to such
Participant's account in accordance with the provisions of
this Paragraph 9. Such instructions shall be in such form and
shall be filed in such manner and at such time as the Company
and Trustee may prescribe.
B. Trustee Action on Participant Instructions. The Trustee
shall sell, offer to sell, exchange or otherwise dispose of
the shares held in Fund A with respect to which it has
received directions to do so under this Paragraph 9 from Plan
Participants. The number of shares to be sold, offered for
sale, exchanged or otherwise disposed of by the Trustee under
this Section 9B pursuant to a Plan Participant's direction
shall reflect the value of such Participant's account invested
in Fund A (excluding all investments in Fund A other than the
shares to be sold, offered or exchanged) determined as of the
latest date for which such record processing has been
completed at the time of the Trustee's disposition of shares.
Each Plan Participant directing the Trustee to dispose of his
allocable shares under this Paragraph 9 shall also be deemed
to have elected a transfer of the total value of his account
in Fund A to a new investment fund under the Plan and Trust.
For purposes of this Paragraph 9, such deemed transfers shall
be effective as of and shall use values as of the date used to
determine the number of shares to be sold, offered for sale,
exchanged or otherwise disposed of by the Trustee under this
Section 9B. Any gain or loss, whether realized or unrealized,
on the directed disposition of shares shall be allocated (in
accordance with the provisions of the Plan) among the Plan
Participants who have directed such a disposition under this
Paragraph 9. The proceeds derived from dispositions directed
under this Paragraph 9 shall be invested by the Trustee in
accordance with Subparagraph 9C. Except as otherwise provided
in the Plan, all the provisions of the Plan and this Trust
Agreement shall apply to such new investment fund. Any shares
becoming allocable to a Plan Participant's account in Fund A
after the latest date for which record processing has been
completed at the time of the Trustee's disposition of shares
shall remain a part of such Participant's account in Fund A
subject to the provisions of the Plan and this Trust Agreement
other than this Paragraph 9.
C. Investment of Proceeds. Any securities received in
connection with a disposition directed under this Paragraph 9
shall remain a part of the new investment fund subject,
however, to the Company's right to amend the Plan and Trust
Agreement in accordance with their provisions. Any cash
proceeds of a disposition directed under this Paragraph 9
shall remain a part of the new investment fund and shall be
invested in such securities as the Company (or other fiduciary
identified by the Company for such purpose) may from time to
time direct; provided, however, in the absence of any
direction from the Company or other fiduciary the Trustee may
in its discretion invest the cash proceeds in short-term
securities issued by the United States of America or any
agency or instrumentality thereof or any other investments of
a short-term nature, including corporate obligations or
participations therein and interim collective or common
investment funds.
D. Action With Respect to Plan Participants Not Instructing
the Trustee or Not Issuing Valid Instructions. To the extent
to which Plan Participants do not issue valid directions to
the Trustee to sell, offer to sell, exchange or otherwise
dispose of the shares of stock of the Company allocable to
their accounts in Fund A, such Participants shall be deemed
to have directed the Trustee that such shares remain invested
in Fund A subject to all the provisions of the Plan (except as
otherwise provided in the Plan) and subject to all the
provisions of this Trust Agreement other than this Paragraph
9.
10. Trustee's Immunities. The Trustee and its nominee shall
be indemnified and held harmless by the Company from and
against all actions or causes of action, claims, demands,
liabilities, losses, damages, or expenses of whatsoever kind
and nature which it or its nominee may at any time sustain or
incur hereunder as a direct or indirect result of anything
done in good faith in reliance upon the directions of the
Company and the Participant instructions pursuant to Paragraph
9. Notwithstanding the preceding sentence, the Company shall
have no responsibility to the Trustee under the foregoing
undertaking if the Trustee fails to perform any of the duties
specifically undertaken by it pursuant to this Agreement, or
if the Trustee fails to act in conformity with duly given and
authorized directions of such person.
11. Resignation or Removal of Trustee. Any Trustee acting
hereunder may resign at any time by giving notice in writing
to the Company at least six (6) months before such
resignation is to become effective, unless the Company shall
accept as adequate a shorter notice. The Company may, with or
without cause, remove any Trustee acting hereunder by giving
notice in writing to such Trustee at least six (6) months
before such removal is to become effective, unless the Trustee
shall accept as adequate a shorter notice. If for any reason
a vacancy should occur in the trusteeship, a successor Trustee
shall forthwith be appointed by the Company by action of its
Board of Directors. Any successor Trustee appointed hereunder
shall execute, acknowledge, and deliver to the Company an
instrument in writing accepting such appointment hereunder.
Such successor Trustee thereupon shall become vested with the
same title to the property comprising the Trust Fund, and the
same powers, duties, and immunities with respect thereto, as
are hereby vested in the original Trustee. The predecessor
Trustee shall execute all such instruments and perform all
such other acts as the successor Trustee shall reasonably
request to effectuate the provisions hereof. The successor
Trustee shall have no duty to inquire into the administration
of the Trust for any period prior to its succession.
12. Amendment. The Company and the Trustee reserve the
right from time to time to amend the provisions of this
Agreement in any manner. Any such amendment shall be by
written instrument executed by the Company and the Trustee.
Any such amendment may be made retroactively if such amendment
is necessary to enable the Plan and this Agreement to meet the
requirements of the Internal Revenue Code (including the
Regulations and Rulings issued thereunder) or the requirements
of any Governmental authority.
13. Prohibition against Alienation. Except as otherwise
provided in the Plan the rights of any Participant or
Beneficiary to any benefits or payments under this Agreement
shall not be subject to voluntary or involuntary transfer,
alienation or assignment, and to the fullest extent permitted
by law shall not be subject to attachment, execution,
garnishment, sequestration or other legal or equitable
process. In the event a Participant or Beneficiary who is
receiving or is entitled to receive benefits under this
Agreement attempts to assign, transfer or dispose of such
right or an attempt is made to subject such right to such
process such assignment, transfer or disposition shall be null
and void.
14. Termination of Agreement. This Agreement and the trust
created hereby may be terminated at any time by the Company,
and upon such termination, the Trust Fund shall be paid out by
the Trustee as and when directed by the Plan Administrator in
accordance with the provisions of Paragraph 2. Upon such
distribution in accordance with the direction of the committee
the Trustee shall be released and discharged.
15. Ohio Law to Apply. This Agreement and the trust
created hereby shall be construed, regulated, and administered
under the laws of the State of Ohio, the Internal Revenue Code
of 1954, as the same has been or may hereafter be amended and
the Employee Retirement Income Security Act of 1974. All
contributions to the Trustee shall be deemed to take place in
the State of Ohio. The Trustee may at any time initiate an
action or proceedings for the settlement of its accounts or
for the determination of any question of construction which
may arise, or for instructions.
16. Titles. Titles of Paragraphs are placed herein for
convenience of reference only and shall have no bearing upon
the interpretation of this Agreement.
17. Acts by Company. Any acts by the Company authorized
hereunder shall be evidenced by resolutions of its Board of
Directors.
18. Counterparts. This Agreement may be executed in any
number of counterparts, each one of which shall be deemed to
be the original.
19. Filings Required by Law. The Company agrees that,
except as otherwise provided herein, it will have
responsibility for the preparation and delivery to persons and
governmental agencies of all information, descriptions and
required by law. The Trustee shall be entitled, as it may
deem appropriate from time to time, to reasonably require of
the Company, or any other person involved in the
administration of the Plan or the investment of the Trust
Fund, or having any interest under the Plan as in, to, or
under this Agreement or to the Trust Fund held hereunder, such
certifications and proofs of facts as shall permit the Trustee
to perform its duties under applicable law and regulations
adopted thereunder as may be in effect from time to time, or
to exercise the powers granted the Trustee under this
Agreement.
20. Substitution of Trustee. Any corporation or
association into which the Trustee may be converted, merged or
with which it may be consolidated, or any corporation or
association resulting from any conversion, merger,
reorganization or consolidation to which the Trustee may be a
party, shall be the successor of the Trustee hereunder without
the execution or filing of any instrument or the performance
of any further act.
21. Employees' and Participants' Rights. No right of any
employee, participant, retired employee or retired participant
shall be increased or decreased by reason of this Agreement,
it being expressly understood and agreed that this Agreement
is not intended as a termination of the trust and no rights of
any employee, participant, retired employee, or retired
participant that would occur upon any termination are
intended to come into effect upon execution of this Agreement.
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Agreement to be executed this ____ day of__________, 1985
on their behalf by their duly authorized officers as of the
date first above written.
ASHLAND OIL INC. AMERITRUST COMPANY NATIONAL
ASSOCIATION, Trustee
By:________________________ By:_________________________
And________________________ And_________________________
AMENDMENT TO THE
TRUST AGREEMENT
UNDER
ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
The Trust Agreement under Ashland Oil, Inc. Employee
Thrift Plan made as of the 31st day of March, 1985, by and
between Ashland Oil, Inc. ("Company") and AmeriTrust Company
National Association ("Trustee") is amended as follows:
1. Effective May 1, 1986, subparagraph (F) of
paragraph 1 (describing a fund invested in Ashland Oil, Inc.
11.10% Subordinated Debentures Due 2004) is deleted.
2. Effective June 1, 1986, subparagraph (E) of
paragraph 1 (describing a fund invested in Ashland Oil, Inc.
Cumulative Preferred Stock, $4.50 Series of 1980) is deleted.
3. In connection with the liquidation of the
aforesaid funds the Trustee shall have the right to sell such
debentures and such preferred stock to the Company at par or
$45.00, respectively, in the event the Trustee is unable to
dispose of such securities on the open market at such price or
higher; provided, however, no commission shall be charged in
respect to any sale to the Company.
IN WITNESS WHEREOF, the Sponsoring Company has caused
this amendment to be executed this ___ day of ______________,
1986.
ASHLAND OIL, INC. AMERITRUST COMPANY
NATIONAL ASSOCIATION, as
Trustee
By____________________________ By____________________________
AMENDMENT NO. 2 TO THE
TRUST AGREEMENT UNDER THE
ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
WHEREAS, Ashland Oil, Inc. ("Company") established the
Ashland Oil, Inc. Employee Thrift Plan for the benefit of
employees eligible to participate therein;
WHEREAS, the Company and AmeriTrust Company National
Association ("Trustee") entered into an agreement as of March
31, 1985 ("Agreement") to continue, upon the terms and
conditions stated therein, the trust which was a part of the
aforesaid Plan;
WHEREAS, the Company has previously amended and
proposes to further amend the aforesaid Plan and the Company
and Trustee desire to make conforming amendments and other
changes to the Agreement;
NOW, THEREFORE, upon the mutual promises contained in
the Agreement and this amendment, the Agreement is amended as
follows:
1. Effective April 1, 1987, paragraph D of section 5
is amended by adding at the beginning thereof: "Except as
provided in the Plan in respect of Company stock."
2. Effective April 1, 1987, the introductory portion
of paragraph 9 is amended to read:
"9. Tender Offer. The provisions of this Paragraph
9 shall apply in the event that the Trustee
determines that any person, either alone or in
conjunction with others, makes a tender offer, or
exchange offer, or otherwise offers to purchase or
solicits an offer to sell to such person one
percent or more of the total outstanding shares of
the common stock of the Company (hereinafter
jointly and severally referred to as a "Tender
Offer").
3. Effective April 1, 1987, paragraph 10 is amended
to read:
"10. Trustee's Immunities. The Company shall hold
the Trustee harmless and shall indemnify the
Trustee for any and all losses, claims, damages,
liabilities or expenses whatsoever (including, but
not limited to attorneys' fees) resulting from the
Trustee's performance of its duties in the manner
specified in this Agreement. In the event that the
Trustee does not perform its duties in the manner
specified in this Agreement, the Company's
obligation to indemnify the Trustee shall be
limited to payment of reasonable attorneys' fees
and costs and expenses of litigation, and such
fees, costs and expenses shall only be payable if
the Trustee succeeds on the merits of the case.
The Trustee shall have the right to select its own
separate counsel."
IN WITNESS WHEREOF, the Company and the Trustee has
executed this amendment the ____ day of ____________, 1987.
ASHLAND OIL, INC. AMERITRUST COMPANY NATIONAL
ASSOCIATION, as Trustee
By________________________ By___________________________
AMENDMENT NO. 3 TO THE
TRUST AGREEMENT UNDER THE ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
WHEREAS, Ashland Oil, Inc. (the "Company") established
the Ashland Oil, Inc. Employee Thrift Plan (the "Plan") for
the benefit of employees eligible to participate therein; and
WHEREAS, the Company and AmeriTrust Company National
Association (the "Trustee") entered into an agreement as of
March 31, 1985 ("Agreement") to continue, upon the terms and
conditions stated therein, the trust which was a part of the
Plan; and
WHEREAS, the Company and the Trustee have previously
amended the Agreement and the Company and the Trustee desire
to make further amendments and changes to the Agreement;
NOW, THEREFORE, upon the mutual promises contained in the
Agreement and this amendment, the Agreement is amended as
follows:
1. Clause (iv) of subparagraph A of paragraph 1 of the
Agreement is amended by deleting the phrase "upon the
direction of the Company," therefrom.
2. Subparagraphs B, C and D of paragraph 1 of the
Agreement are amended to read:
"B. Fund B shall be a fixed income fund invested with
one or more insurance companies, banks, or trust
companies designated from time to time by the Company
(or an Investment Manager appointed by the Company in
accordance with the Plan and paragraph 5(A) of the
Agreement) under an agreement or agreements which shall
contain provisions that the insurance company, bank, or
trust company will guarantee repayment in full of such
amounts transferred to them plus interest at a fixed
and/or variable rate or greater for a specified period;
provided, however, that this shall not be construed to
impair the right of the Company (or an Investment
Manager appointed by the Company) to terminate any such
contract before its expiration or maturity, or to
replace it with a contract with a different maturity or
expiration date and/or a different annual rate.
C. Fund C shall be a fund invested in securities
issued by the United States of America or any agency or
instrumentality thereof, including interests of one or
more pooled separate accounts of an insurance company
appointed by the Company (or an Investment Manager
appointed by the Company in accordance with the Plan
and paragraph 5(A) of the Agreement) or of one or more
common, collective, or commingled trust funds
established by the Trustee (or any Investment Manager
having trust powers appointed by the Company) for
collective investment in such securities (which fund
is exempt from tax under Section 501 of the Code).
D. Fund D shall be a diversified equities fund
invested in (i) common or capital stock; (ii) bonds,
notes, debentures or preferred stocks convertible into
common stocks; or (iii) interests of one or more pooled
separate accounts of an insurance company appointed by
the Company (or an Investment Manager appointed by the
Company in accordance with the Plan and paragraph 5(A)
of the Agreement) or of one or more common, collective,
or commingled trust funds established by the Trustee
(or any Investment Manager having trust powers
appointed by the Company) for collective investment in
such securities (which fund is exempt from tax under
Section 501 of the Code); excluding, however, any
stocks or other securities of any Participating Company
and an Affiliated Company, except that this limitation
to the extent it pertains to securities of a
Participating Company and an Affiliated Company shall
not apply to any investment not proscribed by
applicable law in a pooled account or commingled trust
as hereinabove described."
3. The Agreement is amended by adding a new paragraph
5(A) following paragraph 5 as follows:
"5(A). Appointment of Investment Manager. The Company
may at any time and from time to time appoint, and revoke the
appointment of, an investment manager ("Investment Manager"),
who shall be registered as an investment adviser under the
Investment Advisers Act of 1940, a bank as defined in that Act
or an insurance company qualified to perform investment
services under the laws of more than one state of the United
States, and who acknowledges in writing to the Company that it
is a fiduciary with respect to the Plan. The Investment
Manager shall not be the agent of the Trustee. The Company
shall notify the Trustee in writing of any such appointment
(or revocation thereof), and the Trustee shall be protected in
relying upon such appointment continuing in effect until it
receives written notice from the Company of its revocation.
So long as, and to the extent that, any such Investment
Manager is appointed, the following provisions shall apply:
(A) The Trustee shall invest, reinvest and retain the
Trust Fund in accordance with the instructions
received from the Investment Manager, and
(B) With respect to assets in the Trust Fund, the
Trustee shall follow any instructions received by
it from the Investment Manager as to the exercise
by the Trustee of the powers conferred upon it
under Paragraph 5 hereof;
(C) That part of the Trust Fund not assigned to an
Investment Manager shall be invested, reinvested
and retained by the Trustee in accordance with its
own discretion and the provisions of the Plan.
All instructions from the Investment Manager to the Trustee
shall be in writing (or by telephone or telegraph confirmed
in writing) or may be issued through the facilities of an
institutional delivery system of a depository and shall be
complete in all reasonable and necessary details. The Trustee
shall have no duty to question such instructions nor shall the
Trustee incur any liability for following such instructions.
The Company shall regularly notify the Investment Manager
of the anticipated cash requirements for disbursements from
the Trust Fund, and the Investment Manager shall direct the
Trustee to hold funds in short term investments in such
amounts and for such periods of time as may appear to be
reasonably necessary to meet such cash requirements.
Notwithstanding the appointment of an Investment Manager, the
Trustee is authorized in its discretion to invest and reinvest
such amounts of cash forming a part of the account, as may
from time to time be so designated in writing, without any
liability for loss, depreciation or diminution in value, in
such United States obligations, time deposits (including
savings account and certificates of deposit in AmeriTrust
Company National Association or its affiliates if such
deposits bear a reasonable rate of interest) or corporate
commercial notes including variable notes and including units
of any common trust fund holding any such variable note
administered by the Trustee as are then available and which
bear at the time of acquisition a maturity of not more than
fifteen (15) months, as the Trustee in its sole discretion
deems suitable for the account.
The Investment Manager shall place the buy or sell orders
with brokers, or other persons through whom such transactions
shall be accomplished. The Trustee's sole duty and obligation
relating to the Trust Fund shall be to accept and pay for any
property of any nature whatsoever that it may be directed in
writing by the Investment Manager to accept and pay for, and
to deliver against payment therefor, any property of any
nature whatsoever which is may be directed in writing by such
Investment Manager to deliver against payment therefor. The
Trustee shall use its best efforts to consummate any such
acceptance and payment, or delivery against payment, as it may
be directed so to do, and this shall constitute the Trustee's
sole duty with respect to such trading.
In addition to any other indemnification provided in this
Agreement, the Company shall indemnify and hold the Trustee or
its nominee harmless against any and all claims, actions,
demands, liabilities, losses, damages or expenses of
whatsoever kind and nature, which either arise from the
failure of the Trustee to pay for property purchased by the
Investment Manager for the Trust Fund by reason of the
insufficiency of funds in the Trust Fund, or from any actions
taken by the Trustee in following investment direction of the
Investment Manager, inaction in the absence of such direction
or from the trading activities conducted by the Investment
Manager on behalf of the Trust Fund."
4. The changes made by this Amendment No. 3 shall be
effective as of April 1, 1988, except that the change made by
paragraph 1 of this Amendment No. 3 shall be effective as of
November 1, 1987.
IN WITNESS WHEREOF, the Company and the Trustee have
executed this Amendment No. 3 the _____ day of ____________,
1988.
ASHLAND OIL, INC. AMERITRUST COMPANY NATIONAL
ASSOCIATION, as Trustee
By:_________________________ By:__________________________
AMENDMENT NO. 4 TO THE
TRUST AGREEMENT UNDER THE ASHLAND OIL, INC.
EMPLOYEE THRIFT PLAN
WHEREAS, Ashland Oil, Inc. (the "Company") established
the Ashland Oil, Inc. Employee Thrift Plan (the "Plan") for
the benefit of employees eligible to participate therein; and
WHEREAS, the Company and AmeriTrust Company National
Association (the "Trustee") entered into an agreement as of
March 31, 1985 (the "Agreement") to continue, upon the terms
and conditions stated therein, the trust which was a part of
the Plan; and
WHEREAS, the Company and the Trustee have previously
amended the Agreement and the Company and the Trustee desire
to make further amendments and changes to the Agreement;
NOW, THEREFORE, upon the mutual promises contained in the
Agreement and this amendment, the Agreement is amended as
follows:
1. Subparagraph B of paragraph 1 of the Agreement is
amended to read:
"B. Fund B shall be a fixed income fund invested (i)
with one or more insurance companies, banks, trust
companies or other financial institutions designated from
time to time by the Company (or an Investment Manager
appointed by the Company in accordance with the Plan and
paragraph 5(A) of the Agreement) under an agreement or
agreements which shall contain provisions that the
insurance company, bank, trust company or other
financial institution will guarantee repayment in full of
such amount transferred to them plus interest at a fixed
and/or variable rate or greater for a specified period;
provided, however, that this shall not be construed to
impair the right of the Company (or an Investment Manager
appointed by the Company) to terminate any such contract
before its expiration or maturity, or to replace it with
a contract with a different maturity or expiration date
and/or a different annual rate or (ii) in one or more
pooled separate accounts or one or more common,
collective, or commingled trust funds established by the
Trustee (or any Investment Manager having trust powers)
appointed by the Company for collective investment in
fixed income issues as described above (which fund is
exempt from tax under Section 501 or Section 584 or other
relevant provision of the Code)."
2. The Agreement is amended by adding a new paragraph
l(A) following paragraph 1 as follows:
"1 (A). Use of Collective Investment Trust. If any part
of Funds B, C or D of the Trust are invested in a collective
investment trust, to the extent of the Trust's equitable share
in such collective investment trust, such collective
investment trust shall be a part of the Plan and this Trust.
Notwithstanding anything herein contained to the contrary, the
Company may direct the Trustee at any time or from time to
time to transfer all or any part of the Trust Fund to any
trust which has been qualifie under Section 401(a) and is
exempt under Section 501(a) of the Code which trust is
established as a medium for the collective investment of funds
of pension, profit sharing or other employee benefit trusts
established by the Company, or any of its subsidiaries or
affiliates or entity in which the Company has an ownership
interest and to withdraw any part or all of the Trust Fund so
transferred. Any such trust may provide, among other things,
for the separate investment of any portion thereof and the
allocation to any such separately invested portion of any part
of the interest of any employee benefit trust invested
thereunder and for the designation of an investment manager to
direct the Trustee in the exercise of the power granted to it
with respect to such separately invested portion."
3. The Agreement is amended by adding the following new
unnumbered subparagraph at the end of Paragraph 5(A):
"In the event that an Investment Manager appointed
hereunder is authorized and empowered by the Company to invest
and reinvest all or any part of the Trust Fund allocated to
it in units of any common, collective or commingled trust fund
maintained by said Investment Manager as a qualified trust
under the provisions of Section 401(a) and exempt under the
provisions of Section 501(a) of the Code then,
notwithstanding any provision in this Trust to the contrary,
upon direction of such Investment Manager, the Trustee shall
make such transfers to the Investment Manager, as the trustee
of a common, collective or commingled trust fund described
above, as are necessary to implement the foregoing."
4. The changes made by this Amendment No. 4 shall be
effective as of October 1, 1988.
IN WITNESS WHEREOF, the Company and the Trustee have
executed this Amendment No. 4 the ____ day of _______________,
1988.
ASHLAND OIL, INC. AMERITRUST COMPANY NATIONAL
ASSOCIATION, as Trustee
By:__________________________ By:_________________________
Its:_________________________ Its:________________________
AMENDMENT NO. 5
TO THE
TRUST AGREEMENT UNDER THE
ASHLAND OIL, INC. EMPLOYEE THRIFT PLAN
WHEREAS, Ashland Oil, Inc. (the "Company") established
the Ashland Oil, Inc. Employee Thrift Plan (the "Plan") for
the benefit of employees eligible to participate therein; and
WHEREAS, the Company and Society National Bank, successor
to AmeriTrust Company National Association (the "Trustee")
pursuant to paragraph 20 of an agreement entered into as of
March 31, 1985 (the "Agreement") agree to continue, upon the
terms and conditions stated therein, the trust which was a
part of the Plan; and
WHEREAS, the Company and the Trustee have previously
amended the Agreement and the Company and the Trustee desire
to make further amendments and changes to the Agreement;
NOW, THEREFORE, upon the mutual promises contained in
the Agreement and this Amendment, the Agreement is amended,
effective July 1, 1993, as follows:
1. The last sentence of paragraph 1 which immediately
precedes subparagraph A shall be amended in its entirety as
follows:
The Trust Fund shall be comprised of at least seven
separate investment funds, as hereinafter described,
among which Members may elect to have their Plan
Accounts and contributions thereto invested pursuant to
the terms, limitations and conditions prescribed
therefor in the Plan. Notwithstanding anything to the
contrary, a Member's elected allocation of his Account
and contributions thereto among the various investment
options permitted shall in no way mean that specific
assets of the Plan are available to pay the benefit of
any Member as provided in Treas. Reg. Section
1.414(1)-l(b)(l).
2. Each and every subparagraph of paragraph 1 is hereby
restated in its entirety with the following changes and
additions:
A. Fund A shall be a fund consisting of common
stock of the Company contributed by one or more
Participating Companies (as defined in the Plan) or
purchased by the Trustee (i) on the open market; (ii)
by the exercise of stock rights; (iii) through
participation in any dividend reinvestment program of
the Company, including any such program which involves
the direct issuance or sale of common stock by the
Company (if no commission is charged with respect to
such direct issuance or sale); or (iv) from the Company
whether in treasury stock or authorized but unissued
stock, all as more fully set forth in Article 8 of the
Plan. Stock purchased by the Trustee pursuant to
clause (iii) of this subparagraph A shall be valued
pursuant to such dividend reinvestment program and
shall be purchased in accordance with all of the terms
and conditions of such program. Stock contributed by a
Participating Company or purchased by the Trustee
pursuant to clause (iv) of this subparagraph A shall be
valued at the closing price of such stock on the New
York Stock Exchange composite tape for the trading day
immediately preceding the date on which such stock is
contributed or sold to the Plan. In no event shall a
commission be charged with respect to a purchase
pursuant to clause (iv). The Trustee may, to the extent
it is mutually agreed upon by the Trustee and the
Company, maintain a portion of the investment in Fund A
in cash and/or cash equivalents, which are among the
investment powers enumerated in paragraph 5, for the
purpose of fund liquidity and to accommodate
distributions.
B. Fund B shall be a fixed income fund invested
(i) with one or more insurance companies, banks, trust
companies or other financial institutions designated
from time to time by the Company (or an lnvestment
Manager appointed by the Company in accordance with
the Plan and paragraph 5(A) of the Agreement) under an
agreement or agreements which shall contain provisions
that the insurance company, bank, trust company or
other financial institution will make repayment in
full of such amount transferred to them plus interest
at a fixed and/or variable rate or greater for a
specified period; provided, however, that this shall
not be construed to impair the right of the Company (or
an Investment. Manager appointed by the Company) to
terminate any such contract before its expiration or
maturity, or to replace it with a contract with a
different maturity or expiration date and/or a
different annual rate or (ii) in one or more pooled
separate accounts or one or more common, collective, or
commingled trust funds established by the Trustee (or
any Investment Manager having trust powers appointed
by the Company) for collective investment in fixed
income issues as described above (which fund is exempt
from tax under Section 501 or Section 584 or other
relevant provision of the Code).
C. Fund C shall be a fund invested in securities
of a short to intermediate duration issued by the
United States of America or any agency or
instrumentality thereof, including interests of one or
more pooled separate accounts of an insurance company
appointed by the Company (or an Investment Manager
appointed by the Company in accordance with the Plan
and paragraph 5(A) of the Agreement) or of one or more
common, collective, or commingled trust funds
established by the Trustee (or any Investment Manager
having trust powers appointed by the Company) for
collective investment in such securities (which fund
is exempt from tax under Section 501 or Section 584 or
such other relevant provision of the Code).
D. Fund D shall be a diversified equities fund
invested in (i) common or capital stock; (ii) bonds,
notes, debentures or preferred stocks convertible into
common stocks; or (iii) interests of one or more pooled
separate accounts of an insurance company appointed by
the Company (or an Investment Manager appointed by the
Company in accordance with the Plan and paragraph 5(A)
of the Agreement) or of one or more common, collective,
or commingled trust funds established by the Trustee
(or any Investment Manager having trust powers ap-
pointed by the Company) for collective investment in
such securities (which fund is exempt from tax under
Section 501 or Section 584 or such other relevant
provision of the Code).
E. Fund E shall be an equity investment fund the
investment goal of which is to track the total return
of the Standard & Poor's 500 Composite Index or such
other broad equity index as is from time to time deemed
appropriate, and such fund shall be invested with one
or more insurance companies, banks, trust companies or
other financial institutions designated from time to
time by the Company (or an Investment Manager
appointed by the Company in accordance with the Plan
and paragraph 5(A) of the Agreement) or in one or more
common pooled separate accounts or one or more common,
collective, or commingled trust funds established by
the Trustee (or any Investment Manager having trust
powers appointed by the Company) for collective
investment in such a fund (which fund is exempt from
tax under Section 501 or Section 584 or such other
relevant provision of the Code).
F. Fund F shall be an open-end fund (or funds)
of an investment company (or companies) registered
under the Investment Company Act of 1940, as designated
by the Company, from time to time. Such designation and
any changes or additions thereto shall be made in
writing to the Trustee. Upon written direction from the
Company to the Trustee, one or more of the investments
under Funds C, D, E and G may be transferred to and
used to purchase shares in the fund(s) of one or more
open-end investment companies registered under the
Investment Company Act of 1940 which has investment
objectives similar to the investment medium from which
such amounts were transferred. The investment advisor
for such an open-end investment company may be an
existing fiduciary with respect to the Plan, provided
that the terms and conditions of P.T. Class Exemption
77-4 are met and such arrangement is otherwise
permitted under law.
G. Fund G shall be a fixed income fund with a
diversified portfolio of longer term maturity
investment grade fixed income securities, including but
not limited to, securities issued by corporations or
any governmental unit of the United States of America
or any state thereof, invested in bonds, notes, or
debentures, and such fund shall be invested in or with
one or more insurance companies, banks, trust companies
or other financial institutions designated from time to
time by the Company (or an Investment Manager appointed
by the Company in accordance with the Plan and
paragraph 5(A) of the Agreement) or in one or more
pooled separate accounts or one or more common,
collective, or commingled trust funds established by
the Trustee (or any Investment Manager having trust
powers appointed by the Company) for collective
investment in such a fund (which fund is exempt from
tax under Section 501 or Section 584 or such other
relevant provision of the Code).
Amounts held in any of the foregoing described investment
funds may temporarily be held in cash or cash equivalents or
be held in short-term securities issued by the United States
of America or any agency or instrumentality thereof or any
other investments of a short-term nature, including corporate
obligations or participations therein and interim collective
or common investment funds.
3. The first sentence of paragraph l(A) is hereby
amended in its entirety as follows:
If any part of Funds B, C, D, E, or G of the Trust are
invested in a collective investment trust, to the
extent of the Trust's equitable share in such
collective investment trust, such collective investment
trust shall be a part of the Plan and this Trust.
4. The second, third and fourth sentences of
paragraph 5 are hereby amended in their entirety as follows:
Income from investments in each Fund identified in the
subparagraphs of paragraph 1, comprising the Trust
Fund, shall be reinvested in such Fund. Subject to the
limitations on investment authority with respect to
each of the Funds under paragraph 1 of the Agreement
and subject to applicable limitations contained in the
Plan, the Trustee is empowered with respect to the
Trust Fund:
5. Paragraph 6 is hereby amended in its entirety as
follows:
6. Compensation and Expenses. The Trustee shall
be entitled to receive reasonable fees for its
services hereunder in accordance with its schedule of
fees then in effect and shall be entitled to receive
reimbursement for all reasonable expenses incurred by
it in the administration of the Trust Fund. Such fees
and all expenses of administration of the Trust Fund
including, but not limited to, fees of agents and
counsel and shall be paid by the Trustees out of the
Trust Fund unless paid by the Company. Other fees,
expenses and charges incurred for administering the
Trust Fund, the Plan, the Funds under paragraph 1 or by
any Investment Manager (including its agents) under
paragraph 5(A) shall be paid out of the Fund to which
such fees, expenses or charges relate, under paragraph
1 unless paid by the Company.
IN WITNESS WHEREOF the Company and the Trustee have
executed this Amendment No. 5 this ____ day of _____________,
1993.
ASHLAND OIL, INC. SOCIETY NATIONAL BANK
AS TRUSTEE
BY:________________________ BY:__________________________
ITS: Senior V.P. & CFO BY:__________________________