Pursuant to the requirements of the Securities Act of 1933, as amended,
the administrators of the Plans have duly caused this Registration Statement to
be signed on behalf of the Plans by the undersigned, thereunto duly authorized,
in the City of Dallas, State of Texas, on June 1, 1998.
HALLIBURTON PROFIT SHARING
AND SAVINGS PLAN
By:/s/ CELESTE COLGAN
-------------------------------------
Celeste Colgan
Vice President - Human Resources,
Halliburton Company
BROWN & ROOT, INC. EMPLOYEES'
RETIREMENT AND SAVINGS PLAN
By:/s/ CELESTE COLGAN
-------------------------------------
Celeste Colgan
Vice President - Human Resources,
Halliburton Company
Index to Exhibits filed with this Form S-8.
Exhibit
Number Description
- ------- -----------
4.4 Halliburton Profit Sharing and Savings Plan, as amended and
restated effective June 1, 1998.
4.5 Brown & Root, Inc. Employees' Retirement and Savings Plan,
as amended and restated effective June 1, 1998.
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Arthur Andersen LLP.
24.1 Powers of attorney.
-6-
Exhibit 4.4
HALLIBURTON PROFIT SHARING AND SAVINGS PLAN
As Amended and Restated
Effective June 1, 1998
HALLIBURTON PROFIT SHARING AND SAVINGS PLAN
W I T N E S S E T H :
WHEREAS, HALLIBURTON COMPANY (the "Company") has heretofore adopted the
HALLIBURTON PROFIT SHARING AND SAVINGS PLAN, hereinafter referred to as the
"Plan," for the benefit of its employees; and
WHEREAS, the Company desires to restate the Plan and to amend the Plan
in several respects, intending thereby to provide an uninterrupted and
continuing program of benefits;
NOW THEREFORE, the Plan is hereby restated in its entirety as follows
with no interruption in time, effective as of June 1, 1998, except as otherwise
indicated herein:
(i)
TABLE OF CONTENTS
I. Definitions and Construction...........................................................................I-1
1.1 Definitions...................................................................................I-1
(1) Accounts.............................................................................I-1
(2) Act..................................................................................I-1
(3) After-Tax Savings Account............................................................I-1
(4) After-Tax Savings Contributions......................................................I-1
(5) Benefit Commencement Date............................................................I-1
(6) Chief Executive Officer..............................................................I-1
(7) Code.................................................................................I-1
(8) Commencement Date....................................................................I-1
(9) Committee............................................................................I-1
(10) Company..............................................................................I-1
(11) Compensation.........................................................................I-1
(12) Controlled Entity....................................................................I-3
(13) Direct Rollover......................................................................I-3
(14) Directors............................................................................I-3
(15) Disabled.............................................................................I-3
(16) Distributee..........................................................................I-3
(17) Early Retirement Date................................................................I-3
(18) Effective Date.......................................................................I-3
(19) Eligible Employee....................................................................I-4
(20) Eligible Retirement Plan.............................................................I-4
(21) Eligible Rollover Distribution.......................................................I-4
(22) Employee.............................................................................I-4
(23) Employer.............................................................................I-5
(24) Employer Contributions...............................................................I-5
(25) Employer Matching Contributions......................................................I-5
(26) Employer Profit Sharing Contributions................................................I-5
(27) Employer's Account...................................................................I-5
(28) Fiscal Year..........................................................................I-5
(29) Foreign Subsidiary Corporation.......................................................I-5
(30) Halliburton Energy Services Plans....................................................I-5
(31) Halliburton Stock....................................................................I-5
(32) Highly Compensated Employee..........................................................I-5
(33) Hour of Service......................................................................I-6
(34) Investment Fund......................................................................I-6
(35) Leased Employee......................................................................I-6
(36) Leave of Absence.....................................................................I-6
(37) Master Trust Agreement...............................................................I-7
(38) Normal Retirement Date...............................................................I-7
(39) Participant..........................................................................I-7
(40) Period of Service....................................................................I-7
(ii)
(41) Period of Severance..................................................................I-7
(42) Plan.................................................................................I-7
(43) Plan Year............................................................................I-7
(44) Profits..............................................................................I-7
(45) Reemployment Commencement Date.......................................................I-8
(46) Retirement...........................................................................I-8
(47) Rollover Account.....................................................................I-8
(48) Rollover Contributions...............................................................I-8
(49) Service..............................................................................I-8
(50) Severance from Service Date..........................................................I-9
(51) Tax Deferred Savings Account.........................................................I-9
(52) Tax Deferred Savings Contributions...................................................I-9
(53) Trust................................................................................I-9
(54) Trust Agreement......................................................................I-9
(55) Trust Fund...........................................................................I-9
(56) Trustee..............................................................................I-9
(57) Vested Interest......................................................................I-9
(58) Years of Service.....................................................................I-9
1.2 Number and Gender.............................................................................I-9
1.3 Headings.....................................................................................I-10
1.4 Construction.................................................................................I-10
II. Participation.........................................................................................II-1
III. Contributions........................................................................................III-1
3.1 Tax Deferred Savings Contributions..........................................................III-1
3.2 After-Tax Savings Contributions.............................................................III-2
3.3 Employer Matching Contributions.............................................................III-3
3.4 Employer Profit Sharing Contributions.......................................................III-3
3.5 Restrictions on Employer Matching Contributions and After-Tax Savings
Contributions...............................................................................III-4
3.6 Payments to Trustee.........................................................................III-4
3.7 Return of Contributions.....................................................................III-4
3.8 Disposition of Excess Deferrals and Excess Contributions....................................III-4
3.9 Rollover Contributions......................................................................III-6
IV. Allocations and Limitations...........................................................................IV-1
4.1 Suspense Account.............................................................................IV-1
4.2 Records on a Unit Basis......................................................................IV-1
4.3 Allocation or Application of Contributions and Forfeitures...................................IV-1
4.4 Valuation of Accounts........................................................................IV-1
4.5 Limitations and Corrections..................................................................IV-2
(iii)
V. Investment Funds.......................................................................................V-1
5.1 Investment of Accounts........................................................................V-1
5.2 Special Investment Provisions.................................................................V-1
VI. Retirement Benefits...................................................................................VI-1
VII. Disability Benefits..................................................................................VII-1
VIII. Severance Benefits..................................................................................VIII-1
8.1 No Benefits Unless Herein Set Forth........................................................VIII-1
8.2 Severance Benefit..........................................................................VIII-1
8.3 Forfeitures................................................................................VIII-1
IX. Death Benefits........................................................................................IX-1
9.1 Death Benefits...............................................................................IX-1
9.2 Designation of Beneficiaries.................................................................IX-1
X. Time and Form of Payment of Benefits...................................................................X-1
10.1 Determination of Benefit Commencement Date....................................................X-1
10.2 Alternative Forms of Benefit for Participants.................................................X-2
10.3 Alternative Forms of Death Benefit............................................................X-4
10.4 Cash-Out of Benefit...........................................................................X-4
10.5 Benefits from Account Balances................................................................X-4
10.6 Commercial Annuities..........................................................................X-5
10.7 Unclaimed Benefits............................................................................X-5
10.8 Benefit Transfer Election.....................................................................X-5
10.9 Claims Review.................................................................................X-6
10.10 Mandatory Arbitration.........................................................................X-6
XI. Withdrawals and Loans.................................................................................XI-1
11.1 Withdrawals..................................................................................XI-1
11.2 No Loans.....................................................................................XI-2
XII. Administration of the Plan...........................................................................XII-1
12.1 Administration by Committee.................................................................XII-1
12.2 Procedures..................................................................................XII-1
12.3 Self-Interest of Members....................................................................XII-1
12.4 Compensation and Bonding....................................................................XII-1
12.5 Committee Powers and Duties.................................................................XII-1
12.6 Employer to Supply Information..............................................................XII-2
12.7 Accounting..................................................................................XII-2
12.8 Participants to Furnish Required Information................................................XII-3
(iv)
XIII. Administration of Investment Funds..................................................................XIII-1
13.1 Payment of Expenses........................................................................XIII-1
13.2 Trust Fund Property........................................................................XIII-1
13.3 Distributions from Participants' Accounts..................................................XIII-2
13.4 United States Currency.....................................................................XIII-2
XIV. Trustee..............................................................................................XIV-1
XV. Fiduciary Provisions..................................................................................XV-1
15.1 Article Controls.............................................................................XV-1
15.2 General Allocation of Fiduciary Duties.......................................................XV-1
15.3 Fiduciary Duty...............................................................................XV-1
15.4 Delegation and Allocation of Fiduciary Duties................................................XV-1
15.5 Indemnification..............................................................................XV-2
XVI. Amendments...........................................................................................XVI-1
XVII. Discontinuance of Contributions, Termination, Partial
Termination, and Merger or Consolidation...............................................................XVII-1
17.1 Right to Terminate.........................................................................XVII-1
17.2 Procedure in the Event of Discontinuance of Contributions,
Termination, or Partial Termination........................................................XVII-1
17.3 Merger, Consolidation or Transfer..........................................................XVII-1
XVIII. Participating Employers..............................................................................XVIII-1
18.1 Designation of Other Employers. ..........................................................XVIII-1
18.2 Single Plan...............................................................................XVIII-2
XIX. Miscellaneous........................................................................................XIX-1
19.1 Not Contract of Employment..................................................................XIX-1
19.2 Payments Solely from Trust Fund.............................................................XIX-1
19.3 Alienation of Interest Forbidden............................................................XIX-1
19.4 Uniformed Services Employment and Reemployment Rights
Act Requirements............................................................................XIX-1
19.5 No Benefits to the Employer.................................................................XIX-1
19.6 Power of Attorney...........................................................................XIX-1
19.7 Severability................................................................................XIX-3
19.8 Jurisdiction................................................................................XIX-4
19.9 Payments to Minors and Incompetents.........................................................XIX-4
19.10 Participant's Address.......................................................................XIX-4
XX. Top-Heavy Status......................................................................................XX-1
20.1 Article Controls.............................................................................XX-1
20.2 Definitions..................................................................................XX-1
(v)
20.3 Top-Heavy Status.............................................................................XX-2
20.4 Termination of Top-Heavy Status..............................................................XX-3
20.5 Effect of Article............................................................................XX-3
APPENDIX A...........................................................................................Appendix A - 1
(vi)
I.
Definitions and Construction
1.1 Definitions. Where the following words and phrases appear in the
Plan, they shall have the respective meanings set forth below, unless their
context clearly indicates to the contrary.
(1) Accounts: The total of the amounts credited to a Participant's
Employer's Account, After-Tax Savings Account, Rollover Account and Tax
Deferred Savings Account. All amounts credited to a Participant's
Employer's Contributions Account, Employer's Matching Account and
Repayment Account prior to the Effective Date shall be credited to such
Participant's Employer's Account as of the Effective Date. All amounts
credited to a Participant's Regular Savings Account prior to the
Effective Date shall be credited to such Participant's After-Tax
Savings Account as of the Effective Date.
(2) Act: The "Employee Retirement Income Security Act of 1974, as amended."
(3) After-Tax Savings Account: An individual account for each Participant
which is credited with his After-Tax Savings Contributions and which is
credited (or debited) with such account's allocation of net income (or
net loss) and changes in value of the Trust Fund.
(4) After-Tax Savings Contributions: Contributions made to the Plan by the
Participants in accordance with their elections pursuant to Section
3.2.
(5) Benefit Commencement Date: With respect to each Participant or
beneficiary, the first day of the first period for which such
Participant's or beneficiary's benefit is payable to him from the Trust
Fund.
(6) Chief Executive Officer: The Chief Executive Officer of the Company.
(7) Code: The Internal Revenue Code of 1986, as amended.
(8) Commencement Date: The date on which an individual first performs an
Hour of Service.
(9) Committee: The Halliburton Company Benefits Committee appointed by the
Chief Executive Officer.
(10) Company: Halliburton Company.
(11) Compensation: The total of all wages, salaries, fees for professional
service and other amounts received in cash or in kind by a Participant
for services actually rendered or labor performed for the Employer
while a Participant and an Employee to the extent such amounts are
includable in gross income, subject to the following adjustments and
limitations:
(A) The following shall be excluded:
I-1
(i) geographic coefficient allowances;
(ii) reimbursements or other expense allowances;
(iii) cash and noncash fringe benefits;
(iv) moving expenses;
(v) Employer contributions to or payments from this or
any other deferred compensation program whether such
program is qualified under section 401(a) of the Code
or nonqualified;
(vi) welfare benefits;
(vii) amounts realized from the receipt or exercise of a
stock option which is not an incentive stock option
within the meaning of section 422 of the Code;
(viii) amounts realized at the time property described in
section 83 of the Code is freely transferable or no
longer subject to a substantial risk of forfeiture;
(ix) amounts realized as a result of an election described
in section 83(b) of the Code;
(x) any amount realized as a result of a disqualifying
disposition within the meaning of section 421(a) of
the Code;
(xi) any other amounts which receive special tax benefits
under the Code but are not hereinafter included;
(xii) dividends received by a Participant with respect to
Halliburton Stock held by such Participant while such
Halliburton Stock is subject to a substantial risk of
forfeiture, within the meaning of section 83 of the
Code, if the Participant did not make an election
described in section 83(b) of the Code with respect
to such Halliburton Stock; and
(xiii) any bonuses payable under any incentive compensation
plan of the Employer.
(B) The following shall be included:
(i) elective contributions made on a Participant's behalf
by the Employer that are not includable in income
under section 125, section 402(e)(3), section 402(h)
or section 403(b) of the Code;
(ii) compensation deferred under an eligible deferred
compensation plan within the meaning of section
457(b) of the Code; and
I-2
(iii) employee contributions described in section 414(h) of
the Code that are picked up by the employing unit and
are treated as employer contributions.
(C) The Compensation of any Participant taken into account for
purposes of the Plan shall be limited to $160,000 for any Plan
Year with such limitation to be:
(i) adjusted automatically to reflect any amendments to
section 401(a)(17) of the Code and any cost-of-living
increases authorized by section 401(a)(17) of the
Code; and
(ii) prorated for a Plan Year of less than twelve months
and to the extent otherwise required by applicable
law.
(12) Controlled Entity: Each corporation that is a member of a controlled
group of corporations, within the meaning of section 1563(a)
(determined without regard to sections 1563(a)(4) and 1563(e)(3)(C)) of
the Code, of which the Employer is a member, each trade or business
(whether or not incorporated) with which the Employer is under common
control and each member of an affiliated service group, within the
meaning of section 414(m) of the Code, of which the Employer is a
member. Notwithstanding the foregoing, for purposes of Sections
1.1(33), 1.1(36), 1.1(49), 8.3(a), 10.1(f), 10.2(a)(3), 10.1(f) of
Appendix A and 10.2(d)(3) of Appendix A of the Plan, M-I Drilling
Fluids Co. shall be deemed to be a Controlled Entity.
(13) Direct Rollover: A payment by the Plan to an Eligible Retirement Plan
designated by a Distributee.
(14) Directors: The Board of Directors of Halliburton Company.
(15) Disabled: Physically or mentally incapable of performing either the
Participant's usual duties as an Employee or any other duties as an
Employee that the Employer reasonably makes available and likely to
remain so Disabled continuously and permanently, as determined by the
Employer. A Participant must be Disabled for five consecutive months
before the Employer may make a determination of Disability, and the
Employer may require proof of Disability in such form as the Employer
shall decide, including the certificate of a duly licensed physician
selected by the Employer.
(16) Distributee: Each (A) Participant entitled to an Eligible Rollover
Distribution, (B) Participant's surviving spouse with respect to the
interest of such surviving spouse in an Eligible Rollover Distribution
and (C) former spouse of a Participant who is the alternate payee under
a qualified domestic relations order, as defined in section 414(p) of
the Code, with regard to the interest of such former spouse in an
Eligible Rollover Distribution.
(17) Early Retirement Date: The earlier of (A) the date a Participant
attains the age of fifty-five or (B) the date on which the sum of such
Participant's age and his Years of Service equals seventy.
I-3
(18) Effective Date: June 1, 1998, as to this restatement of the Plan,
except (A) as otherwise indicated in specific provisions of the Plan
and (B) that provisions of the Plan required to have an earlier
effective date by applicable statute and/or regulation shall be
effective as of the required effective date in such statute and/or
regulation.
(19) Eligible Employee: Each Employee other than (A) an Employee whose terms
and conditions of employment are governed by a collective bargaining
agreement between a collective bargaining unit and the Employer unless
such agreement provides for coverage of such Employee under the Plan,
(B) a nonresident alien who receives no earned income from the Employer
that constitutes income from sources within the United States, (C) an
Employee covered by any other funded plan of deferred compensation of a
foreign subsidiary of the Employer (whether or not such subsidiary
meets the definition of a "Foreign Subsidiary Corporation") with
respect to employment in the United States and (D) any Employee who is
a Leased Employee or who is designated, compensated or otherwise
classified by the Employee as a Leased Employee. Notwithstanding any
provision of the Plan to the contrary, no individual who is designated,
compensated or otherwise classified or treated by the Employer as an
independent contractor shall be eligible to become a Participant in the
Plan.
(20) Eligible Retirement Plan: (A) With respect to a Distributee other than
a surviving spouse, an individual retirement account described in
section 408(a) of the Code, an individual retirement annuity described
in section 408(b) of the Code, an annuity plan described in section
403(a) of the Code or a qualified plan described in section 401(a) of
the Code, that under its provisions and applicable law may accept a
Distributee's Eligible Rollover Distribution, and (B) with respect to a
Distributee who is a surviving spouse, an individual retirement account
described in Section 408(a) of the Code or individual retirement
annuity described in Section 408(b) of the Code.
(21) Eligible Rollover Distribution: Any distribution of all or any portion
of the Accounts of a Distributee other than (A) a distribution that is
one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary or for a
specified period of ten years or more, (B) a distribution to the extent
such distribution is required under section 401(a)(9) of the Code, (C)
the portion of a distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities), (D) any corrective
distribution provided in Section 3.8 and (E) any other distribution so
designated by the Internal Revenue Service in revenue rulings, notices,
and other guidance of general applicability.
(22) Employee: Any individual employed by the Employer or any Leased
Employee. For purposes of this definition, a United States citizen
employed by a Foreign Subsidiary Corporation of the Employer with
respect to which the following conditions are met shall be deemed to be
an Employee, subject to the requirements and restrictions of sections
406 and 407 of the Code:
I-4
(A) The Employer has entered into an agreement with the United
States Treasury Department to pay employer and employee Social
Security taxes with respect to the compensation received from
such Foreign Subsidiary Corporation by all United States
citizens employed by such Foreign Subsidiary Corporation and
which agreement has not been terminated; and
(B) The United States citizen employed by such Foreign Subsidiary
Corporation is not covered under any other funded plan of
deferred compensation to which any individual or legal entity,
other than the Employer, contributes with respect to the
remuneration paid to such person by such Foreign Subsidiary
Corporation.
(23) Employer: The Company and each entity that has been designated to
participate in the Plan pursuant to the provisions of Article XVIII.
(24) Employer Contributions: The total of Employer Matching Contributions
and Employer Profit Sharing Contributions.
(25) Employer Matching Contributions: Contributions made to the Plan by the
Employer pursuant to Section 3.3.
(26) Employer Profit Sharing Contributions: Contributions made to the Plan
by the Employer pursuant to Section 3.4.
(27) Employer's Account: An individual account for each Participant which is
credited with the Employer Profit Sharing Contributions made on such
Participant's behalf, the Employer Matching Contributions made on such
Participant's behalf and such Participant's repayment, if any, to the
Plan made in accordance with Section 8.3(a), and which is credited (or
debited) with such account's allocation of net income (or net loss) and
changes in value of the Trust Fund.
(28) Fiscal Year: The fiscal year of the Employer as adopted by it for
federal income tax purposes.
(29) Foreign Subsidiary Corporation: (A) A foreign corporation not less than
20% of the voting stock of which is owned by the Employer or (B) a
foreign corporation more than 50% of the voting stock of which is owned
by the foreign corporation described in (A) above.
(30) Halliburton Energy Services Plans: The Halliburton Profit Sharing and
Savings Plan and the Halliburton Retirement Plan.
(31) Halliburton Stock: The common stock of the Company.
(32) Highly Compensated Employee: Each Employee who performs services during
the Plan Year for which the determination of who is highly compensated
is being made (the "Determination Year") and who:
I-5
(A) Is a five-percent owner of the Employer (within the meaning of
section 416(i)(1)(A)(iii) of the Code) at any time during the
Determination Year or the twelve-month period immediately
preceding the Determination Year (the "Look-Back Year"); or
(B) For the Look-Back Year:
(i) receives compensation (within the meaning of section
414(q)(4) of the Code; "compensation" for purposes of
this Paragraph) in excess of $80,000 (with such
amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by section
414(q)(1) of the Code) during the Look-Back Year; and
(ii) if the Committee elects the application of this
clause for such Look-Back Year, is a member of the
top 20% of Employees for the Look-Back Year (other
than Employees described in section 414(q)(5) of the
Code) ranked on the basis of compensation received
during the year.
For purposes of the preceding sentence, (i) all employers aggregated
with the Employer under section 414(b), (c), (m) or (o) of the Code
shall be treated as a single employer and (ii) a former Employee who
had a separation year (generally, the Determination Year such Employee
separates from service) prior to the Determination Year and who was an
active Highly Compensated Employee for either such separation year or
any Determination Year ending on or after such Employee's fifty-fifth
birthday shall be deemed to be a Highly Compensated Employee. To the
extent that the provisions of this Paragraph are inconsistent or
conflict with the definition of a "highly compensated employee" set
forth in section 414(q) of the Code and the Treasury Regulations
thereunder, the relevant terms and provisions of section 414(q) of the
Code and the Treasury Regulations thereunder shall govern and control.
(33) Hour of Service: Each hour for which an individual is directly or
indirectly paid, or entitled to payment, by the Employer or a
Controlled Entity for the performance of duties.
(34) Investment Fund: A portion of the Trust Fund which is invested in a
specified manner described in Section 5.1.
(35) Leased Employee: Any person who is not an employee of the Employer or a
Controlled Entity but who performs services for the Employer or a
Controlled Entity pursuant to an agreement (oral or written) between
the Employer or a Controlled Entity and any leasing organization,
provided that such person has performed such services for the Employer
or a Controlled Entity or for related persons (within the meaning of
section 144(a)(3) of the Code) on a substantially full-time basis for a
period of at least one year and such services are performed under
primary direction or control by the Employer or a Controlled Entity.
(36) Leave of Absence: Absence from employment with the Employer or a
Controlled Entity which is in conformity with the policy of such
Employer or Controlled Entity then in effect. Termination of employment
and reemployment within thirty days following such termination
I-6
shall be considered a Leave of Absence for purposes of the Plan for the
entire period of such absence.
(37) Master Trust Agreement: The Halliburton Company Employee Benefit
Master Trust Agreement, as amended from time to time.
(38) Normal Retirement Date: The date a Participant attains the age of
sixty-five.
(39) Participant: Any individual who has met the eligibility requirements
for participation in the Plan.
(40) Period of Service: Each period of an individual's Service commencing on
his Employment Commencement Date or a Reemployment Commencement Date,
if applicable, and ending on a Severance from Service Date.
Notwithstanding the foregoing, a period during which an individual is
absent from Service by reason of the individual's pregnancy, the birth
of a child of the individual, the placement of a child with the
individual in connection with the adoption of such child by the
individual, or for the purposes of caring for such child for the period
immediately following such birth or placement shall not constitute a
Period of Service between the first and second anniversary of the first
date of such absence. A Period of Service shall also include any period
required to be credited as a Period of Service by federal law other
than the Act or the Code, but only under the conditions and to the
extent so required by such federal law.
(41) Period of Severance: Each period of time commencing on an individual's
Severance from Service Date and ending on a Reemployment Commencement
Date.
(42) Plan: The Halliburton Profit Sharing and Savings Plan, as amended from
time to time.
(43) Plan Year: The twelve-consecutive month period commencing January 1 of
each year.
(44) Profits: With respect to any given Fiscal Year, the consolidated income
before income taxes ("IBT") of Halliburton Energy Services (excluding
such subsidiaries, divisions and other entities which are a part of
such group and which are designated from time to time by the Directors)
for such Fiscal Year, adjusted to eliminate the effect, if any, of the
following items:
(A) Any expense recorded for Employer Profit Sharing Contributions
made or to be made to the Plan for such Fiscal Year;
(B) Any expense recorded for contributions made or to be made to
the Professional Resources Ltd. Profit Sharing and Savings
Plan for such Fiscal Year;
(C) Any expense (but not income) recorded for the net periodic
pension cost applicable to the Halliburton Retirement Plan for
such Fiscal Year;
I-7
(D) Any foreign exchange gains and losses and intercompany and
outside interest income and expense for such Fiscal Year;
(E) The portion of the IBT for such Fiscal Year (as adjusted to
eliminate the effect, if any, of the items described in (A),
(B), (C) and (D) above) to which minority interest
stockholders have a claim;
(F) Any costs and expenses incurred for premium payments to the
Pension Benefit Guaranty Corporation or for outside legal,
accounting and actuarial services incident to the maintenance,
administration and operation of the Plan, the Halliburton
Retirement Plan and the Professional Resources Ltd. Profit
Sharing and Savings Plan; and
(G) Any expenses recorded for amounts credited or to be credited
to ERISA Restoration Accounts under the Halliburton Company
Senior Executives' Deferred Compensation Plan for such Fiscal
Year;
all as computed by the Company in accordance with its usual accounting
practices.
(45) Reemployment Commencement Date: The first date upon which an
individual performs an Hour of Service following a Severance from
Service Date.
(46) Retirement: With respect to each Participant, termination of his
employment with the Employer on or after his Early Retirement Date.
(47) Rollover Account: An individual account for each Participant which is
credited with the Rollover Contributions of such Participant made
pursuant to Section 3.9 and which are not credited to his Employer's
Account. A Participant's Rollover Account shall also be credited (or
debited) with such account's allocation of net income (or net loss) and
changes in value of the Trust Fund.
(48) Rollover Contributions: Contributions made by an Eligible Employee
pursuant to Section 3.9.
(49) Service: The period of an individual's employment with the Employer or
a Controlled Entity taking into account the following:
(A) Any absence from employment which is not a Leave of Absence
shall be considered a termination of employment.
(B) If an individual does not return to employment prior to the
expiration of a Leave of Absence, his employment shall be
considered terminated as of the one-year anniversary of the
date on which his Leave of Absence commenced; provided,
however, that (i) if an individual is prevented from timely
returning to employment because of his death or because he is
Disabled, his employment shall be considered terminated as of
the date of such event and (ii) if an individual is absent
from
I-8
employment due to a military service Leave of Absence and
fails to return to employment prior to the later of the
expiration of his Leave of Absence or the expiration of his
reemployment rights under applicable law, his employment shall
be considered terminated as of the date on which his Leave of
Absence commenced.
(50) Severance from Service Date: The first date on which an individual
terminates his Service following his Commencement Date or a
Reemployment Commencement Date, if applicable. Notwithstanding the
foregoing, the Severance from Service Date of an individual who is
absent from Service by reason of the individual's pregnancy, the birth
of a child of the individual, the placement of a child with the
individual in connection with the adoption of such child by the
individual, or for purposes of caring for such child for the period
immediately following such birth or placement shall be the second
anniversary of the first date of such absence.
(51) Tax Deferred Savings Account: An individual account for each
Participant which is credited with the Tax Deferred Savings
Contributions made by the Employer on such Participant's behalf and
which is credited (or debited) with such account's allocation of net
income (or net loss) and changes in value of the Trust Fund.
(52) Tax Deferred Savings Contributions: Contributions made to the Plan by
the Employer on a Participant's behalf in accordance with the
Participant's elections to defer Compensation under the Plan's
qualified cash or deferred arrangement as described in Section 3.1.
(53) Trust: The trust(s) established under the Trust Agreement(s) to hold
and invest contributions made under the Plan and from which the Plan
benefits will be distributed.
(54) Trust Agreement: The agreement(s) entered into between the Company and
the Trustee establishing the Trust as such agreement may be amended
from time to time.
(55) Trust Fund: The funds and properties held pursuant to the provisions
of the Trust Agreement for the use and benefit of the Participants,
together with all income, profits and increments thereto.
(56) Trustee: The trustee or trustees qualified and acting under the Trust
Agreement at any time.
(57) Vested Interest: The portion of a Participant's Accounts which,
pursuant to the Plan, is nonforfeitable.
(58) Years of Service: A Participants aggregate Periods of Service whether
or not such Periods of Service are completed consecutively converted
into years by dropping any fraction of a year.
1.2 Number and Gender. Wherever appropriate herein, words used in the
singular shall be considered to include the plural and words used in the plural
to include the singular. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender.
I-9
1.3 Headings. The headings of Articles and Sections herein are included
solely for convenience and if there is any conflict between such headings and
the text of the Plan, the text shall control.
1.4 Construction. It is intended that the Plan be qualified within the
meaning of Section 401(a) of the Code and that the Trust be tax exempt under
Section 501(a) of the Code, and all provisions herein shall be construed in
accordance with such intent.
I-10
II.
Participation
Any Eligible Employee shall become a Participant upon his Commencement
Date, or the date he becomes an Eligible Employee, if later, and shall remain a
Participant at all times thereafter. A Participant who ceases to be an Eligible
Employee but remains an Employee shall continue to be a Participant but, on and
after the date he ceases to be an Eligible Employee, he shall no longer be
entitled to defer Compensation hereunder or share in allocations of Employer
Contributions and forfeitures or contribute to the Plan unless and until he
shall again become an Eligible Employee.
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III.
Contributions
3.1 Tax Deferred Savings Contributions.
(a) A Participant may elect to defer an integral percentage of
his Compensation for a Plan Year by having the Employer contribute the amount so
deferred to the Plan; provided, however, that the maximum deferral percentage
that may be elected by a Participant shall not exceed 15% or such lesser
percentage as may be specified by the Committee for such purpose and for such
Plan Year (as such percentage may be changed from time to time during such Plan
Year by the Committee to the extent it deems such change necessary and proper to
facilitate the administration of the Plan). Compensation for a Plan Year not so
deferred by such election shall be received by such Participant in cash. A
Participant's election to defer an amount of his Compensation pursuant to this
Section shall be made by the Participant authorizing his Employer, in the manner
and within the time period prescribed by the Committee, to reduce his
Compensation in the elected amount and the Employer, in consideration thereof,
agrees to contribute an equal amount to the Plan. The Compensation elected to be
deferred by a Participant pursuant to this Section shall become a part of the
Employer's Tax Deferred Savings Contributions.
(b) A Participant's deferral election shall remain in force
and effect for all periods following the effective date of such election until
such election is modified or terminated or until such Participant terminates his
employment, provided that the Committee may establish procedures to
automatically reinstate a Participant's election upon reemployment. A
Participant who has elected to defer a portion of his Compensation may change
his deferral election percentage (within the percentage limit established
pursuant to Paragraph (a) above) by communicating such new deferral election
percentage to his Employer in the manner and within the time period prescribed
by the Committee.
(c) A Participant may cancel his deferral election by
communicating such cancel lation to his Employer in the manner and within the
time period prescribed by the Committee. A Participant who so cancels his
deferral election may again elect to defer a portion of his Compensation by
communicating his new deferral election percentage (within the percentage limit
established pursuant to Paragraph (a) above) to his Employer in the manner and
within the time period prescribed by the Committee.
(d) In restriction of the Participants' elections provided in
Paragraphs (a), (b), and (c) above, the Tax Deferred Savings Contributions and
the elective deferrals (within the meaning of section 402(g)(3) of the Code)
under all other plans, contracts, and arrangements of the Employer on behalf of
any Participant for any calendar year shall not exceed $7,000 (with such amount
to be adjusted automatically to reflect any cost-of-living adjustments
authorized by section 402(g)(5) of the Code).
(e) In further restriction of the Participants' elections
provided in Paragraphs (a), (b) and (c) above, it is specifically provided that
one of the "actual deferral percentage" tests set forth
III-1
in section 401(k)(3) of the Code and the Treasury Regulations thereunder must be
met in each Plan Year. Such testing shall utilize the prior year testing method
as such term is defined in Internal Revenue Service Notice 98-11. The Committee
may elect, in accordance with applicable Treasury Regulations, to treat Employer
Matching Contributions to the Plan as Tax Deferred Savings Contributions for the
purposes of meeting these requirements. If multiple use of the alternative
limitation (within the meaning of section 401(m)(9) of the Code and Treasury
Regulation ss. 1.401(m)-2(b)) occurs during a Plan Year such multiple use shall
be corrected in accordance with the provisions of Treasury Regulation ss.
1.401(m)-2(c); provided, however, that if such multiple use is not eliminated by
making qualified nonelective contributions, then the "actual contribution
percentages" of all Highly Compensated Employees participating in the Plan shall
be reduced, and the excess contributions distributed, in accordance with the
provisions of Section 3.8(c) and applicable Treasury Regulations so that there
is no such multiple use.
(f) If the restrictions set forth in Paragraph (d) or (e)
above would not otherwise be met for any Plan Year, the Compensation deferral
elections made pursuant to Paragraphs (a), (b) and (c) above of Participants who
are Highly Compensated Employees may be reduced by the Committee on a temporary
and prospective basis in such manner as the Committee shall determine.
(g) The Employer shall contribute to the Trust, as Tax
Deferred Savings Contributions with respect to each Participant, an amount equal
to the amount of Compensation elected to be deferred, pursuant to Paragraphs (a)
and (b) above (as adjusted pursuant to Paragraph (f) above), by such Participant
during such month. Such contributions, as well as the contributions pursuant to
Sections 3.3 and 3.4, shall be made without regard to current or accumulated
profits of the Employer. Notwithstanding the foregoing, the Plan is intended to
qualify as a profit sharing plan for purposes of sections 401(a), 402, 412 and
417 of the Code.
3.2 After-Tax Savings Contributions.
(a) After-Tax Savings Contributions may be made by a
Participant by either authorizing the Employer to withhold such contributions
from his Compensation as of each payroll period or by making nonpayroll
deduction, lump sum After-Tax Savings Contributions as of the date specified by
the Committee and in accordance with its rules. A Participant may contribute to
the Plan, as his payroll deduction After-Tax Savings Contributions, an integral
percentage of his Compensation which, when added to the integral percentage of
his Compensation for such Plan Year designated as Tax Deferred Savings
Contributions, does not exceed 15% or such lesser percentage as may be specified
by the Committee for such purpose and for such Plan Year (as such percentage may
be changed from time to time during such Plan Year by the Committee to the
extent it deems such change necessary and proper to facilitate the
administration of the Plan). Each Participant may elect the amount (within the
percentage limits of this Paragraph) of his payroll deduction After-Tax Savings
Contributions by communicating such amount to his Employer in the manner and
within the time period prescribed by the Committee. A Participant's election to
make payroll deduction After-Tax Savings Contributions shall be effective as of
the first day of any payroll period which is after the date upon which the
Participant has timely communicated his election to his Employer in accordance
with the provisions of the preceding sentence.
III-2
(b) A Participant may change the amount of his payroll
deduction After-Tax Savings Contributions (within the percentage limits set
forth in Paragraph (a) above) effective as of the first day of any payroll
period by communicating his new payroll deduction election percentage to his
Employer in the manner and within the time period prescribed by the Committee.
(c) A Participant may suspend his payroll deduction After-Tax
Savings Contributions effective as of the first day of any payroll period by
communicating such suspension to his Employer in the manner and within the time
period prescribed by the Committee. A Participant may again elect to make
payroll deduction After-Tax Savings Contributions, effective as of the first day
of any payroll period, by communicating his new payroll deduction election
percentage to his Employer in the manner and within the time period prescribed
by the Committee.
(d) If the restrictions set forth in Section 3.5 would not
otherwise be met for any Plan Year, the After-Tax Savings Contribution elections
made pursuant to Paragraphs (a), (b) and (c) above of Participants who are
Highly Compensated Employees may be reduced by the Committee on a temporary and
prospective basis in such manner as the Committee shall determine.
3.3 Employer Matching Contributions.
(a) For each payroll period, the Employer shall contribute to
the Trust, as Employer Matching Contributions, an amount which equals 50% of the
Tax Deferred Savings Contributions made pursuant to Section 3.1 on behalf of
each of the Participants during such payroll period that were not in excess of
4% of such Participant's Compensation for such payroll period.
(b) In addition to the Employer Matching Contributions made
pursuant to Paragraph (a) for each Plan Year, the Employer shall contribute to
the Trust, as Employer Matching Contributions, an amount equal to the
difference, if any, between (1) 50% of the Tax Deferred Savings Contributions
that were made pursuant to Section 3.1 on behalf of each Participant during such
Plan Year and that were not in excess of 4% of each such Participant's
Compensation for such Plan Year and (2) the Employer Matching Contributions made
pursuant to Paragraph (a) above for each such Participant for such Plan Year.
3.4 Employer Profit Sharing Contributions. For each Plan Year, the
Employer shall contribute to the Trust, as an Employer Profit Sharing
Contribution, an additional aggregate amount equal to the sum of (a) the excess,
if any, of (1) 10% of Profits for the Fiscal Year ending within or with such
Plan Year over (2) the sum of (i) the expense recorded for contributions made or
to be made for such Fiscal Year to the Professional Resources Ltd. Profit
Sharing and Savings Plan, (ii) the aggregate costs and expenses incurred for
premium payments to the Pension Benefit Guaranty Corporation and for outside
legal, accounting and actuarial services incident to the maintenance,
administration and operation of the Plan, the Halliburton Retirement Plan and
the Professional Resources Ltd. Profit Sharing and Savings Plan, (iii) the
amount, if any, of the expense (but not income) recorded for the net periodic
pension cost (as determined by the Company in accordance with generally accepted
accounting principles) applicable to the Halliburton Retirement Plan for such
plan's plan year with or within which such Fiscal Year ends and (iv) the
expenses recorded for amounts credited or to be credited to ERISA Restoration
Accounts under the Halliburton Company Senior Executives' Deferred Compensation
Plan for such Fiscal Year, plus (b) such additional
III-3
amount, if any, determined in the sole discretion of the Directors; provided,
however, that such Employer Profit Sharing Contribution shall not be less than
an amount which, when allocated to each Participant's Employer's Account
pursuant to Section 4.2(d), is equal to 4% of each such Participant's
Compensation for such Plan Year. For purposes of clause (iii) of the preceding
sentence and if required for administrative purposes, such net periodic pension
cost may be estimated by the Company and the difference between the actual cost
and the estimated cost shall be used to adjust the amount determined pursuant to
clause (iii) in the following Plan Year.
3.5 Restrictions on Employer Matching Contributions and After-Tax
Savings Contributions. In restriction of the Employer Contributions and
After-Tax Savings Contributions hereunder, it is specifically provided that one
of the "actual contribution percentage" tests set forth in section 401(m) of the
Code and the Treasury Regulations thereunder must be met in each Plan Year. Such
testing shall utilize the prior year testing method as such term is defined in
Internal Revenue Service Notice 98-1. The Committee may elect, in accordance
with applicable Treasury Regulations, to treat Tax Deferred Savings
Contributions to the Plan as Employer Matching Contributions for purposes of
meeting this requirement.
3.6 Payments to Trustee. Contributions under the Plan shall be paid by
the Employer directly to the Trustee as soon as practicable. On or about the
date of any such payment, the Committee shall be informed as to the amount of
such payment.
3.7 Return of Contributions. Anything to the contrary herein
notwithstanding, the Employer's contributions to the Plan are contingent upon
the deductibility of such contributions under section 404 of the Code. To the
extent that a deduction for contributions is disallowed, such contributions
shall, upon the written demand of the Employer, be returned to the Employer by
the Trustee within one year after the date of disallowance, reduced by any net
losses of the Trust Fund attributable thereto but not increased by any net
earnings of the Trust Fund attributable thereto. Moreover, if Employer
contributions are made under a mistake of fact, such contributions shall, upon
the written demand of the Employer, be returned to the Employer by the Trustee
within one year after the payment thereof, reduced by any net losses of the
Trust Fund attributable thereto but not increased by any net earnings of the
Trust Fund attributable thereto.
3.8 Disposition of Excess Deferrals and Excess Contributions.
(a) Anything to the contrary herein notwithstanding, any Tax
Deferred Savings Contributions to the Plan for a calendar year on behalf of a
Participant in excess of the limitations set forth in Section 3.1(d) and any
"excess deferrals" from other plans allocated to the Plan by such Participant no
later than March 1 of the next following calendar year within the meaning of,
and pursuant to the provisions of, section 402(g)(2) of the Code, shall be
distributed to such Participant not later than April 15 of the next following
calendar year.
(b) Anything to the contrary herein notwithstanding, if, for
any Plan Year, the aggregate Tax Deferred Savings Contributions made by the
Employer on behalf of Highly Compensated Employees exceeds the maximum amount of
Tax Deferred Savings Contributions permitted on behalf of such Highly
Compensated Employees pursuant to Section 3.1(e) (determined by reducing Tax
Deferred Savings Contributions on behalf of Highly Compensated Employees in
III-4
order of the highest dollar amounts contributed on behalf of such Highly
Compensated Employees in accordance with section 401(k)(8)(C) of the Code and
the Treasury Regulations thereunder), then such excess shall be distributed to
the Highly Compensated Employees on whose behalf such excess was contributed
before the end of the next following Plan Year.
(c) Anything to the contrary herein notwithstanding, if, for
any Plan Year, the sum of the aggregate Employer Matching Contributions and
After-Tax Savings Contributions allocated to the Accounts of Highly Compensated
Employees exceeds the maximum amount of such Employer Matching Contributions and
After-Tax Savings Contributions permitted on behalf of such Highly Compensated
Employees pursuant to Section 3.5 (determined by reducing, first, After-Tax
Savings Contributions made by, and second, Employer Matching Contributions made
on behalf of, Highly Compensated Employees in order of the highest dollar
amounts contributed by and on behalf of such Highly Compensated Employees in
accordance with section 401(m)(6)(C) of the Code and Treasury Regulations
thereunder), then such excess shall be distributed to the Highly Compensated
Employees on whose behalf such excess contributions were made or who made such
excess contributions, as applicable, before the end of the next following Plan
Year.
(d) In coordinating the disposition of excess deferrals and
excess contributions pursuant to this Section, such excess deferrals and excess
contributions shall be disposed of in the following order:
(1) First, Tax Deferred Savings Contributions which
constitute excess deferrals described in Paragraph (a) above that are
not considered in determining the amount of Employer Matching
Contributions pursuant to Section 3.3 shall be distributed;
(2) Second, excess Tax Deferred Savings Contributions
which constitute excess deferrals described in Paragraph (a) above that
are considered in determining the amount of Employer Matching
Contributions pursuant to Section 3.3 shall be distributed;
(3) Third, excess Tax Deferred Savings Contributions
described in Paragraph (b) above that are not considered in determining
the amount of Employer Matching Contributions pursuant to Section 3.3
shall be distributed;
(4) Fourth, excess Tax Deferred Savings Contributions
described in Paragraph (b) above that are considered in determining the
amount of Employer Matching Contributions pursuant to Section 3.3 shall
be distributed;
(5) Fifth, excess After-Tax Savings Contributions
described in Paragraph (c) above shall be distributed;
(6) Sixth, excess Employer Matching Contributions
described in Paragraph (c) above shall be distributed; and
(7) Seventh, Employer Matching Contributions that
relate to Tax Deferred Savings Contributions that have been distributed
pursuant to the provisions of Paragraph (2)
III-5
or (4) above that were not distributed pursuant to the provisions of
Paragraph (6) above shall be forfeited.
(e) Any distribution or forfeiture of excess deferrals or
excess contributions pursuant to the provision of this Section shall be adjusted
for income or loss allocated thereto in the manner determined by the Committee
in accordance with any method permissible under applicable Treasury Regulations.
Any forfeiture pursuant to the provisions of this Section shall be considered to
have occurred on the date which is 2-1/2 months after the end of the Plan Year.
3.9 Rollover Contributions.
(a) Qualified Rollover Contributions may be made to the Plan
by any Eligible Employee of amounts received by such Eligible Employee from an
individual retirement account or annuity or from an employee's trust described
in Section 401(a) of the Code, which is exempt from tax under Section 501(a) of
the Code, but only if any such Rollover Contribution is made pursuant to and in
accordance with applicable provisions of the Code and Treasury Regulations
promulgated thereunder.
(b) A Rollover Contribution of amounts that are "eligible
rollover distributions" within the meaning of section 402(f)(2)(A) of the Code
may be made to the Plan irrespective of whether such eligible rollover
distribution was paid to the Eligible Employee or paid to the Plan as a "direct"
Rollover Contribution. A direct Rollover Contribution to the Plan shall be
effectuated only by wire transfer directed to the Trustee or by issuance of a
check made payable to the Trustee, which is negotiable only by the Trustee, and
which identifies the Eligible Employee for whose benefit the Rollover
Contribution is being made. Any Eligible Employee desiring to effect Rollover
Contribution to the Plan must execute and file with the Committee the form
prescribed by the Committee for such purpose. The Committee may require as a
condition to accepting any Rollover Contribution to the Plan that such Eligible
Employee furnish any evidence that the Committee in its discretion deems
satisfactory to establish that the proposed Rollover Contribution is in fact
eligible for rollover to the Plan and is made pursuant to and in accordance with
applicable provisions of the Code and Treasury Regulations promulgated
thereunder. All Rollover contributions to the Plan must be made in cash.
(c) Rollover Contributions made in accordance with this
Section shall be credited to the Rollover Account of the Eligible Employee
making such Rollover Contributions; provided, however, to the extent that such
Rollover Contributions are used by a Participant for repayment purposes pursuant
to Section 8.3(a), such Rollover Contributions shall be credited to the
Employer's Account of the Participant making such Rollover Contributions.
III-6
IV.
Allocations and Limitations
4.1 Suspense Account. All contributions, forfeitures and the net
income (or net loss) of the Trust Fund shall be held in suspense until allocated
or applied as provided herein.
4.2 Records on a Unit Basis. Records with respect to the Investment
Funds shall be maintained on a unit basis.
4.3 Allocation or Application of Contributions and Forfeitures.
(a) Tax Deferred Savings Contributions made by the Employer on
a Participant's behalf pursuant to Section 3.1 shall be allocated to such
Participant's Tax Deferred Savings Account.
(b) After-Tax Savings Contributions made by a Participant
pursuant to Section 3.2 shall be allocated to the After-Tax Savings Account of
such Participant.
(c) The Employer Matching Contributions made on a
Participant's behalf pursuant to Section 3.3 shall be allocated to the
Employer's Account of the Participant.
(d) The Employer Profit Sharing Contribution made pursuant to
Section 3.4 for such Plan Year shall be allocated to the Employer's Account of
each Participant who received Compensation during such Plan Year. The allocation
to each such eligible Participant's Employer's Account shall be that portion of
such Employer Profit Sharing Contribution which is in the same proportion that
such Participant's Compensation for such Plan Year bears to the total of all
such Participants' Compensation for such Plan Year.
(e) All contributions to the Plan shall be considered
allocated to Participants' Accounts no later than the last day of the Plan Year
for which they were made, as determined pursuant to Article III, except that,
for purposes of Section 4.4, contributions shall be considered allocated to
Participants' Accounts when received by the Trustee.
(f) Any amounts which are forfeited under any provision hereof
during a Plan Year shall be applied to reduce Employer Matching Contributions
next coming due. Prior to such application, forfeited amounts shall continue to
be invested in the same Investment Fund(s) in which they were invested
immediately prior to their forfeiture.
4.4 Valuation of Accounts. All amounts contributed to the Trust Fund
shall be invested as soon as administratively feasible following their receipt
by the Trustee, and the balance of each Account shall reflect the result of
daily pricing of the assets in which such Account is invested from the time of
receipt by the Trustee until the time of distribution.
IV-1
4.5 Limitations and Corrections.
(a) For purposes of this Section, the following terms and
phrases shall have these respective meanings:
(1) "Annual Additions" of a Participant for any
Limitation Year shall mean the total of (A) the Employer Contributions,
Tax Deferred Savings Contributions and forfeitures, if any, allocated
to such Participant's Accounts for such year, (B) Participant's
After-Tax Savings Contributions, if any, (excluding any Rollover
Contributions) for such year and (C) amounts referred to in sections
415(l)(1) and 419A(d)(2) of the Code.
(2) "415 Compensation" shall mean the total of all
amounts paid by the Employer to or for the benefit of a Participant for
services rendered or labor performed for the Employer which are
required to be reported on the Participant's federal income tax
withholding statement or statements (Form W-2 or its subsequent
equivalent), subject to the following adjustments and limitations:
(A) The following shall be included:
(i) elective deferrals (as defined in
section 402(g)(3) of the Code) from compensation to
be paid by the Employer to the Participant; and
(ii) any amount which is contributed or
deferred by the Employer at the election of the
Participant and which is not includible in the gross
income of the Participant by reason of section 125 of
the Code.
(B) The 415 Compensation of any Participant taken
into account for purposes of the Plan shall be limited to
$160,000 for any Plan Year with such limitation to be:
(i) adjusted automatically to reflect any
amendments to section 401(a)(17) of the Code and any
cost-of-living increases authorized by section
401(a)(17) of the Code; and
(ii) prorated for a Plan Year of less than
twelve months and to the extent otherwise required by
applicable law.
(3) "Limitation Year" shall mean the Plan Year.
(4) "Maximum Annual Additions" of a Participant for
any Limitation Year shall mean the lesser of (A) $30,000 (or, if
greater, one-fourth of the defined benefit dollar limitation in effect
under section 415(b)(1)(A) of the Code for such Limitation Year) or (B)
25% of such Participant's 415 Compensation during such year except that
the limitation in this Clause (B) shall not apply to any contribution
for medical benefits (within the meaning of section 419A(f)(2) of the
Code) after separation from service with the
IV-2
Employer or a Controlled Entity which is otherwise treated as an Annual
Addition or to any amount otherwise treated as an Annual Addition under
section 415(l)(1) of the Code.
(b) Contrary Plan provisions notwithstanding, in no event
shall the Annual Additions credited to a Participant's Accounts for any
Limitation Year exceed the Maximum Annual Additions for such Participant for
such year. If as a result of allocation of forfeitures, a reasonable error in
estimating a Participant's compensation, a reasonable error in determining the
amount of elective deferrals (within the meaning of section 402(g)(3) of the
Code) that may be made with respect to any individual under the limits of
section 415 of the Code, or because of other limited facts and circumstances,
the Annual Additions which would be credited to a Participant's Accounts for a
Limitation Year would nonetheless exceed the Maximum Annual Additions for such
Participant for such year, the excess Annual Additions which, but for this
Section, would have been allocated to such Participant's Accounts shall be
disposed of as follows:
(1) First, by returning to such Participant his After
-Tax Savings Contributions, adjusted for income or loss allocated
thereto;
(2) Next, any such excess Annual Additions in the
form of Tax Deferred Savings Contributions on behalf of such
Participant which would not have been considered in determining the
amount of Employer Matching Contributions allocated to such
Participant's Employer's Account pursuant to Section 4.3(c) shall be
distributed to such Participant, adjusted for income or loss allocated
thereto;
(3) Next, any such excess Annual Additions in the
form of Tax Deferred Savings Contributions on behalf of such
Participant which would have been considered in determining the amount
of Employer Matching Contributions allocated to such Participant's
Employer's Account pursuant to Section 4.3(c) shall be distributed to
such Participant, adjusted for income or loss allocated thereto, and
the Employer Matching Contributions which would have been allocated to
such Participant's Employer's Account based upon such distributed Tax
Deferred Savings Contributions shall, to the extent such amounts would
have otherwise been allocated to such Participant's Employer's Account,
be treated as a forfeiture;
(4) Next, any such excess Annual Additions in the
form of Employer Profit Sharing Contributions shall, to the extent such
amounts would otherwise have been allocated to such Participant's
Employer's Account, be treated as a forfeiture.
(c) For purposes of determining whether the Annual Additions
under this Plan exceed the limitations herein provided, all defined contribution
plans of the Employer are to be treated as one defined contribution plan. In
addition, all defined contribution plans of Controlled Entities shall be
aggregated for this purpose. For purposes of this Section only, a "Controlled
Entity" (other than an affiliated service group member within the meaning of
Section 414(m) of the Code) shall be determined by application of a more than
50% control standard in lieu of an 80% control standard. If the Annual Additions
credited to a Participant's Accounts for any Limitation Year under this Plan
plus the additions credited on his behalf under other defined contribution plans
required to be aggregated pursuant to this Paragraph would exceed the Maximum
Annual Additions for such Participant for such Limitation Year, the Annual
Additions under this Plan and the additions under
IV-3
such other plans shall be reduced on a pro rata basis and allocated, reallocated
or returned in accordance with applicable plan provisions regarding Annual
Additions in excess of Maximum Annual Additions.
(d) In the case of a Participant who also participated in a
defined benefit plan of the Employer or a Controlled Entity (as defined in
Paragraph (c) above), the Employer shall reduce the Annual Additions credited to
the Accounts of such Participant under this Plan pursuant to the provisions of
Paragraph (b) to the extent necessary to prevent the limitation set forth in
section 415(e) of the Code from being exceeded. Notwithstanding the foregoing,
the provisions of this Paragraph shall only apply if such defined benefit plan
does not provide for a reduction of benefits thereunder to ensure that the
limitation set forth in section 415(e) of the Code is not exceeded. Further,
this Paragraph shall not apply for Limitation years beginning after December 31,
1999.
(e) If the limitations set forth in this Section would not
otherwise be met for any Limitation Year, the elections to make After-Tax
Savings Contributions pursuant to Section 3.2 and/or the Compensation deferral
elections pursuant to Section 3.1 of affected Participants may be reduced by the
Committee on a temporary and prospective basis in such manner as the Committee
shall determine.
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V.
Investment Funds
5.1 Investment of Accounts.
(a) Each Participant shall designate, in accordance with the
procedures established from time to time by the Committee, the manner in which
the amounts allocated to each of his Accounts shall be invested from among the
Investment Funds made available from time to time by the Committee. With respect
to each of a Participant's Accounts, such Participant may designate one of such
Investment Funds for all the amounts allocated to such Account or he may split
the investment of the amounts allocated to such Account between such Investment
Funds in such increments as the Committee may prescribe. If a Participant fails
to make a designation, then his Accounts shall be invested in the Investment
Fund or Investment Funds designated by the Committee from time to time in a
uniform and nondiscriminatory manner.
(b) A Participant may change his investment designation for
future contributions to be allocated to any one or all of his Accounts. Any such
change shall be made in accordance with the procedures established by the
Committee, and the frequency of such changes may be limited by the Committee.
(c) A Participant may elect to convert his investment
designation with respect to the amounts already allocated to one or more of his
Accounts. Any such conversion shall be made in accordance with the procedures
established by the Committee, and the frequency of such conversions may be
limited by the Committee.
5.2 Special Investment Provisions.
(a) Amounts allocated to a Participant's Accounts may be held
by the Trustee uninvested or may be held in an interest bearing account for a
reasonable period of time pending appropriate investment according to this
Article.
(b) Subject to the restrictions otherwise provided herein, in
a Trust Agreement or in the Master Trust Agreement, the Plan may acquire and
hold its funds in "qualifying employer securities" (as defined in section 407 of
the Act) to the extent necessary to comply with the investment provisions set
forth in this Article. Notwithstanding the foregoing, no transfer into any
Investment Fund holding Halliburton Stock shall be made if such transfer would
require the acquisition of Halliburton Stock and if, immediately after such
acquisition, (1) the Trust would own more than 10% of the shares of Halliburton
Stock then issued and outstanding or (2) the aggregate fair market value of
employer securities and employer real property held by the Plan would exceed 10%
of the fair market value of the Plan's assets (determined in accordance with the
provisions of section 407 of the Act and the regulations promulgated
thereunder). The Committee may from time to time establish such rules and
regulations as it shall deem appropriate to ensure compliance with the
limitations set forth in the preceding sentence. Further, the Committee may from
time to time
V-1
refuse to honor any investment designation, establish such rules and regulations
or take any other actions it shall deem appropriate to ensure the continued
availability of any applicable exemptions under the Securities Exchange Act of
1934 and to ensure the Plan's compliance with applicable federal and state
securities laws.
(c) Each Participant who has any portion of his Accounts
invested in Halliburton Stock shall be entitled to vote the shares of
Halliburton Stock allocated to his Accounts in accordance with the provisions
set forth in the Trust Agreement or the Master Trust Agreement, as applicable,
for the exercise of voting rights with respect to Halliburton Stock.
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VI.
Retirement Benefits
A Participant who terminates his employment by reason of his Retirement
shall be entitled to a retirement benefit, payable at the time and in the form
provided in Article X, equal to the value of his Accounts on his Benefit
Commencement Date. Any contribution allocable to a Participant's Accounts after
his Benefit Commencement Date shall be distributed, if his benefit was paid in a
lump sum, or used to increase his payments, if his benefit is being paid on a
periodic basis, as soon as administratively feasible after the date that such
contribution is paid to the Trust Fund.
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VII.
Disability Benefits
In the event a Participant's employment is terminated due to him being
Disabled and if such Participant has made application to the Committee for
disability benefits under this Article, then such Participant shall be entitled
to a disability benefit, payable at the time and in the form provided in Article
X, equal to the value of his Accounts on his Benefit Commencement Date. Any
contribution allocable to a Participant's Accounts after his Benefit
Commencement Date shall be distributed, if his benefit was paid in a lump sum,
or used to increase his payments, if his benefit is being paid on a periodic
basis, as soon as administratively feasible after the date that such
contribution is paid to the Trust Fund.
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VIII.
Severance Benefits
8.1 No Benefits Unless Herein Set Forth. Except as set forth in this
Article, upon termination of employment of a Participant for any reason other
than Retirement, death or being Disabled, such Participant shall acquire no
right to any benefit from the Plan or the Trust Fund.
8.2 Severance Benefit.
(a) Each Participant whose employment is terminated for any
reason other than Retirement, death or being Disabled shall be entitled to a
severance benefit, payable at the time and in the form provided in Article X,
equal to the value of his Accounts on his Benefit Commencement Date. Any
contribution allocable to his Accounts after his Benefit Commencement Date shall
be distributed, if his benefit was paid in a lump sum, or used to increase his
payments, if his benefit is being paid on a periodic basis, as soon as
administratively feasible after the date that such contribution is paid to the
Trust Fund.
(b) Any Participant with one Hour of Service on or after
December 31, 1996, shall have a 100% Vested Interest in his Employer's Account.
The Vested Interest in the Employer's Account of any other Participant shall be
determined under the terms of the Plan as in effect on the date of such
Participant's termination of employment with the Employer; provided, however,
that a Participant shall continue to have a 100% Vested Interest in any amounts
credited to his Repayment Account prior to the Effective Date, and earnings
thereon.
(c) A Participant shall have a 100% Vested Interest in his
After-Tax Savings Account, Rollover Account and Tax Deferred Savings Account at
all times.
8.3 Forfeitures.
(a) A Participant who terminated employment with the Employer
prior to December 31, 1996 with a Vested Interest in his Employer's Account
which was less than 100% and who either was not entitled to a distribution from
the Plan or received a distribution from the Plan of his entire Vested Interest
in his Accounts by the close of the second Plan Year following the Plan Year in
which his employment was terminated forfeited the forfeitable amount credited to
his Employer's Account. Such terminated Participant shall, upon subsequent
reemployment with the Employer or a Controlled Entity prior to incurring a
Period of Severance of five consecutive years, have the forfeited amount
restored to such Participant's Employer's Account, unadjusted by any subsequent
gains or losses of the Trust Fund; provided, however, that such restoration
shall be made only if such Participant repays in cash an amount equal to the
amount so distributed to him from his Employer's Account within five years from
the date the Participant is reemployed. A reemployed Participant who was not
entitled to a distribution from the Plan on his date of termination of
employment shall be considered to have repaid a distribution of zero dollars on
the date of his reemployment. A Participant's repayment made in accordance with
this Paragraph shall be credited to such Participant's Employer's Account when
the repayment is received by the Trustee. Any such
VIII-1
restoration shall be made as soon as administratively feasible following the
date of repayment. Notwithstanding anything to the contrary in the Plan, (1)
forfeited amounts to be restored by the Employer to Participants' Employer's
Accounts pursuant to this Paragraph shall be charged against and deducted from
forfeitures for the Plan Year in which such amounts are restored which would
otherwise be available to reduce Employer Matching Contributions and (2) if such
forfeitures otherwise available are not sufficient to provide such restoration,
the portion of such restoration not provided by forfeitures shall be provided by
an additional Employer contribution (which shall be made without regard to
current or accumulated earnings and profits).
(b) With respect to a Participant whose Vested Interest in his
Employer's Account was less than 100% and who made a withdrawal from or received
a termination distribution from his Employer's Account (other than as part of a
distribution from the Plan of his entire Vested Interest in his Accounts by the
close of the second Plan Year following the Plan Year in which his employment is
terminated) prior to December 31, 1996, any amount remaining in his Employer's
Account shall continue to be maintained as a separate account. At any relevant
time, such Participant's nonforfeitable portion of his separate account shall be
determined in accordance with the following formula:
X=P(AB + D) - D
For purposes of applying the formula: X is the nonforfeitable portion of such
separate account at the relevant time; P is the Participant's Vested Interest in
his Employer's Account at the relevant time; AB is the balance of such separate
account at the relevant time; and D is the amount of the withdrawal or
distribution. For all other purposes of the Plan, a Participant's separate
account shall be treated as an Employer's Account. Upon his incurring a Period
of Severance of five consecutive years, the forfeitable portion of a terminated
Participant's separate account and his Employer's Account shall be forfeited as
of the end of the Plan Year during which the terminated Participant completes
such Period of Severance.
(c) With respect to a Participant who terminated employment
with the Employer prior to December 31, 1996 with a Vested Interest in his
Employer's Account which was less than 100% and who is not otherwise subject to
the forfeiture provisions set forth above, the forfeitable portion of his
Employer's Account shall be forfeited as of the date the terminated Participant
completes a Period of Severance of five consecutive years or, if earlier, the
date of such Participant's death.
VIII-2
IX.
Death Benefits
9.1 Death Benefits. Upon the death of a Participant while an Employee
or within five months after his termination of employment if such termination
was by reason of him being Disabled and he has not qualified for disability
benefits under Article VII, the Participant's designated beneficiary shall be
entitled to a death benefit, payable at the time and in the form provided in
Article X, equal to the value of the Participant's Accounts on the Participant's
Benefit Commencement Date. Any contribution allocable to a Participant's
Accounts after his Benefit Commencement Date shall be distributed, if his
benefit was paid in a lump sum, or used to increase his payments, if his benefit
is being paid on a periodic basis, as soon as administratively feasible after
the date that such contribution is paid to the Trust Fund.
9.2 Designation of Beneficiaries.
(a) Each Participant shall have the right to designate the
beneficiary or beneficiaries to receive payment of his benefit in the event of
his death. Each such designation shall be made by executing the beneficiary
designation form prescribed by the Committee and filing such form with the
Committee. Any such designation may be changed at any time by such Participant
by execution of a new designation in accordance with this Section.
Notwithstanding the foregoing, if a Participant who is married on the date of
his death designates an individual or entity other than his Eligible Surviving
Spouse as his beneficiary, such designation shall not be effective unless (1)
such spouse has consented thereto in writing and such consent (A) acknowledges
the effect of such specific designation, (B) either consents to the specific
designated beneficiary (which designation may not subsequently be changed by the
Participant without spousal consent) or expressly permits such designation by
the Participant without the requirement of further consent by the spouse, and
(C) is witnessed by a Plan representative (other than the Participant) or a
notary public or (2) the consent of such spouse cannot be obtained because such
spouse cannot be located or because of other circumstances described by
applicable Treasury regulations. Any such consent by such Eligible Surviving
Spouse shall be irrevocable.
(b) If any beneficiary designated by a Participant does not
survive the Participant, the interest of such beneficiary shall vest in the
designated beneficiary or beneficiaries who do survive the Participant, if any,
but if no designated beneficiary survives the Participant or if no beneficiary
designation is on file with the Committee at the time of the death of the
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
Participant's benefit hereunder shall be as follows:
(1) If a Participant leaves a surviving spouse, his
designated beneficiary shall be such surviving spouse;
(2) If a Participant leaves no surviving spouse, his
designated beneficiary shall be (A) such Participant's estate or (B)
his heirs at law if there is no administration of such Participant's
estate.
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(c) Each beneficiary of a Participant who becomes entitled to
a benefit pursuant to Section 10.2(a)(3) or pursuant to Section 10.3(b) upon the
death of a Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. Each
such designation shall be made by executing the beneficiary designation form pre
scribed by the Committee and filing same with the Committee. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
(d) If any beneficiary designated pursuant to Paragraph (c)
does not survive the beneficiary of a Participant, the interest of such
beneficiary shall vest in the designated beneficiary or beneficiaries who do
survive the beneficiary of a Participant, if any, but if no designated benefi
ciary survives the beneficiary of a Participant or if no beneficiary designation
is on file with the Committee at the time of the death of the beneficiary of a
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
beneficiary of a Participant's benefit pursuant to Section 10.2(a)(3) or
pursuant to Section 10.3(b) shall be the Participant's executor or
administrator, or his heirs at law if there is no administration of such
beneficiary of a Participant's estate.
(e) Notwithstanding the preceding provisions of this Section
and to the extent not prohibited by state or federal law, if a Participant is
divorced from his spouse and at the time of his death is not remarried to the
person from whom he was divorced, any designation of such divorced spouse as his
beneficiary under the Plan filed prior to the divorce shall be void unless the
contrary is expressly stated in writing filed with the Committee by the
Participant. The interest of such divorced spouse failing hereunder shall vest
in the persons specified in Paragraph (b) above as if such divorced spouse did
not survive the Participant.
IX-2
X.
Time and Form of Payment of Benefits
10.1 Determination of Benefit Commencement Date.
(a) Subject to the provisions of the remaining Paragraphs of
this Section, a Participant's Benefit Commencement Date shall be the date that
is as soon as administratively feasible after (1) the date the Participant or
his beneficiary becomes entitled to a benefit pursuant to Article VI, VII or IX
or (2) if the Participant or his beneficiary becomes entitled to a benefit
pursuant to Article VIII, the earlier of the date the Participant (i) attains
age fifty-five, (ii) dies or (iii) com pletes a Period of Severance of thirty
consecutive days after the termination of his employment entitling him to such
benefit provided the Participant has not been reemployed by the Employer or a
Controlled Entity by his Benefit Commencement Date.
(b) Unless a Participant (1) has attained age sixty-five or
died or (2) consents to a distribution pursuant to Paragraph (a) within the
ninety-day period ending on the date payment of his benefit hereunder is to
commence pursuant to Paragraph (a), his Benefit Commencement Date shall be
deferred to the date which is as soon as administratively feasible after the
earlier of the date the Participant attains age sixty-five or the Participant's
date of death, or such earlier date as the Participant may elect prior to such
date. The Committee shall furnish information pertinent to his consent to each
Participant no less than thirty days (unless such thirty-day period is waived by
an affirmative election in accordance with applicable Treasury regulations) and
no more than ninety days before his Benefit Commencement Date, and the furnished
information shall include a general description of the material features of, and
an explanation of the relative values of, the alternative forms of benefit
available under the Plan and must inform the Participant of his right to defer
his Benefit Commencement Date and of his transfer right pursuant to Section 10.8
below, if applicable.
(c) A Participant's Benefit Commencement Date shall in no
event be later than the sixtieth day following the close of the Plan Year during
which such Participant attains, or would have attained, his Normal Retirement
Date or, if later, terminates his employment with the Employer or a Controlled
Entity.
(d) A Participant's Benefit Commencement Date shall be in
compliance with the provisions of section 401(a)(9) of the Code and applicable
Treasury regulations thereunder and shall in no event be later than:
(1) April 1 of the calendar year following the later
of (A) the calendar year in which such Participant attains the age of
seventy and one-half or (B) the calendar year in which such Participant
terminates his employment with the Employer (provided, however, that
clause (B) of this sentence shall not apply in the case of a
Participant who is a "five-percent owner" (as defined in section 416 of
the Code) with respect to the Plan Year ending in the calendar year in
which such Participant attains the age of seventy and one-half); and
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(2) In the case of a benefit payable pursuant to
Article IX, (A) if payable to other than the Participant's spouse, the
last day of the one-year period following the death of such Participant
or (B) if payable to the Participant's spouse, after the date upon
which such Participant would have attained the age of seventy and
one-half, unless such surviving spouse dies before payments commence,
in which case the Benefit Commencement Date may not be deferred beyond
the last day of the one-year period following the death of such
surviving spouse.
The provisions of this Section notwithstanding, a Participant may not elect to
defer the receipt of his benefit hereunder to the extent that such deferral
creates a death benefit that is more than incidental within the meaning of
section 401(a)(9)(G) of the Code and applicable Treasury regulations thereunder.
Further, in determining compliance with the provisions of section 401(a)(9) of
the Code, a Participant may elect in accordance with procedures established by
the Committee, prior to the first required distribution under section 401(a)(9)
of the Code, to have the life expectancies of the Participant and the
Participant's spouse recalculated annually pursuant to the provisions of section
401(a)(9)(D) of the Code and the Treasury regulations thereunder. If such an
election is not made, the life expectancies of the Participant and the
Participant's spouse shall not be recalculated.
(e) If (A) a Participant attained age seventy and one-half,
but did not terminate employment with the Employer, prior to 1997, (B) such
Participant's Benefit Commencement Date occurred prior to his termination of
employment pursuant to the provisions of Paragraph (d) as in effect prior to
June 1,1998, (C) such Participant is an Employee and (D) such Participant was
not a "five-percent owner" (as defined in section 416 of the Code) with respect
to the Plan Year ending in the calendar year in which such Participant attained
the age of seventy and one-half, such Participant may affirmatively elect to
cease the distribution of his Accounts hereunder until the time described in
Paragraph (1) or (2) above, whichever is applicable.
(f) Subject to the provisions of Paragraph (d), a
Participant's Benefit Commencement Date shall not occur unless the Article VI,
VII, VIII or IX event entitling the Participant (or his beneficiary) to a
benefit constitutes a distributable event described in section 401(k)(2)(B) of
the Code and shall not occur while the Participant is employed by the Employer
or any Controlled Entity (irrespective of whether the Participant has become
entitled to a distribution of his benefit pursuant to Article VI, VII, VIII or
IX).
(g) Paragraphs (a), (b), and (c) above notwithstanding, a
Participant, other than a Participant whose Vested Interest in his Accounts is
not (and at the time of any prior distribution was not) in excess of $5,000, may
elect, in the manner and within the time period prescribed by the Committee, to
defer his Benefit Commencement Date beyond the date specified in such
Paragraphs, subject to the provisions of Paragraph (d).
10.2 Alternative Forms of Benefit for Participants.
(a) For purposes of Article VI or VII, the benefit of any
Participant shall be paid in one of the following alternative forms to be
selected by the Participant or, in the absence of such selection, in a single
lump sum cash payment (notwithstanding the provisions of Section 10.5(b));
X-2
provided, however, that the period and method of payment of any such form shall
be in compliance with the provisions of section 401(a)(9) of the Code and
applicable Treasury regulations thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or, in the
event of such Participant's death before the end of such term certain,
to his designated beneficiary as provided in Section 9.2.
(3) Periodic installment payments for any term
certain (expressed as a specified dollar amount per month) to such
Participant or, in the event of such Participant's death before the end
of such term certain, to his designated beneficiary as provided in
Section 9.2. At any time prior to the exhaustion of a Participant's
Accounts, the Participant or his designated beneficiary may elect, in
accordance with the procedures established by the Committee, to alter
the schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments in any
year; provided, however, that such changes must comply with the
provisions of section 401(a)(9) of the Code. Periodic installment
payments shall be suspended during any period of reemployment by the
Participant with an Employer or a Controlled Entity. In the case of
such suspension, upon such Participant's subsequent termination of
employment the Participant shall be considered to have a new Benefit
Commencement Date as to the suspended payments and as to any additional
amounts allocated to his Accounts during his period of reemployment.
Upon the death of a designated beneficiary who is receiving installment
payments under this subparagraph, the remaining balance in the
Participant's Accounts shall be paid as soon as administratively
feasible, in one lump sum cash payment (notwithstanding the provisions
of Section 10.5(b)), to such beneficiary's designated beneficiary as
provided in Section 9.2(c) and (d).
(b) For purposes of Article VIII, the benefit for any
Participant shall be paid in one of the following alternative forms to be
selected by the Participant or, in the absence of such selection, in a single
lump sum cash payment (notwithstanding the provisions of Section 10.5(b));
provided, however, that the period and method of payment of any such form shall
be in compliance with the provisions of section 401(a)(9) of the Code and
applicable Treasury Regulations thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or, in the
event of such Participant's death before the end of such term certain,
to his designated beneficiary as provided in Section 9.2.
(c) If a Participant, who terminated his employment under
circumstances such that he was entitled to a benefit pursuant to Article VI, VII
or VIII, dies prior to the time that any funds from his Accounts have been paid,
or irrevocably committed to be paid, to provide a benefit pursuant to this
Section, the amount of the benefit to which he was entitled shall be paid
pursuant to Section 10.3 just as if such Participant had died while employed by
the Employer except that his Vested Interest shall be determined pursuant to
Article VI, VII or VIII, whichever is applicable.
X-3
10.3 Alternative Forms of Death Benefit. For purposes of Article IX,
the death benefit for a deceased Participant shall be paid to his designated
beneficiary as provided in Section 9.2 in one of the following alternative forms
to be selected by such beneficiary or, in the absence of such selection, in a
single lump sum cash payment (notwithstanding the provisions of Section
10.5(b)); provided, however, that the period and method of payment of any such
form shall be in compliance with the provisions of section 401(a)(9) of the Code
and applicable Treasury regulations thereunder:
(a) A lump sum.
(b) Periodic installment payments for any term certain
(expressed as a specified dollar amount per month) or a commercial
annuity contract providing for periodic payments for any term certain;
provided, however, the term certain shall not exceed the life
expectancy of the beneficiary. At any time prior to the exhaustion of a
Participant's Accounts, a beneficiary who is receiving periodic
installment payments from the Plan under this subparagraph may elect,
in accordance with the procedures established by the Committee, to
alter the schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments in any
year; provided, however, that such changes must comply with the
preceding provisions of this subparagraph and section 401(a)(9) of the
Code. Upon the death of a beneficiary who is receiving periodic
installment payments from the Plan under this subparagraph, the
remaining balance in the Participant's Accounts shall be paid as soon
as administratively feasible, in one lump sum cash payment
(notwithstanding the provisions of Section 10.5(b)), to such
beneficiary's designated beneficiary as provided in Section 9.2(c) and
(d). The preceding notwithstanding, the form of payment set forth in
this Paragraph shall not be applicable after December 31, 2004 to a
nonspouse beneficiary of a Participant who did not have an Account
balance under the Plan on May 31, 1998.
10.4 Cash-Out of Benefit.
(a) Subject to the provisions of Paragraph (b) below, if a
Participant terminates his employment with the Employer and his Vested Interest
in his Accounts is not (and at the time of any prior distribution was not) in
excess of $5,000, such Participant's benefit shall be paid in one lump sum cash
payment in lieu of any other form of benefit herein provided pursuant to Section
10.2, Section 10.3 or Section 10.5(b). Any such payment shall be made at the
time specified in Section 10.1(a) without regard to the consent restrictions of
Section 10.1(b). The provisions of this Section shall not be applicable to a
Participant following his Benefit Commencement Date.
(b) Any Participant whose Vested Interest in his Accounts in
the Plan is not (and at the time of any prior distribution was not) in excess of
$5,000, but the present value of whose nonforfeitable accrued benefit in all
Halliburton Energy Services Plans, when aggregated, totals in excess of $5,000,
shall not be subject to the requirements of Section 10.4(a) above.
X-4
10.5 Benefits from Account Balances.
(a) With respect to any benefit payable in any form pursuant
to the Plan, whichever form of payment is selected, such benefit shall be
provided from the Account balance(s) to which the particular Participant or
beneficiary is entitled.
(b) All benefits under the Plan shall be paid in cash except
that in the event that a Participant's benefit is to be paid in the form of a
lump sum distribution pursuant to Section 10.2(a)(1), Section 10.2(b)(1),
Section 10.3(a), Section 10.2(d)(1) of Appendix A, Section 10.2(e)(1) of
Appendix A or Section 10.3(f)(1) of Appendix A, or in the event of a withdrawal
pursuant to Section 11.1(b) or Section 11.1(d), the individual to whom such
benefit or withdrawal is payable may elect to receive the amounts credited to
the Participant's Accounts which are invested in Halliburton Stock in the form
of whole shares of Halliburton Stock with the value of any fractional shares to
be paid in cash.
(c) In the event that a Participant's or beneficiary's benefit
is to be paid in installments pursuant to Section 10.2(a)(3), Section 10.3(b),
Section 10.2(d)(3) of Appendix A or 10.3(f)(2) of Appendix A or if less than all
of a Participant's Accounts are to be distributed under a Direct Rollover, the
Committee shall establish procedures to determine the priority of Accounts and
Investment Funds from which such installments or Direct Rollover shall be made.
10.6 Commercial Annuities. Upon the purchase of a commercial annuity
contract and the distribution of such contract to the Participant or beneficiary
in accordance with the provisions of this Article X, the Plan shall have no
further liability with respect to the amount used to purchase the annuity
contract and such Participant or beneficiary shall look solely to the company
issuing such contract for such annuity payments. All certificates for commercial
annuity benefits shall be nontransferable, except for surrender to the issuing
company, and no benefit thereunder may be sold, assigned, discounted, or pledged
(other than as collateral for a loan from the company issuing same).
Notwithstanding the foregoing, the terms of any such commercial annuity contract
shall conform with the time of payment, form of payment and consent provisions
of Sections 10.1, 10.2, 10.3 and Appendix A.
10.7 Unclaimed Benefits. In the case of a benefit payable on behalf of
a Participant, if the Committee is unable to locate the Participant or
beneficiary to whom such benefit is payable, upon the Committee's determination
thereof, such benefit shall be forfeited. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Participant or beneficiary to whom such
benefit is payable makes a valid claim for such benefit, such forfeited benefit
shall be restored to the Plan in the manner provided in Section 8.3(a).
10.8 Benefit Transfer Election. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a Distributee's election under
this Section, a Distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover.
X-5
10.9 Claims Review. In any case in which a claim for Plan benefits of a
Participant or beneficiary is denied or modified, the Committee shall furnish
written notice to the claimant within ninety days (or within 180 days if
additional information requested by the Committee necessitates an extension of
the ninety-day period, and the claimant is informed of such extension in writing
within the original ninety-day period), which notice shall:
(a) State the specific reason or reasons for the denial
or modification;
(b) Provide specific reference to pertinent Plan
provisions on which the denial or modification is based;
(c) Provide a description of any additional material or
information necessary for the Participant, his beneficiary, or
representative to perfect the claim, and an explanation of why such
material or information is necessary; and
(d) Explain the Plan's claim review procedure described
below.
In the event a claim for Plan benefits is denied or modified, if the
Participant, his beneficiary, or a representative of such Participant or
beneficiary desires to have such denial or modification reviewed, he must,
within sixty days following receipt of the notice of such denial or
modification, submit a written request for review by the Committee of its
initial decision. In connection with such request, the Participant, his
beneficiary, or the representative of such Participant or beneficiary may review
any pertinent documents upon which such denial or modification was based and may
submit issues and comments in writing. Within sixty days following such request
for review the Committee shall, after providing a full and fair review, render
its final decision in writing to the Participant, his beneficiary or the
representative of such Participant or beneficiary stating specific reasons for
such decision and making specific references to pertinent Plan provisions or
which the decision is based. If special circumstances require an extension of
such sixty-day period, the Committee's decision shall be rendered as soon as
possible, but not later than 120 days after receipt of the request for review.
If an extension of time for review is required, written notice of the extension
shall be furnished to the Participant, beneficiary, or the representative of
such Participant or beneficiary prior to the commencement of the extension
period.
10.10 Mandatory Arbitration. If a Participant or beneficiary is not
satisfied with the decision of the Committee pursuant to the Plan's claims
review procedure, such Participant or beneficiary may, within sixty days of
receipt of the written decision of the Committee, request by written notice to
the Committee, that his claim be submitted to arbitration pursuant to the
Halliburton Dispute Resolution Program and any other applicable rules adopted by
the Committee. Such arbitration shall be the sole and exclusive procedure
available to a Participant or beneficiary for review of a decision of the
Committee. In reviewing the decision of the Committee, the arbitrator shall use
the standard of review which would be used by a federal court in reviewing such
decision under the provisions of the Act. The Participant or beneficiary and the
Plan shall share equally the cost of such arbitration. The cost of such
arbitration shall be allocated in accordance with the Halliburton Dispute
Resolution Program or other applicable rules adopted by the Committee. The
arbitrator's decision shall be final and legally binding on both parties. This
Section shall be governed by the provisions of the Federal Arbitration Act.
X-6
XI.
Withdrawals and Loans
11.1 Withdrawals.
(a) A Participant may withdraw from his After-Tax Savings
Account any or all amounts held in such Account. Such a withdrawal shall be made
first against After-Tax Savings Contributions made prior to 1987, then pro-rata
against After-Tax Savings Contributions made after 1986 and the earnings
attributable to all After-Tax Savings Contributions.
(b) A Participant who has attained age fifty-nine and one-half
may withdraw from his Accounts an amount not exceeding the then value of such
Accounts.
(c) A Participant who has a financial hardship, as determined
by the Committee, and who has made all available withdrawals pursuant to the
Paragraphs above and pursuant to the provisions of any other plans of the
Employer and any Controlled Entities of which he is a member and who has
obtained all available loans pursuant to the provisions of any other plans of
the Employer and any Controlled Entities of which he is a member may withdraw
from his Rollover Account and his Tax Deferred Savings Account amounts not to
exceed the lesser of (1) the then value of such Accounts or (2) the amount
determined by the Committee as being available for withdrawal pursuant to this
Paragraph. For purposes of this Paragraph, financial hardship means the
immediate and heavy financial needs of the Participant. A withdrawal based upon
financial hardship pursuant to this Paragraph shall not exceed the amount
required to meet the immediate financial need created by the hardship and not
reasonably available from other resources of the Participant. The amount
required to meet the immediate financial need may include any amounts necessary
to pay any federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution. The determination of the existence
of a Participant's financial hardship and the amount required to be distributed
to meet the need created by the hardship shall be made by the Committee. A
withdrawal shall be deemed to be made on account of an immediate and heavy
financial need of a Participant only if the withdrawal is on account of:
(1) Expenses for medical care described in section
213(d) of the Code previously incurred by the Participant, the
Participant's spouse, or any dependents of the Participant (as defined
in section 152 of the Code) or necessary for these persons to obtain
medical care described in section 213(d) of the Code and not reimbursed
or reimbursable by insurance;
(2) Costs directly related to the purchase of a
principal residence for the Participant (excluding mortgage payments);
(3) Payment of tuition and related educational fees,
and room and board expenses, for the next twelve months of
post-secondary education for the Participant, or the Participant's
spouse, children or dependents (as defined in section 152 of the Code);
XI-1
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal residence or foreclosure
on the mortgage of the Participant's principal residence; or
(5) Such other financial needs which the Commissioner
of Internal Revenue Service may deem to be immediate and heavy
financial needs through the publication of revenue rulings, notices and
other documents of general applicability.
Further, a withdrawal shall be treated as necessary to satisfy an immediate and
heavy financial need only if the Participant represents on a sworn statement in
such form as the Committee prescribes that the need cannot reasonably be
relieved (i) through reimbursement or compensation by insurance or otherwise,
(ii) by liquidation of the Participant's assets, (iii) by cessation of Tax
Deferred Savings Contributions or After-Tax Savings Contributions or (iv) by
other distributions or nontaxable (at the time of the loan) loans from plans
maintained by the Employer or by any other employer or by borrowing from
commercial sources on reasonable commercial terms. For purposes of the preceding
sentence, a Participant's resources shall be deemed to include those assets of
his or her spouse and minor children that are reasonably available to the
Participant. The decision of the Committee shall be final and binding, provided
that all Participants similarly situated shall be treated in a uniform and
nondiscriminatory manner. The above notwithstanding, withdrawals under this
Paragraph from a Participant's Tax Deferred Savings Account shall be limited to
the sum of the Participant's Tax Deferred Savings Contributions to the Plan,
plus income allocable thereto and credited to the Participant's Tax Deferred
Savings Account as of December 31, 1988, less any previous withdrawals of such
amounts.
(d) A Participant who has terminated his employment by reason
of his Retirement, a beneficiary of a Participant who died while an Employee or
after having terminated his employment by reason of his Retirement and an
alternate payee under a qualified domestic relations order with respect to the
Accounts of a Participant who is eligible for Retirement or has terminated his
employment by reason of his Retirement, may withdraw from his Accounts an amount
not exceeding the then value of his Accounts. The preceding sentence
notwithstanding, this Paragraph shall not be applicable after December 31, 2004
to a nonspouse beneficiary of a Participant who did not have an Account balance
under the Plan on May 31, 1998.
(e) All withdrawals pursuant to this Section (1) shall be made
as soon as administratively feasible after the date upon which the Participant
has satisfied all of the require ments to obtain the withdrawal, (2) shall be
paid in cash except as provided in Section 10.5(b) and (3) shall be subject to
the benefit transfer election described in Section 10.8. The Committee shall
establish procedures to determine the priority of Accounts and Investment Funds
from which a withdrawal pursuant to this Section is made. Except as provided in
Section 11.1(d), unless and until a Participant is reemployed, this Section
shall not be applicable to a Participant following termination of employment,
and the amounts in such Participant's Accounts shall be distributable only in
accordance with the provisions of Article X and Appendix A.
11.2 No Loans. Participants shall not be permitted to borrow from
the Trust Fund.
XI-2
XII.
Administration of the Plan
12.1 Administration by Committee. The general administration of the
Plan shall be vested in the Committee. For purposes of the Act, the Committee
shall be the Plan "administrator" and shall be the "named fiduciary" with
respect to the general administration of the Plan (except as to the investment
of the assets of the Trust Fund).
12.2 Procedures. The procedures of the Committee shall be established
by the Chief Executive Officer.
12.3 Self-Interest of Members. No member of the Committee shall have
any right to vote or decide upon any matter relating solely to himself under the
Plan or to vote in any case in which his individual right to claim any benefit
under the Plan is particularly involved. In any case in which a Committee member
is so disqualified to act and the remaining members cannot, by majority vote,
agree, the Chief Executive Officer shall appoint a temporary substitute member
to exercise all the powers of the disqualified member concerning the matter in
which he is disqualified.
12.4 Compensation and Bonding. The members of the Committee shall not
receive compensation with respect to their services for the Committee. To the
extent required by the Act or other applicable law, or required by the Employer,
members of the Committee shall furnish bond or security for the performance of
their duties hereunder.
12.5 Committee Powers and Duties. The Committee shall supervise the
administration and enforcement of the Plan according to the terms and provisions
hereof and shall have all powers necessary to accomplish these purposes,
including, but not by way of limitation, the right, power, authority, and duty:
(a) To make rules, regulations, and bylaws for the
administration of the Plan which are not inconsistent with the terms
and provisions hereof, provided such rules, regulations, and bylaws are
evidenced in writing and copies thereof are delivered to the Trustee
and to each Employer, and to enforce the terms of the Plan and the
rules and regulations promulgated thereunder by the Committee;
(b) To construe in its discretion all terms, provisions,
conditions, and limitations of the Plan. In all cases, the
construction necessary for the Plan to qualify under the applicable
provisions of the Code shall control;
(c) To correct any defect or supply any omission or reconcile
any inconsistency that may appear in the Plan in such manner and to
such extent as it shall deem in its discretion expedient to effectuate
the purposes of the Plan;
XII-1
(d) To employ and compensate such accountants, attorneys,
investment advisors, and other agents, employees and independent
contractors as the Committee may deem necessary or advisable in the
proper and efficient administration of the Plan;
(e) To determine in its discretion all questions relating to
eligibility;
(f) To determine in its discretion the amount, manner, and
time of payment of any benefits hereunder and to prescribe procedures
to be followed by distributees in obtaining benefits hereunder;
(g) To prepare, file and distribute, in such manner as the
Committee determines to be appropriate, such information and material
as is required by the reporting and disclosure requirements of the Act;
(h) To make a determination in its discretion as to the right
of any person to a benefit under the Plan;
(i) To issue directions to the Trustee concerning all benefits
which are to be paid from the Trust Fund pursuant to the provisions of
the Plan;
(j) To receive and review reports from the Trustee as to the
financial condition of the Trust Fund, including its receipts and
disbursements;
(k) To instruct the trustee under the Master Trust Agreement
to transfer amounts to the Trustee for disbursement, in accordance with
the Plan, to Participants and their beneficiaries;
(l) To furnish the Employer any information necessary for the
preparation of such Employer's tax return or other information that the
Committee determines in its discretion is necessary for a legitimate
purpose; and
(m) To require and obtain from the Employer and the
Participants any information or data that the Committee determines is
necessary for the proper administration of the Plan.
12.6 Employer to Supply Information. The Employer shall supply full and
timely information to the Committee, including, but not limited to, information
relating to each Participant's Compensation, age, retirement, death, or other
cause for termination of employment and such other pertinent facts as the
Committee may require. The Employer shall advise the Trustee of such of the
foregoing facts as are deemed necessary for the Trustee to carry out the
Trustee's duties under the Plan. When making a determination in connection with
the Plan, the Committee shall be entitled to rely upon the aforesaid information
furnished by the Employer.
12.7 Accounting. As soon as practicable after the close of each Plan
Year, the Committee shall furnish or cause to be furnished to each Employer a
statement certified to by an independent certified public accountant engaged by
such Committee, showing receipts and disbursements and the assets and
liabilities of the Trust Fund. The reasonable and necessary expenses incurred in
XII-2
preparing such statement shall be allocated to and paid as the Committee deems
proper. The Company shall have the right to demand one or more additional
accountings at the expense of the Trust Fund at any time with or without cause.
12.8 Participants to Furnish Required Information.
(a) Each Participant shall furnish to the Committee such
information as the Committee considers necessary or desirable for purposes of
administering the Plan, and the provisions of the Plan respecting any payments
hereunder are conditioned upon the Participant's furnishing promptly such true,
full, and complete information as the Committee may reasonably request.
(b) Each Participant shall submit proof of his age to the
Committee at such time as required by the Committee. The Committee shall, if
such proof of age is not submitted as required, use as conclusive evidence
thereof such information as is deemed by it to be reliable, regardless of the
source of such information. Any adjustment required by reason of lack of proof
or the misstatement of the age of persons entitled to benefits hereunder, by the
Participant or otherwise, shall be in such manner as the Committee deems
appropriate.
(c) Any notice or information which according to the terms of
the Plan or the rules of the Committee must be filed in writing with such
Committee shall be deemed so filed when received by such Committee (whether
delivered in person or by mail). Unless otherwise specified by the Committee, if
mailed, any such notice or information shall be addressed as follows:
Halliburton Company Benefits Committee
4100 Clinton Drive, Building 1
P.O. Box 3
Houston, Texas 77001-0003.
Notwithstanding the foregoing, the Committee may from time to time establish
rules pursuant to which any written notice or form required to be delivered to
the Committee may also be given by use of facsimile machines or by other methods
specified by the Committee. Whenever a provision requires that a Participant
give notice to the Committee within a specified number of days or by a certain
date, and the last day of such period, or such date, falls on a Saturday,
Sunday, or holiday, the Participant will be deemed in compliance with such
provision if notice is received by the Committee on or before the business day
next following such Saturday, Sunday, or holiday. The Committee may, in its sole
discretion, modify or waive any specified notice requirement; provided, however,
that such modification or waiver must be administratively feasible, must be in
the best interest of the Participant, and must be applied by the Committee in a
uniform and nondiscriminatory manner.
XII-3
XIII.
Administration of Investment Funds
13.1 Payment of Expenses. All expenses incident to the administration
of the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, expenses of the Committee, and the cost of furnishing any bond or security
required of the Committee, may be paid by the Employer and, if not paid by the
Employer, shall be paid by the Trustee from the Trust Fund and, until paid,
shall constitute a claim against the Trust Fund which is paramount to the claims
of Participants and beneficiaries; provided, however, that in the event the
Trustee's compensation is to be paid, pursuant to this Section, from the Trust
Fund, any individual serving as Trustee who already receives full-time pay from
an employer or an association of employers whose employees are participants in
the Plan, or from an employee organization whose members are participants in the
Plan, shall not receive any additional compensation for serving as Trustee. The
Committee may allocate the expenses of the Trust Fund to the Investment Funds
maintained under the Plan in the manner it deems proper. This Section shall be
deemed to be a part of any contract to provide for expenses of Plan and Trust
administration, whether or not the signatory to such contract is, as a matter of
convenience, the Employer.
13.2 Trust Fund Property.
(a) All income, profits, recoveries, contributions,
forfeitures, and any and all moneys, securities, and properties of any kind at
any time received or held by the Trustee hereunder shall be held for investment
purposes as a commingled Trust Fund. The Committee shall maintain Accounts in
the name of each Participant, but the maintenance of an Account designated as
the Account of a Participant shall not mean that such Participant shall have a
greater or lesser interest than that due him by operation of the Plan and shall
not be considered as segregating any funds or property from any other funds or
property contained in the commingled fund. No Participant shall have any title
to any specific asset in the Trust Fund.
(b) Each Participant, by becoming such, for himself, his
heirs, executors, administrators, legal representatives, and beneficiaries, ipso
facto, approves and agrees to be bound by the provisions of the Plan and the
Trust Agreement. If any Participant, former Participant, or beneficiary has a
cause of action against the Plan, the Committee, the Directors, the Chief
Executive Officer, the Trustee, or any other person having duties with respect
to the administration of the Plan or Trust Fund, the Accounts of such
Participant, former Participant, or of the deceased Participant through whom the
beneficiary claims, for purpose of such cause of action, shall be deemed a
separate trust, subject to all the terms of this Plan. No other Participant,
former Participant, or beneficiary shall be a necessary or proper party to a
suit on such cause of action. No Participant, former Partici pant, or
beneficiary shall be entitled to bring any class suit or to bring suit for or on
behalf of any other Participant, former Participant, or beneficiary. All
beneficiaries claiming by or through one Participant shall be proper parties to
any suit involving the Accounts of such deceased Participant. No beneficiary of
one deceased Participant shall be entitled to bring suit for or on behalf of any
Participant, former Participant, or any beneficiary of another deceased
Participant.
XIII-1
13.3 Distributions from Participants' Accounts. Distributions from a
Participant's Accounts shall be made by the Trustee only if, when, and in the
amount and manner directed in writing by the Committee. Any distribution made to
a Participant or for his benefit shall be debited to such Participant's Account
or Accounts.
13.4 United States Currency. All contributions to the Plan and the
payment of all benefits under the Plan shall be computed, contributed and paid,
as applicable, in currency of the United States except as otherwise specifically
provided herein.
XIII-2
XIV.
Trustee
As a means of administering the amounts contributed by the Employers
and the Participants, the Company has entered into a Trust Agreement with State
Street Bank and Trust Company, as Trustee, establishing the Trust known as the
Halliburton Employees' Benefit Fund. The Trustee shall be the "named fiduciary"
with respect to investment of the Trust Fund's assets. The Company may in the
future establish one or more additional Trusts to be maintained for purposes of
the Plan. Further, the Company has established, and may in the future establish,
one or more master trusts for purposes of collectively investing assets of the
Trust Fund and assets of other pension and profit sharing trusts exempt from tax
under section 501(a) of the Code by reason of qualifying under section 401(a) of
the Code. To the extent of the interest of the Trust Fund in any such collective
trust, the agreement or declaration of trust establishing such collective trust
shall be deemed to be adopted and made a part of the Plan and Trust as if set
forth in full herein. Specifically, the Trustee may cause amounts in the Trust
Fund to be invested as a part of the funds created by the Master Trust
Agreement, and any such amounts added to such funds at any time shall be subject
to all of the provisions of the Master Trust Agreement. For the purposes herein,
the Master Trust Agreement is adopted as and made a part of the Plan. The Trust
Agreements and the Master Trust Agreement may be amended, from time to time, as
the Company deems advisable in order to effectuate the purpose of the Plan.
XIV-1
XV.
Fiduciary Provisions
15.1 Article Controls. This Article shall control over any contrary,
inconsistent or ambiguous provisions contained in the Plan.
15.2 General Allocation of Fiduciary Duties. Each fiduciary with
respect to the Plan shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given him under the Plan.
The Chief Executive Officer shall have the sole authority to appoint and remove
the members of the Committee. Except as otherwise specifically provided herein
and in the Trust Agreement, the Committee shall have the sole responsibility for
the administration of the Plan, which responsibility is specifically described
herein. Except as otherwise specifically provided herein and in the Trust
Agreement, the Trustee shall have the sole responsibility for the adminis
tration, investment, and management of the assets held under the Plan. It is
intended under the Plan that each fiduciary shall be responsible for the proper
exercise of his own powers, duties, respon sibilities, and obligations hereunder
and shall not be responsible for any act or failure to act of another fiduciary
except to the extent provided by law or as specifically provided herein.
15.3 Fiduciary Duty. Each fiduciary under the Plan, including but not
limited to the Committee and the Trustee as "named fiduciaries," shall discharge
his duties and responsibilities with respect to the Plan:
(a) Solely in the interest of the Participants, for the
exclusive purpose of providing benefits to Participants, and their
beneficiaries, and defraying reasonable expenses of administering the
Plan;
(b) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(c) By diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the circumstances it is
prudent not to do so; and
(d) In accordance with the documents and instruments governing
the Plan insofar as such documents and instruments are consistent with
applicable law.
No fiduciary shall cause the Plan or Trust Fund to enter into a "prohibited
transaction" as provided in section 4975 of the Code or section 406 of the Act.
15.4 Delegation and Allocation of Fiduciary Duties. The Committee may
appoint subcommittees, individuals, or any other agents as it deems advisable
and may delegate to any of such appointees any or all of the powers and duties
of the Committee. Such appointment and delegation must be in writing, specifying
the powers or duties being delegated, and must be accepted in writing by the
delegatee. Upon such appointment, delegation, and acceptance, the delegating
XV-1
Committee members shall have no liability for the acts or omissions of any such
delegatee, as long as the delegating Committee members do not violate their
fiduciary responsibility in making or continuing such delegation.
15.5 Indemnification. The Company shall, to the extent approved by the
Directors, indemnify and hold harmless each of the Directors, the Chief
Executive Officer, and each member of the Committee against any and all expenses
and liabilities arising out of his administrative functions or fiduciary
responsibilities, including any expenses and liabilities that are caused by or
result from an act or omission constituting the negligence of such individual in
the performance of such functions or responsibilities, but excluding expenses
and liabilities which are caused by or result from such individual's own gross
negligence, fraud, or willful or intentional misconduct. Expenses against which
such person shall be indemnified hereunder include, without limitation, the
amounts of any settlement or judgment, costs, counsel fees, and related charges
reasonably incurred in connection with a claim asserted or a proceeding brought
or settlement thereof.
XV-2
XVI.
Amendments
No amendment of the Plan shall be made that would vest in the Employer,
directly or indirectly, any interest in or control of the Trust Fund. No
amendment shall be made that would vary the Plan's exclusive purpose of
providing benefits to Participants and their beneficiaries and of defraying
reasonable expenses of administering the Plan or which would permit the
diversion of any part of the Trust Fund from that exclusive purpose. No
amendment shall be made that would reduce any then nonforfeitable interest of a
Participant. No amendment shall increase the duties or responsibilities of the
Trustee unless the Trustee consents thereto in writing. Subject to these
limitations and any other limitations contained in the Act or the Code, the
Directors may from time to time amend, in whole or in part, any or all of the
provisions of the Plan on behalf of all Employers; provided, however, that
amendments to the Plan that do not have a significant cost impact on the
Employers and amendments necessary to acquire and maintain a qualified status
for the Plan under the Code, whether or not retroactive, may be made by the
Chief Executive Officer.
XVI-1
XVII.
Discontinuance of Contributions,
Termination, Partial Termination, and Merger or Consolidation
17.1 Right to Terminate. The Employer has established the Plan with the
bona fide intention and expectation that from year to year it will be able to,
and will deem it advisable to, make its contributions as herein provided.
However, the Directors realize that circumstances not now foreseen, or
circumstances beyond its control, may make it either impossible or inadvisable
to continue to make its contributions to the Plan. Therefore, the Directors and
the Chief Executive Officer shall each have the power to discontinue
contributions to the Plan, terminate the Plan, or partially terminate the Plan
at any time hereafter. Each member of the Committee and the Trustee shall be
notified of such discontinuance, termination, or partial termination.
17.2 Procedure in the Event of Discontinuance of Contributions,
Termination, or Partial Termination.
(a) If the Plan is amended so as to permanently discontinue
Employer Contributions, or if Employer Contributions are in fact permanently
discontinued, the Vested Interest of each affected Participant shall be 100%,
effective as of the date of discontinuance. In case of such discontinuance, the
Committee shall remain in existence and all other provisions of the Plan that
are necessary, in the opinion of the Committee, for equitable operation of the
Plan shall remain in force.
(b) If the Plan is terminated or partially terminated, the
Vested Interest of each affected Participant shall be 100%, effective as of the
termination date or partial termination date, as applicable. Unless the Plan is
otherwise amended prior to dissolution of the Company, the Plan shall terminate
as of the date of dissolution of the Company.
(c) Upon discontinuance of contributions, termination, or
partial termination, any previously unallocated contributions, forfeitures, and
net income (or net loss) shall be allocated among the Accounts of the
Participants on such date of discontinuance, termination, or partial termination
according to the provisions of Article IV. Thereafter, the net income (or net
loss) shall continue to be allocated to the Accounts of the Participants until
the balances of the Accounts are distributed.
(d) In the case of a termination or partial termination of the
Plan, and in the absence of a Plan amendment to the contrary, the Trustee shall
pay the balance of the Accounts of a Participant for whom the Plan is so
terminated, or who is affected by such partial termination, to such Participant,
subject to the time of payment, form of payment, and consent provisions of
Article X and Appendix A.
17.3 Merger, Consolidation or Transfer. This Plan and Trust Fund may
not merge or consolidate with, or transfer its assets or liabilities to, any
other plan, unless immediately thereafter each Participant would, in the event
such other plan terminated, be entitled to a benefit which is
XVII-1
equal to or greater than the benefit to which he would have been entitled if the
Plan were terminated immediately before the merger, consolidation or transfer.
XVII-2
XVIII.
Participating Employers
18.1 Designation of Other Employers.
(a) The Chief Executive Officer may designate any entity or
organization eligible by law to participate in the Plan and the Trust as an
Employer by written instrument delivered to the Committee and the designated
Employer. Such written instrument shall specify the effective date of such
designated participation, may incorporate specific provisions relating to the
operation of the Plan that apply to the designated Employer only and shall
become, as to such designated Employer and its Employees, a part of the Plan and
the Trust Agreement.
(b) Each designated Employer shall be conclusively presumed to
have consented to its designation and to have agreed to be bound by the terms of
the Plan and Trust Agreement and any and all amendments thereto upon its
submission of information to the Committee required by the terms of or with
respect to the Plan or upon making a contribution to the Trust Fund pursuant to
the terms of the Plan; provided, however, that the terms of the Plan may be
modified so as to increase the obligations of an Employer only with the consent
of such Employer, which consent shall be conclusively presumed to have been
given by such Employer upon its submission of any information to the Committee
required by the terms of or with respect to the Plan or upon making a
contribution to the Trust Fund pursuant to the terms of the Plan following
notice of such modification.
(c) The provisions of the Plan and the Trust Agreement shall
apply separately and equally to each Employer and its Employees in the same
manner as is expressly provided for the Company and its Employees except that
each Employer shall pay, for the benefit of its Employees who are Participants,
its portion of the total Employer Profit Sharing Contribution to be made by the
Employers. The amount of the Employer Profit Sharing Contribution for each
Employer for each Plan Year shall be determined by multiplying the total
Employer Profit Sharing Contribution for such Plan Year by a fraction, the
numerator of which shall be an amount equal to the Compensation of the
Participants of the Employer in question for such Plan Year, and the denominator
of which shall be an amount equal to the Compensation of all Participants of all
Employers for such Plan Year.
(d) Transfer of employment among Employers shall not be
considered a termination of employment hereunder, and Service with one shall be
considered as Service with all others.
(e) Any Employer may, by appropriate action of its Board of
Directors or noncorporate counterpart that is communicated in writing to the
Committee and to the Chief Executive Officer, terminate its participation in the
Plan and the Trust. Moreover, the Chief Executive Officer may, in his
discretion, terminate an Employer's Plan and Trust participation at any time by
written instrument delivered to the Committee and the designated Employer.
XVIII-1
18.2 Single Plan. For purposes of the Code and the Act, the Plan as
adopted by the Employers shall constitute a single plan rather than a separate
plan of each Employer. All assets in the Trust Fund shall be available to pay
benefits to all Participants and their beneficiaries.
XVIII-2
XIX.
Miscellaneous
19.1 Not Contract of Employment. The adoption and maintenance of the
Plan shall not be deemed to be a contract between the Employer and any person or
to be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of the
Employer or to restrict the right of the Employer to discharge any person at any
time nor shall the Plan be deemed to give the Employer the right to require any
person to remain in the employ of the Employer or to restrict any person's right
to terminate his employment at any time.
19.2 Payments Solely from Trust Fund. All benefits payable under the
Plan shall be paid or provided for solely from the Trust Fund, and neither the
Employer nor the Trustee assumes any liability or responsibility for the
adequacy thereof. The Committee or the Trustee may require execution and
delivery of such instruments as are deemed necessary to assure proper payment of
any benefits.
19.3 Alienation of Interest Forbidden. Except as otherwise provided
with respect to "qualified domestic relations orders" and certain judgments and
settlements pursuant to section 206(d) of the Act and sections 401(a)(13) and
414(p) of the Code and except as otherwise provided under other applicable law,
no right or interest of any kind in any benefit shall be transferable or
assignable by any Participant or any beneficiary or be subject to anticipation,
adjustment, alienation, encumbrance, garnishment, attachment, execution, or levy
of any kind. Plan provisions to the contrary notwithstanding, the Committee
shall comply with the terms and provisions of any "qualified domestic relations
orders," including orders which require distributions to an alternate payee
prior to a Participant's "earliest retirement age" as such term is defined in
section 206(d)(3)(E)(ii) of the Act and section 414(p)(4)(B) of the Code, and
shall establish appropriate procedures to effect the same.
19.4 Uniformed Services Employment and Reemployment Rights Act
Requirements. Notwithstanding any other provision of the Plan to the contrary,
contributions, benefits, and service credit with respect to qualified military
service will be provided in accordance with section 414(u) of the Code.
19.5 No Benefits to the Employer. No part of the corpus or income of
the Trust Fund shall be used for any purpose other than the exclusive purpose of
providing benefits for the Participants and their beneficiaries and defraying
reasonable expenses of administering the Plan. Anything to the contrary herein
notwithstanding, the Plan shall never be construed to vest any rights in the
Employer other than those specifically given hereunder.
19.6 Power of Attorney.
(a) A Participant may direct, on the form and within the
time period prescribed by the Committee, that the Committee consider and treat
the acts of an agent or attorney-in-fact
XIX-1
under a power of attorney, which complies with Paragraph (b) of this Section, as
acts of such Participant. The Committee shall honor any such direction and shall
recognize any such act to the extent, and only to the extent, that such act is
stated specifically in the instrument creating such power of attorney to be an
act that such agent or such attorney-in-fact is authorized to perform on behalf
of such Participant and only to the extent that such act may be performed by
such Participant under the terms of the Plan; provided, however, that such agent
or attorney-in-fact shall not be authorized to perform, and the Committee shall
not recognize, any act that results in a benefit to such agent or
attorney-in-fact, unless such agent or attorney-in-fact was designated as the
beneficiary of such benefit prior to the execution of the power of attorney, or
any other act that, under rules and regulations promulgated by the Committee,
may not be performed by an agent or attorney-in-fact under a power of attorney.
(b) A power of attorney for purposes of this Section must:
(1) Designate another person as an agent or
attorney-in-fact;
(2) Be in writing;
(3) Contain the words "this power of attorney is not
affected by subsequent disability or incapacity of the Participant" or
similar words evidencing the intent of the Participant that the power
of attorney shall remain in full force and effect notwithstanding the
disability or incapacity of the Participant;
(4) State that the power of attorney is effective
immediately;
(5) Enumerate the specific acts that the agent or
attorney-in-fact is empowered to perform on behalf of the Participant;
(6) Be signed and dated by the Participant;
(7) Be acknowledged by a notary public;
(8) Contain a statement signed by the Participant
whereby the Participant agrees to indemnify the Plan and the members of
the Committee in accordance with Paragraph (h) and to notify the
Committee in writing of any revocation or modification of the power of
attorney, which statement may be separate from, but must be affixed to,
the instrument creating the power of attorney; and
(9) Be filed with the Committee in accordance with
rules and regulations established by the Committee;
provided, however, that the Committee in its discretion may waive one or more of
the requirements of this Paragraph.
(c) A power of attorney described in Paragraph (b) shall not
lapse because of the passage of time, unless a time limitation is stated
specifically in the instrument creating the power
XIX-2
of attorney. All acts performed by the agent or attorney-in-fact pursuant to
such power of attorney during any period of disability or incapacity of the
Participant shall have the same effect and shall inure to the benefit of and
bind the Participant as if the Participant were not disabled or incapacitated.
(d) Nothing in this Section shall be construed to limit or to
deprive a Participant of any right, power, or authority to act under the terms
of the Plan during any period in which an agent or attorney-in-fact is empowered
to act pursuant to this Section. In the event that any act performed by such
Participant conflicts with or contradicts an act performed by such agent or
attorney-in-fact, the act of the Participant shall control.
(e) A Participant may revoke his direction made pursuant to
Paragraph (a), or amend the specific acts enumerated in the power of attorney
that the agent or attorney-in-fact is empowered to perform, at any time on the
form and within the time period prescribed by the Committee.
(f) A direction made pursuant to Paragraph (a) by a
Participant shall be revoked automatically upon the earliest to occur of (1) the
date of qualification of a guardian appointed for such Participant, (2) the date
of death or legal disability of the agent or attorney-in-fact under the power of
attorney, unless the power of attorney designates a successor agent or
attorney-in-fact, (3) the date of resignation of the agent or attorney-in-fact
under the power of attorney, unless the power of attorney designates a successor
agent or attorney in fact, or (4) the date of death of such Participant.
(g) The Committee shall be entitled to act in reliance on a
direction made pursuant to Paragraph (a) and a power of attorney filed with the
Committee unless and until the Committee receives actual notice in writing that
such direction or the authority granted under such power of attorney has been
revoked in whole or in part pursuant to Paragraph (e) or (f) above. Such written
notice must be given by the Participant, agent or attorney-in-fact under the
power of attorney, any guardian appointed for such Participant or such agent or
attorney-in-fact, executor or administrator of such Participant's or agent's or
attorney's-in-fact estate, or court order.
(h) A Participant who directs the Committee pursuant to
Paragraph (a) shall indemnify and hold harmless the Plan and each member of the
Committee against any and all expenses and liabilities arising out of his or its
reliance on such direction and such power of attorney, including any expenses
and liabilities that are caused by or result from an act or omission
constituting the negligence of such member or the Plan, but excluding expenses
and liabilities that are caused by or result from such member's or the Plan's
own gross negligence or willful misconduct. Expenses against which such member
or the Plan shall be indemnified hereunder shall include, but not be limited to,
the amounts of any settlement or judgment, costs, counsel fees, and related
charges reasonably incurred in connection with a claim asserted or a proceeding
brought or settlement thereof.
19.7 Severability. If any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions hereof; instead, each
XIX-3
provision shall be fully severable and the Plan shall be construed and enforced
as if said illegal or invalid provision had never been included herein.
19.8 Jurisdiction. The situs of the Plan is Texas. All provisions
of the Plan shall be construed in accordance with the laws of Texas except to
the extent preempted by federal law.
19.9 Payments to Minors and Incompetents. If a Participant or
beneficiary entitled to receive a benefit under the Plan is a minor or is
determined by the Committee in its discretion to be incompetent or is adjudged
by a court of competent jurisdiction to be legally incapable of giving valid
receipt and discharge for a benefit provided under the Plan, the Committee may
pay such benefit to the duly appointed guardian or conservator of such
Participant or beneficiary for the account of such Participant or beneficiary.
If no guardian or conservator has been appointed for such Participant or
beneficiary, the Committee may pay such benefit to any third party who is
determined by the Committee, in its sole discretion, to be authorized to receive
such benefit for the account of such Participant or beneficiary. Such payment
shall operate as a full discharge of all liabilities and obligations of the
Plan, the Committee, the Trustee, the Employer, and any fiduciary of the Plan
with respect to such benefit.
19.10 Participant's Address. It shall be the affirmative duty of each
Participant to inform the Committee of, and to keep on file with the Committee,
his current mailing address and the current mailing address of his designated
beneficiary. If a Participant fails to keep the Committee informed of his
current mailing address and the current mailing address of his designated
beneficiary, neither the Plan, the Committee, the Trustee, the Employer, nor any
fiduciary under the Plan shall be responsible for any late or lost payment of a
benefit or for failure of any notice to be provided timely under the terms of
the Plan.
XIX-4
XX.
Top-Heavy Status
20.1 Article Controls. Any Plan provisions to the contrary
notwithstanding, the provisions of this Article shall control to the extent
required to cause the Plan to comply with the requirements imposed under section
416 of the Code.
20.2 Definitions. For purposes of this Article, the following terms
and phrases shall have these respective meanings:
(a) Account Balance: As of any Valuation Date, the aggregate
amount credited to an individual's account or accounts under a
qualified defined contribution plan maintained by the Employer or a
Controlled Entity (excluding employee contributions which were
deductible within the meaning of section 219 of the Code and rollover
or transfer contribu tions made after December 31, 1983 by or on behalf
of such individual to such plan from another qualified plan sponsored
by an entity other than the Employer or a Controlled Entity), increased
by (1) the aggregate distributions made to such individual from such
plan during a five-year period ending on the Determination Date and (2)
the amount of any contributions due as of the Determination Date
immediately following such Valuation Date.
(b) Accrued Benefit: As of any Valuation Date, the present
value (computed on the basis of the Assumptions) of the cumulative
accrued benefit (excluding the portion thereof which is attributable to
employee contributions which were deductible pursuant to section 219 of
the Code, to rollover or transfer contributions made after December 31,
1983, by or on behalf of such individual to such plan from another
qualified plan sponsored by an entity other than the Employer or a
Controlled Entity, to proportional subsidies or to ancillary benefits)
of an individual under a qualified defined benefit plan maintained by
the Employer or a Controlled Entity increased by (1) the aggregate
distributions made to such individual from such plan during a five-year
period ending on the Determination Date and (2) the esti mated benefit
accrued by such individual between such Valuation Date and the
Determination Date immediately following such Valuation Date. Solely
for the purpose of determining top-heavy status, the Accrued Benefit of
an individual shall be determined under (1) the method, if any, that
uniformly applies for accrual purposes under all qualified defined
benefit plans maintained by the Employer and the Controlled Entities or
(2) if there is no such method, as if such benefit accrued not more
rapidly than under the slowest accrual rate permitted under section
411(b)(1)(C) of the Code.
(c) Aggregation Group: The group of qualified plans maintained
by the Employer and each Controlled Entity consisting of (1) each plan
in which a Key Employee participates and each other plan that enables a
plan in which a Key Employee participates to meet the requirements of
sections 401(a)(4) or 410 of the Code or (2) each plan in which a Key
Employee participates, each other plan that enables a plan in which a
Key Employee participates to meet the requirements of sections
401(a)(4) or 410 of the Code and any other plan that the Employer
elects to include as a part of such group; provided, however, that the
XX-1
Employer may elect to include a plan in such group only if the group
will continue to meet the requirements of sections 401(a)(4) and 410 of
the Code with such plan being taken into account.
(d) Assumptions: The interest rate and mortality assumptions
specified for top-heavy status determination purposes in any defined
benefit plan included in the Aggregation Group including the Plan.
(e) Determination Date: For the first Plan Year of any plan,
the last day of such Plan Year and for each subsequent Plan Year of
such plan, the last day of the preceding Plan Year.
(f) Key Employee: A "key employee" as defined in section
416(i) of the Code and the Treasury Regulations thereunder.
(g) Plan Year: With respect to any plan, the annual
accounting period used by such plan for annual reporting purposes.
(h) Remuneration: 415 Compensation as defined in Section
4.5(a)(2).
(i) Valuation Date: With respect to any Plan Year of any
defined contribution plan, the most recent date within the twelve-month
period ending on a Determination Date as of which the trust fund
established under such plan was valued and the net income (or loss)
thereof allocated to participants' accounts. With respect to any Plan
Year of any defined benefit plan, the most recent date within a
twelve-month period ending on a Determination Date as of which the plan
assets were valued for purposes of computing plan costs for purposes of
the requirements imposed under section 412 of the Code.
20.3 Top-Heavy Status.
(a) The Plan shall be deemed to be top-heavy for a Plan Year,
if, as of the Determination Date for such Plan Year, (1) the sum of Account
Balances of Participants who are Key Employees exceeds 60% of the sum of Account
Balances of all Participants unless an Aggregation Group including the Plan is
not top-heavy or (2) an Aggregation Group including the Plan is top-heavy. An
Aggregation Group shall be deemed to be top-heavy as of a Determination Date if
the sum (computed in accordance with section 416(g)(2)(B) of the Code and the
Treasury Regulations promulgated thereunder) of (1) the Account Balances of Key
Employees under all defined contribution plans included in the Aggregation Group
and (2) the Accrued Benefits of Key Employees under all defined benefit plans
included in the Aggregation Group exceeds 60% of the sum of the Account Balances
and the Accrued Benefits of all individuals under such plans. Notwithstanding
the foregoing, the Account Balances and Accrued Benefits of individuals who are
not Key Employees in any Plan Year but who were Key Employees in any prior Plan
Year shall not be considered in determining the top-heavy status of the Plan for
such Plan Year. Further, notwithstanding the foregoing, the Account Balances and
Accrued Benefits of individuals who have not performed services for the Employer
or any Controlled Entity at any time during the five-year period ending on the
applicable Determination Date shall not be considered.
XX-2
(b) If the Plan is determined to be top-heavy for a Plan Year,
the Employer shall contribute to the Plan for such Plan Year on behalf of each
Participant who is not a Key Employee and who has not terminated his employment
as of the last day of such Plan Year an amount equal to:
(1) the lesser of (A) 3% of such Participant's
Remuneration for such Plan Year or (B) a percent of such Participant's
Remuneration for such Plan Year equal to the greatest percent
determined by dividing for each Key Employee the amounts allocated to
such Key Employee's Tax Deferred Savings Account and Employer's Account
for such Plan Year by such Key Employee's Remuneration; reduced by
(2) the amounts of Employer Profit Sharing
Contributions allocated to such Participant's Employer's Account for
such Plan Year.
The minimum contribution required to be made for a Plan Year pursuant to this
Paragraph for a Participant employed on the last day of such Plan Year shall be
made regardless of whether such Participant is otherwise ineligible to receive
an allocation of the Employer's contributions for such Plan Year.
Notwithstanding the foregoing, if the Plan is deemed to be top-heavy for a Plan
Year, the Employer's contribution for such Plan Year pursuant to this Paragraph
shall be increased by substituting "4%" in lieu of "3%" in Clause (1) hereof to
the extent that the Directors determine to so increase such contribution to
comply with the provisions of section 416(h)(2) of the Code. Notwithstanding the
foregoing, no contribution shall be made pursuant to this Paragraph for a Plan
Year with respect to a Participant who is a participant in another defined
contribution plan sponsored by the Employer or a Controlled Entity if such
Participant receives under such other defined contribution plan (for the plan
year of such plan ending with or within the Plan Year of this Plan) a
contribution which is equal to or greater than the minimum contribution required
by section 416(c)(2) of the Code. Notwithstanding the foregoing, no contribution
shall be made pursuant to this Paragraph for a Plan Year with respect to a
Participant who is a participant in a defined benefit plan sponsored by the
Employer or a Controlled Entity if such Participant accrues under such defined
benefit plan (for the plan year of such plan ending with or within the Plan Year
of this Plan) a benefit which is at least equal to the benefit described in
section 416(c)(1) of the Code. If the preceding sentence is not applicable, the
requirements of this Paragraph shall be met by providing a minimum benefit under
such defined benefit plan which, when considered with the benefit provided under
the Plan as an offset, is at least equal to the benefit described in section
416(c)(1) of the Code.
20.4 Termination of Top-Heavy Status. If the Plan has been deemed to be
top-heavy for one or more Plan Years and thereafter ceases to be top-heavy, the
provisions of this Article shall cease to apply to the Plan effective as of the
Determination Date on which it is determined to no longer be top-heavy.
20.5 Effect of Article. Notwithstanding anything contained herein to
the contrary, the provisions of this Article shall automatically become
inoperative and of no effect to the extent not required by the Code or the Act.
XX-3
EXECUTED this day of , 1998.
-------- -------------------
ATTEST: HALLIBURTON COMPANY
By
- --------------------------------- -------------------------------
(vii)
APPENDIX A
This Appendix A shall apply to the Accounts of Appendix A Participants
in lieu of certain otherwise applicable provisions of the Plan. To the extent
the provisions of this Appendix A conflict with other provisions of the Plan,
this Appendix A shall control with respect to the Accounts of Appendix A
Participants.
1. Definitions. For purposes of this Appendix A, the following
definitions shall apply:
(a) Annuity Starting Date: With respect to each Appendix A Participant
or a beneficiary of an Appendix A Participant, the first day of the
first period for which an amount is payable to such Participant or
beneficiary from the Trust Fund as an annuity or in any other form.
(b) Appendix A Participants: Pre-1998 Participants and HPAR
Participants; provided, however, that an HPAR Participant who is not
also a Pre-1998 Participant shall be an Appendix A Participant only
with respect to his HPAR Accounts.
(c) Eligible Surviving Spouse: (1) In the case of an Appendix A
Participant who is living on his Annuity Starting Date, the spouse to
whom a deceased Appendix A Participant was married on his Annuity
Starting Date and (2) in the case of an Appendix A Participant who dies
before his Annuity Starting Date, the spouse to whom a deceased
Appendix A Participant was married on the date of his death.
(d) HPAR: The Halliburton Prior Accounts Retirement Plan.
(e) HPAR Accounts: The total of the amounts credited to an HPAR
Participant's HPAR Employer's Subaccount, HPAR After-Tax Savings
Subaccount, and HPAR Tax-Deferred Savings Account.
(f) HPAR After-Tax Savings Subaccount: A subaccount of an HPAR
Participant's After-Tax Savings Account to which is credited amounts
attributable to the transfer of the balance in such Participant's
Regular Savings Account under HPAR effective June 1, 1998, and which is
credited (or debited) for such account's allocation of net income (or
net loss) and changes in value of the Trust Fund.
(g) HPAR Employer's Subaccount: A subaccount of an HPAR Participant's
Employer's Account to which is credited amounts attributable to the
transfer of the balance in such Participant's Company Contribution
Account under HPAR effective June 1, 1998, and which is credited (or
debited) for such account's allocation of net income (or net loss) and
changes in value of the Trust Fund.
(h) HPAR Participant: A Participant who had an account balance under
HPAR as of May 31, 1998, and whose account balances were transferred
from HPAR to the Plan in accordance with the merger of such plans
effective June 1, 1998.
Appendix A - 1
(i) HPAR Tax-Deferred Savings Subaccount: A subaccount of an HPAR
Participant's Tax-Deferred Savings Account to which is credited amounts
attributable to the transfer of the balance in such Participant's
Tax-Deferred Savings Account under HPAR effective June 1, 1998, and
which is credited (or debited) for such account's allocation of net
income (or net loss) and changes in value of the Trust Fund.
(j) Pre-1998 Participant: A Participant who had an Account balance
under the Plan on December 31, 1997 and whose Benefit Commencement Date
did not occur before January 1, 1994.
2. Death Benefits. The following Article IX shall apply with
respect to the Accounts of Appendix A Participants in lieu of Article IX of the
Plan.
IX.
Death Benefits
Upon the death of a Participant while an Employee or within five months
after his termination of employment if such termination was by reason of him
being Disabled and he has not qualified for disability benefits under Article
VII, the Participant's designated beneficiary shall be entitled to a death
benefit, payable at the time and in the form provided in Article X, equal to the
value of the Participant's Accounts on the Participant's Annuity Starting Date.
Any contribution allocable to a Participant's Accounts after his Annuity
Starting Date shall be distributed, if his benefit was paid in a lump sum, or
used to increase his payments, if his benefit is being paid on a periodic basis,
as soon as administratively feasible after the date that such contribution is
paid to the Trust Fund.
3. Time and Manner of Payment of Benefits. The following Sections 10.1,
10.2, 10.3 and 10.4 shall apply with respect to the Accounts of the Appendix A
Participants in lieu of Sections 10.1, 10.2, 10.3 and 10.4 of the Plan:
10.1 Determination of Annuity Starting Date.
(a) Subject to the provisions of the remaining Paragraphs of
this Section, a Participant's Annuity Starting Date shall be the date that is as
soon as administratively feasible after (1) the date the Participant or his
beneficiary becomes entitled to a benefit pursuant to Article VI, VII or IX or
(2) if the Participant or his beneficiary becomes entitled to a benefit pursuant
to Article VIII, the earlier of the date the Participant (i) attains age
fifty-five, (ii) dies or (iii) completes a Period of Severance of thirty
consecutive days after the termination of his employment entitling him to such
benefit provided the Participant has not been reemployed by the Employer or a
Controlled Entity by his Annuity Starting Date, but in any event a Participant's
benefit hereunder shall commence no earlier than the expiration of the seven-day
period that begins the day after the information required to be furnished
pursuant to Section 10.2(c) has been furnished to the Participant.
Appendix A - 2
(b) Unless a Participant (1) has attained age sixty-five, (2)
has died (A) without leaving an Eligible Surviving Spouse or (B) with an
election in effect, pursuant to Section 10.3(b), not to receive the standard
death benefit set forth in Section 10.3(a) or (3) consents to a distribution
pursuant to Paragraph (a) (and, if such Participant has an Eligible Surviving
Spouse, unless such Eligible Surviving Spouse consents (with such consent being
irrevocable) in accordance with the requirements of section 417 of the Code and
applicable Treasury Regulations thereunder) within the ninety-day period ending
on the date payment of his benefit hereunder is to commence pursuant to
Paragraph (a), his Annuity Starting Date shall be deferred to the date which is
as soon as administratively feasible after the date the Participant attains (or
would have attained) age sixty-five, or such earlier date as the Participant
(with the consent of his Eligible Surviving Spouse, if applicable) may elect
prior to such date. Consent of the Participant's Eligible Surviving Spouse under
this Paragraph shall not be required if the Participant's benefit is to be paid
in the form of the standard benefit described in Section 10.2(a). The Committee
shall furnish information pertinent to his consent to each Participant no less
than thirty days (unless such thirty-day period is waived by an affirmative
election in accordance with applicable Treasury Regulations) and no more than
ninety days before his Annuity Starting Date, and the furnished information
shall include a general description of the material features of, and an
explanation of the relative values of, the alternative forms of benefit
available under the Plan and must inform the Participant of his right to defer
his Annuity Starting Date and of his transfer right pursuant to Section 10.8, if
applicable. In the case of a married Participant who dies before his Annuity
Starting Date without electing not to receive the standard death benefit set
forth in Section 10.3(a), the consent and election set forth in this Paragraph
may be made by his Eligible Surviving Spouse.
(c) A Participant's Annuity Starting Date shall in no event be
later than the sixtieth day following the close of the Plan Year during which
such Participant attains, or would have attained, his Normal Retirement Date or,
if later, terminates his employment with the Employer or a Controlled Entity.
(d) A Participant's Annuity Starting Date shall be in
compliance with the provisions of section 401(a)(9) of the Code and applicable
Treasury regulations thereunder and shall in no event be later than:
(1) April 1 of the calendar year following the later
of (A) the calendar year in which such Participant attains the
age of seventy and one-half or (B) the calendar year in which
such Participant terminates his employment with the Employer
(provided, however, that clause (B) of this sentence shall not
apply in the case of a Participant who is a "five-percent
owner" (as defined in section 416 of the Code) with respect to
the Plan Year ending in the calendar year in which such
Participant attains the age of seventy and one-half); and
(2) In the case of a benefit payable pursuant to
Article IX, (A) if payable to other than the Participant's
spouse, the last day of the one-year period following the
death of such Participant or (B) if payable to the
Participant's spouse, after the date upon which such
Participant would have attained the age of seventy and
one-half, unless such surviving spouse dies before payments
commence, in which case
Appendix A - 3
the Annuity Starting Date may not be deferred beyond the last
day of the one-year period following the death of such
surviving spouse.
The provisions of this Section notwithstanding, a Participant may not elect to
defer the receipt of his benefit hereunder to the extent that such deferral
creates a death benefit that is more than incidental within the meaning of
section 401(a)(9)(G) of the Code and applicable Treasury regulations thereunder.
Further, in determining compliance with the provisions of section 401(a)(9) of
the Code, a Participant may elect in accordance with procedures established by
the Committee, prior to the first required distribution under section 401(a)(9)
of the Code, to have the life expectancies of the Participant and the
Participant's spouse recalculated annually pursuant to the provisions of section
401(a)(9)(D) of the Code and the Treasury regulations thereunder. If such an
election is not made, the life expectancies of the Participant and the
Participant's spouse shall not be recalculated.
(e) If (A) a Participant attained age seventy and one-half,
but did not terminate employment with the Employer, prior to 1997, (B) such
Participant's Annuity Starting Date occurred prior to his termination of
employment pursuant to the provisions of Paragraph (d) as in effect prior to
June 1,1998, (C) such Participant is an Employee and (D) such Participant was
not a "five-percent owner" (as defined in section 416 of the Code) with respect
to the Plan Year ending in the calendar year in which such Participant attained
the age of seventy and one-half, such Participant may affirmatively elect to
cease the distribution of his Accounts hereunder until the time described in
Paragraph (1) or (2) above, whichever is applicable. If the Participant's
Accounts are being distributed in the joint and survivor annuity form described
in Section 10.2(a), the Participant's Eligible Surviving Spouse, if living, must
consent to such election, and such consent must acknowledge the effect of the
election. The date as of which distribution of such Participant's Accounts
recommences shall be considered a new Annuity Starting Date, and distribution of
the Participant's Accounts shall be in accordance with the provisions of
Sections 10.2 and 10.3.
(f) Subject to the provisions of Paragraph (d), a
Participant's Annuity Starting Date shall not occur unless the Article VI, VII,
VIII or IX event entitling the Participant (or his beneficiary) to a benefit
constitutes a distributable event described in section 401(k)(2)(B) of the Code
and shall not occur while the Participant is employed by the Employer or any
Controlled Entity (irrespective of whether the Participant has become entitled
to a distribution of his benefit pursuant to Article VI, VII, VIII or IX).
(g) Paragraphs (a), (b) and (c) notwithstanding, a Participant
whose Vested Interest in his Accounts is $5,000 or more may elect, in the manner
and within the time period prescribed by the Committee, to defer his Annuity
Starting Date beyond the date specified in such Paragraphs, subject to the
provisions of Paragraph (d).
10.2 Standard and Alternative Benefits For Participants.
(a) For purposes of Article VI, VII or VIII, the standard
benefit for any Participant who is married on his Annuity Starting Date shall be
a joint and survivor annuity. Such joint and survivor annuity shall be a
commercial annuity which is payable for the life of the Participant with a
survivor annuity for the life of the Participant's Eligible Surviving Spouse
which shall be one-half of the amount of the annuity payable during the joint
lives of the Participant and the Participant's
Appendix A - 4
Eligible Surviving Spouse. The standard benefit for any Participant who is not
married on his Annuity Starting Date shall be a commercial annuity which is
payable for the life of the Participant.
(b) Any Participant who would otherwise receive the standard
benefit may elect not to take his benefit in such form by executing the form
prescribed by the Committee for such election during the election period
described in Paragraph (c) below. Any election may be revoked and subsequent
elections may be made or revoked at any time during such election period.
Notwithstanding the foregoing, an election by a married Participant not to
receive the standard benefit as provided in Paragraph (a) above shall not be
effective unless (1) the Eligible Surviving Spouse has consented thereto in
writing (including consent to the specific designated beneficiary to receive
payments following the Participant's death or to the specific benefit form
elected, which designation or election may not subsequently be changed by the
Participant without spousal consent) and such consent acknowledges the effect of
such election and is witnessed by a Plan representative (other than the
Participant) or a notary public or (2) such consent of such spouse may not be
obtained because the Eligible Surviving Spouse cannot be located or because of
other circumstances described by applicable Treasury Regulations. Any such
consent by such Eligible Surviving Spouse shall be irrevocable.
(c) The Committee shall furnish certain information, pertinent
to the Paragraph (b) election, to each Participant no less than thirty days
(unless such thirty-day period is waived by an affirmative election in
accordance with applicable Treasury Regulations) and no more than ninety days
before his Annuity Starting Date. The furnished information shall include an
explanation of (1) the terms and conditions of the standard benefit, (2) the
Participant's right to elect to waive the standard benefit and the effect of
such election, (3) the rights of the Participant's Eligible Surviving Spouse, if
any, (4) the right to revoke such election and the effect of such revocation,
(5) a general description of the eligibility conditions and other material
features of the alternative forms of benefit available pursuant to Paragraph (d)
below, and (6) sufficient additional information to explain the relative values
of such alternative forms of benefit. The period of time during which a
Participant may make or revoke such election shall be the ninety-day period
ending on such Participant's Annuity Starting Date, provided that such election
may also be revoked at any time prior to the expiration of the seven-day period
that begins the day after the information required to be furnished pursuant to
this Paragraph has been furnished to the Participant.
(d) For purposes of Article VI or VII, the benefit for any
Participant who has elected not to receive the standard benefit shall be paid in
one or more of the following alternative forms to be selected by the Participant
or, in the absence of such selection, in a single lump sum cash payment
(notwithstanding the provisions of Section 10.5(b)); provided, however, that the
period and method of payment of any such form shall be in compliance with the
provisions of section 401(a)(9) of the Code and applicable Treasury Regulations
thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or,
in the event of such Participant's death before the end of
such term certain, to his designated beneficiary as provided
in Section 10.3(g).
Appendix A - 5
(3) Periodic installment payments for any term
certain (expressed as a specified dollar amount per month) to
such Participant or, in the event of such Participant's death
before the end of such term certain, to his designated
beneficiary as provided in Section 10.3(g). At any time prior
to the exhaustion of a Participant's Accounts, the Participant
or his designated beneficiary may elect, in accordance with
the procedures established by the Committee, to alter the
schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments
in any year; provided, however, that such changes must comply
with the provisions of section 401(a)(9) of the Code. Periodic
installment payments shall be suspended during any period of
reemployment by the Participant with an Employer or a
Controlled Entity. In the case of such suspension, upon such
Participant's subsequent termination of employment the
Participant shall be considered to have a new Annuity Starting
Date as to the suspended payments and as to any additional
amounts allocated to his Accounts during his period of
reemployment. Upon the death of a designated beneficiary who
is receiving installment payments under this subparagraph, the
remaining balance in the Partici pant's Accounts shall be paid
as soon as administratively feasible, in one lump sum cash
payment (notwithstanding the provisions of Section 10.5(b)),
to such beneficiary's designated beneficiary as provided in
Section 10.3(h) and (i).
(4) Solely with respect to his HPAR Accounts, and
only if such Participant is an HPAR Participant, (A) a
commercial annuity in the form of a single life annuity for
the life of such Participant, or (B) a commercial annuity
providing for periodic payments (1) for the joint lives of the
Participant and any person designated by the Participant or
(2) for a term certain and continuous for the life of the
Participant if he survives such term certain or, in the event
of such Participant's death before the end of such term
certain, to his designated beneficiary as provided in Section
10.3(g).
(e) For purposes of Article VIII, the benefit for any
Participant who has elected not to receive the standard benefit shall be paid in
one of the following alternative forms to be selected by the Participant or, in
the absence of such selection, in a single lump sum cash payment
(notwithstanding the provisions of Section 10.5(b)); provided, however, that the
period and method of payment of any such form shall be in compliance with the
provisions of section 401(a)(9) of the Code and applicable Treasury Regulations
thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or,
in the event of such Participant's death before the end of
such term certain, to his designated beneficiary as provided
in Section 10.3(g).
(3) Solely with respect to his HPAR Accounts, and
only if such Participant is an HPAR Participant, (A) a
commercial annuity in the form of a single life annuity for
the life of such Participant, or (B) a commercial annuity
providing for
Appendix A - 6
periodic payments (A) for the joint lives of the Participant
and any person designated by the Participant or (B) for a term
certain and continuous for the life of the Participant if he
survives such term certain or, in the event of such
Participant's death before the end of such term certain, to
his designated beneficiary as provided in Section 10.3(g).
(f) If a Participant, who terminated his employment under such
circumstances that he was entitled to a benefit pursuant to Article VI, VII or
VIII, dies prior to his Annuity Starting Date, the amount of the benefit to
which he was entitled shall be paid pursuant to Section 10.3 just as if such
Participant had died while employed by the Employer except that his Vested
Interest shall be determined pursuant to Article VI, VII or VIII, whichever is
applicable.
10.3 Standard and Alternative Death Benefits.
(a) For purposes of Article IX, the standard death benefit for
a deceased Participant who leaves an Eligible Surviving Spouse shall be a
survivor annuity. Such survivor annuity shall be a commercial annuity which is
payable for the life of such Eligible Surviving Spouse.
(b) Any Participant who would otherwise have his death benefit
paid in the standard survivor annuity form may elect not to have his benefit
paid in such form by executing the form prescribed by the Committee and filing
such form with the Committee, designating a primary beneficiary other than his
Eligible Surviving Spouse. Any election may be revoked and subsequent elections
may be made or revoked at any time prior to a Participant's date of death.
(c) Paragraph (b) above to the contrary notwithstanding:
(1) An election not to have the death benefit paid in
the standard survivor annuity form as provided in Paragraph
(a) above shall not be effective unless (A) the Eligible
Surviving Spouse has consented thereto in writing and such
consent (i) acknowledges the effect of such election, (ii)
either consents to the specific designated beneficiary (which
designation may not subsequently be changed by the Participant
without spousal consent) or expressly permits such designation
by the Participant without the requirement of further consent
by the spouse, and (iii) is witnessed by a Plan representative
(other than the Participant) or a notary public, or (B) the
consent of such spouse cannot be obtained because the Eligible
Surviving Spouse cannot be located or because of other
circumstances described by applicable Treasury Regulations.
Any such consent by such Eligible Surviving Spouse shall be
irrevocable.
(2) An election not to have the death benefit paid in
the standard survivor annuity form may be made before the
first day of the Plan Year in which a Participant attains the
age of thirty-five only (A) after the Participant separates
from service and only with respect to benefits accrued under
the Plan before the date of such separation, or (B) in the
case of a Participant who has not separated from service, if
the Participant has been furnished the information described
in Paragraph (d), with
Appendix A - 7
such election to become invalid upon the first day of the Plan
Year in which the Participant attains the age of thirty-five,
whereupon a new election may be made by such Participant.
(d) The Committee shall furnish certain information, pertinent
to the Paragraph (b) election, to each Participant within the period beginning
with the first day of the Plan Year in which he attains the age of thirty-two
(but no earlier than the date such Participant begins participation in the Plan)
and ending with the latest of (1) the last day of the Plan Year preceding the
Plan Year in which the Participant attains the age of thirty-five or (2) a
reasonable time after the Employee becomes a Participant. If a Participant
separates from service before attaining age thirty-five, such information shall
be furnished to such Participant within the period beginning one year before the
Participant separates from service and ending one year after such separation.
Such information shall also be furnished to a Participant who has not attained
the age of thirty-five or terminated employment, within a reasonable time after
written request by such Participant. The furnished information shall include an
explanation of (1) the terms and conditions of the survivor annuity, (2) the
Participant's right to elect to waive the survivor annuity and the effect of
such election, (3) the rights of the Participant's Eligible Surviving Spouse,
(4) the right to revoke such election and the effect of such revocation, (5) a
general description of the eligibility conditions and other material features of
the alternative forms of benefit available pursuant to Paragraph (f) below, and
(6) sufficient additional information to explain the relative value of such
alternative forms of benefit.
(e) In the event a survivor annuity is to be paid to a
Participant's Eligible Surviving Spouse, such Eligible Surviving Spouse may
elect to receive the benefit in one of the alternative forms set forth in
Section 10.3(f). Within a reasonable time after written request by such Eligible
Surviving Spouse, the Committee shall provide to such Eligible Surviving Spouse
a written explanation of such survivor annuity form and the alternative forms of
payment which may be selected along with the financial effect of each such form.
(f) For purposes of Article IX, the death benefit for a
deceased Participant who is not survived by an Eligible Surviving Spouse or who
has elected not to have his death benefit paid in the standard survivor annuity
form set forth in Section 10.3(a) shall be paid to his beneficiary designated as
provided in Section 10.3(g) in one of the following alternative forms to be
selected by such beneficiary or, in the absence of such selection, in a lump sum
cash payment (notwithstanding the provisions of Section 10.5(b)); provided,
however, that the period and method of payment of any such form shall be in
compliance with the provisions of section 401(a)(9) of the Code and applicable
Treasury Regulations thereunder:
(1) A lump sum.
(2) Periodic installment payments for any term
certain (expressed as a specified dollar amount per month) or
a commercial annuity contract providing for periodic payments
for any term certain; provided, however, the term certain
shall not exceed the life expectancy of the beneficiary. At
any time prior to the exhaustion of a Participant's Accounts,
a beneficiary who is receiving periodic installment payments
from the Plan under this subparagraph may elect, and in
accordance with
Appendix A - 8
the procedures established by the Committee, to alter the
schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments
in any year; provided, however, that such changes must comply
with the preceding provisions of this subparagraph and section
401(a)(9) of the Code. Upon the death of a beneficiary who is
receiving periodic installment payments from the Plan under
this subparagraph, the remaining balance in the Participant's
Accounts shall be paid as soon as administratively feasible,
in one lump sum cash payment (notwithstanding the provisions
of Section 10.5(b)), to such beneficiary's designated
beneficiary as provided in Section 10.3(h) and (i).
(g) If any beneficiary designated by a Participant does not
survive the Participant, the interest of such beneficiary shall vest in the
designated beneficiary or beneficiaries who do survive the Participant, if any,
but if no designated beneficiary survives the Participant or if no beneficiary
designation is on file with the Committee at the time of the death of the
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
Participant's benefit hereunder shall be as follows:
(1) If a Participant leaves an Eligible Surviving
Spouse, his designated beneficiary shall be such Eligible
Surviving Spouse;
(2) If a Participant leaves no Eligible Surviving
Spouse, his designated beneficiary shall be (A) such
Participant's estate or (B) his heirs at law if there is no
administration of such Participant's estate.
(h) Each beneficiary of a Participant who becomes entitled to
a benefit pursuant to Paragraph (f)(2) or pursuant to Section 10.2(d)(3) upon
the death of a Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. Each
such designation shall be made by executing the beneficiary designation form pre
scribed by the Committee and filing same with the Committee. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
(i) If any beneficiary designated pursuant to Paragraph (h)
does not survive the beneficiary of a Participant, the interest of such
beneficiary shall vest in the designated beneficiary or beneficiaries who do
survive the beneficiary of a Participant, if any, but if no designated benefi
ciary survives the beneficiary of a Participant or if no beneficiary designation
is on file with the Committee at the time of the death of the beneficiary of a
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
beneficiary of a Participant's benefit pursuant to Paragraph (f)(2) or pursuant
to Section 10.2(d)(3) shall be the Participant's executor or administrator, or
his heirs at law if there is no administration of such beneficiary of a
Participant's estate.
10.4 Cash-Out of Benefit.
(a) Subject to the provisions of Paragraph (b) below, if a
Participant terminates his employment with the Employer and his Vested Interest
in his Accounts is not in excess of $5,000, such Participant's benefit shall be
paid in one lump sum cash payment in lieu of any other
Appendix A - 9
form of benefit herein provided pursuant to Section 10.2, Section 10.3 or
Section 10.5(b). Any such payment shall be made at the time specified in Section
10.1(a) without regard to the consent restrictions of Section 10.1(b) and the
election and spousal consent requirement of Sections 10.2 and 10.3 except that a
married Participant's death benefit shall be paid to his Eligible Surviving
Spouse unless another beneficiary has been designated pursuant to the provisions
of Section 10.3(b). The provisions of this Section shall not be applicable to a
Participant following his Annuity Starting Date.
(b) Any Participant whose Vested Interest in his Accounts in
the Plan is not in excess of $5,000, but the present value of whose
nonforfeitable accrued benefit in all Halliburton Energy Services Plans, when
aggregated, totals in excess of $5,000, shall not be subject to the requirements
of Section 10.4(a) above.
4. Withdrawals. Any withdrawal pursuant to Article XI shall be
subject to the election and spousal consent requirements of Section 10.2 of this
Appendix A.
Appendix A - 10
Exhibit 4.5
BROWN & ROOT, INC.
EMPLOYEES' RETIREMENT AND SAVINGS PLAN
As Amended and Restated
Effective June 1, 1998
BROWN & ROOT, INC.
EMPLOYEES' RETIREMENT AND SAVINGS PLAN
W I T N E S S E T H :
WHEREAS, BROWN & ROOT, INC. (the "Company") has heretofore adopted the
BROWN & ROOT, INC. EMPLOYEES' RETIREMENT AND SAVINGS PLAN, hereinafter
referred to as the "Plan," for the benefit of its employees; and
WHEREAS, the Company desires to restate the Plan and to amend the Plan
in several respects, intending thereby to provide an uninterrupted and
continuing program of benefits;
NOW THEREFORE, the Plan is hereby restated in its entirety as follows
with no interruption in time, effective as of June 1, 1998, except as otherwise
indicated herein:
(i)
TABLE OF CONTENTS
I. Definitions and Construction...........................................................................I-1
1.1 Definitions...................................................................................I-1
(1) Accounts.............................................................................I-1
(2) Act..................................................................................I-1
(3) Active Allocation Participant........................................................I-1
(4) After-Tax Savings Account............................................................I-1
(5) After-Tax Savings Contributions......................................................I-1
(6) Benefit Commencement Date............................................................I-1
(7) Chief Executive Officer..............................................................I-1
(8) Code.................................................................................I-1
(9) Commencement Date....................................................................I-1
(10) Committee............................................................................I-1
(11) Company..............................................................................I-2
(12) Compensation.........................................................................I-2
(13) Controlled Entity....................................................................I-3
(14) Direct Rollover......................................................................I-3
(15) Directors............................................................................I-3
(16) Disabled.............................................................................I-3
(17) Distributee..........................................................................I-3
(18) Early Retirement Date................................................................I-4
(19) Effective Date.......................................................................I-4
(20) Eligible Employee....................................................................I-4
(21) Eligible Retirement Plan.............................................................I-4
(22) Eligible Rollover Distribution.......................................................I-4
(23) Employee.............................................................................I-5
(24) Employer.............................................................................I-5
(25) Employer Contributions...............................................................I-5
(26) Employer Match Account...............................................................I-5
(27) Employer Matching Contributions......................................................I-5
(28) Employer Profit Sharing Contributions................................................I-5
(29) Foreign Subsidiary Corporation.......................................................I-5
(30) Halliburton Stock....................................................................I-5
(31) Highly Compensated Employee..........................................................I-6
(32) Hour of Service......................................................................I-6
(33) Inactive Allocation Participant......................................................I-7
(34) Investment Fund......................................................................I-7
(35) Leased Employee......................................................................I-7
(36) Leave of Absence.....................................................................I-7
(37) Master Trust Agreement...............................................................I-7
(38) Normal Retirement Date...............................................................I-7
(39) One-Year Break-in-Service............................................................I-7
(40) Participant..........................................................................I-7
(ii)
(41) Participation Service................................................................I-8
(42) Plan.................................................................................I-8
(43) Plan Year............................................................................I-8
(44) Profit Sharing Account...............................................................I-8
(45) Reemployment Commencement Date.......................................................I-8
(46) Retirement...........................................................................I-8
(47) Rollover Account.....................................................................I-8
(48) Rollover Contributions...............................................................I-8
(49) Service Computation Period...........................................................I-8
(50) Tax Deferred Savings Account.........................................................I-8
(51) Tax Deferred Savings Contributions...................................................I-8
(52) Trust................................................................................I-8
(53) Trust Fund...........................................................................I-9
(54) Trustee..............................................................................I-9
(55) Vested Interest......................................................................I-9
(56) Vesting Service......................................................................I-9
(57) Weighted Compensation................................................................I-9
1.2 Number and Gender.............................................................................I-9
1.3 Headings......................................................................................I-9
1.4 Construction..................................................................................I-9
II. Participation.........................................................................................II-1
2.1 Eligibility..................................................................................II-1
2.2 Participation Service........................................................................II-1
III. Contributions........................................................................................III-1
3.1 Tax Deferred Savings Contributions..........................................................III-1
3.2 After-Tax Savings Contributions.............................................................III-2
3.3 Employer Matching Contributions.............................................................III-3
3.4 Employer Profit Sharing Contributions.......................................................III-3
3.5 Restrictions on Employer Matching Contributions and
After-Tax Savings Contributions.............................................................III-3
3.6 Payments to Trustee.........................................................................III-3
3.7 Return of Contributions.....................................................................III-3
3.8 Disposition of Excess Deferrals and Excess Contributions....................................III-4
3.9 Rollover Contributions......................................................................III-5
IV. Allocations and Limitations...........................................................................IV-1
4.1 Suspense Account.............................................................................IV-1
4.2 Records on a Unit Basis......................................................................IV-1
4.3 Allocation of Contributions and Forfeitures..................................................IV-1
4.4 Valuation of Accounts........................................................................IV-2
4.5 Limitations and Corrections..................................................................IV-2
(iii)
V. Investment Funds.......................................................................................V-1
5.1 Investment of Accounts........................................................................V-1
5.2 Special Investment Provisions.................................................................V-1
VI. Retirement Benefits...................................................................................VI-1
VII. Disability Benefits..................................................................................VII-1
VIII. Severance Benefits and Determination of Vested Interest.............................................VIII-1
8.1 No Benefits Unless Herein Set Forth........................................................VIII-1
8.2 Severance Benefit..........................................................................VIII-1
8.3 Determination of Vested Interest...........................................................VIII-1
8.4 Crediting of Vesting Service...............................................................VIII-1
8.5 Forfeiture of Vesting Service..............................................................VIII-2
8.6 Forfeitures of Nonvested Account Balance...................................................VIII-2
8.7 Restoration of Forfeited Account Balance...................................................VIII-2
8.8 Special Formula for Determining Vested Interest for Partial
Accounts...................................................................................VIII-3
IX. Death Benefits........................................................................................IX-1
9.1 Death Benefits...............................................................................IX-1
9.2 Designation of Beneficiaries.................................................................IX-1
X. Time and Form of Payment of Benefits...................................................................X-1
10.1 Determination of Benefit Commencement Date....................................................X-1
10.2 Alternative Forms of Benefit for Participants.................................................X-2
10.3 Alternative Forms of Death Benefit............................................................X-4
10.4 Cash-Out of Benefit...........................................................................X-4
10.5 Benefits from Account Balances................................................................X-4
10.6 Commercial Annuities..........................................................................X-5
10.7 Unclaimed Benefits............................................................................X-5
10.8 Benefit Transfer Election.....................................................................X-5
10.9 Claims Review.................................................................................X-5
10.10 Mandatory Arbitration.........................................................................X-6
XI. Withdrawals and Loans.................................................................................XI-1
11.1 Withdrawals..................................................................................XI-1
11.2 No Loans.....................................................................................XI-2
XII. Administration of the Plan...........................................................................XII-1
12.1 Administration by Committee.................................................................XII-1
12.2 Procedures..................................................................................XII-1
12.3 Self-Interest of Members....................................................................XII-1
12.4 Compensation and Bonding....................................................................XII-1
(iv)
12.5 Committee Powers and Duties.................................................................XII-1
12.6 Employer to Supply Information..............................................................XII-2
12.7 Accounting..................................................................................XII-2
12.8 Participants to Furnish Required Information................................................XII-3
XIII. Administration of Investment Funds..................................................................XIII-1
13.1 Payment of Expenses........................................................................XIII-1
13.2 Trust Fund Property........................................................................XIII-1
13.3 Distributions from Participants' Accounts..................................................XIII-2
13.4 United States Currency.....................................................................XIII-2
XIV. Trustee..............................................................................................XIV-1
XV. Fiduciary Provisions..................................................................................XV-1
15.1 Article Controls.............................................................................XV-1
15.2 General Allocation of Fiduciary Duties.......................................................XV-1
15.3 Fiduciary Duty...............................................................................XV-1
15.4 Delegation and Allocation of Fiduciary Duties................................................XV-1
15.5 Indemnification..............................................................................XV-2
XVI. Amendments...........................................................................................XVI-1
XVII. Discontinuance of Contributions, Termination, Partial
Termination, and Merger or Consolidation...............................................................XVII-1
17.1 Right to Terminate.........................................................................XVII-1
17.2 Procedure in the Event of Discontinuance of Contributions,
Termination, or Partial Termination........................................................XVII-1
17.3 Merger, Consolidation or Transfer..........................................................XVII-1
XVIII. Participating Employers..............................................................................XVIII-1
18.1 Designation of Other Employers. ..........................................................XVIII-1
18.2 Single Plan...............................................................................XVIII-2
XIX. Miscellaneous........................................................................................XIX-1
19.1 Not Contract of Employment..................................................................XIX-1
19.2 Payments Solely from Trust Fund.............................................................XIX-1
19.3 Alienation of Interest Forbidden............................................................XIX-1
19.4 Uniformed Services Employment and Reemployment Rights
Act Requirements............................................................................XIX-1
19.5 No Benefits to the Employer.................................................................XIX-1
19.6 Power of Attorney...........................................................................XIX-1
19.7 Severability................................................................................XIX-3
19.8 Jurisdiction................................................................................XIX-4
19.9 Payments to Minors and Incompetents.........................................................XIX-4
(v)
19.10 Participant's Address.......................................................................XIX-4
XX. Top-Heavy Status......................................................................................XX-1
20.1 Article Controls.............................................................................XX-1
20.2 Definitions..................................................................................XX-1
20.3 Top-Heavy Status.............................................................................XX-2
20.4 Termination of Top-Heavy Status..............................................................XX-4
20.5 Effect of Article............................................................................XX-4
(vi)
I.
Definitions and Construction
1.1 Definitions. Where the following words and phrases appear in the
Plan, they shall have the respective meanings set forth below, unless their
context clearly indicates to the contrary.
(1) Accounts: The total of the amounts credited to a Participant's Employer
Match Account, Profit Sharing Account, After-Tax Savings Account,
Rollover Account and Tax Deferred Savings Account. All amounts credited
to a Participant's Regular Savings Account prior to the Effective Date
shall be credited to such Participant's After-Tax Savings Account as of
the Effective Date. All amounts credited to a Participant's Super
Savings Account prior to the Effective Date shall be credited to such
Participant's Tax Deferred Savings Account as of the Effective Date.
(2) Act: The "Employee Retirement Income Security Act of 1974, as amended."
(3) Active Allocation Participant: For a Plan Year, a Participant who (A)
is an Eligible Employee and not on a Leave of Absence on the last day
of such Plan Year, (B) transfers to the employ of a Controlled Entity
other than the Employer during such Plan Year and is employed by a
Controlled Entity and not on a Leave of Absence on the last day of such
Plan Year, or (C) (i) terminated employment during such Plan Year on or
after his Early Retirement Date or by reason of Disability or death and
(ii) whose Accounts had not been totally distributed on or before the
last day of such Plan Year.
(4) After-Tax Savings Account: An individual account for each Participant
which is credited with his After-Tax Savings Contributions and which is
credited (or debited) with such account's allocation of net income (or
net loss) and changes in value of the Trust Fund.
(5) After-Tax Savings Contributions: Contributions made to the Plan by the
Participants in accordance with their elections pursuant to
Section 3.2.
(6) Benefit Commencement Date: With respect to each Participant or
beneficiary, the first day of the first period for which such
Participant's or beneficiary's benefit is payable to him from the Trust
Fund.
(7) Chief Executive Officer: The Chief Executive Officer of Halliburton
Company.
(8) Code: The Internal Revenue Code of 1986, as amended.
(9) Commencement Date: The date on which an individual first performs an
Hour of Service.
(10) Committee: The Halliburton Company Benefits Committee appointed by the
Chief Executive Officer.
I-1
(11) Company: Brown & Root, Inc.
(12) Compensation: The total of all wages, salaries, fees for professional
service and other amounts received in cash or in kind by a Participant
for services actually rendered or labor performed for the Employer
while a Participant and an Employee to the extent such amounts are
includable in gross income, subject to the following adjustments and
limitations:
(A) The following shall be excluded:
(i) geographic coefficient allowances;
(ii) reimbursements or other expense allowances;
(iii) cash and noncash fringe benefits;
(iv) moving expenses;
(v) Employer contributions to or payments from this or
any other deferred compensation program whether such
program is qualified under section 401(a) of the Code
or nonqualified;
(vi) welfare benefits;
(vii) amounts realized from the receipt or exercise of a
stock option which is not an incentive stock option
within the meaning of section 422 of the Code;
(viii) amounts realized at the time property described in
section 83 of the Code is freely transferable or no
longer subject to a substantial risk of forfeiture;
(ix) amounts realized as a result of an election described
in section 83(b) of the Code;
(x) any amount realized as a result of a disqualifying
disposition within the meaning of section 421(a) of
the Code;
(xi) any other amounts which receive special tax benefits
under the Code but are not hereinafter included; and
(xii) dividends received by a Participant with respect to
Halliburton Stock held by such Participant while such
Halliburton Stock is subject to a substantial risk of
forfeiture, within the meaning of section 83 of the
Code, if the Participant did not make an election
described in section 83(b) of the Code with respect
to such Halliburton Stock.
(B) The following shall be included:
I-2
(i) elective contributions made on a Participant's behalf
by the Employer that are not includable in income
under section 125, section 402(e)(3), section 402(h)
or section 403(b) of the Code;
(ii) compensation deferred under an eligible deferred
compensation plan within the meaning of section
457(b) of the Code; and
(iii) employee contributions described in section 414(h) of
the Code that are picked up by the employing unit and
are treated as employer contributions.
(C) The Compensation of any Participant taken into account for
purposes of the Plan shall be limited to $160,000 for any Plan
Year with such limitation to be:
(i) adjusted automatically to reflect any amendments to
section 401(a)(17) of the Code and any cost-of-living
increases authorized by section 401(a)(17) of the
Code; and
(ii) prorated for a Plan Year of less than twelve months
and to the extent otherwise required by applicable
law.
(13) Controlled Entity: Each corporation that is a member of a controlled
group of corporations, within the meaning of section 1563(a)
(determined without regard to sections 1563(a)(4) and 1563(e)(3)(C)) of
the Code, of which the Employer is a member, each trade or business
(whether or not incorporated) with which the Employer is under common
control and each member of an affiliated service group, within the
meaning of section 414(m) of the Code, of which the Employer is a
member.
(14) Direct Rollover: A payment by the Plan to an Eligible Retirement Plan
designated by a Distributee.
(15) Directors: The Board of Directors of Halliburton Company.
(16) Disabled: Physically or mentally incapable of performing either the
Participant's usual duties as an Employee or any other duties as an
Employee that the Employer reasonably makes available and likely to
remain so Disabled continuously and permanently, as determined by the
Employer. The Employer may require proof of Disability in such form as
the Employer shall decide, including the certificate of a duly licensed
physician selected by the Employer.
(17) Distributee: Each (A) Participant entitled to an Eligible Rollover
Distribution, (B) Participant's surviving spouse with respect to the
interest of such surviving spouse in an Eligible Rollover Distribution
and (C) former spouse of a Participant who is the alternate payee under
a qualified domestic relations order, as defined in section 414(p) of
the Code, with regard to the interest of such former spouse in an
Eligible Rollover Distribution.
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(18) Early Retirement Date: The earlier of (A) the date a Participant
attains the age of fifty-five or (B) the date on which the sum of such
Participant's age and his years of Vesting Service equals seventy.
(19) Effective Date: June 1, 1998, as to this restatement of the Plan,
except (A) as otherwise indicated in specific provisions of the Plan,
(B) that provisions of the Plan required to have an earlier effective
date by applicable statute and/or regulation shall be effective as of
the required effective date in such statute and/or regulation and (C)
that the definitions of "Employment Commencement Date" and
"Reemployment Commencement Date" as in effect under the Plan
immediately prior to September 1, 1997, rather than the definitions of
"Commencement Date" and "Reemployment Commencement Date" contained
herein, shall apply to a Participant who completed one or more years of
Participation Service prior to September 1, 1997, unless such
Participant forfeited such Participation Service pursuant to the
provisions of Section 2.2(b) of the Plan on or after September 1, 1997.
(20) Eligible Employee: Each Employee other than (A) an Employee whose terms
and conditions of employment are governed by a collective bargaining
agreement between a collective bargaining unit and the Employer unless
such agreement provides for coverage of such Employee under the Plan,
(B) a nonresident alien who receives no earned income from the Employer
that constitutes income from sources within the United States, (C) an
Employee covered by any other funded plan of deferred compensation of a
foreign subsidiary of the Employer (whether or not such subsidiary
meets the definition of a "Foreign Subsidiary Corporation") with
respect to employment in the United States, (D) any Employee who is a
Leased Employee or who is designated, compensated or otherwise
classified by the Employee as a Leased Employee and (E) an Employee who
is accruing benefits under the Brown & Root Hourly Employees' Pension
Plan. Notwithstanding any provision of the Plan to the contrary, no
individual who is designated, compensated or otherwise classified or
treated by the Employer as an independent contractor shall be eligible
to become a Participant in the Plan.
(21) Eligible Retirement Plan: (A) With respect to a Distributee other than
a surviving spouse, an individual retirement account described in
section 408(a) of the Code, an individual retirement annuity described
in section 408(b) of the Code, an annuity plan described in section
403(a) of the Code or a qualified plan described in section 401(a) of
the Code, that under its provisions and applicable law may accept a
Distributee's Eligible Rollover Distribution, and (B) with respect to a
Distributee who is a surviving spouse, an individual retirement account
described in Section 408(a) of the Code or individual retirement
annuity described in Section 408(b) of the Code.
(22) Eligible Rollover Distribution: Any distribution of all or any portion
of the Accounts of a Distributee other than (A) a distribution that is
one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary or for a
specified period of ten years or more, (B) a distribution to the extent
such distribution is required under section 401(a)(9) of the Code, (C)
the portion of a distribution that is not includable in gross income
(determined without
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regard to the exclusion for net unrealized appreciation with respect to
employer securities), (D) any corrective distribution provided in
Section 3.8 and (E) any other distribution so designated by the
Internal Revenue Service in revenue rulings, notices, and other
guidance of general applicability.
(23) Employee: Any individual employed by the Employer or any Leased
Employee. For purposes of this definition, a United States citizen
employed by a Foreign Subsidiary Corporation of the Employer with
respect to which the following conditions are met shall be deemed to be
an Employee, subject to the requirements and restrictions of sections
406 and 407 of the Code:
(A) The Employer has entered into an agreement with the United
States Treasury Department to pay employer and employee Social
Security taxes with respect to the compensation received from
such Foreign Subsidiary Corporation by all United States
citizens employed by such Foreign Subsidiary Corporation and
which agreement has not been terminated; and
(B) The United States citizen employed by such Foreign Subsidiary
Corporation is not covered under any other funded plan of
deferred compensation to which any individual or legal entity,
other than the Employer, contributes with respect to the
remuneration paid to such person by such Foreign Subsidiary
Corporation.
(24) Employer: The Company and each entity that has been designated to
participate in the Plan pursuant to the provisions of Article XVIII.
(25) Employer Contributions: The total of Employer Matching Contributions
and Employer Profit Sharing Contributions.
(26) Employer Match Account: An individual account for each Participant
which is credited with the Employer Matching Contributions made on such
Participant's behalf and which is credited (or debited) with such
account's allocation of net income (or net loss) and changes in value
of the Trust Fund.
(27) Employer Matching Contributions: Contributions made to the Plan by the
Employer pursuant to Section 3.3.
(28) Employer Profit Sharing Contributions: Contributions made to the Plan
by the Employer pursuant to Section 3.4.
(29) Foreign Subsidiary Corporation: (A) A foreign corporation not less than
20% of the voting stock of which is owned by the Employer or (B) a
foreign corporation more than 50% of the voting stock of which is owned
by the foreign corporation described in (A) above.
(30) Halliburton Stock: The common stock of Halliburton Company.
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(31) Highly Compensated Employee: Each Employee who performs services during
the Plan Year for which the determination of who is highly compensated
is being made (the "Determination Year") and who:
(A) Is a five-percent owner of the Employer (within the meaning of
section 416(i)(1)(A)(iii) of the Code) at any time during the
Determination Year or the twelve-month period immediately
preceding the Determination Year (the "Look-Back Year"); or
(B) For the Look-Back Year:
(i) receives compensation (within the meaning of section
414(q)(4) of the Code; "compensation" for purposes of
this Paragraph) in excess of $80,000 (with such
amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by section
414(q)(1) of the Code) during the Look-Back Year; and
(ii) if the Committee elects the application of this
clause for such Look-Back Year, is a member of the
top 20% of Employees for the Look-Back Year (other
than Employees described in section 414(q)(5) of the
Code) ranked on the basis of compensation received
during the year.
For purposes of the preceding sentence, (i) all employers aggregated
with the Employer under section 414(b), (c), (m) or (o) of the Code
shall be treated as a single employer and (ii) a former Employee who
had a separation year (generally, the Determination Year such Employee
separates from service) prior to the Determination Year and who was an
active Highly Compensated Employee for either such separation year or
any Determination Year ending on or after such Employee's fifty-fifth
birthday shall be deemed to be a Highly Compensated Employee. To the
extent that the provisions of this Paragraph are inconsistent or
conflict with the definition of a "highly compensated employee" set
forth in section 414(q) of the Code and the Treasury Regulations
thereunder, the relevant terms and provisions of section 414(q) of the
Code and the Treasury Regulations thereunder shall govern and control.
(32) Hour of Service: Each hour for which an individual is directly or
indirectly paid, or entitled to payment, by the Employer or a
Controlled Entity for the performance of duties or for reasons other
than the performance of duties; provided, however, that no more than
501 Hours of Service shall be credited to an individual on account of
any continuous period during which he performs no duties. Such Hours of
Service shall be credited to the individual for the Service Computation
Period in which such duties were performed or in which occurred the
period during which no duties were performed. An Hour of Service also
includes each hour, not credited above, for which back pay,
irrespective of mitigation of damages, has been either awarded or
agreed to by the Employer or a Controlled Entity. These Hours of
Service shall be credited to the individual for the Service Computation
Period to which the award or agreement pertains rather than the Service
Computation Period in which the award, agreement, or payment is made.
The number of Hours of Service to be credited to an individual for any
Service Computation Period shall be governed by 29 CFR
I-6
ss.ss. 2530.200b-2(b) and (c). Hours of Service shall also include any
hours required to be credited by federal law other than the Act or the
Code, but only under the conditions and to the extent so required by
such federal law.
(33) Inactive Allocation Participant: For a Plan Year, a Participant who
(A) is not an Active Allocation Participant and (B) whose Vested
Interest in his Accounts had not been totally distributed on or before
the last day of such Plan Year.
(34) Investment Fund: A portion of the Trust Fund which is invested in a
specified manner described in Section 5.1.
(35) Leased Employee: Any person who is not an employee of the Employer or a
Controlled Entity but who performs services for the Employer or a
Controlled Entity pursuant to an agreement (oral or written) between
the Employer or a Controlled Entity and any leasing organization,
provided that such person has performed such services for the Employer
or a Controlled Entity or for related persons (within the meaning of
section 144(a)(3) of the Code) on a substantially full-time basis for a
period of at least one year and such services are performed under
primary direction or control by the Employer or a Controlled Entity.
(36) Leave of Absence: Absence from employment with the Employer or a
Controlled Entity which is in conformity with the policy of such
Employer or Controlled Entity then in effect.
(37) Master Trust Agreement: The Halliburton Company Employee Benefit
Master Trust Agreement, as amended from time to time.
(38) Normal Retirement Date: The date a Participant attains the age of
sixty-five.
(39) One-Year Break-in-Service: A Service Computation Period during which
the individual has no more than 500 Hours of Service. Solely for
purposes of determining whether a One-Year Break-in-Service has
occurred, an Hour of Service shall include each normal work hour, not
otherwise credited in Section 1.1(32), during which an individual is
absent from work by reason of the individual's pregnancy, the birth of
a child of the individual, the placement of a child with the individual
in connection with the adoption of such child by the individual, or for
purposes of caring for such child for the period immediately following
such birth or placement. The Committee may in its discretion require,
as a condition to the crediting of Hours of Service under the preceding
sentence, that the individual furnish appropriate and timely
information to the Committee establishing the reason for any such
absence. Such Hours of Service shall be credited to the individual for
the computation period in which the absence from work begins if such
crediting is necessary to prevent the occurrence of a One-Year
Break-in-Service in such computation period; otherwise such Hours of
Service shall be credited to the individual in the next following
computation period.
(40) Participant: Any individual who has met the eligibility requirements
for participation in the Plan.
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(41) Participation Service: The measure of service used in determining
an Employee's eligibility to participate in the Plan as determined
pursuant to Section 2.2.
(42) Plan: The Brown & Root, Inc. Employees' Retirement and Savings Plan,
as amended from time to time.
(43) Plan Year: The twelve-consecutive month period commencing January 1 of
each year.
(44) Profit Sharing Account: An individual account for each Participant
which is credited with the Employer Profit Sharing Contributions made
on such Participant's behalf and such Participant's repayment, if any,
to the Plan made in accordance with Section 8.3(a) and which is
credited (or debited) with such account's allocation of net income (or
net loss) and changes in value of the Trust Fund.
(45) Reemployment Commencement Date: The first date upon which an
individual performs an Hour of Service following the forfeiture of such
Participant's Vesting Service pursuant to the provisions of Section
8.5.
(46) Retirement: With respect to each Participant, termination of his
employment with the Employer on or after his Early Retirement Date.
(47) Rollover Account: An individual account for each Participant which is
credited with the Rollover Contributions of such Participant made
pursuant to Section 3.9 and which are not credited to his Profit
Sharing Account. A Participant's Rollover Account shall also be
credited (or debited) with such account's allocation of net income (or
net loss) and changes in value of the Trust Fund.
(48) Rollover Contributions: Contributions made by an Eligible Employee
pursuant to Section 3.9.
(49) Service Computation Period: The twelve-consecutive month periods
commencing on an individual's Commencement Date (or Reemployment
Commencement Date, if applicable) and on each annual anniversary of
such date.
(50) Tax Deferred Savings Account: An individual account for each
Participant which is credited with the Tax Deferred Savings
Contributions made by the Employer on such Participant's behalf and
which is credited (or debited) with such account's allocation of net
income (or net loss) and changes in value of the Trust Fund.
(51) Tax Deferred Savings Contributions: Contributions made to the Plan by
the Employer on a Participant's behalf in accordance with the
Participant's elections to defer Compensation under the Plan's
qualified cash or deferred arrangement as described in Section 3.1.
(52) Trust: The trust established herein to hold and invest contributions
made under the Plan and from which the Plan benefits will be
distributed.
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(53) Trust Fund: The funds and properties held pursuant to the provisions
of the Master Trust Agreement for the use and benefit of the
Participants, together with all income, profits and increments thereto.
(54) Trustee: The trustee or trustees qualified and acting under the Master
Trust Agreement at any time.
(55) Vested Interest: The portion of a Participant's Accounts which,
pursuant to the Plan, is nonforfeitable.
(56) Vesting Service: The measure of service used in determining a
Participant's Vested Interest as determined pursuant to Section 8.4.
(57) Weighted Compensation: The amount determined by multiplying a
Participant's Compensation for a Plan Year by the following factor,
based on such Participant's years of Vesting Service as of the last day
of the Participant's Service Computation Period which ends in such Plan
Year:
Years of Vesting Service Factor
Under 4 years 1/2
At least 4 years but under 10 years 1
At least 10 years but under 15 years 2
At least 15 years but under 20 years 3
20 or more years 4
1.2 Number and Gender. Wherever appropriate herein, words used in the
singular shall be considered to include the plural and words used in the plural
to include the singular. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender.
1.3 Headings. The headings of Articles and Sections herein are included
solely for convenience and if there is any conflict between such headings and
the text of the Plan, the text shall control.
1.4 Construction. It is intended that the Plan be qualified within the
meaning of Section 401(a) of the Code and that the Trust be tax exempt under
Section 501(a) of the Code, and all provisions herein shall be construed in
accordance with such intent.
I-9
II.
Participation
2.1 Eligibility. Each Eligible Employee shall become a Participant upon
the day following the date on which such Eligible Employee completes one year of
Participation Service.
Notwithstanding the foregoing:
(a) An Eligible Employee who was a Participant in the
Plan on the day prior to the Effective Date shall remain a Participant
as of the Effective Date;
(b) An Employee who has completed one year of Participation
Service but who has not become a Participant in the Plan because he was
not an Eligible Employee shall be eligible to become a Participant in
the Plan immediately upon becoming an Eligible Employee as a result of
a change in his employment status;
(c) Except as provided in Paragraph (d) below, an Eligible
Employee who was a Participant in the Plan prior to a termination of
employment shall be reinstated as a Participant upon his reemployment
as an Eligible Employee.
(d) An Employee whose Participation Service is disregarded
pursuant to Section 2.2(b) shall be treated as a newly hired Employee
following the loss of such prior Participation Service.
(e) A Participant who ceases to be an Eligible Employee but
remains an Employee shall continue to be a Participant but, on and
after the date he ceases to be an Eligible Employee, he shall no longer
be entitled to defer Compensation hereunder, share in allocations of
Employer Contributions and forfeitures or contribute to the Plan unless
and until he shall again become an Eligible Employee.
2.2 Participation Service.
(a) Subject to the provisions of Paragraph (b) below, the
completion of 1,000 or more Hours of Service during a Service Computation Period
shall constitute one year of Participation Service.
(b) If an Employee who has a 0% Vested Interest in his Profit
Sharing Account incurs a number of consecutive One-Year Breaks-in-Service that
equals or exceeds the greater of five years or his aggregate number of years of
Participation Service before such One-Year Breaks-in-Service, such Employee's
Participation Service completed prior to such One-Year Breaks-in-Service shall
be disregarded.
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III.
Contributions
3.1 Tax Deferred Savings Contributions.
(a) A Participant may elect to defer an integral percentage of
his Compensation for a Plan Year by having the Employer contribute the amount so
deferred to the Plan; provided, however, that the maximum deferral percentage
that may be elected by a Participant shall not exceed 15% or such lesser
percentage as may be specified by the Committee for such purpose and for such
Plan Year (as such percentage may be changed from time to time during such Plan
Year by the Committee to the extent it deems such change necessary and proper to
facilitate the administration of the Plan). Compensation for a Plan Year not so
deferred by such election shall be received by such Participant in cash. A
Participant's election to defer an amount of his Compensation pursuant to this
Section shall be made by the Participant authorizing his Employer, in the manner
and within the time period prescribed by the Committee, to reduce his
Compensation in the elected amount and the Employer, in consideration thereof,
agrees to contribute an equal amount to the Plan. The Compensation elected to be
deferred by a Participant pursuant to this Section shall become a part of the
Employer's Tax Deferred Savings Contributions.
(b) A Participant's deferral election shall remain in force
and effect for all periods following the effective date of such election until
such election is modified or terminated or until such Participant terminates his
employment, provided that the Committee may establish procedures to
automatically reinstate a Participant's election upon reemployment. A
Participant who has elected to defer a portion of his Compensation may change
his deferral election percentage (within the percentage limit established
pursuant to Paragraph (a) above) by communicating such new deferral election
percentage to his Employer in the manner and within the time period prescribed
by the Committee.
(c) A Participant may cancel his deferral election by
communicating such cancel lation to his Employer in the manner and within the
time period prescribed by the Committee. A Participant who so cancels his
deferral election may again elect to defer a portion of his Compensation by
communicating his new deferral election percentage (within the percentage limit
established pursuant to Paragraph (a) above) to his Employer in the manner and
within the time period prescribed by the Committee.
(d) In restriction of the Participants' elections provided in
Paragraphs (a), (b), and (c) above, the Tax Deferred Savings Contributions and
the elective deferrals (within the meaning of section 402(g)(3) of the Code)
under all other plans, contracts, and arrangements of the Employer on behalf of
any Participant for any calendar year shall not exceed $7,000 (with such amount
to be adjusted automatically to reflect any cost-of-living adjustments
authorized by section 402(g)(5) of the Code).
(e) In further restriction of the Participants' elections
provided in Paragraphs (a), (b) and (c) above, it is specifically provided that
one of the "actual deferral percentage" tests set forth
III-1
in section 401(k)(3) of the Code and the Treasury Regulations thereunder must be
met in each Plan Year. Such testing shall utilize the prior year testing method
as such term is defined in Internal Revenue Service Notice 98-11. The Committee
may elect, in accordance with applicable Treasury Regulations, to treat Employer
Matching Contributions to the Plan as Tax Deferred Savings Contributions for the
purposes of meeting these requirements. If multiple use of the alternative
limitation (within the meaning of section 401(m)(9) of the Code and Treasury
Regulation ss. 1.401(m)-2(b)) occurs during a Plan Year such multiple use shall
be corrected in accordance with the provisions of Treasury Regulation ss.
1.401(m)-2(c); provided, however, that if such multiple use is not eliminated by
making qualified nonelective contributions, then the "actual contribution
percentages" of all Highly Compensated Employees participating in the Plan shall
be reduced, and the excess contributions distributed, in accordance with the
provisions of Section 3.8(c) and applicable Treasury Regulations so that there
is no such multiple use.
(f) If the restrictions set forth in Paragraph (d) or (e)
above would not otherwise be met for any Plan Year, the Compensation deferral
elections made pursuant to Paragraphs (a), (b) and (c) above of Participants who
are Highly Compensated Employees may be reduced by the Committee on a temporary
and prospective basis in such manner as the Committee shall determine.
(g) The Employer shall contribute to the Trust, as Tax
Deferred Savings Contributions with respect to each Participant, an amount equal
to the amount of Compensation elected to be deferred, pursuant to Paragraphs (a)
and (b) above (as adjusted pursuant to Paragraph (f) above), by such Participant
during such month. Such contributions, as well as the contributions pursuant to
Sections 3.3 and 3.4, shall be made without regard to current or accumulated
profits of the Employer. Notwithstanding the foregoing, the Plan is intended to
qualify as a profit sharing plan for purposes of sections 401(a), 402, 412 and
417 of the Code.
3.2 After-Tax Savings Contributions.
(a) After-Tax Savings Contributions may be made by a
Participant by either authorizing the Employer to withhold such contributions
from his Compensation as of each payroll period or by making nonpayroll
deduction, lump sum After-Tax Savings Contributions as of the date specified by
the Committee and in accordance with its rules. A Participant may contribute to
the Plan, as his payroll deduction After-Tax Savings Contributions, an integral
percentage of his Compensation which, when added to the integral percentage of
his Compensation for such Plan Year designated as Tax Deferred Savings
Contributions, does not exceed 15% or such lesser percentage as may be specified
by the Committee for such purpose and for such Plan Year (as such percentage may
be changed from time to time during such Plan Year by the Committee to the
extent it deems such change necessary and proper to facilitate the
administration of the Plan). Each Participant may elect the amount (within the
percentage limits of this Paragraph) of his payroll deduction After-Tax Savings
Contributions by communicating such amount to his Employer in the manner and
within the time period prescribed by the Committee. A Participant's election to
make payroll deduction After-Tax Savings Contributions shall be effective as of
the first day of any payroll period which is after the date upon which the
Participant has timely communicated his election to his Employer in accordance
with the provisions of the preceding sentence.
III-2
(b) A Participant may change the amount of his payroll
deduction After-Tax Savings Contributions (within the percentage limits set
forth in Paragraph (a) above) effective as of the first day of any payroll
period by communicating his new payroll deduction election percentage to his
Employer in the manner and within the time period prescribed by the Committee.
(c) A Participant may suspend his payroll deduction After-Tax
Savings Contributions effective as of the first day of any payroll period by
communicating such suspension to his Employer in the manner and within the time
period prescribed by the Committee. A Participant may again elect to make
payroll deduction After-Tax Savings Contributions, effective as of the first day
of any payroll period, by communicating his new payroll deduction election
percentage to his Employer in the manner and within the time period prescribed
by the Committee.
(d) If the restrictions set forth in Section 3.5 would not
otherwise be met for any Plan Year, the After-Tax Savings Contribution elections
made pursuant to Paragraphs (a), (b) and (c) above of Participants who are
Highly Compensated Employees may be reduced by the Committee on a temporary and
prospective basis in such manner as the Committee shall determine.
3.3 Employer Matching Contributions. For each payroll period, the
Employer shall contribute to the Trust, as Employer Matching Contributions, an
amount which equals 25% of the Tax Deferred Savings Contributions made pursuant
to Section 3.1 on behalf of each of the Participants during such payroll period;
provided, however, that the Employer Matching Contributions on behalf of any
Participant for any Plan Year shall not exceed $250.
3.4 Employer Profit Sharing Contributions. For each Plan Year, the
Employer may contribute to the Trust, as an Employer Profit Sharing
Contribution, an additional amount as determined in its discretion; provided,
however, that the Employer shall contribute the amount required to be allocated
pursuant to Section 4.3(e) for a Plan Year.
3.5 Restrictions on Employer Matching Contributions and After-Tax
Savings Contributions. In restriction of the Employer Contributions and
After-Tax Savings Contributions hereunder, it is specifically provided that one
of the "actual contribution percentage" tests set forth in section 401(m) of the
Code and the Treasury Regulations thereunder must be met in each Plan Year. Such
testing shall utilize the prior year testing method as such term is defined in
Internal Revenue Service Notice 98-1. The Committee may elect, in accordance
with applicable Treasury Regulations, to treat Tax Deferred Savings
Contributions to the Plan as Employer Matching Contributions for purposes of
meeting this requirement.
3.6 Payments to Trustee. Contributions under the Plan shall be paid by
the Employer directly to the Trustee as soon as practicable. On or about the
date of any such payment, the Committee shall be informed as to the amount of
such payment.
3.7 Return of Contributions. Anything to the contrary herein
notwithstanding, the Employer's contributions to the Plan are contingent upon
the deductibility of such contributions under section 404 of the Code. To the
extent that a deduction for contributions is disallowed, such contributions
shall, upon the written demand of the Employer, be returned to the Employer by
the Trustee within one year after the date of disallowance, reduced by any net
losses of the Trust Fund
III-3
attributable thereto but not increased by any net earnings of the Trust Fund
attributable thereto. Moreover, if Employer contributions are made under a
mistake of fact, such contributions shall, upon the written demand of the
Employer, be returned to the Employer by the Trustee within one year after the
payment thereof, reduced by any net losses of the Trust Fund attributable
thereto but not increased by any net earnings of the Trust Fund attributable
thereto.
3.8 Disposition of Excess Deferrals and Excess Contributions.
(a) Anything to the contrary herein notwithstanding, any Tax
Deferred Savings Contributions to the Plan for a calendar year on behalf of a
Participant in excess of the limitations set forth in Section 3.1(d) and any
"excess deferrals" from other plans allocated to the Plan by such Participant no
later than March 1 of the next following calendar year within the meaning of,
and pursuant to the provisions of, section 402(g)(2) of the Code, shall be
distributed to such Participant not later than April 15 of the next following
calendar year.
(b) Anything to the contrary herein notwithstanding, if, for
any Plan Year, the aggregate Tax Deferred Savings Contributions made by the
Employer on behalf of Highly Compensated Employees exceeds the maximum amount of
Tax Deferred Savings Contributions permitted on behalf of such Highly
Compensated Employees pursuant to Section 3.1(e) (determined by reducing Tax
Deferred Savings Contributions on behalf of Highly Compensated Employees in
order of the highest dollar amounts contributed on behalf of such Highly
Compensated Employees in accordance with section 401(k)(8)(C) of the Code and
the Treasury Regulations thereunder), then such excess shall be distributed to
the Highly Compensated Employees on whose behalf such excess was contributed
before the end of the next following Plan Year.
(c) Anything to the contrary herein notwithstanding, if, for
any Plan Year, the sum of the aggregate Employer Matching Contributions and
After-Tax Savings Contributions allocated to the Accounts of Highly Compensated
Employees exceeds the maximum amount of such Employer Matching Contributions and
After-Tax Savings Contributions permitted on behalf of such Highly Compensated
Employees pursuant to Section 3.5 (determined by reducing, first, After-Tax
Savings Contributions made by, and second, Employer Matching Contributions made
on behalf of, Highly Compensated Employees in order of the highest dollar
amounts contributed by and on behalf of such Highly Compensated Employees in
accordance with section 401(m)(6)(C) of the Code and Treasury Regulations
thereunder), then such excess shall be distributed to the Highly Compensated
Employees on whose behalf such excess contributions were made or who made such
excess contributions, as applicable, before the end of the next following Plan
Year.
(d) In coordinating the disposition of excess deferrals and
excess contributions pursuant to this Section, such excess deferrals and excess
contributions shall be disposed of in the following order:
(1) First, Tax Deferred Savings Contributions which
constitute excess deferrals described in Paragraph (a) above that are
not considered in determining the amount of Employer Matching
Contributions pursuant to Section 3.3 shall be distributed;
III-4
(2) Second, excess Tax Deferred Savings Contributions
which constitute excess deferrals described in Paragraph (a) above that
are considered in determining the amount of Employer Matching
Contributions pursuant to Section 3.3 shall be distributed;
(3) Third, excess Tax Deferred Savings Contributions
described in Paragraph (b) above that are not considered in determining
the amount of Employer Matching Contributions pursuant to Section 3.3
shall be distributed;
(4) Fourth, excess Tax Deferred Savings Contributions
described in Paragraph (b) above that are considered in determining the
amount of Employer Matching Contributions pursuant to Section 3.3 shall
be distributed;
(5) Fifth, excess After-Tax Savings Contributions
described in Paragraph (c) above shall be distributed;
(6) Sixth, excess Employer Matching Contributions
described in Paragraph (c) above shall be distributed; and
(7) Seventh, Employer Matching Contributions that
relate to Tax Deferred Savings Contributions that have been distributed
pursuant to the provisions of Paragraph (2) or (4) above that were not
distributed pursuant to the provisions of Paragraph (6) above shall be
forfeited.
(e) Any distribution or forfeiture of excess deferrals or
excess contributions pursuant to the provision of this Section shall be adjusted
for income or loss allocated thereto in the manner determined by the Committee
in accordance with any method permissible under applicable Treasury Regulations.
Any forfeiture pursuant to the provisions of this Section shall be considered to
have occurred on the date which is 2-1/2 months after the end of the Plan Year.
3.9 Rollover Contributions.
(a) Qualified Rollover Contributions may be made to the Plan
by any Eligible Employee of amounts received by such Eligible Employee from an
individual retirement account or annuity or from an employee's trust described
in Section 401(a) of the Code, which is exempt from tax under Section 501(a) of
the Code, but only if any such Rollover Contribution is made pursuant to and in
accordance with applicable provisions of the Code and Treasury Regulations
promulgated thereunder.
(b) A Rollover Contribution of amounts that are "eligible
rollover distributions" within the meaning of section 402(f)(2)(A) of the Code
may be made to the Plan irrespective of whether such eligible rollover
distribution was paid to the Eligible Employee or paid to the Plan as a "direct"
Rollover Contribution. A direct Rollover Contribution to the Plan shall be
effectuated only by wire transfer directed to the Trustee or by issuance of a
check made payable to the Trustee, which is negotiable only by the Trustee, and
which identifies the Eligible Employee for whose benefit the Rollover
Contribution is being made. Any Eligible Employee desiring to effect Rollover
Contribution to the Plan must execute and file with the Committee the form
prescribed by the
III-5
Committee for such purpose. The Committee may require as a condition to
accepting any Rollover Contribution to the Plan that such Eligible Employee
furnish any evidence that the Committee in its discretion deems satisfactory to
establish that the proposed Rollover Contribution is in fact eligible for
rollover to the Plan and is made pursuant to and in accordance with applicable
provisions of the Code and Treasury Regulations promulgated thereunder. All
Rollover contributions to the Plan must be made in cash.
(c) Rollover Contributions made in accordance with this
Section shall be credited to the Rollover Account of the Eligible Employee
making such Rollover Contributions; provided, however, to the extent that such
Rollover Contributions are used by a Participant for repayment purposes pursuant
to Section 8.3(a), such Rollover Contributions shall be credited to the Profit
Sharing Account of the Participant making such Rollover Contributions.
(d) An Eligible Employee who has made a Rollover Contribution
in accordance with this Section, but who has not otherwise become a Participant
in the Plan in accordance with Article II, shall become a Participant coincident
with such Rollover Contribution; provided, however, that such Participant shall
not have a right to defer Compensation or have Employer Contributions made on
his behalf until he has otherwise satisfied the requirements imposed by Article
II.
III-6
IV.
Allocations and Limitations
4.1 Suspense Account. All contributions, forfeitures and the net
income (or net loss) of the Trust Fund shall be held in suspense until allocated
or applied as provided herein.
4.2 Records on a Unit Basis. Records with respect to the
Investment Funds shall be maintained on a unit basis.
4.3 Allocation of Contributions and Forfeitures.
(a) Tax Deferred Savings Contributions made by the Employer on
a Participant's behalf pursuant to Section 3.1 shall be allocated to such
Participant's Tax Deferred Savings Account.
(b) After-Tax Savings Contributions made by a Participant
pursuant to Section 3.2 shall be allocated to the After-Tax Savings Account of
such Participant.
(c) The Employer Matching Contributions made on a
Participant's behalf pursuant to Section 3.3 shall be allocated to the Employer
Match Account of the Participant.
(d) The Employer Profit Sharing Contribution, if any, made
pursuant to Section 3.4 for a Plan Year, less the amount, if any, allocated
pursuant to Paragraph (e) below in such Plan Year, shall be allocated to the
Profit Sharing Accounts of the Active Allocation Participants for such Plan
Year. The allocation to each such Active Allocation Participant's Profit Sharing
Account shall be that portion of such Employer Profit Sharing Contribution which
is in the same proportion that such Active Allocation Participant's Weighted
Compensation for such Plan Year bears to the total of all such Active Allocation
Participants' Weighted Compensation for such Plan Year.
(e) The Committee shall also calculate an Employer Profit
Sharing Contribution for all Inactive Allocation Participants for each Plan Year
in the same manner had such Participants been Active Allocation Participants.
The calculated Employer Profit Sharing Contribution for each Inactive Allocation
Participant for a Plan Year shall be allocated to the Participant as of the last
day of the following Plan Year if during such following Plan Year (1) the
Participant has been rehired and is actively employed, (2) the Participant is
credited with an additional Year of Service for his Service Computation Period
which includes the end of the Plan Year for which the Employer Profit Sharing
Contribution was calculated, and (3) the Participant has not been paid his
Vested Interest in his Accounts in a total distribution prior to the end of such
following Plan Year. A Participant who is on an unpaid Leave of Absence on the
last day of a Plan Year shall be treated as an Inactive Allocation Participant
for such Plan Year and, if such Participant returns to work after his leave
expires, he shall be credited with the allocation made for him provided he
satisfies the requirements of (2) and (3) of the preceding sentence.
IV-1
(f) All contributions to the Plan shall be considered
allocated to Participants' Accounts no later than the last day of the Plan Year
for which they were made, as determined pursuant to Article III, except that,
for purposes of Section 4.4, contributions shall be considered allocated to
Participants' Accounts when received by the Trustee.
(g) Any amounts that are forfeited under any provision hereof
during a Plan Year, shall be allocated as of the last day of such Plan Year to
the Profit Sharing Accounts of the Active Allocation Participants for such Plan
Year. Such allocation shall be on the basis of the Weighted Compensation of such
Active Allocation Participants, and each such Participant's Profit Sharing
Account shall receive that portion of such forfeitures which is in the same
proportion that the total of such Participant's Weighted Compensation for such
Plan Year bears to the total of all such Participants' Weighted Compensation for
such Plan Year. Prior to such allocation, forfeited amounts shall continue to be
invested in the same Investment Fund(s) in which they were invested immediately
prior to their forfeiture.
4.4 Valuation of Accounts. All amounts contributed to the Trust Fund
shall be invested as soon as administratively feasible following their receipt
by the Trustee, and the balance of each Account shall reflect the result of
daily pricing of the assets in which such Account is invested from the time of
receipt by the Trustee until the time of distribution.
4.5 Limitations and Corrections.
(a) For purposes of this Section, the following terms and
phrases shall have these respective meanings:
(1) "Annual Additions" of a Participant for any
Limitation Year shall mean the total of (A) the Employer Contributions,
Tax Deferred Savings Contributions and forfeitures, if any, allocated
to such Participant's Accounts for such year, (B) Participant's
After-Tax Savings Contributions, if any, (excluding any Rollover
Contributions) for such year and (C) amounts referred to in sections
415(l)(1) and 419A(d)(2) of the Code.
(2) "415 Compensation" shall mean the total of all
amounts paid by the Employer to or for the benefit of a Participant for
services rendered or labor performed for the Employer which are
required to be reported on the Participant's federal income tax
withholding statement or statements (Form W-2 or its subsequent
equivalent), subject to the following adjustments and limitations:
(A) The following shall be included:
(i) elective deferrals (as defined in
section 402(g)(3) of the Code)from compensation to be
paid by the Employer to the Participant; and
(ii) any amount which is contributed or
deferred by the Employer at the election of the
Participant and which is not includible in the gross
income of the Participant by reason of section 125 of
the Code.
IV-2
(B) The 415 Compensation of any Participant taken
into account for purposes of the Plan shall be limited to
$160,000 for any Plan Year with such limitation to be:
(i) adjusted automatically to reflect
any amendments to section 401(a)(17) of the Code and
any cost-of-living increases authorized by section
401(a)(17) of the Code; and
(ii) prorated for a Plan Year of less than
twelve months and to the extent otherwise required by
applicable law.
(3) "Limitation Year" shall mean the Plan Year.
(4) "Maximum Annual Additions" of a Participant for
any Limitation Year shall mean the lesser of (A) $30,000 (or, if
greater, one-fourth of the defined benefit dollar limitation in effect
under section 415(b)(1)(A) of the Code for such Limitation Year) or (B)
25% of such Participant's 415 Compensation during such year except that
the limitation in this Clause (B) shall not apply to any contribution
for medical benefits (within the meaning of section 419A(f)(2) of the
Code) after separation from service with the Employer or a Controlled
Entity which is otherwise treated as an Annual Addition or to any
amount otherwise treated as an Annual Addition under section 415(l)(1)
of the Code.
(b) Contrary Plan provisions notwithstanding, in no event
shall the Annual Additions credited to a Participant's Accounts for any
Limitation Year exceed the Maximum Annual Additions for such Participant for
such year. If as a result of allocation of forfeitures, a reasonable error in
estimating a Participant's compensation, a reasonable error in determining the
amount of elective deferrals (within the meaning of section 402(g)(3) of the
Code) that may be made with respect to any individual under the limits of
section 415 of the Code, or because of other limited facts and circumstances,
the Annual Additions which would be credited to a Participant's Accounts for a
Limitation Year would nonetheless exceed the Maximum Annual Additions for such
Participant for such year, the excess Annual Additions which, but for this
Section, would have been allocated to such Participant's Accounts shall be
disposed of as follows:
(1) First, by returning to such Participant his
After-Tax Savings Contributions, adjusted for income or loss allocated
thereto;
(2) Next, any such excess Annual Additions in the
form of Tax Deferred Savings Contributions on behalf of such
Participant which would not have been considered in determining the
amount of Employer Matching Contributions allocated to such
Participant's Employer Match Account pursuant to Section 4.3(c) shall
be distributed to such Participant, adjusted for income or loss
allocated thereto;
(3) Next, any such excess Annual Additions in the
form of Tax Deferred Savings Contributions on behalf of such
Participant which would have been considered in determining the amount
of Employer Matching Contributions allocated to such Participant's
Employer Match Account pursuant to Section 4.3(c) shall be distributed
to such Participant,
IV-3
adjusted for income or loss allocated thereto, and the Employer
Matching Contributions which would have been allocated to such
Participant's Employer Match Account based upon such distributed Tax
Deferred Savings Contributions shall, to the extent such amounts would
have otherwise been allocated to such Participant's Employer Match
Account, be treated as a forfeiture;
(4) Next, any such excess Annual Additions in the
form of Employer Profit Sharing Contributions and forfeitures shall, to
the extent such amounts would otherwise have been allocated to such
Participant's Profit Sharing Account, be treated as a forfeiture.
(c) For purposes of determining whether the Annual Additions
under this Plan exceed the limitations herein provided, all defined contribution
plans of the Employer are to be treated as one defined contribution plan. In
addition, all defined contribution plans of Controlled Entities shall be
aggregated for this purpose. For purposes of this Section only, a "Controlled
Entity" (other than an affiliated service group member within the meaning of
Section 414(m) of the Code) shall be determined by application of a more than
50% control standard in lieu of an 80% control standard. If the Annual Additions
credited to a Participant's Accounts for any Limitation Year under this Plan
plus the additions credited on his behalf under other defined contribution plans
required to be aggregated pursuant to this Paragraph would exceed the Maximum
Annual Additions for such Participant for such Limitation Year, the Annual
Additions under this Plan and the additions under such other plans shall be
reduced on a pro rata basis and allocated, reallocated or returned in accordance
with applicable plan provisions regarding Annual Additions in excess of Maximum
Annual Additions.
(d) In the case of a Participant who also participated in a
defined benefit plan of the Employer or a Controlled Entity (as defined in
Paragraph (c) above), the Employer shall reduce the Annual Additions credited to
the Accounts of such Participant under this Plan pursuant to the provisions of
Paragraph (b) to the extent necessary to prevent the limitation set forth in
section 415(e) of the Code from being exceeded. Notwithstanding the foregoing,
the provisions of this Paragraph shall only apply if such defined benefit plan
does not provide for a reduction of benefits thereunder to ensure that the
limitation set forth in section 415(e) of the Code is not exceeded. Further,
this Paragraph shall not apply for Limitation years beginning after December 31,
1999.
(e) If the limitations set forth in this Section would not
otherwise be met for any Limitation Year, the elections to make After-Tax
Savings Contributions pursuant to Section 3.2 and/or the Compensation deferral
elections pursuant to Section 3.1 of affected Participants may be reduced by the
Committee on a temporary and prospective basis in such manner as the Committee
shall determine.
IV-4
V.
Investment Funds
5.1 Investment of Accounts.
(a) Each Participant shall designate, in accordance with the
procedures established from time to time by the Committee, the manner in which
the amounts allocated to each of his Accounts shall be invested from among the
Investment Funds made available from time to time by the Committee. With respect
to each of a Participant's Accounts, such Participant may designate one of such
Investment Funds for all the amounts allocated to such Account or he may split
the investment of the amounts allocated to such Account between such Investment
Funds in such increments as the Committee may prescribe. If a Participant fails
to make a designation, then his Accounts shall be invested in the Investment
Fund or Investment Funds designated by the Committee from time to time in a
uniform and nondiscriminatory manner.
(b) A Participant may change his investment designation for
future contributions to be allocated to any one or all of his Accounts. Any such
change shall be made in accordance with the procedures established by the
Committee, and the frequency of such changes may be limited by the Committee.
(c) A Participant may elect to convert his investment
designation with respect to the amounts already allocated to one or more of his
Accounts. Any such conversion shall be made in accordance with the procedures
established by the Committee, and the frequency of such conversions may be
limited by the Committee.
5.2 Special Investment Provisions.
(a) Amounts allocated to a Participant's Accounts may be held
by the Trustee uninvested or may be held in an interest bearing account for a
reasonable period of time pending appropriate investment according to this
Article.
(b) Subject to the restrictions otherwise provided herein, in
a Trust Agreement or in the Master Trust Agreement, the Plan may acquire and
hold its funds in "qualifying employer securities" (as defined in section 407 of
the Act) to the extent necessary to comply with the investment provisions set
forth in this Article. Notwithstanding the foregoing, no transfer into any
Investment Fund holding Halliburton Stock shall be made if such transfer would
require the acquisition of Halliburton Stock and if, immediately after such
acquisition, (1) the Trust would own more than 10% of the shares of Halliburton
Stock then issued and outstanding or (2) the aggregate fair market value of
employer securities and employer real property held by the Plan would exceed 10%
of the fair market value of the Plan's assets (determined in accordance with the
provisions of section 407 of the Act and the regulations promulgated
thereunder). The Committee may from time to time establish such rules and
regulations as it shall deem appropriate to ensure compliance with the
limitations set forth in the preceding sentence. Further, the Committee may from
time to time
V-1
refuse to honor any investment designation, establish such rules and regulations
or take any other actions it shall deem appropriate to ensure the continued
availability of any applicable exemptions under the Securities Exchange Act of
1934 and to ensure the Plan's compliance with applicable federal and state
securities laws.
(c) Each Participant who has any portion of his Accounts
invested in Halliburton Stock shall be entitled to vote the shares of
Halliburton Stock allocated to his Accounts in accordance with the provisions
set forth in the Trust Agreement or the Master Trust Agreement, as applicable,
for the exercise of voting rights with respect to Halliburton Stock.
V-2
VI.
Retirement Benefits
A Participant who terminates his employment by reason of his Retirement
shall be entitled to a retirement benefit, payable at the time and in the form
provided in Article X, equal to the value of his Accounts on his Benefit
Commencement Date. Any contribution allocable to a Participant's Accounts after
his Benefit Commencement Date shall be distributed, if his benefit was paid in a
lump sum, or used to increase his payments, if his benefit is being paid on a
periodic basis, as soon as administratively feasible after the date that such
contribution is paid to the Trust Fund.
VI-1
VII.
Disability Benefits
In the event a Participant's employment is terminated due to him being
Disabled and if such Participant has made application to the Committee for
disability benefits under this Article, then such Participant shall be entitled
to a disability benefit, payable at the time and in the form provided in Article
X, equal to the value of his Accounts on his Benefit Commencement Date. Any
contribution allocable to a Participant's Accounts after his Benefit
Commencement Date shall be distributed, if his benefit was paid in a lump sum,
or used to increase his payments, if his benefit is being paid on a periodic
basis, as soon as administratively feasible after the date that such
contribution is paid to the Trust Fund.
VII-1
VIII.
Severance Benefits and Determination of Vested Interest
8.1 No Benefits Unless Herein Set Forth. Except as set forth in this
Article, upon termination of employment of a Participant for any reason other
than Retirement, death or being Disabled, such Participant shall acquire no
right to any benefit from the Plan or the Trust Fund.
8.2 Severance Benefit. Each Participant whose employment is terminated
for any reason other than Retirement, death or being Disabled shall be entitled
to a severance benefit, payable at the time and in the form provided in Article
X, equal to his Vested Interest in the value of his Accounts on his Benefit
Commencement Date. A Participant's Vested Interest in any contribution allocable
to his Accounts after his Benefit Commencement Date shall be distributed, if his
benefit was paid in a lump sum, or used to increase his payments, if his benefit
is being paid on a periodic basis, as soon as administratively feasible after
the date that such contribution is paid to the Trust Fund.
8.3 Determination of Vested Interest.
(a) A Participant shall have a 100% Vested Interest in
his Employer Match Account, After-Tax Savings Account, Rollover Account and Tax
Deferred Savings Account at all times.
(b) A Participant's Vested Interest in his Profit Sharing
Account shall be determined by such Participant's years of Vesting Service in
accordance with the following schedule:
Years of Vesting Service Vested Interest
Less than 3 years 0%
3 years 20%
4 years 50%
5 years 60%
6 years 80%
7 years or more 100%
(c) Paragraph (b) above notwithstanding, a Participant shall
have a 100% Vested Interest in his Profit Sharing Account upon (1) the
attainment of his Early Retirement Date while employed by the Employer or a
Controlled Entity, (2) the termination of his employment with the Employer at a
time when he is Disabled, (3) the death of such Participant while an Employee,
or (4) if such Participant is an affected Participant, the occurrence of an
event described in, under the conditions set forth in, Section 17.2.
8.4 Crediting of Vesting Service. Subject to the provisions of
Section 8.5, 1,000 or more Hours of Service during any Service Computation
Period shall constitute one year of Vesting Service.
VIII-1
8.5 Forfeiture of Vesting Service.
(a) In the case of an individual who terminates employment at
a time when he has a 0% Vested Interest in his Profit Sharing Account and who
then incurs a number of consecutive One-Year Breaks-in-Service that equals or
exceeds the greater of five years or his aggregate number of years of Vesting
Service completed before such One-Year Breaks-in-Service, such individual's
years of Vesting Service completed before such One-Year Breaks-in-Service shall
be forfeited and completely disregarded in determining his years of Vesting
Service.
(b) In the case of a Participant who terminates employment
with the Employer at a time when he has a Vested Interest of more than 0% but
less than 100% and then incurs five or more consecutive One-Year
Breaks-in-Service, such Participant's years of Vesting Service completed after
such One-Year Breaks-in-Service shall be disregarded for purposes of determining
such Participant's Vested Interest in any Plan benefits derived from Employer
Contributions on his behalf before such One-Year Breaks-in-Service, but his
years of Vesting Service completed before such One-Year Breaks-in-Service shall
not be disregarded in determining any Plan benefits derived from Employer
Contributions on his behalf after such One-Year Breaks-in-Service.
(c) A Participant who terminates employment with the Employer
at a time when he has a 100% Vested Interest shall not forfeit any of his
Vesting Service for purposes of determining any Plan benefits.
8.6 Forfeitures of Nonvested Account Balance.
(a) With respect to a Participant who terminates employment
with the Employer with a Vested Interest in his Profit Sharing Account that is
less than 100% and either is not entitled to a distribution from the Plan or
receives a distribution from the Plan of the balance of his Vested Interest in
his Accounts in the form of a lump sum distribution by the close of the second
Plan Year following the Plan Year in which his employment is terminated, the
nonvested portion of such terminated Participant's Profit Sharing Account as of
his Benefit Commencement Date shall become a forfeiture as of his Benefit
Commencement Date (or as of his date of termination of employment if no amount
is payable from the Trust Fund on behalf of such Participant with such
Participant being considered to have received a distribution of zero dollars on
his date of termination of employment).
(b) With respect to a Participant who terminates employment
with the Employer with a Vested Interest in his Profit Sharing Account greater
than 0% but less than 100% and who is not otherwise subject to the forfeiture
provisions of Paragraph (a) above (or Section 8.8 below), the nonvested portion
of his Profit Sharing Account shall be forfeited as of the earlier of (1) the
last day of the Plan Year during which the terminated Participant incurs his
fifth consecutive One-Year Break-in-Service or (2) the date of the terminated
Participant's death.
8.7 Restoration of Forfeited Account Balance. In the event that the
nonvested portion of a terminated Participant's Profit Sharing Account becomes a
forfeiture pursuant to Section 8.6, the terminated Participant shall, upon
subsequent reemployment with the Employer prior to incurring five consecutive
One-Year Breaks-in-Service, have the forfeited amount restored to such
VIII-2
Participant's Profit Sharing Account, unadjusted by any subsequent gains or
losses of the Trust Fund; provided, however, that such restoration shall be made
only if such Participant repays in cash an amount equal to the amount so
distributed to him from his Profit Sharing Account pursuant to Section 8.6
within five years from the date the Participant is reemployed. A reemployed
Participant who was not entitled to a distribution from the Plan on his date of
termination of employment shall be considered to have repaid a distribution of
zero dollars on the date of his reemployment. A Participant's repayment made in
accordance with this Paragraph shall be credited to such Participant's Profit
Sharing Account when the repayment is received by the Trustee. Any such
restoration shall be made as soon as administratively feasible following the
date of repayment. Notwithstanding anything to the contrary in the Plan,
forfeited amounts to be restored by the Employer pursuant to this Section shall
be charged against and deducted from forfeitures for the Plan Year in which such
amounts are restored that would otherwise be available for allocation to other
Participants in accordance with Section 4.3(g). If such forfeitures otherwise
available are not sufficient to provide such restoration, the portion of such
restoration not provided by forfeitures shall be charged against and deducted
from Employer Contributions otherwise available for allocation to other
Participants in accordance with Section 4.3(d), and any additional amount needed
to restore such forfeited amounts shall be a minimum required Employer
Contribution (which shall be made without regard to current or accumulated
earnings and profits).
8.8 Special Formula for Determining Vested Interest for Partial
Accounts. With respect to a Participant whose Vested Interest in his Profit
Sharing Account is less than 100% and who makes a withdrawal from or receives a
termination distribution from his Profit Sharing Account other than a lump sum
distribution by the close of the second Plan Year following the Plan Year in
which his employment is terminated, any amount remaining in his Profit Sharing
Account shall continue to be maintained as a separate account. At any relevant
time, such Participant's nonforfeitable portion of his separate account shall be
determined in accordance with the following formula:
X=P(AB + (R x D)) - (R x D)
For purposes of applying the formula: X is the nonforfeitable portion of such
separate account at the relevant time; P is the Participant's Vested Interest in
his Profit Sharing Account at the relevant time; AB is the balance of such
separate account at the relevant time; R is the ratio of the balance of such
separate account at the relevant time to the balance of such separate account
after the withdrawal or distribution; and D is the amount of the withdrawal or
distribution. For all other purposes of the Plan, a Participant's separate
account shall be treated as a Profit Sharing Account. Upon his incurring five
consecutive One-Year Breaks-in-Service, the forfeitable portion of a
Participant's separate account and Profit Sharing Account shall be forfeited as
of the end of the Service Computation Period during which the Participant
incurred his fifth such consecutive One-Year Break-in-Service if not forfeited
earlier pursuant to the provisions of Section 8.6.
VIII-3
IX.
Death Benefits
9.1 Death Benefits. Upon the death of a Participant while an Employee
or within five months after his termination of employment if such termination
was by reason of him being Disabled and he has not qualified for disability
benefits under Article VII, the Participant's designated beneficiary shall be
entitled to a death benefit, payable at the time and in the form provided in
Article X, equal to the value of the Participant's Accounts on the Participant's
Benefit Commencement Date. Any contribution allocable to a Participant's
Accounts after his Benefit Commencement Date shall be distributed, if his
benefit was paid in a lump sum, or used to increase his payments, if his benefit
is being paid on a periodic basis, as soon as administratively feasible after
the date that such contribution is paid to the Trust Fund.
9.2 Designation of Beneficiaries.
(a) Each Participant shall have the right to designate the
beneficiary or beneficiaries to receive payment of his benefit in the event of
his death. Each such designation shall be made by executing the beneficiary
designation form prescribed by the Committee and filing such form with the
Committee. Any such designation may be changed at any time by such Participant
by execution of a new designation in accordance with this Section.
Notwithstanding the foregoing, if a Participant who is married on the date of
his death designates an individual or entity other than his Eligible Surviving
Spouse as his beneficiary, such designation shall not be effective unless (1)
such spouse has consented thereto in writing and such consent (A) acknowledges
the effect of such specific designation, (B) either consents to the specific
designated beneficiary (which designation may not subsequently be changed by the
Participant without spousal consent) or expressly permits such designation by
the Participant without the requirement of further consent by the spouse, and
(C) is witnessed by a Plan representative (other than the Participant) or a
notary public or (2) the consent of such spouse cannot be obtained because such
spouse cannot be located or because of other circumstances described by
applicable Treasury regulations. Any such consent by such Eligible Surviving
Spouse shall be irrevocable.
(b) If any beneficiary designated by a Participant does not
survive the Participant, the interest of such beneficiary shall vest in the
designated beneficiary or beneficiaries who do survive the Participant, if any,
but if no designated beneficiary survives the Participant or if no beneficiary
designation is on file with the Committee at the time of the death of the
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
Participant's benefit hereunder shall be as follows:
(1) If a Participant leaves a surviving spouse, his
designated beneficiary shall be such surviving spouse;
(2) If a Participant leaves no surviving spouse, his
designated beneficiary shall be (A) such Participant's estate or (B)
his heirs at law if there is no administration of such Participant's
estate.
IX-1
(c) Each beneficiary of a Participant who becomes entitled to
a benefit pursuant to Section 10.2(a)(3) or pursuant to Section 10.3(b) upon the
death of a Participant shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. Each
such designation shall be made by executing the beneficiary designation form pre
scribed by the Committee and filing same with the Committee. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
(d) If any beneficiary designated pursuant to Paragraph (c)
does not survive the beneficiary of a Participant, the interest of such
beneficiary shall vest in the designated beneficiary or beneficiaries who do
survive the beneficiary of a Participant, if any, but if no designated benefi
ciary survives the beneficiary of a Participant or if no beneficiary designation
is on file with the Committee at the time of the death of the beneficiary of a
Participant or such designation is not effective for any reason as determined by
the Committee, then the designated beneficiary or beneficiaries to receive the
beneficiary of a Participant's benefit pursuant to Section 10.2(a)(3) or
pursuant to Section 10.3(b) shall be the Participant's executor or
administrator, or his heirs at law if there is no administration of such
beneficiary of a Participant's estate.
(e) Notwithstanding the preceding provisions of this Section
and to the extent not prohibited by state or federal law, if a Participant is
divorced from his spouse and at the time of his death is not remarried to the
person from whom he was divorced, any designation of such divorced spouse as his
beneficiary under the Plan filed prior to the divorce shall be void unless the
contrary is expressly stated in writing filed with the Committee by the
Participant. The interest of such divorced spouse failing hereunder shall vest
in the persons specified in Paragraph (b) above as if such divorced spouse did
not survive the Participant.
IX-2
X.
Time and Form of Payment of Benefits
10.1 Determination of Benefit Commencement Date.
(a) Subject to the provisions of the remaining Paragraphs of
this Section, a Participant's Benefit Commencement Date shall be the date that
is as soon as administratively feasible after (1) the date the Participant or
his beneficiary becomes entitled to a benefit pursuant to Article VI, VII or IX
or (2) if the Participant or his beneficiary becomes entitled to a benefit
pursuant to Article VIII, the earlier of (i) the date the Participant attains
age fifty-five, (ii) the date the Participant dies or (iii) thirty days
following the Participant's termination of employment entitling him to such
benefit provided the Participant has not been reemployed by the Employer or a
Controlled Entity by his Benefit Commencement Date.
(b) Unless a Participant (1) has attained age sixty-five or
died or (2) consents to a distribution pursuant to Paragraph (a) within the
ninety-day period ending on the date payment of his benefit hereunder is to
commence pursuant to Paragraph (a), his Benefit Commencement Date shall be
deferred to the date which is as soon as administratively feasible after the
earlier of the date the Participant attains age sixty-five or the Participant's
date of death, or such earlier date as the Participant may elect prior to such
date. The Committee shall furnish information pertinent to his consent to each
Participant no less than thirty days (unless such thirty-day period is waived by
an affirmative election in accordance with applicable Treasury regulations) and
no more than ninety days before his Benefit Commencement Date, and the furnished
information shall include a general description of the material features of, and
an explanation of the relative values of, the alternative forms of benefit
available under the Plan and must inform the Participant of his right to defer
his Benefit Commencement Date and of his transfer right pursuant to Section 10.8
below, if applicable.
(c) A Participant's Benefit Commencement Date shall in no
event be later than the sixtieth day following the close of the Plan Year during
which such Participant attains, or would have attained, his Normal Retirement
Date or, if later, terminates his employment with the Employer or a Controlled
Entity.
(d) A Participant's Benefit Commencement Date shall be in
compliance with the provisions of section 401(a)(9) of the Code and applicable
Treasury regulations thereunder and shall in no event be later than:
(1) April 1 of the calendar year following the later
of (A) the calendar year in which such Participant attains the age of
seventy and one-half or (B) the calendar year in which such Participant
terminates his employment with the Employer (provided, however, that
clause (B) of this sentence shall not apply in the case of a
Participant who is a "five-percent owner" (as defined in section 416 of
the Code) with respect to the Plan Year ending in the calendar year in
which such Participant attains the age of seventy and one-half); and
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(2) In the case of a benefit payable pursuant to
Article IX, (A) if payable to other than the Participant's spouse, the
last day of the one-year period following the death of such Participant
or (B) if payable to the Participant's spouse, after the date upon
which such Participant would have attained the age of seventy and
one-half, unless such surviving spouse dies before payments commence,
in which case the Benefit Commencement Date may not be deferred beyond
the last day of the one-year period following the death of such
surviving spouse.
The provisions of this Section notwithstanding, a Participant may not elect to
defer the receipt of his benefit hereunder to the extent that such deferral
creates a death benefit that is more than incidental within the meaning of
section 401(a)(9)(G) of the Code and applicable Treasury regulations thereunder.
Further, in determining compliance with the provisions of section 401(a)(9) of
the Code, a Participant may elect in accordance with procedures established by
the Committee, prior to the first required distribution under section 401(a)(9)
of the Code, to have the life expectancies of the Participant and the
Participant's spouse recalculated annually pursuant to the provisions of section
401(a)(9)(D) of the Code and the Treasury regulations thereunder. If such an
election is not made, the life expectancies of the Participant and the
Participant's spouse shall not be recalculated.
(e) If (A) a Participant attained age seventy and one-half,
but did not terminate employment with the Employer, prior to 1997, (B) such
Participant's Benefit Commencement Date occurred prior to his termination of
employment pursuant to the provisions of Paragraph (d) as in effect prior to
June 1,1998, (C) such Participant is an Employee and (D) such Participant was
not a "five-percent owner" (as defined in section 416 of the Code) with respect
to the Plan Year ending in the calendar year in which such Participant attained
the age of seventy and one-half, such Participant may affirmatively elect to
cease the distribution of his Accounts hereunder until the time described in
Paragraph (1) or (2) above, whichever is applicable.
(f) Subject to the provisions of Paragraph (d), a
Participant's Benefit Commencement Date shall not occur unless the Article VI,
VII, VIII or IX event entitling the Participant (or his beneficiary) to a
benefit constitutes a distributable event described in section 401(k)(2)(B) of
the Code and shall not occur while the Participant is employed by the Employer
or any Controlled Entity (irrespective of whether the Participant has become
entitled to a distribution of his benefit pursuant to Article VI, VII, VIII or
IX).
(g) Paragraphs (a), (b), and (c) above notwithstanding, a
Participant, other than a Participant whose Vested Interest in his Accounts is
not (and at the time of any prior distribution was not) in excess of $5,000 or
more may elect, in the manner and within the time period prescribed by the
Committee, to defer his Benefit Commencement Date beyond the date specified in
such Paragraphs, subject to the provisions of Paragraph (d).
10.2 Alternative Forms of Benefit for Participants.
(a) For purposes of Article VI or VII, the benefit of any
Participant shall be paid in one of the following alternative forms to be
selected by the Participant or, in the absence of such selection, in a single
lump sum cash payment (notwithstanding the provisions of Section 10.5(b));
X-2
provided, however, that the period and method of payment of any such form shall
be in compliance with the provisions of section 401(a)(9) of the Code and
applicable Treasury regulations thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or, in the
event of such Participant's death before the end of such term certain,
to his designated beneficiary as provided in Section 9.2.
(3) Periodic installment payments for any term
certain (expressed as a specified dollar amount per month) to such
Participant or, in the event of such Participant's death before the end
of such term certain, to his designated beneficiary as provided in
Section 9.2. At any time prior to the exhaustion of a Participant's
Accounts, the Participant or his designated beneficiary may elect, in
accordance with the procedures established by the Committee, to alter
the schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments in any
year; provided, however, that such changes must comply with the
provisions of section 401(a)(9) of the Code. Periodic installment
payments shall be suspended during any period of reemployment by the
Participant with an Employer or a Controlled Entity. In the case of
such suspension, upon such Participant's subsequent termination of
employment the Participant shall be considered to have a new Benefit
Commencement Date as to the suspended payments and as to any additional
amounts allocated to his Accounts during his period of reemployment.
Upon the death of a designated beneficiary who is receiving installment
payments under this subparagraph, the remaining balance in the
Participant's Accounts shall be paid as soon as administratively
feasible, in one lump sum cash payment (notwithstanding the provisions
of Section 10.5(b)), to such beneficiary's designated beneficiary as
provided in Section 9.2(c) and (d).
(b) For purposes of Article VIII, the benefit for any
Participant shall be paid in one of the following alternative forms to be
selected by the Participant or, in the absence of such selection, in a single
lump sum cash payment (notwithstanding the provisions of Section 10.5(b));
provided, however, that the period and method of payment of any such form shall
be in compliance with the provisions of section 401(a)(9) of the Code and
applicable Treasury Regulations thereunder:
(1) A lump sum.
(2) A commercial annuity contract providing for
periodic payments for any term certain to such Participant or, in the
event of such Participant's death before the end of such term certain,
to his designated beneficiary as provided in Section 9.2.
(c) If a Participant, who terminated his employment under
circumstances such that he was entitled to a benefit pursuant to Article VI, VII
or VIII, dies prior to the time that any funds from his Accounts have been paid,
or irrevocably committed to be paid, to provide a benefit pursuant to this
Section, the amount of the benefit to which he was entitled shall be paid
pursuant to Section 10.3 just as if such Participant had died while employed by
the Employer except that his Vested Interest shall be determined pursuant to
Article VI, VII or VIII, whichever is applicable.
X-3
10.3 Alternative Forms of Death Benefit. For purposes of Article IX,
the death benefit for a deceased Participant shall be paid to his designated
beneficiary as provided in Section 9.2 in one of the following alternative forms
to be selected by such beneficiary or, in the absence of such selection, in a
single lump sum cash payment (notwithstanding the provisions of Section
10.5(b)); provided, however, that the period and method of payment of any such
form shall be in compliance with the provisions of section 401(a)(9) of the Code
and applicable Treasury regulations thereunder:
(a) A lump sum.
(b) Periodic installment payments for any term certain
(expressed as a specified dollar amount per month) or a commercial
annuity contract providing for periodic payments for any term certain;
provided, however, the term certain shall not exceed the life
expectancy of the beneficiary. At any time prior to the exhaustion of a
Participant's Accounts, a beneficiary who is receiving periodic
installment payments from the Plan under this subparagraph may elect,
in accordance with the procedures established by the Committee, to
alter the schedule or amount of any future payments, to suspend and
recommence payments or to receive one or more extra payments in any
year; provided, however, that such changes must comply with the
preceding provisions of this subparagraph and section 401(a)(9) of the
Code. Upon the death of a beneficiary who is receiving periodic
installment payments from the Plan under this subparagraph, the
remaining balance in the Participant's Accounts shall be paid as soon
as administratively feasible, in one lump sum cash payment
(notwithstanding the provisions of Section 10.5(b)), to such
beneficiary's designated beneficiary as provided in Section 9.2(c) and
(d). The preceding notwithstanding, the form of payment set forth in
this Paragraph shall not be applicable after December 31, 2004 to a
nonspouse beneficiary of a Participant.
10.4 Cash-Out of Benefit. If a Participant terminates his employment
with the Employer and his Vested Interest in his Accounts is not (and at the
time of any prior distribution was not) in excess of $5,000, such Participant's
benefit shall be paid in one lump sum cash payment in lieu of any other form of
benefit herein provided pursuant to Section 10.2, Section 10.3 or Section
10.5(b). Any such payment shall be made at the time specified in Section 10.1(a)
without regard to the consent restrictions of Section 10.1(b). The provisions of
this Section shall not be applicable to a Participant following his Benefit
Commencement Date.
10.5 Benefits from Account Balances.
(a) With respect to any benefit payable in any form pursuant
to the Plan, whichever form of payment is selected, such benefit shall be
provided from the Account balance(s) to which the particular Participant or
beneficiary is entitled.
(b) All benefits under the Plan shall be paid in cash except
that in the event that a Participant's benefit is to be paid in the form of a
lump sum distribution pursuant to Section 10.2(a)(1), Section 10.2(b)(1), or
Section 10.3(a), or in the event of a withdrawal pursuant to Section 11.1(b) or
Section 11.1(d), the individual to whom such benefit or withdrawal is payable
may elect to receive the amounts credited to the Participant's Accounts which
are invested in Halliburton Stock
X-4
in the form of whole shares of Halliburton Stock with the value of any
fractional shares to be paid in cash.
(c) In the event that a Participant's or beneficiary's benefit
is to be paid in installments pursuant to Section 10.2(a)(3) or Section 10.3(b)
or if less than all of a Participant's Accounts are to be distributed under a
Direct Rollover, the Committee shall establish procedures to determine the
priority of Accounts and Investment Funds from which such installments or Direct
Rollover shall be made.
10.6 Commercial Annuities. Upon the purchase of a commercial annuity
contract and the distribution of such contract to the Participant or beneficiary
in accordance with the provisions of this Article X, the Plan shall have no
further liability with respect to the amount used to purchase the annuity
contract and such Participant or beneficiary shall look solely to the company
issuing such contract for such annuity payments. All certificates for commercial
annuity benefits shall be nontransferable, except for surrender to the issuing
company, and no benefit thereunder may be sold, assigned, discounted, or pledged
(other than as collateral for a loan from the company issuing same).
Notwithstanding the foregoing, the terms of any such commercial annuity contract
shall conform with the time of payment, form of payment and consent provisions
of Sections 10.1, 10.2, and 10.3.
10.7 Unclaimed Benefits. In the case of a benefit payable on behalf of
a Participant, if the Committee is unable to locate the Participant or
beneficiary to whom such benefit is payable, upon the Committee's determination
thereof, such benefit shall be forfeited. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Participant or beneficiary to whom such
benefit is payable makes a valid claim for such benefit, such forfeited benefit
shall be restored to the Plan in the manner provided in Section 8.3(a).
10.8 Benefit Transfer Election. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a Distributee's election under
this Section, a Distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a Direct
Rollover.
10.9 Claims Review. In any case in which a claim for Plan benefits of a
Participant or beneficiary is denied or modified, the Committee shall furnish
written notice to the claimant within ninety days (or within 180 days if
additional information requested by the Committee necessitates an extension of
the ninety-day period, and the claimant is informed of such extension in writing
within the original ninety-day period), which notice shall:
(a) State the specific reason or reasons for the denial
or modification;
(b) Provide specific reference to pertinent Plan
provisions on which the denial or modification is based;
(c) Provide a description of any additional material or
information necessary for the Participant, his beneficiary, or
representative to perfect the claim, and an explanation of why such
material or information is necessary; and
X-5
(d) Explain the Plan's claim review procedure described
below.
In the event a claim for Plan benefits is denied or modified, if the
Participant, his beneficiary, or a representative of such Participant or
beneficiary desires to have such denial or modification reviewed, he must,
within sixty days following receipt of the notice of such denial or
modification, submit a written request for review by the Committee of its
initial decision. In connection with such request, the Participant, his
beneficiary, or the representative of such Participant or beneficiary may review
any pertinent documents upon which such denial or modification was based and may
submit issues and comments in writing. Within sixty days following such request
for review the Committee shall, after providing a full and fair review, render
its final decision in writing to the Participant, his beneficiary or the
representative of such Participant or beneficiary stating specific reasons for
such decision and making specific references to pertinent Plan provisions or
which the decision is based. If special circumstances require an extension of
such sixty-day period, the Committee's decision shall be rendered as soon as
possible, but not later than 120 days after receipt of the request for review.
If an extension of time for review is required, written notice of the extension
shall be furnished to the Participant, beneficiary, or the representative of
such Participant or beneficiary prior to the commencement of the extension
period.
10.10 Mandatory Arbitration. If a Participant or beneficiary is not
satisfied with the decision of the Committee pursuant to the Plan's claims
review procedure, such Participant or beneficiary may, within sixty days of
receipt of the written decision of the Committee, request by written notice to
the Committee, that his claim be submitted to arbitration pursuant to the
Halliburton Dispute Resolution Program and any other applicable rules adopted by
the Committee. Such arbitration shall be the sole and exclusive procedure
available to a Participant or beneficiary for review of a decision of the
Committee. In reviewing the decision of the Committee, the arbitrator shall use
the standard of review which would be used by a federal court in reviewing such
decision under the provisions of the Act. The Participant or beneficiary and the
Plan shall share equally the cost of such arbitration. The cost of such
arbitration shall be allocated in accordance with the Halliburton Dispute
Resolution Program or other applicable rules adopted by the Committee. The
arbitrator's decision shall be final and legally binding on both parties. This
Section shall be governed by the provisions of the Federal Arbitration Act.
X-6
XI.
Withdrawals and Loans
11.1 Withdrawals.
(a) A Participant may withdraw from his After-Tax Savings
Account any or all amounts held in such Account. Such a withdrawal shall be made
first against After-Tax Savings Contributions made prior to 1987, then pro-rata
against After-Tax Savings Contributions made after 1986 and the earnings
attributable to all After-Tax Savings Contributions.
(b) A Participant who has attained age fifty-nine and one-half
may withdraw from his Accounts an amount not exceeding the then value of such
Accounts.
(c) A Participant who has a financial hardship, as determined
by the Committee, and who has made all available withdrawals pursuant to the
Paragraphs above and pursuant to the provisions of any other plans of the
Employer and any Controlled Entities of which he is a member and who has
obtained all available loans pursuant to the provisions of any other plans of
the Employer and any Controlled Entities of which he is a member may withdraw
from his Rollover Account and his Tax Deferred Savings Account amounts not to
exceed the lesser of (1) the then value of such Accounts or (2) the amount
determined by the Committee as being available for withdrawal pursuant to this
Paragraph. For purposes of this Paragraph, financial hardship means the
immediate and heavy financial needs of the Participant. A withdrawal based upon
financial hardship pursuant to this Paragraph shall not exceed the amount
required to meet the immediate financial need created by the hardship and not
reasonably available from other resources of the Participant. The amount
required to meet the immediate financial need may include any amounts necessary
to pay any federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution. The determination of the existence
of a Participant's financial hardship and the amount required to be distributed
to meet the need created by the hardship shall be made by the Committee. A
withdrawal shall be deemed to be made on account of an immediate and heavy
financial need of a Participant only if the withdrawal is on account of:
(1) Expenses for medical care described in section
213(d) of the Code previously incurred by the Participant, the
Participant's spouse, or any dependents of the Participant (as defined
in section 152 of the Code) or necessary for these persons to obtain
medical care described in section 213(d) of the Code and not reimbursed
or reimbursable by insurance;
(2) Costs directly related to the purchase of a
principal residence for the Participant (excluding mortgage payments);
(3) Payment of tuition and related educational fees,
and room and board expenses, for the next twelve months of
post-secondary education for the Participant, or the Participant's
spouse, children or dependents (as defined in section 152 of the Code);
XI-1
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal residence or foreclosure
on the mortgage of the Participant's principal residence; or
(5) Such other financial needs which the Commissioner
of Internal Revenue Service may deem to be immediate and heavy
financial needs through the publication of revenue rulings, notices and
other documents of general applicability.
Further, a withdrawal shall be treated as necessary to satisfy an immediate and
heavy financial need only if the Participant represents on a sworn statement in
such form as the Committee prescribes that the need cannot reasonably be
relieved (i) through reimbursement or compensation by insurance or otherwise,
(ii) by liquidation of the Participant's assets, (iii) by cessation of Tax
Deferred Savings Contributions or After-Tax Savings Contributions or (iv) by
other distributions or nontaxable (at the time of the loan) loans from plans
maintained by the Employer or by any other employer or by borrowing from
commercial sources on reasonable commercial terms. For purposes of the preceding
sentence, a Participant's resources shall be deemed to include those assets of
his or her spouse and minor children that are reasonably available to the
Participant. The decision of the Committee shall be final and binding, provided
that all Participants similarly situated shall be treated in a uniform and
nondiscriminatory manner. The above notwithstanding, withdrawals under this
Paragraph from a Participant's Tax Deferred Savings Account shall be limited to
the sum of the Participant's Tax Deferred Savings Contributions to the Plan,
less any previous withdrawals of such amounts.
(d) A Participant who has terminated his employment by reason
of his Retirement, a beneficiary of a Participant who died while an Employee or
after having terminated his employment by reason of his Retirement and an
alternate payee under a qualified domestic relations order with respect to the
Accounts of a Participant who is eligible for Retirement or has terminated his
employment by reason of his Retirement, may withdraw from his Accounts an amount
not exceeding the then value of his Accounts. The preceding sentence
notwithstanding, this Paragraph shall not be applicable after December 31, 2004
to a nonspouse beneficiary of a Participant.
(e) All withdrawals pursuant to this Section (1) shall be made
as soon as administratively feasible after the date upon which the Participant
has satisfied all of the require ments to obtain the withdrawal, (2) shall be
paid in cash except as provided in Section 10.5(b) and (3) shall be subject to
the benefit transfer election described in Section 10.8. The Committee shall
establish procedures to determine the priority of Accounts and Investment Funds
from which a withdrawal pursuant to this Section is made. Except as provided in
Section 11.1(d), unless and until a Participant is reemployed, this Section
shall not be applicable to a Participant following termination of employment,
and the amounts in such Participant's Accounts shall be distributable only in
accordance with the provisions of Article X.
11.2 No Loans. Participants shall not be permitted to borrow from the
Trust Fund.
XI-2
XII.
Administration of the Plan
12.1 Administration by Committee. The general administration of the
Plan shall be vested in the Committee. For purposes of the Act, the Committee
shall be the Plan "administrator" and shall be the "named fiduciary" with
respect to the general administration of the Plan (except as to the investment
of the assets of the Trust Fund).
12.2 Procedures. The procedures of the Committee shall be established
by the Chief Executive Officer.
12.3 Self-Interest of Members. No member of the Committee shall have
any right to vote or decide upon any matter relating solely to himself under the
Plan or to vote in any case in which his individual right to claim any benefit
under the Plan is particularly involved. In any case in which a Committee member
is so disqualified to act and the remaining members cannot, by majority vote,
agree, the Chief Executive Officer shall appoint a temporary substitute member
to exercise all the powers of the disqualified member concerning the matter in
which he is disqualified.
12.4 Compensation and Bonding. The members of the Committee shall not
receive compensation with respect to their services for the Committee. To the
extent required by the Act or other applicable law, or required by the Employer,
members of the Committee shall furnish bond or security for the performance of
their duties hereunder.
12.5 Committee Powers and Duties. The Committee shall supervise the
administration and enforcement of the Plan according to the terms and provisions
hereof and shall have all powers necessary to accomplish these purposes,
including, but not by way of limitation, the right, power, authority, and duty:
(a) To make rules, regulations, and bylaws for the
administration of the Plan which are not inconsistent with the terms
and provisions hereof, provided such rules, regulations, and bylaws are
evidenced in writing and copies thereof are delivered to the Trustee
and to each Employer, and to enforce the terms of the Plan and the
rules and regulations promulgated thereunder by the Committee;
(b) To construe in its discretion all terms, provisions,
conditions, and limitations of the Plan. In all cases, the
construction necessary for the Plan to qualify under the applicable
provisions of the Code shall control;
(c) To correct any defect or supply any omission or reconcile
any inconsistency that may appear in the Plan in such manner and to
such extent as it shall deem in its discretion expedient to effectuate
the purposes of the Plan;
XII-1
(d) To employ and compensate such accountants, attorneys,
investment advisors, and other agents, employees and independent
contractors as the Committee may deem necessary or advisable in the
proper and efficient administration of the Plan;
(e) To determine in its discretion all questions relating to
eligibility;
(f) To determine in its discretion the amount, manner, and
time of payment of any benefits hereunder and to prescribe procedures
to be followed by distributees in obtaining benefits hereunder;
(g) To prepare, file and distribute, in such manner as the
Committee determines to be appropriate, such information and material
as is required by the reporting and disclosure requirements of the Act;
(h) To make a determination in its discretion as to the right
of any person to a benefit under the Plan;
(i) To issue directions to the Trustee concerning all benefits
which are to be paid from the Trust Fund pursuant to the provisions of
the Plan;
(j) To receive and review reports from the Trustee as to the
financial condition of the Trust Fund, including its receipts and
disbursements;
(k) To instruct the trustee under the Master Trust Agreement
to transfer amounts to the Trustee for disbursement, in accordance with
the Plan, to Participants and their beneficiaries;
(l) To furnish the Employer any information necessary for the
preparation of such Employer's tax return or other information that the
Committee determines in its discretion is necessary for a legitimate
purpose; and
(m) To require and obtain from the Employer and the
Participants any information or data that the Committee determines is
necessary for the proper administration of the Plan.
12.6 Employer to Supply Information. The Employer shall supply full and
timely information to the Committee, including, but not limited to, information
relating to each Participant's Compensation, age, retirement, death, or other
cause for termination of employment and such other pertinent facts as the
Committee may require. The Employer shall advise the Trustee of such of the
foregoing facts as are deemed necessary for the Trustee to carry out the
Trustee's duties under the Plan. When making a determination in connection with
the Plan, the Committee shall be entitled to rely upon the aforesaid information
furnished by the Employer.
12.7 Accounting. As soon as practicable after the close of each Plan
Year, the Committee shall furnish or cause to be furnished to each Employer a
statement certified to by an independent certified public accountant engaged by
such Committee, showing receipts and disbursements and the assets and
liabilities of the Trust Fund. The reasonable and necessary expenses incurred in
XII-2
preparing such statement shall be allocated to and paid as the Committee deems
proper. The Company shall have the right to demand one or more additional
accountings at the expense of the Trust Fund at any time with or without cause.
12.8 Participants to Furnish Required Information.
(a) Each Participant shall furnish to the Committee such
information as the Committee considers necessary or desirable for purposes of
administering the Plan, and the provisions of the Plan respecting any payments
hereunder are conditioned upon the Participant's furnishing promptly such true,
full, and complete information as the Committee may reasonably request.
(b) Each Participant shall submit proof of his age to the
Committee at such time as required by the Committee. The Committee shall, if
such proof of age is not submitted as required, use as conclusive evidence
thereof such information as is deemed by it to be reliable, regardless of the
source of such information. Any adjustment required by reason of lack of proof
or the misstatement of the age of persons entitled to benefits hereunder, by the
Participant or otherwise, shall be in such manner as the Committee deems
appropriate.
(c) Any notice or information which according to the terms of
the Plan or the rules of the Committee must be filed in writing with such
Committee shall be deemed so filed when received by such Committee (whether
delivered in person or by mail). Unless otherwise specified by the Committee, if
mailed, any such notice or information shall be addressed as follows:
Halliburton Company Benefits Committee
4100 Clinton Drive, Building 1
P.O. Box 3
Houston, Texas 77001-0003.
Notwithstanding the foregoing, the Committee may from time to time establish
rules pursuant to which any written notice or form required to be delivered to
the Committee may also be given by use of facsimile machines or by other methods
specified by the Committee. Whenever a provision requires that a Participant
give notice to the Committee within a specified number of days or by a certain
date, and the last day of such period, or such date, falls on a Saturday,
Sunday, or holiday, the Participant will be deemed in compliance with such
provision if notice is received by the Committee on or before the business day
next following such Saturday, Sunday, or holiday. The Committee may, in its sole
discretion, modify or waive any specified notice requirement; provided, however,
that such modification or waiver must be administratively feasible, must be in
the best interest of the Participant, and must be applied by the Committee in a
uniform and nondiscriminatory manner.
XII-3
XIII.
Administration of Investment Funds
13.1 Payment of Expenses. All expenses incident to the administration
of the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, expenses of the Committee, and the cost of furnishing any bond or security
required of the Committee, may be paid by the Employer and, if not paid by the
Employer, shall be paid by the Trustee from the Trust Fund and, until paid,
shall constitute a claim against the Trust Fund which is paramount to the claims
of Participants and beneficiaries; provided, however, that in the event the
Trustee's compensation is to be paid, pursuant to this Section, from the Trust
Fund, any individual serving as Trustee who already receives full-time pay from
an employer or an association of employers whose employees are participants in
the Plan, or from an employee organization whose members are participants in the
Plan, shall not receive any additional compensation for serving as Trustee. The
Committee may allocate the expenses of the Trust Fund to the Investment Funds
maintained under the Plan in the manner it deems proper. This Section shall be
deemed to be a part of any contract to provide for expenses of Plan and Trust
administration, whether or not the signatory to such contract is, as a matter of
convenience, the Employer.
13.2 Trust Fund Property.
(a) All income, profits, recoveries, contributions,
forfeitures, and any and all moneys, securities, and properties of any kind at
any time received or held by the Trustee hereunder shall be held for investment
purposes as a commingled Trust Fund. The Committee shall maintain Accounts in
the name of each Participant, but the maintenance of an Account designated as
the Account of a Participant shall not mean that such Participant shall have a
greater or lesser interest than that due him by operation of the Plan and shall
not be considered as segregating any funds or property from any other funds or
property contained in the commingled fund. No Participant shall have any title
to any specific asset in the Trust Fund.
(b) Each Participant, by becoming such, for himself, his
heirs, executors, administrators, legal representatives, and beneficiaries, ipso
facto, approves and agrees to be bound by the provisions of the Plan and the
Master Trust Agreement. If any Participant, former Participant, or beneficiary
has a cause of action against the Plan, the Committee, the Directors, the Chief
Executive Officer, the Trustee, or any other person having duties with respect
to the administration of the Plan or Trust Fund, the Accounts of such
Participant, former Participant, or of the deceased Participant through whom the
beneficiary claims, for purpose of such cause of action, shall be deemed a
separate trust, subject to all the terms of this Plan. No other Participant,
former Participant, or beneficiary shall be a necessary or proper party to a
suit on such cause of action. No Participant, former Participant, or beneficiary
shall be entitled to bring any class suit or to bring suit for or on behalf of
any other Participant, former Participant, or beneficiary. All beneficiaries
claiming by or through one Participant shall be proper parties to any suit
involving the Accounts of such deceased Participant. No beneficiary of one
deceased Participant shall be entitled to bring suit for or on behalf of any
Participant, former Participant, or any beneficiary of another deceased
Participant.
XIII-1
13.3 Distributions from Participants' Accounts. Distributions from a
Participant's Accounts shall be made by the Trustee only if, when, and in the
amount and manner directed in writing by the Committee. Any distribution made to
a Participant or for his benefit shall be debited to such Participant's Account
or Accounts.
13.4 United States Currency. All contributions to the Plan and the
payment of all benefits under the Plan shall be computed, contributed and paid,
as applicable, in currency of the United States except as otherwise specifically
provided herein.
XIII-2
XIV.
Trustee
The Master Trust Agreement, the provisions of which are incorporated by
reference herein, shall govern the Trustee's duties and responsibilities with
respect to the Trust Fund.
XIV-1
XV.
Fiduciary Provisions
15.1 Article Controls. This Article shall control over any contrary,
inconsistent or ambiguous provisions contained in the Plan.
15.2 General Allocation of Fiduciary Duties. Each fiduciary with
respect to the Plan shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given him under the Plan.
The Chief Executive Officer shall have the sole authority to appoint and remove
the members of the Committee. Except as otherwise specifically provided herein
and in the Trust Agreement, the Committee shall have the sole responsibility for
the administration of the Plan, which responsibility is specifically described
herein. Except as otherwise specifically provided herein and in the Trust
Agreement, the Trustee shall have the sole responsibility for the adminis
tration, investment, and management of the assets held under the Plan. It is
intended under the Plan that each fiduciary shall be responsible for the proper
exercise of his own powers, duties, respon sibilities, and obligations hereunder
and shall not be responsible for any act or failure to act of another fiduciary
except to the extent provided by law or as specifically provided herein.
15.3 Fiduciary Duty. Each fiduciary under the Plan, including but not
limited to the Committee and the Trustee as "named fiduciaries," shall discharge
his duties and responsibilities with respect to the Plan:
(a) Solely in the interest of the Participants, for the
exclusive purpose of providing benefits to Participants, and their
beneficiaries, and defraying reasonable expenses of administering the
Plan;
(b) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(c) By diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the circumstances it is
prudent not to do so; and
(d) In accordance with the documents and instruments governing
the Plan insofar as such documents and instruments are consistent with
applicable law.
No fiduciary shall cause the Plan or Trust Fund to enter into a "prohibited
transaction" as provided in section 4975 of the Code or section 406 of the Act.
15.4 Delegation and Allocation of Fiduciary Duties. The Committee may
appoint subcommittees, individuals, or any other agents as it deems advisable
and may delegate to any of such appointees any or all of the powers and duties
of the Committee. Such appointment and delegation must be in writing, specifying
the powers or duties being delegated, and must be accepted in writing by the
delegatee. Upon such appointment, delegation, and acceptance, the delegating
XV-1
Committee members shall have no liability for the acts or omissions of any such
delegatee, as long as the delegating Committee members do not violate their
fiduciary responsibility in making or continuing such delegation.
15.5 Indemnification. The Company shall, to the extent approved by the
Directors, indemnify and hold harmless each of the Directors, the Chief
Executive Officer, and each member of the Committee against any and all expenses
and liabilities arising out of his administrative functions or fiduciary
responsibilities, including any expenses and liabilities that are caused by or
result from an act or omission constituting the negligence of such individual in
the performance of such functions or responsibilities, but excluding expenses
and liabilities which are caused by or result from such individual's own gross
negligence, fraud, or willful or intentional misconduct. Expenses against which
such person shall be indemnified hereunder include, without limitation, the
amounts of any settlement or judgment, costs, counsel fees, and related charges
reasonably incurred in connection with a claim asserted or a proceeding brought
or settlement thereof.
XV-2
XVI.
Amendments
No amendment of the Plan shall be made that would vest in the Employer,
directly or indirectly, any interest in or control of the Trust Fund. No
amendment shall be made that would vary the Plan's exclusive purpose of
providing benefits to Participants and their beneficiaries and of defraying
reasonable expenses of administering the Plan or which would permit the
diversion of any part of the Trust Fund from that exclusive purpose. No
amendment shall be made that would reduce any then nonforfeitable interest of a
Participant. No amendment shall increase the duties or responsibilities of the
Trustee unless the Trustee consents thereto in writing. Subject to these
limitations and any other limitations contained in the Act or the Code, the
Directors may from time to time amend, in whole or in part, any or all of the
provisions of the Plan on behalf of all Employers; provided, however, that
amendments to the Plan that do not have a significant cost impact on the
Employers and amendments necessary to acquire and maintain a qualified status
for the Plan under the Code, whether or not retroactive, may be made by the
Chief Executive Officer.
XVI-1
XVII.
Discontinuance of Contributions,
Termination, Partial Termination, and Merger or Consolidation
17.1 Right to Terminate. The Employer has established the Plan with the
bona fide intention and expectation that from year to year it will be able to,
and will deem it advisable to, make its contributions as herein provided.
However, the Directors realize that circumstances not now foreseen, or
circumstances beyond its control, may make it either impossible or inadvisable
to continue to make its contributions to the Plan. Therefore, the Directors and
the Chief Executive Officer shall each have the power to discontinue
contributions to the Plan, terminate the Plan, or partially terminate the Plan
at any time hereafter. Each member of the Committee and the Trustee shall be
notified of such discontinuance, termination, or partial termination.
17.2 Procedure in the Event of Discontinuance of Contributions,
Termination, or Partial Termination.
(a) If the Plan is amended so as to permanently discontinue
Employer Contributions, or if Employer Contributions are in fact permanently
discontinued, the Vested Interest of each affected Participant shall be 100%,
effective as of the date of discontinuance. In case of such discontinuance, the
Committee shall remain in existence and all other provisions of the Plan that
are necessary, in the opinion of the Committee, for equitable operation of the
Plan shall remain in force.
(b) If the Plan is terminated or partially terminated, the
Vested Interest of each affected Participant shall be 100%, effective as of the
termination date or partial termination date, as applicable. Unless the Plan is
otherwise amended prior to dissolution of the Company, the Plan shall terminate
as of the date of dissolution of the Company.
(c) Upon discontinuance of contributions, termination, or
partial termination, any previously unallocated contributions, forfeitures, and
net income (or net loss) shall be allocated among the Accounts of the
Participants on such date of discontinuance, termination, or partial termination
according to the provisions of Article IV. Thereafter, the net income (or net
loss) shall continue to be allocated to the Accounts of the Participants until
the balances of the Accounts are distributed.
(d) In the case of a termination or partial termination of the
Plan, and in the absence of a Plan amendment to the contrary, the Trustee shall
pay the balance of the Accounts of a Participant for whom the Plan is so
terminated, or who is affected by such partial termination, to such Participant,
subject to the time of payment, form of payment, and consent provisions of
Article X.
17.3 Merger, Consolidation or Transfer. This Plan and Trust Fund may
not merge or consolidate with, or transfer its assets or liabilities to, any
other plan, unless immediately thereafter each Participant would, in the event
such other plan terminated, be entitled to a benefit which is
XVII-1
equal to or greater than the benefit to which he would have been entitled if the
Plan were terminated immediately before the merger, consolidation or transfer.
XVII-2
XVIII.
Participating Employers
18.1 Designation of Other Employers.
(a) The Chief Executive Officer may designate any entity or
organization eligible by law to participate in the Plan and the Trust as an
Employer by written instrument delivered to the Committee and the designated
Employer. Such written instrument shall specify the effective date of such
designated participation, may incorporate specific provisions relating to the
operation of the Plan that apply to the designated Employer only and shall
become, as to such designated Employer and its Employees, a part of the Plan and
the Trust Agreement.
(b) Each designated Employer shall be conclusively presumed to
have consented to its designation and to have agreed to be bound by the terms of
the Plan and Trust Agreement and any and all amendments thereto upon its
submission of information to the Committee required by the terms of or with
respect to the Plan or upon making a contribution to the Trust Fund pursuant to
the terms of the Plan; provided, however, that the terms of the Plan may be
modified so as to increase the obligations of an Employer only with the consent
of such Employer, which consent shall be conclusively presumed to have been
given by such Employer upon its submission of any information to the Committee
required by the terms of or with respect to the Plan or upon making a
contribution to the Trust Fund pursuant to the terms of the Plan following
notice of such modification.
(c) The provisions of the Plan and the Trust Agreement shall
apply separately and equally to each Employer and its Employees in the same
manner as is expressly provided for the Company and its Employees except that,
in the case of Employers that are Controlled Entities, forfeitures to be
allocated pursuant to Section 4.3(g) and Employer Profit Sharing Contributions
to be allocated pursuant to Section 4.3(d) and (e) shall be allocated on an
aggregate basis among the Participants employed by all Employers; provided,
however, that each Employer shall contribute to the Trust Fund its share of the
total Employer Profit Sharing Contribution for a Plan Year based on the
Participants in its employ on the last day of such Plan Year.
(d) Transfer of employment among Employers shall not be
considered a termination of employment hereunder, and Service with one shall be
considered as Service with all others.
(e) Any Employer may, by appropriate action of its Board of
Directors or noncorporate counterpart that is communicated in writing to the
Committee and to the Chief Executive Officer, terminate its participation in the
Plan and the Trust. Moreover, the Chief Executive Officer may, in his
discretion, terminate an Employer's Plan and Trust participation at any time by
written instrument delivered to the Committee and the designated Employer.
XVIII-1
18.2 Single Plan. For purposes of the Code and the Act, the Plan as
adopted by the Employers shall constitute a single plan rather than a separate
plan of each Employer. All assets in the Trust Fund shall be available to pay
benefits to all Participants and their beneficiaries.
XVIII-2
XIX.
Miscellaneous
19.1 Not Contract of Employment. The adoption and maintenance of the
Plan shall not be deemed to be a contract between the Employer and any person or
to be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of the
Employer or to restrict the right of the Employer to discharge any person at any
time nor shall the Plan be deemed to give the Employer the right to require any
person to remain in the employ of the Employer or to restrict any person's right
to terminate his employment at any time.
19.2 Payments Solely from Trust Fund. All benefits payable under the
Plan shall be paid or provided for solely from the Trust Fund, and neither the
Employer nor the Trustee assumes any liability or responsibility for the
adequacy thereof. The Committee or the Trustee may require execution and
delivery of such instruments as are deemed necessary to assure proper payment of
any benefits.
19.3 Alienation of Interest Forbidden. Except as otherwise provided
with respect to "qualified domestic relations orders" and certain judgments and
settlements pursuant to section 206(d) of the Act and sections 401(a)(13) and
414(p) of the Code and except as otherwise provided under other applicable law,
no right or interest of any kind in any benefit shall be transferable or
assignable by any Participant or any beneficiary or be subject to anticipation,
adjustment, alienation, encumbrance, garnishment, attachment, execution, or levy
of any kind. Plan provisions to the contrary notwithstanding, the Committee
shall comply with the terms and provisions of any "qualified domestic relations
orders," including orders which require distributions to an alternate payee
prior to a Participant's "earliest retirement age" as such term is defined in
section 206(d)(3)(E)(ii) of the Act and section 414(p)(4)(B) of the Code, and
shall establish appropriate procedures to effect the same.
19.4 Uniformed Services Employment and Reemployment Rights Act
Requirements. Notwithstanding any other provision of the Plan to the contrary,
contributions, benefits, and service credit with respect to qualified military
service will be provided in accordance with section 414(u) of the Code.
19.5 No Benefits to the Employer. No part of the corpus or income of
the Trust Fund shall be used for any purpose other than the exclusive purpose of
providing benefits for the Participants and their beneficiaries and defraying
reasonable expenses of administering the Plan. Anything to the contrary herein
notwithstanding, the Plan shall never be construed to vest any rights in the
Employer other than those specifically given hereunder.
19.6 Power of Attorney.
(a) A Participant may direct, on the form and within the
time period prescribed by the Committee, that the Committee consider and treat
the acts of an agent or attorney-in-fact
XIX-1
under a power of attorney, which complies with Paragraph (b) of this Section, as
acts of such Participant. The Committee shall honor any such direction and shall
recognize any such act to the extent, and only to the extent, that such act is
stated specifically in the instrument creating such power of attorney to be an
act that such agent or such attorney-in-fact is authorized to perform on behalf
of such Participant and only to the extent that such act may be performed by
such Participant under the terms of the Plan; provided, however, that such agent
or attorney-in-fact shall not be authorized to perform, and the Committee shall
not recognize, any act that results in a benefit to such agent or
attorney-in-fact, unless such agent or attorney-in-fact was designated as the
beneficiary of such benefit prior to the execution of the power of attorney, or
any other act that, under rules and regulations promulgated by the Committee,
may not be performed by an agent or attorney-in-fact under a power of attorney.
(b) A power of attorney for purposes of this Section must:
(1) Designate another person as an agent or
attorney-in-fact;
(2) Be in writing;
(3) Contain the words "this power of attorney is not
affected by subsequent disability or incapacity of the Participant" or
similar words evidencing the intent of the Participant that the power
of attorney shall remain in full force and effect notwithstanding the
disability or incapacity of the Participant;
(4) State that the power of attorney is effective
immediately;
(5) Enumerate the specific acts that the agent or
attorney-in-fact is empowered to perform on behalf of the Participant;
(6) Be signed and dated by the Participant;
(7) Be acknowledged by a notary public;
(8) Contain a statement signed by the Participant
whereby the Participant agrees to indemnify the Plan and the members of
the Committee in accordance with Paragraph (h) and to notify the
Committee in writing of any revocation or modification of the power of
attorney, which statement may be separate from, but must be affixed to,
the instrument creating the power of attorney; and
(9) Be filed with the Committee in accordance
with rules and regulations established by the Committee;
provided, however, that the Committee in its discretion may waive one or more of
the requirements of this Paragraph.
(c) A power of attorney described in Paragraph (b) shall not
lapse because of the passage of time, unless a time limitation is stated
specifically in the instrument creating the power
XIX-2
of attorney. All acts performed by the agent or attorney-in-fact pursuant to
such power of attorney during any period of disability or incapacity of the
Participant shall have the same effect and shall inure to the benefit of and
bind the Participant as if the Participant were not disabled or incapacitated.
(d) Nothing in this Section shall be construed to limit or to
deprive a Participant of any right, power, or authority to act under the terms
of the Plan during any period in which an agent or attorney-in-fact is empowered
to act pursuant to this Section. In the event that any act performed by such
Participant conflicts with or contradicts an act performed by such agent or
attorney-in-fact, the act of the Participant shall control.
(e) A Participant may revoke his direction made pursuant to
Paragraph (a), or amend the specific acts enumerated in the power of attorney
that the agent or attorney-in-fact is empowered to perform, at any time on the
form and within the time period prescribed by the Committee.
(f) A direction made pursuant to Paragraph (a) by a
Participant shall be revoked automatically upon the earliest to occur of (1) the
date of qualification of a guardian appointed for such Participant, (2) the date
of death or legal disability of the agent or attorney-in-fact under the power of
attorney, unless the power of attorney designates a successor agent or
attorney-in-fact, (3) the date of resignation of the agent or attorney-in-fact
under the power of attorney, unless the power of attorney designates a successor
agent or attorney in fact, or (4) the date of death of such Participant.
(g) The Committee shall be entitled to act in reliance on a
direction made pursuant to Paragraph (a) and a power of attorney filed with the
Committee unless and until the Committee receives actual notice in writing that
such direction or the authority granted under such power of attorney has been
revoked in whole or in part pursuant to Paragraph (e) or (f) above. Such written
notice must be given by the Participant, agent or attorney-in-fact under the
power of attorney, any guardian appointed for such Participant or such agent or
attorney-in-fact, executor or administrator of such Participant's or agent's or
attorney's-in-fact estate, or court order.
(h) A Participant who directs the Committee pursuant to
Paragraph (a) shall indemnify and hold harmless the Plan and each member of the
Committee against any and all expenses and liabilities arising out of his or its
reliance on such direction and such power of attorney, including any expenses
and liabilities that are caused by or result from an act or omission
constituting the negligence of such member or the Plan, but excluding expenses
and liabilities that are caused by or result from such member's or the Plan's
own gross negligence or willful misconduct. Expenses against which such member
or the Plan shall be indemnified hereunder shall include, but not be limited to,
the amounts of any settlement or judgment, costs, counsel fees, and related
charges reasonably incurred in connection with a claim asserted or a proceeding
brought or settlement thereof.
19.7 Severability. If any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining provisions hereof; instead, each
XIX-3
provision shall be fully severable and the Plan shall be construed and enforced
as if said illegal or invalid provision had never been included herein.
19.8 Jurisdiction. The situs of the Plan is Texas. All provisions
of the Plan shall be construed in accordance with the laws of Texas except to
the extent preempted by federal law.
19.9 Payments to Minors and Incompetents. If a Participant or
beneficiary entitled to receive a benefit under the Plan is a minor or is
determined by the Committee in its discretion to be incompetent or is adjudged
by a court of competent jurisdiction to be legally incapable of giving valid
receipt and discharge for a benefit provided under the Plan, the Committee may
pay such benefit to the duly appointed guardian or conservator of such
Participant or beneficiary for the account of such Participant or beneficiary.
If no guardian or conservator has been appointed for such Participant or
beneficiary, the Committee may pay such benefit to any third party who is
determined by the Committee, in its sole discretion, to be authorized to receive
such benefit for the account of such Participant or beneficiary. Such payment
shall operate as a full discharge of all liabilities and obligations of the
Plan, the Committee, the Trustee, the Employer, and any fiduciary of the Plan
with respect to such benefit.
19.10 Participant's Address. It shall be the affirmative duty of each
Participant to inform the Committee of, and to keep on file with the Committee,
his current mailing address and the current mailing address of his designated
beneficiary. If a Participant fails to keep the Committee informed of his
current mailing address and the current mailing address of his designated
beneficiary, neither the Plan, the Committee, the Trustee, the Employer, nor any
fiduciary under the Plan shall be responsible for any late or lost payment of a
benefit or for failure of any notice to be provided timely under the terms of
the Plan.
XIX-4
XX.
Top-Heavy Status
20.1 Article Controls. Any Plan provisions to the contrary
notwithstanding, the provisions of this Article shall control to the extent
required to cause the Plan to comply with the requirements imposed under section
416 of the Code.
20.2 Definitions. For purposes of this Article, the following terms
and phrases shall have these respective meanings:
(a) Account Balance: As of any Valuation Date, the aggregate
amount credited to an individual's account or accounts under a
qualified defined contribution plan maintained by the Employer or a
Controlled Entity (excluding employee contributions which were
deductible within the meaning of section 219 of the Code and rollover
or transfer contribu tions made after December 31, 1983 by or on behalf
of such individual to such plan from another qualified plan sponsored
by an entity other than the Employer or a Controlled Entity), increased
by (1) the aggregate distributions made to such individual from such
plan during a five-year period ending on the Determination Date and (2)
the amount of any contributions due as of the Determination Date
immediately following such Valuation Date.
(b) Accrued Benefit: As of any Valuation Date, the present
value (computed on the basis of the Assumptions) of the cumulative
accrued benefit (excluding the portion thereof which is attributable to
employee contributions which were deductible pursuant to section 219 of
the Code, to rollover or transfer contributions made after December 31,
1983, by or on behalf of such individual to such plan from another
qualified plan sponsored by an entity other than the Employer or a
Controlled Entity, to proportional subsidies or to ancillary benefits)
of an individual under a qualified defined benefit plan maintained by
the Employer or a Controlled Entity increased by (1) the aggregate
distributions made to such individual from such plan during a five-year
period ending on the Determination Date and (2) the esti mated benefit
accrued by such individual between such Valuation Date and the
Determination Date immediately following such Valuation Date. Solely
for the purpose of determining top-heavy status, the Accrued Benefit of
an individual shall be determined under (1) the method, if any, that
uniformly applies for accrual purposes under all qualified defined
benefit plans maintained by the Employer and the Controlled Entities or
(2) if there is no such method, as if such benefit accrued not more
rapidly than under the slowest accrual rate permitted under section
411(b)(1)(C) of the Code.
(c) Aggregation Group: The group of qualified plans maintained
by the Employer and each Controlled Entity consisting of (1) each plan
in which a Key Employee participates and each other plan that enables a
plan in which a Key Employee participates to meet the requirements of
sections 401(a)(4) or 410 of the Code or (2) each plan in which a Key
Employee participates, each other plan that enables a plan in which a
Key Employee participates to meet the requirements of sections
401(a)(4) or 410 of the Code and any other plan that the Employer
elects to include as a part of such group; provided, however, that the
XX-1
Employer may elect to include a plan in such group only if the group
will continue to meet the requirements of sections 401(a)(4) and 410 of
the Code with such plan being taken into account.
(d) Assumptions: The interest rate and mortality assumptions
specified for top-heavy status determination purposes in any defined
benefit plan included in the Aggregation Group including the Plan.
(e) Determination Date: For the first Plan Year of any plan,
the last day of such Plan Year and for each subsequent Plan Year of
such plan, the last day of the preceding Plan Year.
(f) Key Employee: A "key employee" as defined in section
416(i) of the Code and the Treasury Regulations thereunder.
(g) Plan Year: With respect to any plan, the annual
accounting period used by such plan for annual reporting purposes.
(h) Remuneration: 415 Compensation as defined in Section
4.5(a)(2).
(i) Valuation Date: With respect to any Plan Year of any
defined contribution plan, the most recent date within the twelve-month
period ending on a Determination Date as of which the trust fund
established under such plan was valued and the net income (or loss)
thereof allocated to participants' accounts. With respect to any Plan
Year of any defined benefit plan, the most recent date within a
twelve-month period ending on a Determination Date as of which the plan
assets were valued for purposes of computing plan costs for purposes of
the requirements imposed under section 412 of the Code.
20.3 Top-Heavy Status.
(a) The Plan shall be deemed to be top-heavy for a Plan Year,
if, as of the Determination Date for such Plan Year, (1) the sum of Account
Balances of Participants who are Key Employees exceeds 60% of the sum of Account
Balances of all Participants unless an Aggregation Group including the Plan is
not top-heavy or (2) an Aggregation Group including the Plan is top-heavy. An
Aggregation Group shall be deemed to be top-heavy as of a Determination Date if
the sum (computed in accordance with section 416(g)(2)(B) of the Code and the
Treasury Regulations promulgated thereunder) of (1) the Account Balances of Key
Employees under all defined contribution plans included in the Aggregation Group
and (2) the Accrued Benefits of Key Employees under all defined benefit plans
included in the Aggregation Group exceeds 60% of the sum of the Account Balances
and the Accrued Benefits of all individuals under such plans. Notwithstanding
the foregoing, the Account Balances and Accrued Benefits of individuals who are
not Key Employees in any Plan Year but who were Key Employees in any prior Plan
Year shall not be considered in determining the top-heavy status of the Plan for
such Plan Year. Further, notwithstanding the foregoing, the Account Balances and
Accrued Benefits of individuals who have not performed services for the Employer
or any Controlled Entity at any time during the five-year period ending on the
applicable Determination Date shall not be considered.
XX-2
(b) If the Plan is determined to be top-heavy for a Plan Year,
the Vested Interest in the Profit Sharing Account of each Participant who is
credited with an Hour of Service during such Plan Year shall be determined in
accordance with the following schedule:
Years of
Vesting Service Vested Interest
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 years or more 100%
(c) If the Plan is determined to be top-heavy for a Plan Year,
the Employer shall contribute to the Plan for such Plan Year on behalf of each
Participant who is not a Key Employee and who has not terminated his employment
as of the last day of such Plan Year an amount equal to:
(1) the lesser of (A) 3% of such Participant's
Remuneration for such Plan Year or (B) a percent of such Participant's
Remuneration for such Plan Year equal to the greatest percent
determined by dividing for each Key Employee the amounts allocated to
such Key Employee's Tax Deferred Savings Account, Employer Match
Account and Profit Sharing Account for such Plan Year by such Key
Employee's Remuneration; reduced by
(2) the amounts of Employer Profit Sharing
Contributions and forfeitures allocated to such Participant's Profit
Sharing Account for such Plan Year.
The minimum contribution required to be made for a Plan Year pursuant to this
Paragraph for a Participant employed on the last day of such Plan Year shall be
made regardless of whether such Participant is otherwise ineligible to receive
an allocation of the Employer's contributions for such Plan Year.
Notwithstanding the foregoing, if the Plan is deemed to be top-heavy for a Plan
Year, the Employer's contribution for such Plan Year pursuant to this Paragraph
shall be increased by substituting "4%" in lieu of "3%" in Clause (1) hereof to
the extent that the Directors determine to so increase such contribution to
comply with the provisions of section 416(h)(2) of the Code. Notwithstanding the
foregoing, no contribution shall be made pursuant to this Paragraph for a Plan
Year with respect to a Participant who is a participant in another defined
contribution plan sponsored by the Employer or a Controlled Entity if such
Participant receives under such other defined contribution plan (for the plan
year of such plan ending with or within the Plan Year of this Plan) a
contribution which is equal to or greater than the minimum contribution required
by section 416(c)(2) of the Code. Notwithstanding the foregoing, no contribution
shall be made pursuant to this Paragraph for a Plan Year with respect to a
Participant who is a participant in a defined benefit plan sponsored by the
Employer or a Controlled Entity if such Participant accrues under such defined
benefit plan (for the plan year of such plan ending with or within the Plan Year
of this Plan) a benefit which is at least equal to the benefit described in
section 416(c)(1) of the Code. If the preceding sentence is not applicable, the
requirements of this Paragraph shall be met by providing a minimum
XX-3
benefit under such defined benefit plan which, when considered with the benefit
provided under the Plan as an offset, is at least equal to the benefit described
in section 416(c)(1) of the Code.
20.4 Termination of Top-Heavy Status. If the Plan has been deemed to be
top-heavy for one or more Plan Years and thereafter ceases to be top-heavy, the
provisions of this Article shall cease to apply to the Plan effective as of the
Determination Date on which it is determined to no longer be top-heavy.
Notwithstanding the foregoing, the Vested Interest of each Participant as of
such Determination Date shall not be reduced and, with respect to each
Participant who has three or more years of Vesting Service on such Determination
Date, the Vested Interest of each such Participant shall continue to be
determined in accordance with the schedule set forth in Section 20.3(b).
20.5 Effect of Article. Notwithstanding anything contained herein to
the contrary, the provisions of this Article shall automatically become
inoperative and of no effect to the extent not required by the Code or the Act.
XX-4
EXECUTED this day of , 1998.
-------- --------------------------
ATTEST: BROWN & ROOT, INC.
- ---------------------------- -----------------------------------
By
(vii)
EXHIBIT 5.1
[LETTERHEAD OF VINSON & ELKINS L.L.P.]
(713) 758-2222 (713) 758-2346
June 1, 1998
Halliburton Company
3600 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201-3391
Ladies and Gentlemen:
We acted as counsel to Halliburton Company, a Delaware corporation (the
"Company"), in connection with the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, which Registration Statement relates to the offering, sale and
delivery of (i) an aggregate of up to 1,000,000 shares of the Company's common
stock, par value $2.50 per share (the "Shares"), pursuant to the Halliburton
Profit Sharing and Savings Plan and the Brown & Root, Inc. Employees' Retirement
and Savings Plan (the "Plans"), and (ii) the interests of participants in the
Plans (the "Interests").
Before rendering this opinion, we have such certificates, instruments
and documents and reviewed such questions of law as we considered necessary or
appropriate for the purposes of this opinion. In addition, we relied as to
factual matters on certificates or other communications of officers of the
Company.
Based upon the foregoing examination and review, we are of the opinion
that the Shares and the Interests have been duly authorized for issuance and,
when the Registration Statement has been declared effective and the Shares and
the Interests are issued in accordance with the provisions of the Plans, the
Shares will be validly issued, fully paid and nonassessable and the Interests
will be validly issued.
This opinion is rendered as of the effective date of the Registration
Statement. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we do not hereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 22, 1998,
except with respect to the matter discussed in Note 17, as to which the date is
February 26, 1998, included in Halliburton Company's Form 10-K/A for the year
ended December 31, 1997.
ARTHUR ANDERSEN LLP
Dallas, Texas
June 1, 1998
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Anne L. Armstrong
-----------------------
Anne L. Armstrong
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Lord Clitheroe
--------------------
Lord Clitheroe
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Dale P. Jones
--------------------
Dale P. Jones
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ W. R. Howell
------------------
W. R. Howell
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Delano E. Lewis
---------------------
Delano E. Lewis
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Charles J. DiBona
------------------------
Charles J. DiBona
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ C. J. Silas
---------------------
C. J. Silas
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Richard J. Stegemeier
---------------------------
Richard J. Stegemeier
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Roger T. Staubach
-----------------------
Roger T. Staubach
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint Richard B. Cheney, David
J. Lesar, Lester L. Coleman, Gary V. Morris and Susan S. Keith, or any of them
acting alone, my true and lawful attorneys or attorney, to do any and all acts
and things and execute any and all instruments which said attorneys or attorney
may deem necessary or advisable to enable Halliburton Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection with
the filing of the Registration Statement on Form S-8, or other appropriate form,
under said Securities Act of 1933, as amended, with respect to shares of the
Common Stock of Halliburton Company, par value $2.50 per share, and related plan
interests to be sold and offered for sale under the Halliburton Profit Sharing
and Savings Plan and the Brown & Root, Inc. Employees' Retirement and Savings
Plan, both as amended, including specifically, but without limitation thereof,
power and authority to sign my name as Director of Halliburton Company to any
registration statements and applications and statements to be filed with the
Securities and Exchange Commission in respect of said shares of Common Stock and
all amendments thereto, including without limitation post-effective amendments
thereto, and to any instruments or documents filed as a part of or in connection
therewith; and I hereby ratify and confirm all that said attorneys or attorney
shall do or cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Robert L. Crandall
------------------------
Robert L. Crandall
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, a Director of
Halliburton Company, do hereby constitute and appoint David J. Lesar, Lester L.
Coleman, Gary V. Morris and Susan S. Keith, or any of them acting alone, my true
and lawful attorneys or attorney, to do any and all acts and things and execute
any and all instruments which said attorneys or attorney may deem necessary or
advisable to enable Halliburton Company to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of the Securities
and Exchange Commission in respect thereof, in connection with the filing of the
Registration Statement on Form S-8, or other appropriate form, under said
Securities Act of 1933, as amended, with respect to shares of the Common Stock
of Halliburton Company, par value $2.50 per share, and related plan interests to
be sold and offered for sale under the Halliburton Profit Sharing and Savings
Plan and the Brown & Root, Inc. Employees' Retirement and Savings Plan, both as
amended, including specifically, but without limitation thereof, power and
authority to sign my name as Director of Halliburton Company to any registration
statements and applications and statements to be filed with the Securities and
Exchange Commission in respect of said shares of Common Stock and all amendments
thereto, including without limitation post-effective amendments thereto, and to
any instruments or documents filed as a part of or in connection therewith; and
I hereby ratify and confirm all that said attorneys or attorney shall do or
cause to be done by virtue hereof.
IN TESTIMONY HEREOF, witness my hand this the 29th day of May, 1998.
/s/ Richard B. Cheney
-----------------------
Richard B. Cheney
