View:
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, 1994
[ ] 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 24, 1995 By /S/ Philip W. Block
-------------------------------
Administrative Vice President
of Ashland Oil, Inc.
INDEX
Financial Statements
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.
-2-
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, 1994 and 1993, and the income and changes in plan equity
for each of the three years in the period ended September 30, 1994 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, 1994 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 1994 financial statements and, in
our opinion, are fairly stated in all material respects in relation to
the 1994 financial statements taken as a whole.
Ernst & Young LLP
Louisville, Ky.
January 13, 1995
-3-
Financial Statements and Schedules consisting of pages 4-13 were filed
with the Securities and Exchange Commission on January 24, 1995 under
cover of Form SE.
EXHIBIT INDEX
Number Description
------ -------------------------------------------
23 - The Consent of Ernst & Young
99(a) - Copy of Fourth Amended and Restated Ashland
Oil, Inc. Employee Thrift Plan, as amended
99(b) - Copy of Trust Agreement under Ashland Oil,
Inc. Employee Thrift Plan
EXHIBIT 23
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 13, 1995 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, 1994.
Ernst & Young LLP
Louisville, Ky.
January 23, 1995
EXHIBIT 99(a)
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_ (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_ 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_ 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.
ARTICLE 19
ADOPTION OF PLAN BY OTHER COMPANIES
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
EXHIBIT 99(b)
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:__________________________
AMENDMENT NO. 6
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 August 1, 1994, as follows:
1. The following shall be added at the end of sub-paragraph B of paragraph 1
of the Trust as follows:
Notwithstanding anything contained herein to the contrary, there shall be
segregated from the remaining investments in Fund B the amount, as of the
Valuation Date (as defined in the Plan) occurring closest to July 31, 1994,
that was allocable to the portion of Fund B invested in the insurance company
investment contracts issued by Confederation Life Insurance Company or
Confederation Life Insurance & Annuity Company. This amount shall be computed
by identifying the total value of Fund B as of the Valuation Date closest to
July 31, 1994 and then reducing that amount by the amount of any distributions
and withdrawals allocable to Fund B investments made from the Plan after such
Valuation Date before the provisions of Amendment No. 6 were implemented. The
amount so determined shall be the denominator of a fraction whose numerator is
the book value of the above referenced insurance company investment contracts
(as determined by the Fund B Investment Manager and/or Trustee) as of such
Valuation Date. Such fraction shall then be multiplied by an amount equal to
the denominator of such fraction to determine the amount separately accounted
for and segregated from the remainder of Fund B. Such segregated amount shall
consist of the sum of all Members Frozen Fund B Accounts, as defined under the
terms of the Plan. This amount shall remain segregated from the rest of Fund
B for such period of time as determined by the Company based upon information
and advice provided to it by the Investment Manager for Fund B. Such
information may, among other things, consist of the factors required to value
the insurance company investment contracts issued by Confederation Life
Insurance Company or Confederation Life Insurance & Annuity Company, the value
of such contracts and the status of each such company with regard to the
applicable governmental regulatory authorities. When the Company determines
that this amount shall no longer be separately accounted for and segregated
from the remainder of Fund B, the Company shall provide appropriate written
instructions to the Trustee and Investment Manager for Fund B to cease
separately accounting for such amount.
IN WITNESS WHEREOF, the Company and the Trustee have executed this Amendment
No. 6 this _____ day of _______________, 1994.
ASHLAND OIL, INC. SOCIETY NATIONAL BANK,
AS TRUSTEE
BY:_____________________________ BY:________________________________
ITS: Senior V.P. & CFO ITS:________________________________