-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, iLg3vFjGIyme76Zgw1cNwd+P0f34sZWAp3mhzVKs0Sv7CUPvNTC3QfK5UBY5D6tt Eb3wJofFXdbhyeqgOnw43g== 0000950129-95-000319.txt : 19950417 0000950129-95-000319.hdr.sgml : 19950417 ACCESSION NUMBER: 0000950129-95-000319 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19950414 EFFECTIVENESS DATE: 19950503 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BJ SERVICES CO CENTRAL INDEX KEY: 0000864328 STANDARD INDUSTRIAL CLASSIFICATION: OIL, GAS FIELD SERVICES, NBC [1389] IRS NUMBER: 630084140 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58639 FILM NUMBER: 95529031 BUSINESS ADDRESS: STREET 1: 5500 NW CENTRAL DR CITY: HOUSTON STATE: TX ZIP: 77210 BUSINESS PHONE: 713-462-4239 MAIL ADDRESS: STREET 1: 5500 NORTHWEST CENTRAL DR STREET 2: 5500 NORTHWEST CENTRAL DR CITY: HOUSTON STATE: TX ZIP: 77092 S-8 1 BJ SERVICES FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 1995. REGISTRATION NO. 33-____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BJ SERVICES COMPANY (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 63-0084140 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5500 NORTHWEST CENTRAL DRIVE HOUSTON, TEXAS 77092 (ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES) THE WESTERN COMPANY RETIREMENT SAVINGS PLAN (AS AMENDED) (FULL TITLE OF THE PLAN) MARGARET BARRETT SHANNON, ESQ. BJ SERVICES COMPANY VICE PRESIDENT - GENERAL COUNSEL AND SECRETARY 5500 NORTHWEST CENTRAL DRIVE HOUSTON, TEXAS 77092 (713) 462-4239 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) -------------------- APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: SALES TO THE PARTICIPANTS IN THE PLAN OF THE SECURITIES REGISTERED HEREUNDER ARE EXPECTED TO OCCUR FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, SUBJECT TO THE TERMS OF THE PLAN, AS AND WHEN PROVIDED FOR IN THE PLAN. -------------------- CALCULATION OF REGISTRATION FEE
==================================================================================================================================== PROPOSED PROPOSED MAXIMUM MAXIMUM AGGREGATE AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------------ SHARES OF COMMON STOCK, $0.10 PAR VALUE(3) 60,000 $21.38 $1,282,800 $443.00 ====================================================================================================================================
(1) The number of the Company's Shares of Common Stock registered herein is subject to adjustment to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) based on the average of the high and low prices of the Company's Shares of Common Stock on the New York Stock Exchange Composite Tape on April 10, 1995. (3) Includes the preferred share purchase rights associated with the Common Stock. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan described herein. ================================================================================ 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE This Registration Statement on Form S-8 hereby incorporates by reference the contents of the following documents filed by BJ Services Company (the "Company") and The Western Company Retirement Savings Plan (the "Plan") with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1994, and the Plan's Annual Report on Form 11-K for the fiscal year ended December 31, 1993; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1994 and Current Reports on Form 8-K dated March 7, 1995, and April 13, 1995; and (c) The description of the Common Stock of the Company, contained in the Registration Statement on Form 8-A (Registration No. 1-10570) filed by the Company under the Exchange Act; the description of the Company's preferred share purchase rights included in the Company's Registration Statement on Form 8-A dated January 12, 1994, and the Company's Registration Statements on Form 8-A/A dated August 26, 1994, and September 22, 1994; and the description of the Series Two Junior Participating Preferred Stock of the Company included in the Company's Registration Statement on Form 8-A dated January 12, 1994, and the Company's Registration Statements on Form 8-A/A dated August 26, 1994, and September 22, 1994. All documents filed by the Company and by the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the registration statement and to be a part thereof from the date of filing of the documents. Statements contained in the foregoing documents incorporated by reference shall be deemed to be modified or superseded hereby to the extent that statements contained in this Prospectus, or in any subsequently filed documents that are amendments hereto or that are incorporated herein by reference, shall modify or replace such statements. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Certain legal matters with respect to the securities offered hereby will be passed upon for the Company by Andrews & Kurth L.L.P. The financial statements and related financial statement schedules incorporated in this Registration Statement by reference from the Company's Annual Report on Form 10-K for the year ended September 30, 1994 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The financial statements incorporated by reference in this Prospectus by reference to the Annual Report on Form 11-K of The Western Company Retirement Savings Plan for the year ended December 31, 1993, have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company is governed by Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") which permits a corporation to indemnify certain persons, including officers and directors, who are (or are threatened to be made) parties to any threatened, pending or completed action or suit (other than an action by or in the right of the corporation) by reason of their being directors, officers or other agents of the corporation. The Company's Certificate of Incorporation provides that no director of the Company shall be held personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Certificate of Incorporation also provides that if the DGCL is amended to authorize further limitation or elimination of the personal liability of directors, then the liability of the Company's directors shall be limited or eliminated to the full extent permitted by the DGCL. Section 16 of Article III of the Company's Bylaws provides as follows: (a) The Company shall indemnify every person who is or was a party or is or was threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the Company or any of its direct or indirect wholly owned subsidiaries or, while a director, officer, employee or agent of the Company or any of its direct or indirect wholly owned subsidiaries, is or was serving at the request of the Company or any of its direct or indirect wholly owned subsidiaries, as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including counsel fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, to the full extent permitted by applicable laws provided that the Company shall not be obligated to indemnify any such person against any such action, suit or proceeding which is brought by such person against the Company or any of its direct or indirect wholly owned subsidiaries or the directors of the Company or any of its direct or indirect wholly owned subsidiaries, other than an action brought by such person to enforce his rights to indemnification hereunder, unless a majority of the Board of Directors of the Company shall have previously approved the bringing of such action, suit or proceeding. The Company shall indemnify every person who is or was a party or is or was threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was licensed to practice law and an employee (including an employee who is or was an officer) of the Company or any of its direct or indirect wholly owned subsidiaries and, while acting in the course of such employment committed or is alleged to have committed any negligent acts, errors or omissions in rendering professional legal services at the request of the Company or pursuant to his employment (including, without limitation, rendering written or oral legal opinions to third parties) against expenses (including counsel fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, to the full extent permitted by applicable law; provided that the Company shall not be obligated to indemnify any such person against any action, suit or proceeding arising out of any adjudicated criminal, dishonest or fraudulent acts, errors or omissions of such person or any adjudicated willful, intentional or malicious acts, errors or omissions of such person. (b) Expenses incurred by an officer or director of the Company or any of its direct or indirect wholly owned subsidiaries in defending a civil or criminal action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company as authorized in this II-2 4 Section 16. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. (c) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any provision of law, the Company's Certificate of Incorporation, the Certificate of Incorporation or Bylaws or other governing documents of any direct or indirect wholly owned subsidiary of the Company, or any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding any of the positions or having any of the relationships referred to in this Section 16. ITEM 8. LIST OF EXHIBITS. The Company will submit the Plan and any amendment thereto to the Internal Revenue Service ("IRS") in a timely manner and will make all changes required by the IRS in order to qualify the Plan. 4.1 Certificate of Designation of Series Two Junior Participating Preferred Stock of BJ Services (filed as exhibit to BJ Services' Registration Statement on Form 8-A dated January 12, 1994, and incorporated herein by reference). 4.2 Stockholder Rights Agreement dated as of January 12, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A dated January 12, 1994, and incorporated herein by reference). 4.3 First Amendment to Stockholder Rights Agreement dated as of June 22, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A/A dated August 26, 1994 and incorporated herein by reference). 4.4 Second Amendment to Stockholder Rights Agreement dated as of June 22, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A/A dated September 22, 1994 and incorporated herein by reference). 4.5 The Western Company Retirement Savings Plan, as amended and restated effective as of January 1, 1994. 4.6 Amendment No. 1 to The Western Company Retirement Savings Plan, effective as of March 9, 1995. 4.7 Second Amendment to The Western Company Retirement Savings Plan, effective as of April 13, 1995. 4.8 Amendment and Restatement of Trust Agreement for The Western Company Retirement Savings Plan, effective as of July 1, 1992. 4.9 First Amendment to the Amendment and Restatement of Trust Agreement, effective as of April 13, 1995. 5.1 Opinion of Andrews & Kurth L.L.P. as to the legality of the securities being registered.
II-3 5 23.1 The consent of Andrews & Kurth L.L.P. to the use of their opinion in this Registration Statement is contained in the opinion filed as Exhibit 5.1. 23.2 The Consent of Deloitte & Touche LLP to the incorporation by reference of their report with respect to the Company. 23.3 The Consent of Price Waterhouse LLP to the incorporation by reference of their report with respect to the Plan. 24.1 A power of attorney, pursuant to which amendments to this Registration Statement may be filed, is included on the signature pages contained in Part II of this Registration Statement.
ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement: Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 6 Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-5 7 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on the 14th day of April, 1995. BJ SERVICES COMPANY (Registrant) By: /s/J.W. Stewart ------------------------------------- J. W. Stewart President and Chief Executive Officer II-6 8 Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. POWER OF ATTORNEY Each person whose signature appears below appoints J. W. Stewart and Margaret Barrett Shannon, and each of them acting alone, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ J. W. Stewart Chairman of the Board, President April 14, 1995 ----------------- and Chief Executive Officer; Director J. W. Stewart (Principal Executive Officer) /s/ Michael McShane Vice President-Finance April 14, 1995 ------------------- and Chief Financial Officer; Director Michael McShane (Principal Financial Officer) /s/ Matthew D. Fitzgerald Controller April 14, 1995 ------------------------- (Principal Accounting Officer) Matthew D. Fitzgerald /s/ L. William Heiligbrodt Director April 14, 1995 -------------------------- L. William Heiligbrodt /s/ John R. Huff Director April 14, 1995 ---------------- John R. Huff /s/ Don D. Jordan Director April 14, 1995 ----------------- Don D. Jordan /s/ R. A. LeBlanc Director April 14, 1995 ----------------- R. A. LeBlanc /s/ James E. McCormick Director April 14, 1 995 ---------------------- James E. McCormick
II-7 9 The Plan. Pursuant to the requirements of the Securities Act of 1933, the Committee appointed to administer The Western Company Retirement Savings Plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on the 14th day of April, 1995. THE WESTERN COMPANY RETIREMENT SAVINGS PLAN By: /s/ Matthew D. Fitzgerald ------------------------------------ Name: Matthew D. Fitzgerald Member, Benefits Committee By: /s/ Steve Wright ------------------------------------ Name: Steve Wright Member, Benefits Committee By: /s/ Taylor M. Whichard ------------------------------------ Name: Taylor M. Whichard Member, Benefits Committee By: /s/ G.R. Goodarzi ------------------------------------ Name: G.R. Goodarzi Member, Benefits Committee By: /s/ Thomas H. Koops ------------------------------------ Name: Thomas H. Koops Member, Benefits Committee By: /s/ Kenneth A. Williams ------------------------------------ Name: Kenneth A. Williams Member, Benefits Committee By: /s/ Margaret B. Shannon ------------------------------------ Name: Margaret B. Shannon Member, Benefits Committee II-8 10 INDEX TO EXHIBITS 4.1 Certificate of Designation of Series Two Junior Participating Preferred Stock of BJ Services (filed as exhibit to BJ Services' Registration Statement on Form 8-A dated January 12, 1994, and incorporated herein by reference). 4.2 Stockholder Rights Agreement dated as of January 12, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A dated January 12, 1994, and incorporated herein by reference). 4.3 First Amendment to Stockholder Rights Agreement dated as of June 22, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A/A dated August 26, 1994 and incorporated herein by reference). 4.4 Second Amendment to Stockholder Rights Agreement dated as of June 22, 1994, between BJ Services and First Chicago Trust Company of New York, as Rights Agent (filed as exhibit to BJ Services' Registration Statement on Form 8-A/A dated September 22, 1994 and incorporated herein by reference). 4.5 The Western Company Retirement Savings Plan, as amended and restated effective as of January 1, 1994. 4.6 Amendment No. 1 to The Western Company Retirement Savings Plan, effective as of March 9, 1995. 4.7 Second Amendment to The Western Company Retirement Savings Plan, effective as of April 13, 1995. 4.8 Amendment and Restatement of Trust Agreement for The Western Company Retirement Savings Plan, effective as of July 1, 1992. 4.9 First Amendment to the Amendment and Restatement of Trust Agreement, effective as of April 13, 1995. 5.1 Opinion of Andrews & Kurth L.L.P. as to the legality of the securities being registered. 23.1 The consent of Andrews & Kurth L.L.P. to the use of their opinion in this Registration Statement is contained in the opinion filed as Exhibit 5.1. 23.2 The Consent of Deloitte & Touche LLP to the incorporation by reference of their report with respect to the Company. 23.3 The Consent of Price Waterhouse LLP to the incorporation by reference of their report with respect to the Plan. 24.1 A power of attorney, pursuant to which amendments to this Registration Statement may be filed, is included on the signature pages contained in Part II of this Registration Statement.
EX-4.5 2 THE WESTERN COMPANY RETIREMENT SAVINGS PLAN 1 EXHIBIT 4.5 THE WESTERN COMPANY RETIREMENT SAVINGS PLAN (RESTATED JANUARY 1, 1994) 2 THE WESTERN COMPANY RETIREMENT SAVINGS PLAN (Restated January 1, 1994) TABLE OF CONTENTS
Page ---- ARTICLE I. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.2 Construction . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE II. ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 2.1 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 2.2 Participation . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE III. CONTRIBUTIONS AND ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 3.1 Tax-Deferred Contributions . . . . . . . . . . . . . . . . . . 13 Section 3.2 Employer Basic Matching Contributions . . . . . . . . . . . . 14 Section 3.3 Employer Supplemental Matching Contributions . . . . . . . . . 14 Section 3.4 Employer Discretionary Contributions . . . . . . . . . . . . . 15 Section 3.5 Payment to Trustee . . . . . . . . . . . . . . . . . . . . . . 15 Section 3.6 Return of Employer Contributions . . . . . . . . . . . . . . . 16 Section 3.7 Allocation of Contributions . . . . . . . . . . . . . . . . . 16 Section 3.8 Application and Allocation of Forfeitures . . . . . . . . . . 23 Section 3.9 Rollover Contributions . . . . . . . . . . . . . . . . . . . . 24 ARTICLE IV. VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 4.1 Fully Vested Accounts . . . . . . . . . . . . . . . . . . . . 24 Section 4.2 Disability or Death Vesting . . . . . . . . . . . . . . . . . 24 Section 4.3 Period of Service or Age Vesting . . . . . . . . . . . . . . . 24 ARTICLE V. TRUST FUND 25 Section 5.1 Trust and Trustee . . . . . . . . . . . . . . . . . . . . . . 25 Section 5.2 Trust Fund Investment Options . . . . . . . . . . . . . . . . 26 Section 5.3 Voting of Company Stock . . . . . . . . . . . . . . . . . . . 26
i 3 ARTICLE VI. VALUATIONS, DISTRIBUTIONS, WITHDRAWALS AND LOANS . . . . . . . . . . . . . . . 27 Section 6.1 Valuation and Adjustment of Accounts . . . . . . . . . . . . . 27 Section 6.2 Time and Form of Distribution . . . . . . . . . . . . . . . . 28 Section 6.3 Distribution of Retirement and Disability Benefits . . . . . . 28 Section 6.4 Distribution of Death Benefits . . . . . . . . . . . . . . . . 29 Section 6.5 Distribution of Separation from Employment Benefit . . . . . . 30 Section 6.6 Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 6.7 Benefits Payable to Minors and Incompetents . . . . . . . . . 34 Section 6.8 Transfer of Eligible Rollover Distribution . . . . . . . . . . 34 Section 6.9 Plan Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ARTICLE VII. PLAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 7.1 Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 7.2 Powers, Duties and Liabilities of the Committee . . . . . . . 37 Section 7.3 Rules, Record and Reports . . . . . . . . . . . . . . . . . . 37 Section 7.4 Administrative Expenses and Taxes . . . . . . . . . . . . . . 38 Section 7.5 Unclaimed Accounts . . . . . . . . . . . . . . . . . . . . . . 38 ARTICLE VIII. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 8.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 39 ARTICLE IX. MISCELLANEOUS GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 40 Section 9.1 Spendthrift Provision . . . . . . . . . . . . . . . . . . . . 40 Section 9.2 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . 40 Section 9.3 Maximum Contribution Limitation . . . . . . . . . . . . . . . 41 Section 9.4 Employment Noncontractual . . . . . . . . . . . . . . . . . . 42 Section 9.5 Limitations on Responsibility . . . . . . . . . . . . . . . . 42 Section 9.6 Merger or Consolidation . . . . . . . . . . . . . . . . . . . 43 ARTICLE X. TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 10.1 Top-Heavy Definitions . . . . . . . . . . . . . . . . . . . . 43 Section 10.2 Minimum Contribution Requirement . . . . . . . . . . . . . . . 45
ii 4 THE WESTERN COMPANY RETIREMENT SAVINGS PLAN (Restated January 1, 1994) This RETIREMENT SAVINGS PLAN, a profit sharing plan made and executed in Houston, Texas, by The Western Company of North America, a Delaware corporation (the "Company"), WITNESSETH THAT: WHEREAS, effective as of January 1, 1977, the Employers established The Western Company of North America Employee Stock Ownership Plan to provide a means by which the employees of the participating employers could accumulate savings and share in the earnings and growth of the employers through ownership of The Western Company of North America common stock; and WHEREAS, effective as of January 1, 1985, said employee stock ownership plan was amended, renamed and restated as The Western Company Employee Savings Plan to improve benefits and further encourage employee savings; and WHEREAS, effective as of July 1, 1992, The Western Company Employee Savings Plan was renamed as The Western Company Retirement Savings Plan (the "Plan"); and WHEREAS, the Company now desires to continue the Plan without interruption by amending and restating its plan document in its entirety to update its language, make certain changes and incorporate prior amendments; NOW, THEREFORE, in consideration of the premises and pursuant to Section 9.1 thereof, the Plan is hereby amended and restated in its entirety to read as follows: 5 ARTICLE I. DEFINITIONS AND CONSTRUCTION Section 1.1 Definitions. Unless the context clearly indicates otherwise, when used in this Plan: (a) "Affiliated Company" means any corporation or organization, other than an Employer, which is a member of a controlled group of corporations (within the meaning of Section 414(b) of the Code) or an affiliated service group (within the meaning of Section 414(m) of the Code), with respect to which an Employer is also a member, and any other incorporated or unincorporated trade or business which along with an Employer is under common control (within the meaning of the regulations from time to time promulgated by the Secretary of the Treasury pursuant to Section 414(c) of the Code); provided, however, that for the purposes of Section 9.3 of the Plan, Section 414(b) and (c) of the Code shall be applied as modified by Section 415(h) of the Code. (b) "Basic Compensation" means the cash remuneration payable by an Employer to an Employee prior to reduction for (i) any contributions made by an Employer on behalf of such Employee pursuant to a qualified cash or deferred arrangement (within the meaning of Section 401(k) of the Code) maintained by such Employer, including any Tax-Deferred Contributions made to this Plan, and (ii) any salary reduction amounts elected by such Employee for the purchase of benefits pursuant to a cafeteria plan (within the meaning of Section 125(d) of the Code) maintained by an Employer, but excluding shift differentials, bonuses, overtime pay (other than pay for guaranteed hours under a Belo pay plan or for regularly scheduled hours for extended workweek and hourly offshore rig Employees), commissions, awards, military leave pay, living or other allowances, deferred compensation payments and any other extraordinary remuneration; provided, however, that -2- 6 the Basic Compensation of an Employee taken into account under the Plan for any Plan Year commencing after December 31, 1993, shall not exceed $150,000 (adjusted pursuant to Section 401(a) (17) (B) of the Code to take into account any cost-of-living increase). In determining the Basic Compensation of an Employee, the rules of Section 414(q) (6) of the Code shall apply, except that in applying such rules, the term "family" shall include only the spouse of the Employee and any lineal descendants of the Employee who have not attained age 19 prior to the end of the Plan Year. (c) "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor revenue code which may hereafter be adopted in lieu thereof, and references herein to any specific provision of the Code shall be deemed also to refer to the corresponding provision of the Code as it may hereafter be so amended or replaced. (d) "Committee" means the committee appointed by the Board of Directors of the Company to administer the Plan on behalf of the Employers. (e) "Company" means The Western Company of North America. (f) "Company Stock" means the common stock of The Western Company of North America. (g) "Covered Employee" means any Employee who is covered by (voluntarily or by law) and making contributions to the United States Social Security System, other than an Employee who is a member of a collective bargaining unit with which an Employer negotiates and with respect to whom no coverage under this Plan has been provided by collective bargaining agreement. (h) "Disability" means an incapacity for which disability benefits are being paid under the Social Security Act as from time to time in effect. -3- 7 (i) "Employee" means any individual employed by an Employer, excluding any leased employee within the meaning of Section 414(n) of the Code. In addition, for the purposes of this Plan an individual not actually employed by an Employer shall be deemed to be an Employee if such individual is a citizen of the United States employed by a Special Subsidiary of such Employer and no contributions under a funded plan of deferred compensation are provided by any person or entity with respect to the remuneration paid to that individual by such Special Subsidiary. (j) "Employer" shall include the Company, Western Oceanic, Inc., Western Oceanic Services, Inc., Western Oceanic International, Inc., Western Services International, Inc., Western Petroleum Services International Company and any other corporation or partnership which adopts this Plan with the consent of the Board of Directors of the Company. (k) "Employer Basic Matching Contribution" means a contribution made by an Employer to this Plan pursuant to Section 3.2. (l) "Employer Basic Matching Contribution Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan attributable to Employer Basic Matching Contributions made for such Participant and any forfeitures applied pursuant to Section 3.8 to reduce Employer Basic Matching Contributions made for such Participant. (m) "Employer Discretionary Contribution" means a contribution made by an Employer to this Plan pursuant to Section 3.4. (n) "Employer Discretionary Contribution Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan -4- 8 attributable to any portion of an Employer Discretionary Contribution allocated to such Participant pursuant to Section 3.4. (o) "Employer Supplemental Matching Contribution" means a contribution made by an Employer to this Plan pursuant to Section 3.3. (p) "Employer Supplemental Matching Contribution Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan attributable to any portion of an Employer Supplemental Matching Contribution allocated to such Participant and any forfeitures applied pursuant to Section 3.8 to reduce any portion of an Employer Supplemental Matching Contribution allocated to such Participant. (q) "Employment Commencement Date" means the date an Employee first performs an Hour of Service; provided, however, that the Employment Commencement Date for an Employee who incurs a 1-Year Period of Severance prior to completing one year of Service shall be the date he or she first performs an Hour of Service following such 1-Year Period of Severance. (r) "Highly Compensated Employee" means for a Plan Year any Employee who: (1) during such Plan Year or the preceding Plan Year was at any time a 5-percent owner (within the meaning of Section 416(i) (1) of the Code) of an Employer or Affiliated Company; (2) during the preceding Plan Year received Testing Compensation greater than $75,000 (adjusted pursuant to Section 414(q) (1) of the Code to take into account any cost-of-living increase); (3) during the preceding Plan Year received Testing Compensation greater than $50,000 (adjusted pursuant to Section 414(q)(1) of the Code to take into account any cost- -5- 9 of-living increase) and is in the group consisting of the top 20% (when ranked on the basis of Testing Compensation received during the preceding Plan Year) of all Employees, except those excluded pursuant to Section 414(q) (8) of the Code; (4) during the preceding Plan Year, subject to the requirements of Section 414 (q) (5) of the Code, was at any time an officer of an Employer or Affiliated Company and received Testing Compensation greater than 50% of the amount in effect under Section 415(b) (1) (A) of the Code for the preceding Plan Year; or (5) is one of the 100 Employees who received the greatest Testing Compensation during such Plan Year and is described in paragraph (2), (3) or (4) above if such paragraph is applied by substituting such Plan Year for the preceding Plan Year. Solely for purposes of this definition, (i) an employee of an Affiliated Company shall be deemed to be an Employee, (ii) compensation received from an Affiliated Company shall be deemed to be Testing Compensation, and (iii) if for a Plan Year any Employee is a member of the family (meaning the spouse and lineal ascendants or descendants and the spouses of such lineal ascendants or descendants) of a Highly Compensated Employee who is either a 5-percent owner (as described in paragraph (1) above) or in the group consisting of the 10 Highly Compensated Employees who received the greatest Testing Compensation during such Plan Year, then for such Plan Year such Employee shall not be considered a separate Employee and the Testing Compensation received by such Employee shall be treated as if it were received by such Highly Compensated Employee. (s) "Hour of Service" means an hour for which an Employee is directly or indirectly compensated or entitled to compensation (including back pay, regardless of mitigation of damages) by an Employer for the performance of duties for an Employer or for reasons (such as vacation, -6- 10 sickness or disability) other than the performance of duties for an Employer. In addition, an Employee will be credited with eight Hours of Service per normal work day for any customary work period during which such Employee is on leave of absence authorized by his Employer. Leaves of absence shall be granted by an Employer to its Employees on a uniform, nondiscriminatory basis. An Employee's Hours of Service shall be credited to the appropriate period determined in accordance with Section 2530.200b-2(b) and (c) of the Department of Labor regulations, which are incorporated herein by this reference. In determining Hours of Service for the purposes of this Plan, periods of employment by an Employer shall be deemed to include the following: (i) periods of employment by an Affiliated Company, (ii) periods of employment as a leased employee (within the meaning of Section 414(n) of the Code) of an Employer or Affiliated Company, and (iii) for an Employee transferred from employment with Coiltech, Inc., Unichem International, Inc. or the Enchem Division of Betz Energy Chemicals, Inc. to employment with the Company in connection with the acquisition by the Company of the assets or stock of such prior employer, periods of employment by such prior employer. (t) "Investment Fund" means any fund authorized by the Committee for the investment of Trust assets pursuant to Section 5.2. (u) "Limitation Compensation" means wages within the meaning of Section 3401(a) of the Code and all other payments of remuneration to an Employee by an Employer (in the course of the Employer's trade or business) for which the Employer is required to furnish the Employee a written statement under Sections 6041(d), 6051(a) (3) and 6052 of the Code, but determined without regard to any limits on the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in -7- 11 Section 3401(a)(2) of the Code); provided, however, that for purposes of Section 10.2, the Limitation Compensation of an Employee taken into account under the Plan for any Plan Year commencing after December 31, 1993, shall not exceed $150,000 (adjusted pursuant to Section 401(a)(17)(B) of the Code to take into account any cost-of-living increase). (v) "1-Year Period of Severance" means a 12 consecutive month Period of Severance. (w) "Original Employer Match Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan attributable to contributions made by the Employers for such Participant under the Superseded Plan and any forfeitures allocated to such Participant under the Superseded Plan. (x) "Participant" means any Employee who has become a Participant in this Plan in accordance with Section 2.2 (or for purposes of Section 3.4, any Employee who has satisfied the eligibility requirements of Section 2.1) and whose Vested Interest has not been fully distributed. (y) "Participant After-Tax Contribution Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan attributable to amounts credited to his or her Participant After-Tax Contribution Account under the Superseded Plan as in effect on December 31, 1993. (z) "Participant Rollover Contribution Account" means the account established and maintained under this Plan by the Committee to record a Covered Employee's interest under this Plan attributable to Rollover Contributions made by such Covered Employee to this Plan and amounts credited to his or her Participant Rollover Contribution Account under the Superseded Plan as in effect on December 31, 1993. -8- 12 (aa) "Participant Tax-Deferred Contribution Account" means the account established and maintained under this Plan by the Committee to record a Participant's interest under this Plan attributable to Tax-Deferred Contributions made on behalf of such Participant and amounts credited to his or her Participant Tax-Deferred Contribution Account under the Superseded Plan as in effect on December 31, 1993. (bb) "Period of Severance" means a period of time commencing on an Employee's Severance from Service Date and ending on the date the Employee again performs an Hour of Service. (cc) "Plan" means this The Western Company Retirement Savings Plan, as amended and restated effective as of January 1, 1994, and as from time to time in effect thereafter. (dd) "Plan Year" means the calendar year. (ee) "Retirement" means the actual retirement of a Participant on or after his or her Retirement Date. (ff) "Retirement Date" means the earlier of the day a Participant attains the age of 65 years or the day as of which he or she has both attained the age of 55 years and completed 10 years of Service. (gg) "Rollover Property" means property the value of which would be excluded from the gross income of the transferor under Section 402(c), 403(a)(4) or 408(d)(3) of the Code if transferred to the Plan. (hh) "Service" means the time period commencing with an Employee's Employment Commencement Date and ending on his or her most recent Severance from Service Date which begins a Period of Severance resulting in a 1-Year Period of Severance. An Employee who incurs -9- 13 a Severance from Service Date will not lose credit for Service prior to such Date unless the number of his or her consecutive 1-Year Periods of Severance equals or exceeds the greater of five and the number of his or her years of Service prior to such Severance from Service Date. (ii) "Severance from Service Date" means the earlier of (1) the date an Employee quits, retires, dies or is discharged, or (2) the first anniversary of the date on which an Employee became absent from Service with an Employer for any reason other than quit, retirement, death or discharge. In Plan Years commencing after December 31, 1984, for purposes of determining whether an Employee has incurred a Period of Severance, the Severance from Service Date of an Employee who is absent from work for a period of 12 months or more due to the pregnancy of the Employee, the birth of a child of the Employee, the placement of a child with the Employee in connection with the adoption of such child by such Employee or caring for such child for a period beginning immediately following such birth or placement shall be the second anniversary of the first date of such absence. The period between the first and second anniversaries of the first date of such absence shall be considered neither Service nor a Period of Severance. (jj) "Special Subsidiary" means a domestic subsidiary (as defined in Section 407(a)(2) of the Code) or a foreign affiliate (as defined in Section 3121(l)(6) of the Code) of an Employer; provided, however, that this definition shall have no application to any such foreign affiliate unless its parent Employer has entered into an agreement with the Secretary of the Treasury or his delegate under Section 3121(l) of the Code which applies to said foreign affiliate. (kk) "Superseded Plan" means The Western Company Employees Savings Plan as from time to time in effect prior to January 1, 1994. -10- 14 (ll) "Tax-Deferred Contribution" means a contribution made by an Employer to this Plan on behalf of a Participant pursuant to Section 3.1. (mm) "Testing Compensation" the sum of (i) the Limitation Compensation paid by an Employer to an Employee, (ii) any contributions made by an Employer on behalf of such Employee pursuant to a qualified cash or deferred arrangement (within the meaning of Section 401(k) of the Code) maintained by such Employer, including any Tax-Deferred Contributions made to this Plan, and (iii) any salary reduction amounts elected by such Employee for the purchase of benefits pursuant to a cafeteria plan (within the meaning of Section 125(d) of the Code) maintained by an Employer; provided, however, that except for purposes of determining whether an Employee is a Highly Compensated Employee or a Key Employee (within the meaning of Section 10.1(c)), the Testing Compensation of an Employee taken into account under the Plan for any Plan Year commencing after December 31, 1993, shall not exceed $150,000 (adjusted pursuant to Section 401(a)(17)(B) of the Code to take into account any cost-of-living increase). (nn) "Trust" means the trust fund established pursuant to Section 5.1. (oo) "Trustee" means UNITED STATES TRUST COMPANY OF NEW YORK and any successor trustee from time to time appointed and acting as trustee of the Trust established pursuant to the Plan. (pp) The "Vested Interest" of a Participant means the sum of the values of the Participant Tax-Deferred Contribution Account, Participant After-Tax Contribution Account, Participant Rollover Contribution Account and Original Employer Match Account of such Participant and the nonforfeitable benefits in the Employer Basic Matching Contribution Account, Employer -11- 15 Supplemental Matching Contribution Account and Employer Discretionary Contribution Account of such Participant at the particular point in time in question. Section 1.2 Construction. The titles to the Articles and the headings of the Sections in this Plan are placed herein for convenience of reference only and in case of any conflict the text of this instrument, rather than such titles or headings, shall control. Whenever a noun or pronoun is used in this Plan in plural form and there be only one person or entity within the scope of the word so used, or in singular form and there be more than one person or entity within the scope of the word so used, such noun or pronoun shall have a plural or singular meaning as appropriate under the circumstance. ARTICLE II. ELIGIBILITY AND PARTICIPATION Section 2.1 Eligibility. Each Covered Employee eligible to participate in the Superseded Plan on December 31, 1993, shall be eligible to participate in this Plan as of January 1, 1994. Each other Covered Employee shall be eligible to participate in this Plan on the first day of any calendar month coinciding with or following the completion of one year of Service, provided such person is a Covered Employee on such date. If he or she is not a Covered Employee on such date but is subsequently reemployed as a Covered Employee, then such person shall be eligible to participate in this Plan as of the date of such reemployment. If a Participant ceases to be a Covered Employee, such Participant shall remain a Participant under this Plan but no contributions shall be made to the Plan on his or her behalf while he or she is not a Covered Employee. Section 2.2 Participation. Each Covered Employee who meets the eligibility requirements of Section 2.1 may elect, on a form prescribed by the Committee, to participate in this Plan on the -12- 16 first day of any calendar month coinciding with or following the filing of such election. Any Participant who ceases to be a Covered Employee shall thereupon cease to participate in the Plan; provided, however, that if any such Participant is thereafter reemployed as a Covered Employee, he or she shall be eligible to elect to resume participating in the Plan as of the date of such reemployment. ARTICLE III. CONTRIBUTIONS AND ALLOCATIONS Section 3.1 Tax-Deferred Contributions. Each Participant may elect to have his or her Employer make a Tax-Deferred Contribution to the Plan for each pay period in an amount equal to any whole percentage of his or her Basic Compensation that is at least 1% but not more than 15% of his or her Basic Compensation for that pay period. All such contributions shall be made by uniform payroll deductions pursuant to a Basic Compensation reduction agreement which authorizes the Employer to pay such contributions to the Trustee on behalf of the Participant. A Participant may change the applicable percentage of such payroll deductions or suspend making contributions to the Plan as of any payday, provided that written notice of such change or suspension is delivered to his or her Employer at least 30 days prior to the effective date thereof. Any provision of this Plan to the contrary notwithstanding, the amount of Tax-Deferred Contributions made to the Plan pursuant to this Section on behalf of the Participant shall not exceed $7,000 (adjusted pursuant to Section 402(g) of the Code to take into account any cost-of-living increase) for any calendar year. An Employer may amend or revoke any Participant's Basic Compensation reduction agreement at any time during a Plan -13- 17 Year if such amendment or revocation is deemed by such Employer to be necessary or appropriate to ensure that the requirements of Section 3.7 or 9.3 are met for such year. Section 3.2 Employer Basic Matching Contributions. For each pay period beginning after February 28, 1994, the Employers shall contribute to the Plan for each Participant an amount which, when added to any forfeiture amount being credited to such Participant for that pay period, will equal 25% of so much of the aggregate Tax-Deferred Contributions made to the Plan on behalf of such Participant for that pay period as does not exceed 6% of such Participant's Basic Compensation for that pay period. The Employer Basic Matching Contribution made by the Employers shall be made in cash or in kind (including in the form of Company Stock), or in any combination thereof, at the discretion of the Board of Directors of the Company. The number of shares of Company Stock to be contributed as all or a portion of an Employer Basic Matching Contribution shall be determined on the basis of the average of the closing prices of Company Stock as reported on the New York Stock Exchange for the last five trading days of the month in which ends the pay period for which such contribution is being made. Section 3.3 Employer Supplemental Matching Contributions. For each Plan Year the Employers may make a contribution designated as an Employer Supplemental Matching Contribution to the Plan in an amount to be determined by the Board of Directors of the Company, which amount, when added to the aggregate Employer Basic Matching Contributions made by the Employers for such year, shall not exceed the amount allowable to the Employers as a deduction for such year under the provisions of Section 404 of the Code. Any Employer Supplemental Matching Contribution may be made in cash or in kind (including in the form of Company Stock), or any combination thereof, at the discretion of the Board of Directors of the Company. Any Employer Supplemental Matching -14- 18 Contribution made by an Employer for a Plan Year shall be allocated among and credited to the Employer Supplemental Matching Contribution Accounts of those Participants who were in the employ of an Employer on the last day of such year as a uniform percentage of the aggregate Employer Basic Matching Contributions made to the Plan for each such Participant for such year. Section 3.4 Employer Discretionary Contributions. For each Plan Year the Employers may make a contribution designated as an Employer Discretionary Contribution to the Plan in an amount to be determined by the Board of Directors of the Company, which amount, when added to the aggregate Employer Basic Matching Contributions and any Employer Supplemental Matching Contribution made by the Employers for such year, shall not exceed the amount allowable to the Employers as a deduction for such year under the provisions of Section 404 of the Code. Any Employer Discretionary Contribution may be made in cash or in kind (including in the form of Company Stock), or any combination thereof, at the discretion of the Board of Directors of the Company. Any Employer Discretionary Contribution made by an Employer for a Plan Year shall be allocated among and credited to the Employer Discretionary Contribution Accounts of those Participants who were in the employ of an Employer on the last day of such year in the proportion that the Basic Compensation of each such Participant while a Participant during such year bears to the Basic Compensation of all such Participants while Participants during such year. Section 3.5 Payment to Trustee. The Tax-Deferred Contributions made to the Plan by an Employer for a pay period shall be paid to the Trustee as soon as practicable following such pay period. The Employer Basic Matching Contributions made to the Plan by an Employer for a pay period shall be paid to the Trustee as soon as practicable, but in no event later than 30 days after the end of the month in which such pay period ends. Any Employer Supplemental Matching Contribution -15- 19 and any Employer Discretionary Contribution made to the Plan by an Employer for a Plan Year shall be paid to the Trustee no later than the time prescribed by law, including extensions thereof, for the filing of the Employer's federal income tax return for such year. Section 3.6 Return of Employer Contributions. Contributions made to this Plan are conditioned upon being currently deductible under Section 404 of the Code. Any provision of this Plan to the contrary notwithstanding, upon an Employer's request, any such contribution or portion thereof made to this Plan by such Employer which (i) was made under a mistake of fact which is subsequently discovered, or (ii) is disallowed as a deduction under Section 404 of the Code, shall be returned to such Employer to the extent not previously distributed to Participants or their beneficiaries; provided, however, that the amounts returnable to an Employer pursuant to this Section shall be reduced by any Trust losses allocable thereto and shall be returned to such Employer only if such return is made within one year after the mistaken payment of the contribution or the date of the disallowance of the deduction, as the case may be. Except as provided in this Section, no contribution made by an Employer pursuant to this Plan shall ever revert to or be recoverable by any Employer. Section 3.7 Allocation of Contributions. (a) The Committee shall establish and maintain a Participant Tax-Deferred Account, a Participant After-Tax Contribution Account, an Original Employer Match Account, an Employer Basic Matching Contribution Account, an Employer Supplemental Matching Contribution Account and an Employer Discretionary Contribution Account for each Participant. All amounts attributable to tax-deferred contributions made by an Employer on behalf of a Participant pursuant to the Superseded Plan and Tax-Deferred Contributions made by an Employer on behalf of such Participant -16- 20 to this Plan shall be credited to his or her Participant Tax-Deferred Contribution Account. All amounts attributable to after-tax contributions made by a Participant to the Superseded Plan shall be credited to his or her Participant After-Tax Contribution Account. All amounts attributable to contributions made by an Employer to the Superseded Plan for a Participant shall be credited to his or her Original Employer Match Account. All amounts attributable to Employer Basic Matching Contributions to the Plan for a Participant, together with any forfeitures applied pursuant to Section 3.8 to reduce an Employer Basic Matching Contribution which would otherwise have been made for such Participant, shall be credited to such Participant's Employer Basic Matching Contribution Account. All amounts attributable to after-tax contributions made by a Participant to the Superseded Plan shall be credited to his or her Participant After-Tax Contribution Account. All amounts attributable to contributions made by an Employer to the Superseded Plan for a Participant shall be credited to his or her Original Employer Match Account. All amounts attributable to Employer Basic Matching Contributions to the Plan for a Participant, together with any forfeitures applied pursuant to Section 3.8 to reduce an Employer Basic Matching Contribution which would otherwise have been made for such Participant, shall be credited to such Participant's Employer Basic Matching Contribution Account. All amounts attributable to any portion of an Employer Supplemental Matching Contribution made to the Plan and allocated to a Participant, together with any forfeitures applied pursuant to Section 3.8 to reduce the portion of an Employer Supplemental Matching Contribution which would otherwise have been allocated to such Participant, shall be credited to such Participant's Employer Supplemental Matching Contribution Account. All amounts attributable to any portion of an Employer Discretionary Contribution made to the Plan and allocated to a Participant shall be credited to such Participant's Employer Discretionary Contribution Account. -17- 21 (b) Any provision of this Plan to the contrary notwithstanding, if for any Plan Year the actual deferral percentage for the group of Highly Compensated Employees eligible to elect to have Tax-Deferred Contributions made during such Plan Year fails to satisfy one of the following tests: (1) the actual deferral percentage for said group of Highly Compensated Employees is not more than the actual deferral percentage for all other Employees eligible to elect to have Tax-Deferred Contributions made during such Plan Year multiplied by 1.25, or (2) the excess of the actual deferral percentage for said group of Highly Compensated Employees over the actual deferral percentage for all other Employees eligible to elect to have Tax-Deferred Contributions made during such Plan Year is not more than two percentage points and the actual deferral percentage for said group of Highly Compensated Employees is not more than the actual deferral percentage for all other Employees eligible to elect to have Tax-Deferred Contributions made during such Plan Year multiplied by two, then the actual deferral percentage of Participants who are members of said group of Highly Compensated Employees shall be reduced by reducing the Tax-Deferred Contributions made for such Plan Year on behalf of the Highly Compensated Employees with the largest individual actual deferral percentages to the largest uniform actual deferral percentage (commencing with the Highly Compensated Employee with the largest actual deferral percentage and reducing his or her actual deferral percentage to the extent necessary to satisfy one of the above tests or to lower such actual deferral percentage to the actual deferral percentage of the Highly Compensated Employee with the next highest actual deferral percentage, and repeating this process as necessary) that permits the actual deferral percentage for said group of Highly Compensated Employees to satisfy one of said -18- 22 tests. For purposes of this Section, the term "actual deferral percentage" for a specified group of Employees for a Plan Year means the average of the ratios (calculated separately for each Employee in such group) of (i) the amount of Tax-Deferred Contributions made on behalf of such Employee for that year, to (ii) the amount of such Employee's Testing Compensation while eligible to have Tax-Deferred Contributions made during that year. Any portion of a Tax-Deferred Contribution made by an Employer on behalf of a Participant which cannot be credited to the Participant Tax-Deferred Account of such Participant for a Plan Year because of the limitation contained in this subsection shall be distributed to such Participant (along with any income allocable thereto) within 2 1/2 months after the end of such year. If for a Plan Year the Testing Compensation received by an Employee eligible to elect to have Tax-Deferred Contributions made during such Plan Year is treated pursuant to Section 1.1(r) as Testing Compensation received by a Highly Compensated Employee eligible to elect to have Tax-Deferred Contributions made during such Plan Year, then this subsection shall be applied to such Employees for such Plan Year in accordance with regulations under Section 401(k) of the Code. (c) Any provision of this Plan to the contrary notwithstanding, if for any Plan Year the contribution percentage for the group of Highly Compensated Employees eligible to receive an allocation of Employer Basic Matching Contributions for such Plan Year fails to satisfy one of the following tests: (1) the contribution percentage for said group of Highly Compensated Employees is not more than the contribution percentage for all other Employees eligible to receive an allocation of Employer Basic Matching Contributions for such Plan Year multiplied by 1.25, or -19- 23 (2) the excess of the contribution percentage for said group of Highly Compensated Employees over the contribution percentage for all other Employees eligible to receive an allocation of Employer Basic Matching Contributions for such Plan Year is not more than two percentage points and the contribution percentage for said group of Highly Compensated Employees is not more than the contribution percentage for all other Employees eligible to receive an allocation of Employer Basic Matching Contributions to the Plan for such Plan Year multiplied by two, then the contribution percentage for Participants who are members of said group of Highly Compensated Employees shall be reduced by reducing the Employer Basic Matching Contributions and/or Employer Supplemental Matching Contribution made for such Plan Year for the Highly Compensated Employees with the largest individual contribution percentages to the largest uniform contribution percentage (commencing with the Highly Compensated Employee with the largest contribution percentage and reducing his or her contribution percentage to the extent necessary to satisfy one of the above tests or to lower such contribution percentage to the contribution percentage of the Highly Compensated Employee with the next highest contribution percentage, and repeating this process as necessary) that permits the contribution percentage for said group of Highly Compensated Employees to satisfy one of said tests. For purposes of this Section, the term "contribution percentage" for a specified group of Employees for a Plan Year means the average of the ratios (calculated separately for each Employee in such group) of (i) the amount of Employer Basic Matching Contributions made for such Employee for that year and any Employer Supplemental Matching Contribution allocated to such Employee for that year, to (ii) the amount of such Employee's Testing Compensation while eligible to have Tax-Deferred Contributions made during -20- 24 that year. Any Employer Basic Matching Contributions and/or Employer Supplemental Matching Contribution made for a Participant which cannot be credited to the Accounts of such Participant for a Plan Year because of the limitation contained in this subsection (along with any income allocable thereto) shall be forfeited if forfeitable, but if not forfeitable, distributed to such Participant within 2 1/2 months after the end of such year. If for a Plan Year the Testing Compensation received by an Employee eligible to receive an allocation of Employer Basic Matching Contributions for such Plan Year is treated pursuant to Section 1.1(r) as Testing Compensation received by a Highly Compensated Employee eligible to receive an allocation of Employer Basic Matching Contributions for such Plan Year, then this subsection shall be applied to such Employees for such Plan Year in accordance with regulations under Section 401(m) of the Code. (d) Any provision of this Plan to the contrary notwithstanding, in addition to the above limitations of this Section, the sum of the actual deferral percentage and the contribution percentage for the group of Highly Compensated Employees as determined pursuant to and after application of subsections (b) and (c) of this Section shall not exceed the "aggregate limit." The "aggregate limit" shall be equal to the greater of: (1) the sum of: (i) 1.25 times the greater of the relevant actual deferral percentage or the relevant contribution percentage, and (ii) two percentage points plus the lesser of the relevant actual deferral percentage or the relevant contribution percentage, provided that the amount in this clause (ii) shall not exceed twice the lesser of the relevant actual deferral percentage or the relevant contribution percentage; or (2) the sum of: (i) 1.25 times the lesser of the relevant actual deferral percentage or the relevant contribution percentage, and (ii) two percentage points plus the greater of the -21- 25 relevant actual deferral percentage or the relevant contribution percentage, provided that the amount in this clause (ii) shall not exceed twice the greater of the relevant actual deferral percentage or the relevant contribution percentage. The "relevant actual deferral percentage" means the actual deferral percentage determined pursuant to subsection (b) of this Section for the group of Employees who are not Highly Compensated Employees. The "relevant contribution percentage" means the contribution percentage determined pursuant to subsection (c) of this Section for the group of Employees who are not Highly Compensated Employees. In the event that the aggregate limit is exceeded in any year, then the actual deferral percentage and/or contribution percentage for Participants who are members of the group of Highly Compensated Employees shall be reduced by reducing first the Tax-Deferred Contributions and then the Employer Basic Matching Contributions and/or Employer Supplemental Matching Contribution made for such Plan Year for or on behalf of the Highly Compensated Employees with the largest individual actual deferral percentages and/or contribution percentages to the largest uniform actual deferral percentage and/or contribution percentage (commencing with the Highly Compensated Employee with the largest actual deferral percentage and/or contribution percentage and reducing his or her actual deferral percentage and/or contribution percentage to the extent necessary to satisfy the above restrictions or to lower such actual deferral percentage and/or contribution percentage to the actual deferral percentage and/or contribution percentage of the Highly Compensated Employee with the next highest actual deferral percentage and/or contribution percentage, and repeating this process as necessary) that permits the sum of the actual deferral percentage and contribution percentage for said group of Highly Compensated Employees to satisfy the above restrictions. Any portion of a Tax-Deferred Contribution made on behalf of a Participant -22- 26 which cannot be credited to the Participant Tax-Deferred Contribution Account of such Participant for a Plan Year because of the limitation contained in this subsection (along with any income allocable thereto) shall be distributed to such Participant within 2 1/2 months after the end of such year. Any Employer Basic Matching Contributions and/or Employer Supplemental Matching Contribution made for a Participant which cannot be credited to the Accounts of such Participant for a Plan Year because of the limitation contained in this subsection (along with any income allocable thereto) shall be forfeited if forfeitable, but if not forfeitable, distributed to such Participant within 2 1/2 months after the end of such year. If for a Plan Year the Testing Compensation received by an Employee eligible to elect to have Tax-Deferred Contributions made during such Plan Year is treated pursuant to Section 1.1(r) as Testing Compensation received by a Highly Compensated Employee eligible to elect to have Tax-Deferred Contributions made during such Plan Year, then this subsection shall be applied to such Employees for such Plan Year in accordance with regulations under Section 401(k) and (m) of the Code. Section 3.8 Application and Allocation of Forfeitures. All amounts forfeited from time to time during a Plan Year shall first be applied to restore any forfeited Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account or Employer Discretionary Contribution Account with respect to which a repayment has been made pursuant to Section 6.5(b) or 7.5, and any forfeitures during a calendar quarter in excess of the amount needed to restore any such Account shall be applied to reduce the amount of the earliest contributions an Employer would otherwise be required to make to the Plan pursuant to Section 3.2 or 3.3 after the end of such quarter. -23- 27 Section 3.9 Rollover Contributions. With the consent of the Committee, any Covered Employee (regardless of whether he or she is a Participant) may contribute Rollover Property in the form of cash to the Plan. Such property shall become part of the Trust's general assets. Each contribution of Rollover Property shall be credited to a separate Participant Rollover Contribution Account to be established and maintained for the benefit of the contributing Employee. An Employee who is not a Participant, but for whom a Participant Rollover Contribution Account is being maintained, shall be accorded all of the rights and privileges of a Participant under the Plan except that no contributions (other than contributions of Rollover Property) shall be made for or on behalf of such Employee until he or she meets the eligibility and participation requirements of Article II. ARTICLE IV. VESTING Section 4.1 Fully Vested Accounts. The amounts credited to the Participant Tax-Deferred Contribution Account, Participant After-Tax Contribution Account, Participant Rollover Contribution and Original Employer Match Account of a Participant shall be fully vested at all times. Section 4.2 Disability or Death Vesting. In the event of the occurrence of a Participant's Disability or death while in the employ of (or on authorized leave of absence from) an Employer or Affiliated Company, the amounts credited to the Participant's Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account and Employer Discretionary Contribution Account shall be fully vested. Section 4.3 Period of Service or Age Vesting. Unless sooner vested pursuant to Section 4.2, the amounts credited to the Employer Basic Matching Contribution Account, Employer Supplemental -24- 28 Matching Contribution Account and Employer Discretionary Contribution Account of a Participant shall vest in accordance with the following schedule:
Period of Service Completed by Participant Percentage Vested ------------------------ ----------------- Less than 1 year None 1 year 20% 2 years 40% 3 years 60% 4 years 80% 5 or more years 100%
Subject to Section 6.5(b), if any portion of a Participant's Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account and/or Employer Discretionary Contribution Account is not vested, such portion shall be forfeited upon the date such Participant incurs five consecutive One Year Breaks in Service. The foregoing provisions of this Section to the contrary notwithstanding, the amounts credited to the Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account and Employer Discretionary Contribution Account of a Participant who is credited with an Hour of Service on or after the date he or she attains age 65 shall be fully vested. ARTICLE V. TRUST FUND Section 5.1 Trust and Trustee. All of the property contributed to the Superseded Plan and to this Plan, together with the income therefrom and the increments thereof, shall be held in trust by the Trustee under the terms and the provisions of the separate trust agreement between the Employers and the Trustee, a copy of which is attached hereto and incorporated herein by this -25- 29 reference for all purposes, establishing a trust fund known as THE WESTERN COMPANY RETIREMENT SAVINGS TRUST (the "Trust") for the exclusive benefit of the Participants and their beneficiaries in accordance with this Plan. Section 5.2 Trust Fund Investment Options. For investment purposes, the assets of the Trust shall be divided into a Company Stock Fund invested primarily in Company Stock and such number and kind of separate and distinct Investment Funds as the Committee shall determine in its absolute discretion. The Trust assets allocated to a particular Investment Fund shall be invested by the Trustee and/or one or more investment managers duly appointed in accordance with the provisions of the Trust, as the case may be, in such type of property, whether real, personal or mixed, as the Trustee is directed to acquire and hold for such Investment Fund. The Committee shall adopt rules and procedures for periodically notifying each Participant as to the existence and nature of each such Investment Fund. Upon becoming a Participant in this Plan, each Participant shall direct, on a form prescribed by and filed with the Committee, that the contributions made for or on behalf of or allocated to such Participant shall be invested, in percentage multiples authorized by the Committee, in the Company Stock Fund or one or more of the Investment Funds authorized by the Committee. A Participant may change his or her investment direction with respect to future contributions and/or redirect the investment of the amounts credited to his or her Accounts at such times and in such manner as the Committee shall prescribe. Section 5.3 Voting of Company Stock. All Company Stock held in the Trust shall be voted by the Trustee at the direction of the Committee. -26- 30 ARTICLE VI. VALUATIONS, DISTRIBUTIONS, WITHDRAWALS AND LOANS Section 6.1 Valuation and Adjustment of Accounts. All contributions made to the Plan shall be credited to the appropriate Accounts when paid to the Trustee. All cash dividends, stock dividends and stock splits received by the Trustee with respect to Company Stock previously credited to a particular Account shall be credited to that particular Account upon receipt by the Trustee. At the end of each month the portion of each Account to be invested in Company Stock shall be credited with its proportionate share of the Company Stock (including fractional shares) purchased for the Trust during that month and charged with its proportionate share of the average cost of such Company Stock. The Trustee shall not be required to allocate and designate particular certificates for Company Stock to the respective Accounts, but shall hold the certificates for all Company Stock in trust for the Accounts in proportion to their respective interests. At the end of the month (and at such other times as the Committee shall direct), the Trustee shall also determine the fair market value of all assets of the Trust other than Company Stock, with the value of the assets of each Investment Fund being separately determined. On the basis of such valuations, and in accordance with such procedures as may be specified by the Committee, the portion of each Account (including any forfeiture account maintained for purposes of Section 3.8 and any suspense account maintained for purposes of Section 9.3) invested in a particular Investment Fund shall be adjusted by the Committee to reflect its proportionate share of the income collected and accrued, realized and unrealized profits and losses, expenses and all other transactions affecting that particular Investment Fund for the valuation period then ended. In order to facilitate distributions under the Plan, the Committee in its discretion may direct the Trustee at any time to purchase from or sell to any Account or Accounts, -27- 31 at a price equal to the average cost of Company Stock purchased for the Trust during the month then ended, such Company Stock or fractional shares thereof as may be necessary to make distributions or directed investment changes. Distributions and withdrawals from the Trust and changes in investment direction shall normally be made on the basis of the most recent valuation. Section 6.2 Time and Form of Distribution. Distribution to a Participant or beneficiary under the Plan shall be made or commence being made, as the case may be, as soon as practicable after the event giving rise to distribution but in no event later than 60 days after the end of the Plan Year during which such Participant or beneficiary becomes entitled to distribution. The portion of the Participant's Vested Interest which is invested in Company Stock shall be distributed either in the form of Company Stock (with cash in lieu of fractional shares at the discretion of the Committee) and any remaining portion of his or her Vested Interest in cash or, at the election of such Participant, entirely in cash. Distribution to a Participant or beneficiary pursuant to Section 6.3 and Section 6.4 shall be made or commence being made, as the case may be, no later than the earlier of (a) 60 days after the end of the Plan Year during which the Participant or beneficiary becomes entitled to distribution or (b) April 1 of the calendar year following the calendar year in which such Participant attains age 70 1/2. Section 6.3 Distribution of Retirement and Disability Benefits. Upon the Retirement or Disability of a Participant, the Vested Interest of such Participant shall be distributed to such Participant by the Trustee at the direction of the Committee in one of the following forms: (a) by payment of the entire amount in a single lump sum; or -28- 32 (b) if the Participant so elects, by payment in a series of installments, in equal amounts or otherwise, over a period not exceeding the lesser of 10 years or the life expectancy of such Participant; provided, however, that no such distribution upon the Disability of a Participant shall be made to such Participant prior to his or her attainment of age 65 unless (i) such Participant elects to receive such distribution, or (ii) the value of such distribution is not more than $3,500. Section 6.4 Distribution of Death Benefits. Upon the death of a Participant, the Vested Interest of such Participant shall be distributed by the Trustee at the direction of the Committee in a single distribution to such Participant's beneficiary or beneficiaries determined in accordance with this Section. Any amount payable under the Plan upon the death of a married Participant shall be distributed to the surviving spouse of such Participant unless such Participant designates otherwise with the written consent of his or her spouse which is witnessed by a member of the Committee or a notary public. Any amount payable under the Plan upon the death of a Participant who is not married or who is married but has designated, as provided above, a beneficiary other than his or her spouse, shall be distributed to the beneficiary or beneficiaries designated by such Participant. Such designation of beneficiary or beneficiaries shall be made in writing on a form prescribed by the Committee and, when filed with the Committee, shall become effective and remain in effect until changed by the Participant by the filing of a new beneficiary designation form with the Committee. If an unmarried Participant fails to so designate a beneficiary, or in the event all of a Participant's designated beneficiaries are individuals who predecease such Participant, then the Committee shall direct the Trustee to distribute the amount payable under the Plan to such Participant's surviving spouse, if any, but if none, to or among the descendants (including adopted descendants), the heirs -29- 33 at law, or the estate of such Participant, or any deceased beneficiary in such proportions (including the total exclusion of up to all but one of such beneficiaries) as the Committee shall determine in its absolute discretion. Distributions under this Section shall be made by the Trustee at the direction of the Committee to the appropriate beneficiary or beneficiaries in a single lump sum as soon as practicable after a Participant's death. Section 6.5 Distribution of Separation from Employment Benefit. (a) If a Participant separates from the employment of an Employer or Affiliated Company for any reason other than his or her Retirement, Disability, death or transfer to the employment of another Employer or Affiliated Company, the Accounts of such Participant shall be retained in trust and shall continue to be credited with applicable earnings as provided in Section 6.1, and the Vested Interest of such Participant shall be distributed to him or her by the Trustee at the direction of the Committee by payment of the entire amount in a single distribution as soon as practicable after the date as of which such Participant attains age 65 (or, if the Participant dies prior to such date, the Vested Interest of such Participant shall be distributed upon his or her death in accordance with Section 6.4); provided, however, that (i) each such Participant shall have the right to elect on a form prescribed by the Committee to receive a distribution of his or her Vested Interest as soon as practicable in one of the following forms to be selected by the Participant: (1) by payment of the entire amount in a single lump sum; or (2) by payment in a series of installments, in equal amounts or otherwise, over a period not exceeding the lesser of 10 years or the life expectancy of such Participant; and (ii) the Committee shall require a cash-out distribution of any such Participant's Vested Interest which does not exceed $3,500. Any provision of this Plan to the contrary notwithstanding, for -30- 34 purposes of this Plan a Participant shall not be treated as having separated from the employment of an Employer or Affiliated Company prior to such time that a distribution can be made to such Participant in accordance with Section 401(k) of the Code. (b) If a Participant receives a distribution under Section 6.5(a), any portion of such Participant's Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account or Employer Discretionary Contribution Account which is not vested at the time of such distribution shall be forfeited; provided, however, that if such Participant is reemployed as a Covered Employee and, prior to incurring five consecutive 1-Year Periods of Severance following such distribution and while still employed by an Employer or Affiliated Company, repays to such Account within five years of such reemployment the full amount previously distributed therefrom, the amount so forfeited from such Account shall be restored to such Account out of current-year forfeitures, or if such forfeitures are insufficient, by an additional Employer contribution. If a Participant who separates from the employment of an Employer of Affiliated Company for any reason other than his or her Retirement, Disability, death or transfer to the employment of another Employer or Affiliated Company, is not entitled to receive any distribution from the Plan due to the fact that such Participant has no Vested Interest, such Participant shall be deemed to have received a cash-out distribution of his or her Vested Interest and the amount credited to such Participant's Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account or Employer Discretionary Contribution Account shall be forfeited at the time of such separation from employment; provided, however, that if such Participant is reemployed as a Covered Employee prior to incurring five consecutive 1-Year Periods of Severance, the amount so forfeited from such Account shall be restored to such Account out of current-year forfeitures, or if such -31- 35 forfeitures are insufficient, by an additional Employer contribution. If a Participant who has not yet incurred five consecutive 1-Year Periods of Severance receives a distribution under Section 6.5(a) on account of his or her attainment of age 65, any portion of such Participant's Employer Basic Matching Contribution Account, Employer Supplemental Matching Contribution Account or Employer Discretionary Contribution Account which is not vested at the time of such distribution shall be retained in such Account and shall be forfeited upon the earlier of the date of such Participant's death or the date such Participant incurs five consecutive 1-Year Periods of Severance unless such Participant is reemployed by an Employer or Affiliated Company prior to such date. Section 6.6 Withdrawals. A Participant may make: (a) At any time a withdrawal of all (but not less than all) of the total amount credited to his or her Participant After-Tax Contribution Account; and (b) At any time a hardship withdrawal of such amount of his or her Vested Interest, other than earnings on Tax-Deferred Contributions credited to his or her Participant Tax-Deferred Contribution Account under this Plan or the Superseded Plan after December 31, 1988, as the Committee shall determine to be necessary to satisfy an immediate and heavy financial need of such Participant; provided, however, that (i) no withdrawal may be made unless written notice of such withdrawal is delivered to the Committee by the withdrawing Participant at least 30 days prior to the effective date thereof, and (ii) only one withdrawal under subsection (a) of this Section may be made within any period of 12 consecutive months. The Committee shall direct the Trustee to distribute any withdrawn amount to such Participant as soon as practicable. -32- 36 A hardship withdrawal will be considered to be made on account of an immediate and heavy financial need of a Participant only if the Committee determines that such withdrawal is on account of (i) expenses for medical care described in Section 213(d) of the Code previously incurred by such Participant or his or her spouse or dependents (as defined in Section 152 of the Code) or necessary for such individuals to obtain such care, (ii) costs directly related to the purchase of a principal residence for such Participant (excluding mortgage payments), (iii) payment of tuition and related educational fees for the next 12 months of post-secondary education for such Participant or his or her spouse, children or dependents (as so defined), or (iv) payments necessary to prevent the eviction of such Participant from his or her principal residence or foreclosure on the mortgage of such residence. A hardship withdrawal will be considered to be necessary to satisfy an immediate and heavy financial need of a Participant only if the Participant represents that the need cannot be relieved (i) through reimbursement or compensation by insurance or otherwise, (ii) by reasonable liquidation of the Participant's assets, to the extent such liquidation would not itself cause an immediate and heavy financial need, (iii) by cessation of Tax-Deferred Contributions on behalf of the Participant, or (iv) by other distributions or nontaxable (at the time of the loan) loans from plans maintained by an Employer, or by borrowing from commercial sources on reasonable commercial terms. For purposes of the preceding sentence, the Committee's reliance upon such representations must be reasonable under the circumstances and the Participant's resources shall be deemed to include those assets of his spouse and minor children that are reasonably available to the Participant. A hardship withdrawal by a Participant shall be made first from such Participant's previously unrecovered contributions to his or her Participant After-Tax Contribution Account (or, to the extent such withdrawal is to be made in the form of Company Stock, first in shares of such stock purchased with such contributions), -33- 37 and then from amounts attributable to other sources in accordance with such procedures as the Committee may prescribe. Section 6.7 Benefits Payable to Minors and Incompetents. Whenever any person entitled to payments under this Plan shall be a minor or under other legal disability, or in the sole judgment of the Committee shall otherwise be unable to apply such payments to his or her own best interest and advantage (as in the case of illness, whether mental or physical, or where a person not under legal disability is unable to preserve his or her estate for his or her own best interest), the Committee in its discretion may direct all or any portion of such payments to be made by the Trustee directly to such person or to such person's spouse, child, parent, other blood relative or custodian to be extended on behalf of such person or on behalf of the dependents such person has the duty to support, unless claim shall have been made therefor by a duly appointed guardian or other legal representative. The decision of the Committee will, in each case, be final and binding upon all persons and the Committee shall not be obliged to see to the proper application or expenditure of any payments so made. Any payment made pursuant to the power herein conferred upon the Committee shall operate as a complete discharge of the obligations of the Trustee and of the Committee. Section 6.8 Transfer of Eligible Rollover Distribution. If a Participant is entitled to receive an eligible rollover distribution (as defined in Section 402(c) of the Code and the regulations thereunder) from the Plan, such Participant may elect to have the Committee direct the Trustee to transfer the entire amount of such distribution directly to any of the following specified by such Participant: an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code (other than an endowment contract), a defined contribution plan qualified under Section 401(a) of the Code the terms of which permit -34- 38 rollover contributions or an annuity plan described in Section 403 (a) of the Code. If the surviving spouse of a deceased Participant is entitled to receive an eligible rollover distribution from the Plan, such surviving spouse may elect to have the Committee direct the Trustee to transfer the entire amount of such distribution directly to either an individual retirement account described in Section 408(a) of the Code or an individual retirement annuity described in Section 408(b) of the Code (other than an endowment contract) specified by such surviving spouse. If an alternate payee under a qualified domestic relations order (as defined in Section 414(p) of the Code) is the spouse or former spouse of the Participant specified in the qualified domestic relations order, this Section shall apply to such alternate payee as if the alternate payee were a Participant. A distributee of an eligible rollover distribution of $500 or more who is entitled to make an election under this Section may specify that some portion less than the entire amount of such distribution be transferred in accordance with this Section, but only if the portion specified is $500 or more. This Section shall not apply to eligible rollover distributions to a distributee for a calendar year if all such distributions from the Plan to such distributee within such calendar year are reasonably expected to total less than $200. Section 6.9 Plan Loans. Subject to such conditions and limitations as the Committee may from time to time prescribe for application to all Participants and beneficiaries on a uniform basis, at the request of a Participant or beneficiary either of whom is a party in interest (within the meaning of Section 3(14) of the Employee Retirement Income Security Act of 1974, as amended) as to the Plan (hereinafter called the "Borrower") the Committee shall direct the Trustee to loan to such Borrower from his or her Accounts an amount of money which, when added to the total outstanding balance of all other loans to such Borrower from the Trust or from a qualified employer plan (within the meaning of Section 72 (p) of the Code) maintained by an Employer or Affiliated Company, does -35- 39 not exceed the lesser of (i) $50,000 (reduced, however, by the excess, if any, of the highest total outstanding balance of all such other loans during the one-year period ending on the day before the date such loan is made, over the outstanding balance of all such other loans on the date such loan is made), or (ii) one-half of such Participant's Vested Interest under the Plan (or, in the case of a loan to a beneficiary, one-half of such beneficiary's Accounts). Any such loan made to a Borrower shall be evidenced by a promissory note payable to the Trustee, shall bear a reasonable rate of interest, shall be secured by one-half of the Participant's Vested Interest under the Plan (or, in the case of a loan to a beneficiary, one-half of such beneficiary's Accounts), shall be repayable in substantially equal payments no less frequently than quarterly and shall be repayable within five years, or within ten years in the case of a loan that is to be used to acquire any dwelling unit which within a reasonable time is to be used as the principal residence of the Participant. Any provision of this Plan to the contrary notwithstanding, the promissory note evidencing any such loan shall be held by the Trustee as a segregated investment allocated to and made solely for the benefit of the Account or Accounts of the Borrower from which such loan was made. ARTICLE VII. PLAN ADMINISTRATION Section 7.1 Committee. The Plan shall be administered on behalf of all Employers by a Committee composed of individuals appointed by the Board of Directors of the Company. Each member of the Committee so appointed shall serve in such office until his or her death, resignation or removal by the Board of Directors of the Company. The Board of Directors of the Company may remove any member of the Committee at any time by giving written notice thereof to the members -36- 40 of the Committee. Vacancies shall likewise be filled from time to time by the Board of Directors of the Company. The members of the Committee shall receive no remuneration from the Plan for their services as Committee members. Section 7.2 Powers, Duties and Liabilities of the Committee. The Committee shall have discretionary and final authority to interpret and implement the provisions of the Plan, including without limitation authority to determine eligibility for benefits under the Plan, and shall perform all of the duties and may exercise all of the powers and discretion granted to it under the terms of the Plan. The Committee shall act by a majority of its members at the time in office and such action may be taken either by a vote at a meeting or in writing without a meeting. The Committee may by such majority action authorize any one or more of its members to execute any document or documents on behalf of the Committee, in which event the Committee shall notify the Trustee in writing of such action and the name or names of its member or members so authorized to act. Every interpretation, choice, determination or other exercise by the Committee of any discretion given either expressly or by implication to it shall be conclusive and binding upon all parties directly or indirectly affected, without restriction, however, on the right of the Committee to reconsider and redetermine such actions. In performing any duty or exercising any power herein conferred, the Committee shall in no event perform such duty or exercise such power in any manner which discriminates in favor of Highly Compensated Employees. Section 7.3 Rules, Record and Reports. The Committee may adopt such rules and procedures for the administration of the Plan as are consistent with the terms hereof, and shall keep adequate records of their proceedings and acts and of the status of the Participants' Accounts. The Committee may employ such agents, accountants and legal counsel (who may be accountants or legal -37- 41 counsel for an Employer) as may be appropriate for the administration of the Plan. The Committee shall at least annually provide each Participant with a report reflecting the status of his or her Account and shall cause such other information, documents or reports to be prepared, provided and/or filed as may be necessary to comply with the provisions of the Employee Retirement Income Security Act of 1974 or any other law. Section 7.4 Administrative Expenses and Taxes. Unless otherwise paid by the Employers in their discretion, the Committee shall direct the Trustee to pay all reasonable and necessary expenses (including the fees of legal counsel, accountants and agents) incurred by the Committee or the Trustee in connection with the administration of the Plan and Trust. Should any tax of any character (including transfer taxes) be levied upon the Trust assets or the income therefrom, such tax shall be paid from and charged against the assets of the Trust. Section 7.5 Unclaimed Accounts. The Committee shall notify in writing each Participant or beneficiary who is entitled to a distribution under the Plan. If the Participant or beneficiary fails to claim his or her distribution under the Plan or to make his or her whereabouts known in writing to the Committee within six months from the date of mailing of the notice, or before termination or discontinuance of the Plan, whichever occurs first, the Participant or beneficiary's unclaimed payable benefits shall be forfeited and allocated in accordance with Section 3.8. If such Participant or beneficiary makes a claim at a later date for the forfeited amount, the Committee shall restore the Participant or beneficiary's account to the same dollar amount as the dollar amount of the forfeited benefits, without interest and unadjusted for any gains or losses occurring subsequent to the date of forfeiture. -38- 42 ARTICLE VIII. AMENDMENT AND TERMINATION Section 8.1 Amendment. The Board of Directors of the Company shall have the right and power at any time and from time to time to amend this Plan, in whole or in part, on behalf of all Employers. Any such amendment made by the Board of Directors of the Company shall be made by or pursuant to a resolution duly adopted by the Board of Directors of the Company, and shall be evidenced by such resolution or by a written instrument executed by such person as the Board of Directors of the Company shall authorize for such purpose. With the consent of the Board of Directors of the Company and subject to such procedure as it may prescribe, each Employer shall have the right and power at any time and from time to time to amend this Plan, in whole or in part, with respect to the Plan's application to the Participants of the particular amending Employer and the assets held in the Trust for their benefit, or to transfer such assets or any portion thereof to a new trust for the benefit of such Participants. However, in no event shall any amendment or new trust permit any portion of the trust fund to be used for or diverted to any purpose other than the exclusive benefit of the Participants and their beneficiaries, nor shall any amendment or new trust reduce a Participant's Vested Interest under the Plan. The Company shall in writing notify the Committee and the Trustee of any amendment or change in the provisions of the Plan. Section 8.2 Termination. The Board of Directors of the Company shall have the right and power at any time to terminate this Plan, in whole or in part, as it applies to all or any particular group of the Participants and their beneficiaries. Any such termination shall be initiated by or pursuant to a resolution duly adopted by the Board of Directors of the Company. With the consent of the Board of Directors of the Company and subject to such procedure as it may prescribe, each Employer shall -39- 43 have the right and power at any time to terminate this Plan, in whole or in part, with respect to the Plan's application to the Participants who are or were Employees of such Employer and their beneficiaries. Any provision of this Plan to the contrary notwithstanding, upon the termination or partial termination of the Plan or in the event any Employer should completely discontinue making contributions to the Plan without formally terminating it, all amounts credited to the Accounts of the affected Participants shall be fully vested and nonforfeitable. ARTICLE IX. MISCELLANEOUS GENERAL PROVISIONS Section 9.1 Spendthrift Provision. No right or interest of any Participant or beneficiary under the Plan may be assigned, transferred or alienated, in whole or in part, either directly by operation of law, and no such right or interest shall be liable for or subject to any debt, obligation or liability of such Participant or beneficiary. Nothing herein shall prevent the payment of amounts from a Participant's account under the Plan in accordance with the terms of a court order which the Committee has determined to be a qualified domestic relations order within the meaning of Section 414(p) of the Code. Section 9.2 Claims Procedure. If any Participant or beneficiary (the "Claimant") feels that he or she is being denied a benefit to which he or she is entitled under the Plan, such Claimant may file a written claim for said benefit with any member of the Committee. Within 60 days of the receipt of such claim the Committee shall determine and notify the requesting Claimant as to whether he or she is entitled to such benefit. Such notification shall be in writing and, if denying the claim for benefit, shall set forth the specific reason or reasons for the denial, make specific reference to the -40- 44 pertinent provisions of the Plan, and advise the Claimant that he or she may, within 60 days of the receipt of such notice, in writing request to appear before the Committee or its designated representative for a hearing to review such denial. Any such hearing shall be scheduled at the mutual convenience of the Committee or its designated representative and the Claimant, and at such hearing the Claimant and/or his or her duly authorized representative may examine any relevant documents and present evidence and arguments to support the granting of the benefit being claimed. The final decision of the Committee with respect to the claim being reviewed shall be made within 60 days following the hearing thereon and the Committee shall in writing notify the Claimant and the pertinent provisions of the Plan upon which such decision is based. The final decision of the Committee shall be conclusive and binding upon all parties having or claiming to have an interest in the matter being reviewed. Section 9.3 Maximum Contribution Limitation. Any provision of this Plan to the contrary notwithstanding, the sum of (i) the Employer contributions, (ii) the forfeitures, and (iii) the Participant contributions (excluding rollover contributions and employee contributions to a simplified employee pension allowable as a deduction, each within the meaning specified in Section 415(c)(2) of the Code), allocated to a Participant with respect to a Plan Year shall in no event exceed the lesser of $30,000 (or, if greater, one-fourth of the dollar limitation in effect under Section 415(b)(1)(A) of the Code) or 25% of such Participant's Limitation Compensation for that year. For the purpose of applying the limitation imposed by this Section, each Employer and its Affiliated Companies shall be considered a single employer, and all defined contribution plans (meaning plans providing for individual accounts and for benefits based solely upon the amounts contributed to such accounts and any forfeitures, income, expenses, gains and losses allocated to such accounts) described in -41- 45 Section 415(k) of the Code, whether or not terminated, maintained by an Employer or its Affiliated Companies shall be considered a single plan. If the total amount allocable to a Participant's Accounts for a particular Plan Year would, but for this sentence, exceed the foregoing limitation, the following adjustments shall be made in the following order to the extent necessary: (i) such Participant's Tax-Deferred Contributions shall be distributed to such Participant (but without any income allocable thereto) and (ii) any Employer Basic Matching Contributions, Employer Supplemental Matching Contributions or Employer Discretionary Contributions allocable to such Participant in excess of the foregoing limitation shall be credited to a suspense account and thereafter reallocated among the remaining Participants as an additional Employer Discretionary Contribution in accordance with Section 3.4. Such suspense account shall be adjusted to reflect income, profits and losses, expenses or other transactions affecting the Plan. Any Tax-Deferred Contributions distributed to a Participant pursuant to this Section shall not be taken into account in determining such Participant's actual deferral percentage for purposes of Section 3.7. Section 9.4 Employment Noncontractual. The establishment of this Plan shall not enlarge or otherwise affect the terms of any Employee's employment with an Employer and an Employer may terminate the employment of any Employee was freely and with the same effect as if this Plan had not been adopted. Section 9.5 Limitations on Responsibility. The Employers do not guarantee or indemnify the Trust against any loss or depreciation of its assets which may occur, nor guarantee the value of any benefits which may become distributable to a Participant or his or her beneficiaries pursuant to the provisions of this Plan. All distributions to Participants and their beneficiaries shall be made by the Trustee at the direction of the Committee solely from the assets of the Trust. -42- 46 Section 9.6 Merger or Consolidation. In no event shall this Plan be merged or consolidated into or with any other plan, nor shall any of its assets or liabilities be transferred to any other plan, unless each Participant would be entitled to receive a benefit if the plan in which he or she then participates terminated immediately following such merger, consolidation or transfer, which is equal to or greater than the benefit he or she would have been entitled to receive if the Plan had been terminated immediately prior to such merger, consolidation or transfer. ARTICLE X. TOP-HEAVY PROVISIONS Section 10.1 Top-Heavy Definitions. Unless the context clearly indicates otherwise, when used in this Article: (a) "Top-Heavy Plan" means this Plan if, as of the Determination Date, the aggregate of the Accounts of Key Employees under the Plan exceeds 60% of the aggregate of the Accounts of all Participants and former Participants under the Plan. The aggregate of the Accounts of any Participant or former Participant shall include any distributions (other than related rollovers or transfers from the Plan within the meaning of regulations under Section 416(g) of the Code) made from such individual's Accounts during the Plan Year or any of the four preceding Plan Years, but shall not include any unrelated rollovers or transfers (within the meaning of regulations under Section 416(g) of the Code) made to such individual's Accounts after December 31, 1983. The Accounts of any Participant or former Participant who (i) is not a Key Employee for the Plan Year in question but who was a Key Employee in a Prior Year, or (ii) has not completed an Hour of Service during the five-year -43- 47 period ending on the Determination Date, shall not be taken into account. The determination of whether the Plan is a Top-Heavy Plan shall be made after aggregating all other plans of an Employer and any Affiliated Company qualifying under Section 401(a) of the Code in which a Key Employee is a participant or which enables such a plan to meet the requirements of Section 401(a)(4) or 410 of the Code, and after aggregating any other plan of an Employer or Affiliated Company, which is not already aggregated, if such aggregation group would continue to meet the requirements of Sections 401(a)(4) and 410 of the Code and if such permissive aggregation thereby eliminates the top-heavy status of any plan within such permissive aggregation group. The determination of whether this Plan is a Top-Heavy Plan shall be made in accordance with Section 416(g) of the Code. (b) "Determination Date" means, for purposes of determining whether the Plan is a Top-Heavy Plan for a particular Plan Year, the last day of the preceding Plan Year. (c) "Key Employee" means any Employee or former Employee (including a beneficiary of such Employee or former Employee) who at any time during the Plan Year or any of the four preceding Plan Years is: (1) an officer of the Employer who has Testing Compensation for any such Plan Year greater than 50% of the amount in effect under Section 415(b)(1)(A) of the Code for such Plan Year; (2) one of the 10 Employees owning (or considered as owning within the meaning of Section 318 of the Code) the largest interests in excess of 0.5% in an Employer or Affiliated Company and having Testing Compensation for such Plan Year of more than the limitation in effect under Section 415(c)(1)(A) of the Code; -44- 48 (3) a person owning (or considered as owning within the meaning of Section 318 of the Code) more than 5% of the outstanding stock of an Employer or stock possessing more than 5% of the total combined voting power of all stock of an Employer; or (4) a person who has Testing Compensation for such Plan Year from an Employer of more than $150,000 and who would be described in paragraph (3) hereof if 1% were substituted for 5% in each place it appears in such paragraph. For the purposes of applying Section 318 of the Code to this subsection (c), subparagraph (C) of Section 318(a)(2) of the Code shall be applied by substituting 5% for 50%. The rules of subsections (b), (c) and (m) of Section 414 of the Code shall not apply for purposes of determining ownership in an Employer under this subsection (c). (d) "Non-Key Employee" means any Employee or former Employee (including a beneficiary of such Employee or former Employee) who is not a Key Employee. Section 10.2 Minimum Contribution Requirement. Any provision of the Plan to the contrary notwithstanding, if the Plan is a Top-Heavy Plan for any Plan Year beginning after December 31, 1983, then the Employers shall contribute to the Employer Basic Matching Contribution Account of each Participant who is a Non-Key Employee in the employ of an Employer on the last day of the Plan Year, an amount which, when added to the total amount of Employer contributions and forfeitures otherwise allocable under the Plan to such Participant for such year, shall equal the lesser of (a) 3% of the Limitation Compensation received by such Participant while a Participant during such year or (b) the percentage of Limitation Compensation contributed by an Employer for the Key Employee for whom such percentage is the highest for the Plan Year after taking into account -45- 49 contributions under other defined contribution plans maintained by the Employer in which a Key Employee is a participant (as well as any other plan of an Employer which enables such a plan to meet the requirements of Section 401(a)(4) or 410 of the Code); provided, however, that no minimum contribution shall be made for a Participant under this Section for any Plan Year if the Employer maintains another qualified plan under which a minimum benefit or contribution is being accrued or made for such Plan Year for the Participant in accordance with Section 416(c) of the Code. In the event the Plan is a Top-Heavy Plan within the meaning of Section 10.1(a), amounts contributed to the Participant Tax-Deferred Contribution Accounts of Key Employees shall be included in determining contributions made on behalf of Key Employees. IN WITNESS WHEREOF, this Plan has been executed at Houston, Texas, this 16th day of November, 1994, to be effective as of January 1, 1994. THE WESTERN COMPANY OF NORTH AMERICA By:________________________________ Title: -46- EX-4.6 3 AMEND #1 TO WESTERN RETIREMENT PLAN 1 EXHIBIT 4.6 AMENDMENT NO. 1 TO THE WESTERN COMPANY RETIREMENT SAVINGS PLAN Pursuant to the provisions of Section 8.1 thereof, The Western Company Retirement Savings Plan as amended and restated effective as of January 1, 1994 (the "Plan"), is hereby amended in the following respect only: Section 5.3 of the Plan is hereby amended by restatement in its entirety to read as follows: Section 5.3 Voting of Company Stock. All Company Stock held in the Trust shall be voted by the Trustee acting in its absolute discretion. IN WITNESS WHEREOF, this Amendment has been executed to be effective this 9th day of March, 1995. THE WESTERN COMPANY OF NORTH AMERICA By /s/ Graham L. Adelman ----------------------------------- Title: EX-4.7 4 SECOND AMEND TO WESTERN RETIREMENT PLAN 1 EXHIBIT 4.7 SECOND AMENDMENT TO THE WESTERN COMPANY RETIREMENT SAVINGS PLAN WHEREAS, BJ SERVICES COMPANY ("BJ Services"), as successor to THE WESTERN COMPANY OF NORTH AMERICA ("Western"), has heretofore adopted THE WESTERN COMPANY RETIREMENT SAVINGS PLAN (the "Plan") for the benefit of its eligible employees; and WHEREAS, BJ Services desires to transfer sponsorship of the Plan to BJ SERVICES COMPANY, U.S.A (the "Company") and to amend the Plan in certain other respects; NOW, THEREFORE, subject to the consummation of the merger of Western with and into BJ Services, the Plan shall be amended as follows, effective April 13, 1995: 1. Paragraphs (d), (e), and (f) of Section 1.1 of the Plan shall be deleted and the following shall be substituted therefor: "(d) 'Committee' means the Benefits Committee established by the President of the Company. (e) 'Company' means BJ Services Company, U.S.A. (f) 'Company Stock' means the common stock of BJ Services Company." 2. The following shall be added to the end of Section 1.1(g) of the Plan: "Notwithstanding the foregoing or any other provision in the Plan to the contrary, the following Employees shall not be eligible to become Participants in the Plan (or resume active participation in the Plan (other than for the limited purposes set forth in Section 6.5(b))): (1) any Employee who was not employed by The Western Company of North America ("Western") or any of its subsidiaries immediately prior to the effective time (the "Effective Time") of the merger of Western with and into BJ Services Company and (2) any Employee who was employed by Western or any of its subsidiaries immediately prior to the Effective Time but who subsequently terminated his employment and became reemployed by an Employer or an Affiliated Company." 3. The second sentence of Section 6.1 of the Plan shall be deleted and the following shall be substituted therefor: 2 "All cash dividends, stock dividends, stock splits, and other proceeds received by the Trustee with respect to Company Stock previously credited to a particular Account shall be credited to that particular Account upon receipt by the Trustee." 4. Section 7.1 of the Plan shall be deleted and the following shall be substituted therefor: "Section 7.1 Committee. The Plan shall be administered on behalf of all Employers by the Committee which shall be established by the President of the Company and shall consist of one or more persons. At any time during his term of office, and for any reason, a member of the Committee may be removed by the President of the Company. Any member of the Committee who is an Employee shall automatically cease to be a member of the Committee as of the date he ceases to be employed by the Employer or an Affiliated Company. The members of the Committee shall not receive compensation with respect to their services for the Committee." 5. As amended hereby the Plan is specifically ratified and reaffirmed. IN WITNESS WHEREOF, the undersigned has caused these presents to be executed on this 10th day of April, 1995. BJ SERVICES COMPANY BY: /s/ Michael McShane ---------------------------------- Michael McShane Vice President-Finance, Chief Financial Officer BJ SERVICES COMPANY, U.S.A. BY: /s/ Michael McShane ---------------------------------- Michael McShane Vice President-Finance EX-4.8 5 AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT 1 EXHIBIT 4.8 AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT 2
Article Table of Contents - ------- ----------------- FIRST Acceptance of Property; Directed Accounts . . . . . . . . . . . . . . . . 2 SECOND Investment Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THIRD Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FOURTH Administrative Powers . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FIFTH Guaranteed Income Contracts . . . . . . . . . . . . . . . . . . . . . . . 8 SIXTH Fiduciary Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SEVENTH Prohibition of Diversion . . . . . . . . . . . . . . . . . . . . . . . . 10 EIGHTH Hold Harmless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 NINETH Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 TENTH Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ELEVENTH Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 12 TWELFTH Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 12 THIRTEENTH Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 FOURTEENTH Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 FIFTEENTH Plan-to-Plan Transfers; Rollovers . . . . . . . . . . . . . . . . . . . . 14 SIXTEENTH Adopting Employers . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SEVENTEENTH Alienation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 EIGHTEENTH Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 NINETEENTH Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 TWENTIETH Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 TWENTYFIRST Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-i- 3 AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT WHEREAS, effective as of July 1, 1992, The Western Company of North America hereinafter referred to as the "Company", adopted the Western Company Retirement Savings Plan, hereinafter referred to as the "Plan", for the purpose of providing retirement and related benefits to eligible employees of the Company and their beneficiaries; and WHEREAS, the Administrative Committee, the members of which are "named fiduciaries" as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (which named fiduciaries are hereinafter referred to as the "Committee") has general responsibility for administration of the Plan and for reviewing the investment performance of the Trustee thereunder; and WHEREAS, the Plan calls for the establishment of a trust to which contributions are to be made by the Company to be held by the Trustee and to be managed, invested and reinvested for the exclusive benefit of participants of the Plan and their beneficiaries; and WHEREAS, the Plan and trust are intended to qualify as a plan and trust which meet the applicable requirements of Section 401(a) and 501(a) of the Internal Revenue Code of 1986, as amended, hereinafter referred to as the "Code"; and WHEREAS, on April 1, 1981, the Company entered into an agreement of trust, hereinafter referred to as the "Trust", with FIRST NATIONAL BANK OF FORT WORTH, and now wishes to enter into an Agreement of Trust with UNITED STATES TRUST COMPANY OF NEW YORK, a corporation organized and existing under the laws of the State of New York, having its principal place of business at 114 West 47th Street, New York, New York, hereinafter referred to as the "Trustee"; and WHEREAS, the Company retained the right in the Trust to amend the same; provided, however, that any amendment changing the duties and liabilities of the Trustees will not be effective unless the Trustees consent thereto in writing; and -1- 4 WHEREAS, the Company now desires to amend and restate the Trust in its entirety; and NOW, THEREFORE, the Company, with the consent of the Trustees, hereby amends and restates the Trust Agreement in its entirety as follows: FIRST: Acceptance of Property: The Trustee shall accept such cash and other property as is tendered to it as contributions hereunder, and as is acceptable to it, hereinafter referred to as the "Trust Fund", but shall not be under any duty to require the Company or any other adopting employer to contribute to the Trust Fund or to determine whether the amount of any contribution has been correctly computed under the terms of the Plan. In no event shall the Trustee be considered a party to the Plan. The Trustee shall have only such duties with respect to the Plan as are set forth in this agreement. SECOND: Investment Powers. The Trustee shall invest and reinvest the principal and income of the Trust Fund, without distinction between principal and income, in such securities or other property, real or personal, within or without the United States, as it in its sole discretion shall deem proper including, without limitation, interests and part interests in any bond and mortgage or note and mortgage and interests and part interests in certificates of deposit, commercial paper and other short-term or demand obligations, secured or unsecured, whether issued by governmental or quasi-governmental agencies or corporations or by any firm or corporation, capital, common and preferred, voting and nonvoting stock (regardless of dividend or earnings record), warrants, options (including options written by the Company), puts, calls, straddles, spreads, voting trust certificates, equipment trust and receivers, certificates, fractional oil and gas and mineral interests, timber rights, and all other forms of private and governmental securities (both foreign and domestic) including an employer security, as such term is defined in Section 407(d) of ERISA, or in any fund created and administered by it as the trustee thereof for the collective investment of the assets of employee benefit trusts, as long as such collective investment fund is a qualified trust under the applicable provisions of the Code and while any portion of the Trust Fund is so invested, such collective investment fund shall constitute part of the Plan, and the instrument creating such fund shall constitute part of this agreement. The Trustee may in its sole discretion keep such portion of the Trust Fund in cash and cash balances or hold all or any portion of the Trust Fund in savings accounts, certificates of deposit, -2- 5 and other types of time or demand deposits with any financial institution or quasi-financial institution, either domestic or foreign (including any such institution operated or maintained by the Trustee in its corporate capacity) as the Trustee may from time to time determine to be in the best interests of the Trust Fund. Notwithstanding the foregoing, unless otherwise authorized by ERISA or by regulations promulgated by the Secretary of the Department of Labor, the Trustee shall maintain the indicia of ownership of all securities or other investments within the jurisdiction of the District Courts of the United States. To the maximum extent permitted by law, the Trustee shall not be liable for the acquisition, retention or disposition of any assets of the Trust Fund or for any loss to or diminution of such assets unless due to the Trustee's own willful misconduct or failure to act in good faith. The Committee may appoint an "investment manager", as defined in Section 3(38) of ERISA. Any investment manager so appointed shall be (i) an investment adviser registered as such under the Investment Advisers Act of 1940 (the "Act"), (ii) a "bank" (as defined in the Act) or (iii) an insurance company qualified to perform investment management services under the laws of more than one state of the United States. The Committee shall notify the Trustee of any such appointment by delivering to the Trustee an executed copy of the instrument under which the investment manager is appointed and evidencing the investment manager's acceptance of such appointment, an acknowledgment by the investment manager that it is a fiduciary of the Plan, and a certificate evidencing the investment manager's current registration under the Investment Advisors Act of 1940 or other appropriate qualification. The Committee shall specify to the Trustee the portion of the Trust Fund which shall be subject to such investment management. The Trustee shall invest and reinvest the portion of the Trust Fund subject to such investment management only to the extent and in the manner directed by the investment manager in writing. During the term of such appointment, the Trustee shall have no liability for the acts or omissions of such investment manager, and except as provided in the preceding sentence, shall be under no obligation to invest or otherwise manage the portion of the Trust Fund subject to such investment management. The Trustee may maintain separate accounts within the Trust Fund for the assets of the Trust Fund subject to such investment management. The Committee may terminate its appointment of an investment manager at any time and shall notify the Trustee in writing of such termination. To the maximum extent permitted by -3- 6 ERISA the Trustee shall be protected in assuming that the appointment of an investment manager remains in effect until it is otherwise notified in writing by the Committee. In the event that the investment manager appointed hereunder is a bank or a trust company, or an affiliate of a bank or a trust company, the Trustee shall, upon the direction of the Committee, transfer funds to such bank, trust company, or affiliate for investment through the medium of any fund created and administered by such bank, trust company, or affiliate, acting as trustee therefor, for the collective investment of the assets of employee benefit trusts, provided that such fund is qualified under the applicable provisions of the Code and while any portion of the assets are so invested, such fund shall constitute part of the applicable plan or plans, and the instrument creating such fund shall constitute part of this Trust. In order to implement the provisions of this paragraph, the Trustee is authorized to enter into any required ancillary trust, agency or other type of agreement with an investment manager, or its affiliate, as described in the preceding sentence. THIRD: Payments. Subject to the provisions of Article FOURTEENTH hereof, the Trustee shall from time to time transfer cash or other property from the Trust Fund to such persons, including an insurance company or companies or a paying agent designated by the Committee, at such addresses, in such amounts, for such purposes and in such manner as the Committee may direct, provided that such transfer is administratively feasible, and the Trustee shall incur no liability for any such payment made at the direction of the Committee. The Committee shall be solely responsible to insure that any payment made at its direction conforms with the provisions of the Plan, the provisions of this agreement, and ERISA, and the Trustee shall have no duty to determine the rights or benefits of any person in the Trust Fund or under the Plan or to inquire into the right or power of the Committee to direct any such payment. FOURTH: Administrative Powers. The Trustee is authorized to exercise from time to time in its sole discretion the following powers in respect of any property, real or personal, of the Trust Fund, it being intended that these powers be construed in the broadest possible manner: (1) power to sell at public or private sale for cash or upon credit or partly for cash and partly upon credit and upon such terms and conditions as it shall deem proper. No purchaser shall be bound to see to or be liable for the application of the proceeds of any such sale; -4- 7 (2) power to exchange securities or property held by it for other securities or property, or partly for such securities or property and partly for cash, and to exercise conversion, subscription, option and similar rights with respect to securities held by it, and to make payments in connection therewith; (3) power to write put options upon any kind of evidences of ownership or indebtedness, or contracts for the future delivery of evidences of ownership or indebtedness, and to enter into closing transactions for the purpose of terminating the same; provided that each such option shall be of a kind traded on a national securities exchange subject to regulation by the Securities and Exchange Commission; and further provided that the Trustee has set aside cash or cash equivalents in an amount equal to the exercise price of such options or has established put or futures contract positions offsetting such options; (4) power to write call options upon any kind of evidences of ownership or indebtedness or contracts for the future delivery of evidences of ownership or indebtedness, or to write such call options against offsetting call options or futures contracts held in the Trust Fund, or cash, cash equivalents, or other readily marketable assets equal in value, determined on a daily basis, to the evidences of ownership or indebtedness subject thereto, and to enter into closing transactions for the purpose of terminating the same; provided that each such option shall be of a kind traded on a national securities exchange subject to regulation by the Securities and Exchange Commission; (5) power to invest in contracts for the future delivery of United States Treasury bills, other financial instruments or securities of any kind, or indexes based on any group of securities, provided that each such future contract shall be of a kind traded on a national securities exchange subject to regulation by the Securities and Exchange Commission; (6) power to vote in person or by proxy at corporate or other meetings and to participate in or consent to any voting trust, reorganization, dissolution, merger or other action affecting securities in its possession or the issuers thereof, and to make payments in connection therewith; (7) power to own or to manage, administer, operate, lease for any number of years, regardless of any restrictions on leases made by fiduciaries except restrictions imposed -5- 8 by ERISA, develop, improve, repair, alter, demolish, mortgage, pledge, grant options with respect to, or otherwise deal with any real property or interest therein at any time held in the Trust Fund, to hold any such real property in its own name or in the name of its nominee, with or without the addition of words indicating that such property is held in a fiduciary capacity, and to cause to be formed a corporation, partnership, trust or other entity to hold title to any such real property with the aforesaid powers, all upon such terms and conditions as may be deemed advisable; to renew or extend or participate in the renewal or extension of any mortgage, and to agree to a reduction in the rate of interest on any mortgage or to any other modification or change in the terms of any mortgage or of any guarantee pertaining thereto, in any manner and to any extent that may be deemed advisable for the protection of the Trust Fund or the preservation of any covenant or condition of any mortgage or in the performance of any guarantee, or to enforce any default in such manner and to such extent as may be deemed advisable; and to exercise and enforce any and all rights of foreclosure, to bid on any property on foreclosure, to take a deed in lieu of foreclosure with or without paying a consideration therefor and in connection therewith to release the obligation on the bond secured by such mortgage, and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect of any such mortgage or guarantee; (8) power to acquire, hold or dispose of property in unregistered form, or in its name without designation of fiduciary capacity, or in the name of its nominee or any custodian, and to the extent permitted by ERISA, to combine certificates representing investments with certificates representing investments of the same issue held by the Trustee in other fiduciary capacities, and to deposit property in a depository or clearing corporation or with the federal reserve bank in its district; (9) power to compromise and adjust all debts or claims due to or made against it, to participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan or any action thereunder, or any contract, lease, mortgage, purchase, sale or other action by any corporation or other entity; (10) power to borrow money from any lender, in accordance with ERISA, in any amount and upon any reasonable terms and conditions, for purpose of this agreement, and to -6- 9 pledge or mortgage any property held in the Trust Fund to secure the repayment of any such loan; (11) power to deposit any such property with any protective, reorganization or similar committee; to delegate discretionary power to any such committee; and to pay part of the expenses and compensation of any such committee and any assessments levied with respect to any property so deposited; (12) power to exercise any conversion privilege or subscription right available in connection with any such property; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association, or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may at any time be held in the Trust Fund and to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payments of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith and to hold and retain any securities or other property which it may so acquire; (13) power to make distributions in cash or in specific property, real or personal, or an undivided interest therein, or partly in cash and partly in such property; (14) power to engage legal counsel, including counsel to the Company or the Trustee in its individual capacity, and any other suitable agents, and to consult with such counsel or agents with respect to the construction of this agreement, the administration of the Trust Fund, and the duties of the Trustee hereunder; (15) power to commence or defend suits or legal proceedings and to represent the Trust in all suits or legal proceedings; to settle, compromise or submit to arbitration any claims, debts or damages due or owing to or from the Trust, provided that the Trustee shall notify the Committee of all such suits, legal proceedings and claims and, except in the case of a suit, legal proceeding or claim involving solely the Trustee's action or omissions to act, shall obtain the written consent of the Committee before settling, compromising or submitting to binding arbitration any claim, suit or legal proceeding of any nature whatsoever; -7- 10 (16) power, upon the written direction of the Committee, to enter into any contract or policy with an insurance company or companies, for the purpose of insurance coverage or otherwise, provided that, except as provided in Article THIRD, the Trustee shall be the sole owner of all such contracts or policies and all such contracts or policies shall be held as assets of the Trust Fund; (17) power to make, execute and deliver, as Trustee, any and all deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts, waivers, releases or other instruments in writing necessary or proper for the accomplishment of any of the foregoing powers; (18) power to transfer assets of the Trust Fund to a successor trustee as provided, in Article TWELFTH; and (19) power to exercise, generally, any of the powers which an individual owner might exercise in connection with property either real, personal or mixed held by the Trust Fund, and to do all other acts that the Trustee may deem necessary or proper to carry out any of the powers set forth in this Article FOURTH or otherwise in the best interests of the Trust Fund. Notwithstanding the foregoing, in the event that an investment manager is appointed pursuant to Article SECOND hereof, such investment manager shall exercise such of the powers enumerated in this Article FOURTH and otherwise contained in this agreement with respect to the portion of the Trust Fund subject to its control as may be specified in the instrument under which the investment manager was appointed. FIFTH: Guaranteed Income Contracts. The Trustee may, at the direction of the Committee, (i) enter into one or more contracts with legal reserve life insurance companies, the rate of return from which is fixed by the terms of such contracts, (ii) transfer to any such insurance companies a portion of the Trust Fund in accordance with any such contracts, and (iii) hold any such contracts as a part of the Trust Fund until directed otherwise by the Committee. The Committee shall give such direction to the Trustee by delivering to the Trustee a copy of the action of the Committee signed by at least two members thereof, which shall specifically refer to this Article FIFTH and direct the Trustee to so act. The Committee may direct the Trustee to (i) request any information from any -8- 11 such insurance companies necessary or appropriate to make an investment decision, (ii) demand or accept withdrawals or other distributions under any such contracts, (iii) exercise or not to exercise any rights, powers, privileges and options under any such contracts and (iv) assign, amend, modify or terminate any such contracts. The Trustee shall take no action with respect to any such contracts except at the direction of the Committee. The Trustee shall incur no liability for complying with or failing to comply with any direction of the Committee unless the Trustee's action is prima facie contrary to ERISA or contrary to the Trustee's duties and responsibilities under this agreement. Any insurance companies issuing any contracts as hereinabove described may deal with the Trustee as the absolute owner of any such contracts and need not inquire as to the authority of the Trustee to act with regard to such contracts. Any such insurance company may accept and rely upon any communication from the Trustee which is signed by an officer of the Trustee. For purposes of this agreement, any such insurance company shall be considered to be an investment manager with regard to the assets of the Plan subject to its control. In no event shall the underlying assets of such insurance company in which such contracts are invested be considered assets of the Plan or part of the Trust Fund. SIXTH: Fiduciary Standards. The Trustee (or any investment manager appointed pursuant to Article SECOND hereof) shall (i) discharge its duties hereunder with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (ii) subject to the investment funds specified in the Plan, if any, to the extent required by ERISA diversify the investments of the Trust so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (iii) discharge its duties in accordance with the provisions of the Plan and this agreement insofar as such provisions are consistent with ERISA. The Trustee (or any investment manager appointed pursuant to Article SECOND hereof) shall not engage in any transaction which it knows or should know violates Section 406 of ERISA. Notwithstanding the foregoing, the Trustee (or any investment manager appointed pursuant to Article SECOND hereof) may, in accordance with any appropriate exemption provided under -9- 12 ERISA or upon the approval of the Secretary of the Department of Labor, enter into any transaction otherwise prohibited under Section 406 of ERISA. The Trustee shall not be responsible for the administration of the Plan, for determining the funding policy of the Plan or the adequacy of the Trust Fund to meet and discharge liabilities under the Plan. The Trustee shall not be responsible for any failure of the Committee or the Company to discharge any of their respective responsibilities with respect to the Plan nor be required to enforce payment of any contributions to the Trust Fund. SEVENTH: Prohibition of Diversion. (a) At no time prior to the satisfaction of all liabilities with respect to participants in the Plan and their beneficiaries shall any part of the corpus or income of the Trust Fund be used for, or diverted to, purposes other than for the exclusive benefit of such participants and their beneficiaries. Except as provided in paragraphs (b), (c) and (d) below, and Article THIRTEENTH, the assets of the Trust Fund shall never inure to the benefit of the Company and shall be held for the exclusive purpose of providing benefits to participants in the Plan and their beneficiaries. (b) In the case of a contribution that is made by the Company by a mistake of fact, paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee within one year after the payment of the contribution. (c) If a contribution by the Company is expressly conditioned on qualification of the Plan under Section 401 of the Code, and if the Plan does not so quality, then paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee within one year after the date of denial of qualification of the Plan, to the extent permitted by ERISA and the Code. (d) If a contribution by the Company is expressly conditioned upon the deductibility of the contribution under Section 404 of the Code, then to the extent such deduction is disallowed, paragraph (a) above shall not prohibit the return to the Company of such contribution at the direction of the Committee, to the extent disallowed, within one year after the date of such disallowance. EIGHTH: Hold Harmless. To the maximum extent permitted by ERISA and other applicable law, the Trustee shall not be liable for and the Company shall indemnity the Trustee against, -10- 13 and agrees to hold the Trustee harmless from, all liabilities and claims (including attorney's fees and expenses in defending against such liabilities and claims) against the Trustee, arising from the Trustee's performance of its duties in conformance with the terms of the Plan and this Agreement, including any liability and claim arising with regard to the provisions of Article SECOND, unless such liability or claim results from reckless or willful acts of commission or omission by the Trustee. To the maximum extent permitted by ERISA and other applicable law, the Trustee shall not be liable for acting or not acting in accordance with any written direction of the Committee or an investment manager designated under Article SECOND, or, where an investment manager has been designated, failing to act in the absence of any such direction, including, without limitation, any claim or liability that may be asserted against the Trustee on account of failure to receive securities purchased, or failure to deliver securities sold pursuant to orders issued by an investment manager and the Company shall indemnity the Trustee against and agrees to hold the Trustee harmless from, all such liabilities and claims (including attorney's fees and expenses in defending against such liabilities and claims). The foregoing indemnifications shall also apply to liabilities and claims against the Trustee arising from any breach of fiduciary responsibility by a fiduciary other than the Trustee, unless the Trustee (i) participates knowingly in or knowingly undertakes to conceal such breach, (ii) has enabled such fiduciary to commit such breach by its failure to exercise its fiduciary duties under ERISA or (iii) has actual knowledge of such breach and fails to take reasonable remedial action to remedy such breach. NINTH: Accounts. The Trustee shall keep records of all transactions relating to the Trust Fund, which shall be made available at all reasonable times to persons designated by the Administrative Committee or as may be required by law. The Trustee shall render an accounting to the Company and the Committee at least annually. The Committee may approve such account on behalf of itself and the Company by an instrument in writing delivered to the Trustee. If the Committee does not file with the Trustee objections to any such account within 120 days after its receipt, the Committee shall be deemed to have approved such account on behalf of itself and the Company. In such case, or upon the written approval of the Committee of any such account, the Trustee shall, to the extent permitted by law, be discharged from all liability to the Committee and the Company for its acts or failures to act described in such account. Except to the extent otherwise provided in ERISA, no person, other than the Company or the Committee, may require an accounting -11- 14 or bring any action against the Trustee with respect to the Trust Fund. The Trustee shall render to the Committee, at least quarterly, a statement of the Trust Fund assets and their values and, whenever a contribution is made to the Trust Fund other than in cash, a statement of the value of such property on the date it is received by the Trustee. Nothing contained in this agreement or in the Plan shall deprive the Trustee of the right to have a judicial settlement of its accounts. In any proceeding for a judicial settlement of the Trustee's accounts, or for instructions with regard to the Trust, the only necessary parties thereto in addition to the Trustee shall be the Committee. If the Trustee so elects, it may join as a party or parties defendant any other person or persons. TENTH: Committee. The Company shall certify to the Trustee the names of the persons from time to time constituting the Committee. All directions to the Trustee by the Committee shall be in writing, and shall be properly certified by a member thereof (or two members thereof if Article FIFTH is applicable). The Trustee shall be entitled to rely without further inquiry upon all such written directions received from the Committee. ELEVENTH: Compensation and Expenses. The Trustee shall be entitled to receive such reasonable compensation for its services as may be agreed upon from time to time by the Company and the Trustee. Unless paid by the Company, such compensation, reasonable attorneys' fees incurred in the administration of the Trust Fund, all taxes levied or assessed against the Trust Fund, and such other expenses as are reasonably incurred in the administration of the Trust Fund shall be paid from the Trust Fund. TWELFTH: Resignation of Trustee. The Trustee may resign at any time by giving thirty (30) days written notice to the Company. The Board of Directors of the Company may remove the Trustee at any time by giving thirty (30) days' written notice to the Trustee. In the case of the resignation or removal of the Trustee, the Board of Directors of the Company shall appoint a successor trustee who shall have the same powers and duties as those conferred upon the Trustee. Upon the resignation or removal of the Trustee and the appointment of a successor trustee, the Trustee shall account for the administration of the Trust Fund up to the date of its resignation or removal in the manner provided in Article NINTH hereof and, upon the approval or deemed approval of such account, the Trustee shall transfer to the successor trustee all of the assets then constituting -12- 15 the Trust Fund and the Trustee shall to the maximum extent permitted by ERISA be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions; provided, however, that the Trustee may, in its sole discretion, transfer such assets prior to the completion of such accounting if the Company agrees thereto in writing, such writing to include such limitations on the Trustee's liability therefor as the Trustee may deem appropriate. The term "Trustee" as used in this agreement shall be deemed to apply to any successor trustee acting hereunder. THIRTEENTH: Amendment. The Board of Directors of the Company may amend all or part of this agreement at any time provided, however, that any amendment shall not be effective until the instrument of amendment has been agreed to and executed by the Trustee. Any such amendment or modification of this agreement may be retroactive if necessary or appropriate to quality or maintain the Trust as a part of a plan and trust exempt from Federal income taxation under Sections 401(a) and 501(a) of the Code, the provisions of ERISA, or any other applicable provisions of Federal or state law, as now in effect or hereafter amended or adopted, and any regulations issued thereunder, including, without limitation, any regulations issued by the United States Treasury Department, or the United States Department of Labor. Notwithstanding anything contained in this Article THIRTEENTH to the contrary, no amendment shall divert any part of the Trust Fund to, and no part of the Trust Fund shall be used for, any purpose other than for the exclusive purpose of providing benefits to participants and their beneficiaries; provided, however, that nothing in this Article THIRTEENTH shall be deemed to limit or otherwise prevent the payment from the Trust Fund of expenses and other charges as provided in Article ELEVENTH. FOURTEENTH: Termination. This agreement and the trust hereby created may be terminated at any time by the Board of Directors of the Company by written notice, executed and acknowledged so as to authorize it to be recorded in the State of New York and delivered to the Trustee. Upon receipt of such notice of termination, the Trustee shall, after payment of all expenses incurred in the administration of the Trust Fund and such compensation as the Trustee may be entitled to, and upon approval of the appropriate governmental or quasi-governmental authorities (if such approval shall be required under applicable law or desired by the Trustee), then distribute the Trust -13- 16 Fund in cash or in kind to such persons or entities, including the Company, at such time and in such amounts as the Committee shall direct, which direction shall be in conformity with the provisions of the Plan and ERISA. FIFTEENTH: Plan-To-Plan Transfers: Rollovers. The Trustee may transfer all of the property representing a participant's vested interest in the Plan to the trustees of any trust qualified under Section 401(a) of the Code. The Trustee may make such a transfer only at the direction of the Committee. The Trustee may accept as part of the Trust Fund such property as is acceptable to the Trustee which represents a participant's retirement benefits transferred from a trust qualified under Section 401(a) of the Code or transferred from the participant or an individual retirement account as a permissible rollover under Section 402(a)(5) or 408(d)(3) of the Code. The Trustee may accept such a transfer only at the direction of the Committee. The amount of such benefits shall at all times be separately accounted for by the Company. A participant shall at all times be fully vested in any property so transferred as a rollover to the Trust Fund. Such property shall be distributed to the participant or his beneficiary at the direction of the Committee within the time required for distribution of his retirement benefits under the applicable provisions of the Plan. SIXTEENTH: Adopting Employers. An affiliated corporation of the Company which has adopted the Plan in accordance with its terms shall become a party to this agreement by delivering to the Company and the Trustee a certified copy of a resolution of its board of directors to the effect that it agrees to adopt the Plan, to become a party to this agreement, and to be bound by all the terms and conditions of the Plan and this Agreement. The Company shall have the sole authority to enforce this agreement on behalf of any such affiliated corporation and the Trustee shall in no event be required to deal with any such affiliated corporation except by dealing with the Company as its agent. Irrespective of the number of affiliated corporations which may become parties to this agreement, the Trustee shall in all respects invest and administer the Trust Fund as a single fund for investment and accounting purposes without allocation of any part of the Trust Fund as between the Company and any such affiliated corporation. An affiliated corporation which has adopted the Plan shall cease to be a party to this agreement upon the Company delivering to the Trustee a certified copy of a resolution of such -14- 17 affiliated corporation's board of directors terminating its participation in the Plan. In such event, or in the event of the merger, consolidation, sale of property or stock, separation, reorganization or liquidation of the Company or of any such affiliated corporation, or in the event of the establishment, modification or continuance of any other retirement plan which separately or in conjunction with this Plan qualifies under Section 401(a) of the Code, the Trustee shall continue to hold the portion of the Trust Fund which is attributable to the participation in the Plan of the employees and their beneficiaries affected by such termination or by such transaction, and this agreement shall continue in force with respect to such portion, until otherwise directed by the Committee, in accordance with the provisions of the Plan and ERISA. SEVENTEENTH: Alienation. No interest in the Trust Fund shall be assignable or subject to anticipation, sale, transfer, mortgage, pledge, charge, garnishment, attachment, bankruptcy or encumbrance or levy of any kind, and the Trustee shall not recognize any attempt to assign, sell, transfer, mortgage, pledge, charge, garnish, attach or otherwise encumber the same except to the extent that such attempt is made pursuant to a court order determined by the plan administrator to be a qualified domestic relations order, as defined in Section 414 of the Code and Section 206 of ERISA. EIGHTEENTH: Bond. The Trustee shall not be required to give any bond or any other security for the faithful performance of its duties under this agreement except as required by law. NINETEENTH: Successors. This agreement shall be binding upon the respective successors and assigns of the Company and the Trustee. Any corporation which shall, by merger, consolidation, purchase or otherwise, succeed to substantially all the trust business of the Trustee shall, upon such succession, and without any appointment or other action by any person, be and become successor Trustee hereunder. TWENTIETH: Communications. Communications to the Company or the Committee shall be addressed to the Company, or to the Committee in care of the Company, as the case may be, at THE WESTERN COMPANY OF NORTH AMERICA, 515 Post Oak Boulevard, Suite 1200, Houston, Texas 77027; provided, however, that upon the Company's written request such communications shall be sent to such other address as the Company may specify. -15- 18 Communications to the Trustee shall be addressed to: United States Trust Company of New York 114 West 47th Street New York, NY 10036 Attention: Peter C. Arrighetti provided; however, that upon the Trustee's written request, such communications shall be sent to such other address as the Trustee may specify. No communication shall be binding on the Trustee until it is received by the Trustee. TWENTY FIRST: Governing Law. This agreement shall be construed in accordance with ERISA and, to the extent not preempted by ERISA, the laws of the State of New York. IN WITNESS WHEREOF the Company, the Trustee and the Prior Trustees have executed this instrument as of the 1st day of July, 1992. ATTEST: /S/ Yvette Santiesteban By: /S/ Graham L. Adelman - --------------------------------------------- ----------------------------------------------- Title: Compensation/Benefits Admin. Title: Senior Vice President ATTEST: UNITED STATES TRUST COMPANY OF NEW YORK /S/ J.C. Webster By: /S/ Peter C. Arrighetti - --------------------------------------------- ----------------------------------------------- Title: Title: Vice President U.S. Trust Co. of New York 114 West 47th Street (Corporate Seal) New York, NY 10036
-16- 19 STATE OF NEW YORK ) :ss.: COUNTY OF NEW YORK ) On the day of July 1, 1992 before me personally came Graham L. Adelman, to me known, who being by me duly sworn, did depose and say that he resides at 515 Post Oak Blvd.; that he is Senior Vice President of The Western Co. of N. America, the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation, that the seal affixed to said instrument is such corporate seal, that it was so affixed by order of the Board of Directors of said corporation; and that he signed his name thereto by like order of the partnership. /S/ Virginia S. Everett --------------------------- Notary Public (Notarial Seal) -17- EX-4.9 6 FIRST AMENDMENT TO THE AMENDMENT AND RESTATEMENT 1 EXHIBIT 4.9 FIRST AMENDMENT TO THE AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT WHEREAS, BJ SERVICES COMPANY ("BJ Services"), as successor to THE WESTERN COMPANY OF NORTH AMERICA ("Western"), has become a successor party to that certain AMENDMENT AND RESTATEMENT OF TRUST AGREEMENT (the "Trust Agreement") dated July 1, 1992 pursuant to which United States Trust Company of New York serves as trustee of the trust established in connection with The Western Company Retirement Savings Plan; and WHEREAS, BJ Services desires to assign its rights, duties and obligations under the Trust Agreement to BJ SERVICES COMPANY, U.S.A. (the "Company") and amend the Trust Agreement in certain other respects; NOW, THEREFORE, subject to the consummation of the merger of Western with and into BJ Services, the Trust Agreement shall be amended as follows, effective April 13, 1995: 1. BJ Services hereby assigns all of its rights, duties and obligations under the Trust Agreement to the Company. Accordingly, the term "Company" in the Trust Agreement shall mean BJ Services Company, U.S.A. 2. The first sentence of Article TWENTIETH of the Trust Agreement shall be deleted and the following shall be substituted therefor: "Communications to the Company or the Committee shall be addressed to the Company, or to the Committee in care of the Company, as the case may be, at BJ Services Company, U.S.A., 5500 Northwest Central Drive, Houston, Texas 77092; provided, however, upon the Company's written request such communications shall be sent to such other address as the Company may specify." 3. As amended hereby the Trust Agreement is specifically ratified and reaffirmed. EX-5.1 7 OPINION OF ANDREWS & KURTH L.L.P. 1 EXHIBIT 5.1 April 13, 1995 Board of Directors BJ Services Company 5500 Northwest Central Drive Houston, Texas 77092 Re: Registration Statement on Form S-8 The Western Company Retirement Savings Plan, as amended Gentlemen: We have acted as special counsel for BJ Services Company, a Delaware corporation (the "Company"), in connection with the Company's Registration Statement on Form S-8, dated April 13, 1995 (the "Registration Statement"), relating to the registration under the Securities Act of 1933, as amended, of the offering of up to 60,000 shares of common stock (the "Shares"), par value $0.10 per share, of the Company pursuant to The Western Company Retirement Savings Plan, as amended (the "Plan"), and an indeterminate number of interests in the Plan. As the basis for the opinion hereinafter expressed, we have examined such statutes, regulations, corporate records and documents, certificates of corporate and public officials and other instruments as we have deemed necessary or advisable for the purposes of this opinion. In such examination we have assumed the authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us as copies. In this opinion, the Shares include the associated preferred share purchase rights that may be issued with the Shares pursuant to the Stockholder Rights Agreement dated as of January 12, 1994, as amended on June 22, 1994, and on September 22, 1994, between the Company and First Chicago Trust Company of New York as rights agent. Based on the foregoing and on such legal considerations as we deem relevant, we are of the opinion that: (1) The Shares have been duly and validly authorized by the Company. (2) Upon the issuance by the Company of the Shares and the payment therefor pursuant to the Plan, the Shares will be validly issued, fully paid and non-assessable. We hereby consent to the use of this opinion as an exhibit to the Registration Statement and the reference to our Firm in the Registration Statement under the heading "Interests of Named Experts and Counsel." Very truly yours, Andrews & Kurth L.L.P. 4200 Texas Commerce Tower Houston, Texas 77002 EX-23.2 8 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of BJ Services Company on Form S-8 of our report dated November 22, 1994, appearing in the Annual Report on Form 10-K of BJ Services Company for the year ended September 30, 1994. DELOITTE & TOUCHE LLP Houston, Texas April 13, 1995 EX-23.3 9 CONSENT OF PRICE WATERHOUSE LLP 1 EXHIBIT 23.3 INDEPENDENT AUDITORS' CONSENT We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 28, 1994, which appears on page 3 of the Annual Report of The Western Company Retirement Savings Plan on Form 11-K for the year ended December 31, 1993. We also consent to the reference to us under the heading "Interests of Named Experts and Counsel" in such Registration Statement. PRICE WATERHOUSE LLP Houston, Texas April 13, 1995 -----END PRIVACY-ENHANCED MESSAGE-----