-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P584WaEPKd7mG34p7rVJG8B8zMsW1X1jBeqhBn+nOiR0BSvDvhu+lKwXb+iLxwp/ 95e1f4Vlgy1qXBu5GiXk9g== 0000950152-02-001821.txt : 20020415 0000950152-02-001821.hdr.sgml : 20020415 ACCESSION NUMBER: 0000950152-02-001821 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20020315 EFFECTIVENESS DATE: 20020315 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOODYEAR TIRE & RUBBER CO /OH/ CENTRAL INDEX KEY: 0000042582 STANDARD INDUSTRIAL CLASSIFICATION: TIRES AND INNER TUBES [3011] IRS NUMBER: 340253240 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-84346 FILM NUMBER: 02575920 BUSINESS ADDRESS: STREET 1: 1144 E MARKET ST CITY: AKRON STATE: OH ZIP: 44316 BUSINESS PHONE: 2167962121 MAIL ADDRESS: STREET 1: 1144 E MARKET ST CITY: AKRON STATE: OH ZIP: 44316 S-8 1 l93258as-8.txt THE GOODYEAR TIRE & RUBBER CO. S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 15, 2002 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 THE GOODYEAR TIRE & RUBBER COMPANY (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) OHIO 34-0253240 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION) 1144 EAST MARKET STREET 44316-0001 AKRON, OHIO (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES (FULL TITLE OF THE PLAN) C. THOMAS HARVIE, ESQ., SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY THE GOODYEAR TIRE & RUBBER COMPANY 1144 EAST MARKET STREET AKRON, OHIO 44316-0001 (NAME AND ADDRESS OF AGENT FOR SERVICE) (Telephone number, including area code, of Agent for Service) (330) 796-2121 ------------------ CALCULATION OF REGISTRATION FEE
======================================= ================== ================= ==================== ================== PROPOSED PROPOSED MAXIMUM AMOUNT MAXIMUM AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION TO BE REGISTERED(1) REGISTERED(2) PER SHARE(3) PRICE(3) FEE - --------------------------------------- ------------------ ----------------- -------------------- ------------------ Common Stock, Without Par Value (including Preferred Stock Purchase 20,000,000 Rights)........... shares $27.965 $559,300,000.00 $51,455.60 ======================================= ================== ================= ==================== ==================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees. (2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement shall cover such additional shares as may hereinafter be offered or issued from stock splits, stock dividends or similar transactions. (3) Estimated solely for the purpose of calculating the Registration Fee pursuant to Rule 457(c), based on the average of the high and low sale prices per share of Registrant's Common Stock on March 11, 2002, on the New York Stock Exchange Consolidated Transactions Tape. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, heretofore or hereafter filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the Securities Act of 1933, as amended (the "Securities Act"), by The Goodyear Tire & Rubber Company (the "Registrant") or by The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees (the "Plan"), are, as of their respective dates, incorporated in this Registration Statement by reference and made a part hereof: (1) Registrant's Annual Report on Form 10-K for the fiscal year of Registrant ended December 31, 2001 (File No. 1-1927). (2) Registrant's definitive Proxy Statement dated February 26, 2002, for its Annual Meeting of Shareholders held on April 15, 2002. (3) The description of the Common Stock of Registrant in the Registration Statement on Form 10 filed pursuant to the Exchange Act, and all amendments and reports filed for the purpose of updating such description. (4) Registrant's Registration Statement on Form 8-A dated June 11, 1996 relating to the registration of Preferred Stock Purchase Rights. (5) The Plan's Annual Report on Form 11-K for the fiscal year of the Plan ended December 30, 2000. (6) All documents filed by Registrant or the Plan with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement on Form S-8 and prior to the filing of a post-effective amendment to this Registration Statement on Form S-8 which indicates that all Securities offered pursuant to this Registration Statement have been sold or which deregisters all securities remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof on and from the date of filing of such documents. Any statements contained in this Registration Statement or in a document incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or incorporated herein by reference, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any II-1 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article V of the Code of Regulations of Registrant concerns indemnification of the Registrant's directors and officers and provides as follows: INDEMNIFICATION "The Company shall indemnify each person who is or was a director, officer or employee of the Company, or of any other corporation which he served as such at the request of the Company, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit or proceeding (whether brought by or in the right of the Company or such other corporation or otherwise), civil or criminal, or in connection with an appeal relating thereto, in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer, or employee of the Company or of such other corporation, or by reason of any past or future action taken or not taken in his capacity as such director, officer, or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided such person acted, in good faith, in what he reasonably believed to be the best interests of the Company or such other corporation, as the case may be, and, in addition, in any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. As used in this Article, the terms "liability" and "expense" shall include, but shall not be limited to, counsel fees and disbursements and amounts of judgments, fines, or penalties against, and amounts paid in settlement by, a director, officer, or employee, other than amounts paid to the Company itself or to such other corporation served at the Company's request. The termination of any claim, action, suit, or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer, or employee did not meet the standards of conduct set forth in the first sentence of this Article. Any such director, officer, or employee referred to in this Article who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right. Except as provided in the preceding sentence, any indemnification hereunder shall be made at the discretion of the Company, but only if (1) the Board, acting by a quorum consisting of directors who are not parties to (or who have been wholly successful with respect to) such claim, action, suit, or proceeding, shall find that the director, officer, or employee has met the standards of conduct set II-2 forth in the first sentence of this Article, or (2) independent legal counsel (who may be the regular counsel of the Company) shall deliver to it their written advice that, in their opinion, such director, officer, or employee has met such standards. Expense incurred with respect to any such claim action, suit, or proceeding may be advanced by the Company prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount unless it shall ultimately be determined that he is entitled to indemnification under this Article. The rights of indemnification provided in this Article shall be in addition to any rights to which any person concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of their heirs, executors, and administrators of any such person." Indemnification also may be made available by Registrant to its directors, officers, employees and agents, and may be available as a matter of right, under Section 1701.13(E) of the Ohio Revised Code. Section 1701.13(E) of the Ohio Revised Code provides as follows: "(E)(1) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (2) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the II-3 defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any of the following: (a) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought determines, upon application, that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper; (b) Any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Revised Code. (3) To the extent that a director, trustee, officer, employee, member, manager, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (4) Any indemnification under division (E)(1) or (2) of this section, unless ordered by a court, shall be made by the corporation only as authorized in the specific case, upon a determination that indemnification of the director, trustee, officer, employee, member, manager, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in division (E)(1) or (2) of this section. Such determination shall be made as follows: (a) By a majority vote of a quorum consisting of directors of the indemnifying corporation who were not and are not parties to or threatened with the action, suit, or proceeding referred to in division (E)(1) or (2) of this section; (b) If the quorum described in division (E)(4)(a) of this section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the corporation or any person to be indemnified within the past five years; (c) By the shareholders; (d) By the court of common pleas or the court in which the action, suit, or II-4 proceeding referred to in division (E)(1) or (2) of this section was brought. Any determination made by the disinterested directors under division (E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the corporation under division (E)(2) of this section, and, within ten days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. (5)(a) Unless at the time of a director's act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply to the corporation and unless the only liability asserted against a director in an action, suit, or proceeding referred to in division (E)(1) or (2) of this section is pursuant to section 1701.95 of the Revised Code, expenses, including attorney's fees, incurred by a director in defending this action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to do both of the following: (i) Repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation; (ii) Reasonably cooperate with the corporation concerning the action, suit, or proceeding. (b) Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, member, manager, or agent in defending any action, suit, or proceeding referred to in division (E)(1) or (2) of this section, may be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, as authorized by the directors in the specific case, upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, member, manager, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the corporation. (6) The indemnification authorized by this section shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under the articles, the regulations, any agreement, a vote of shareholders or disinterested directors, or otherwise, both as to action in their official capacities and as to action in another capacity while holding their offices or positions, and shall II-5 continue as to a person who ceased to be a director, trustee, officer, employee, member, manager, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. (7) A corporation may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. Insurance may be purchased from or maintained with a person in which the corporation has a financial interest. (8) The authority of a corporation to indemnify persons pursuant to division (E)(1) or (2) of this section does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this section do not create any obligation to repay or return payments made by the corporation pursuant to division (E)(5), (6), or (7). (9) As used in division (E) of this section, "corporation" includes all constituent entities in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, trustee, member, manager, or agent of such a constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, shall stand in the same position under this section with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity." Registrant maintains and pays the premiums on contracts insuring Registrant (with certain exclusions) against any liability to directors and officers it may incur under the above provisions for indemnification and insuring each director and officer of Registrant (with certain exclusions) against liability and expense, including legal fees, which he or she may incur by reason of his or her relationship to Registrant, even if Registrant does not have the obligation or right to indemnify such director or officer against such liability or expense. II-6 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. EXHIBIT EXHIBIT ITEM NUMBER DESCRIPTION ---- ------ ----------- 4 4.1 Certificate of Amended Articles of Incorporation of Registrant, dated December 20, 1954, and Certificate of Amendment to Amended Articles of Incorporation of Registrant, dated April 6, 1993, and Certificate of Amendment to Amended Articles of Incorporation of Registrant, dated June 4, 1996 (three documents comprising Registrant's Articles of Incorporation as amended to date). 4.2 Code of Regulations, adopted November 22, 1955, and amended April 5, 1965, April 7, 1980, April 6, 1981 and April 13, 1987. 4.3 Specimen nondenominational Certificate for shares of Common Stock, without par value, of Registrant, EquiServe Trust Company, N.A., Transfer Agent and Registrar. 4.4 Conformed copy of Rights Agreement, dated as of June 4, 1996, between Registrant and First Chicago Trust Company of New York, Rights Agent, as amended by that certain Amendment to Rights Agreement, dated as of February 8, 2000, between Registrant and First Chicago Trust Company of New York, Rights Agent, and the related Appointment of Successor Rights Agent, dated as of November 1, 2001, appointing EquiServe Trust Company, N.A., as successor Rights Agent. 4.5 The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees (December 31, 2001 Restatement), as amended effective as of December 31, 2001 (the "Plan"). 4.6 Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust, dated July 1, 1984, relating to The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees and to certain other plans of The Goodyear Tire & Rubber Company, as amended November 1, 1995 (the "Trust Agreement"). II-7 EXHIBIT EXHIBIT ITEM NUMBER DESCRIPTION ---- ------ ----------- 5 a) All shares of the Common Stock of Registrant held in the Plan Trust at the date of this registration statement were acquired by the Plan trustee in open market transactions. No original issuance or treasury shares of the Common Stock of Registrant have been, or are presently intended to be, issued by Registrant under the Plan. Registrant will file a post-effective amendment with an opinion of counsel regarding the legality of the shares of Registrant's Common Stock that may be issued to the Plan by Registrant in the event Registrant elects to issue shares of its Common Stock to the Plan in the future. 5.1 Determination letter issued by the Internal Revenue Service (the "IRS") dated May 22, 1995 regarding the Plan and a determination letter issued by the IRS dated May 21, 1986 regarding the Plan Trust. b) The Plan, as amended, is a tax qualified plan under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") and the Plan Trust is exempt from taxation under Section 501(a) of the Code. (See Undertaking below). UNDERTAKING Registrant undertakes to submit, and on February 27, 2002 submitted, The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees, December 31, 2001 Restatement (the "Plan"), to the IRS to obtain a determination letter from the IRS to the effect that the Plan, as amended and restated effective December 31, 2001 remains qualified under Section 401(a) of the Code and that the Plan Trust remains exempt from taxation under Section 501(a) of the Code. Registrant also undertakes to make all changes, if any, required by the IRS in order to obtain IRS determinations that the Plan remains qualified under Section 401(a) of the Code and that the Plan Trust remains exempt from taxation under Section 501(a) of the Code. 15 Not applicable. 23 23.1 The consent of PricewaterhouseCoopers LLP, independent accountants, to the incorporation by reference in this Registration Statement on Form S-8 of their report dated February 4, 2002 appearing at page 52 of Registrant's Annual Report on Form 10-K for the year ended December 31, 2001, and of their report dated June 25, 2001, appearing in Annex A to The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees Annual Report on Form 11-K for the year ended December 30, 2000. II-8 EXHIBIT EXHIBIT ITEM NUMBER DESCRIPTION ---- ------ ----------- 24 24.1 Power of Attorney, dated June 6, 2000, authorizing Robert W. Tieken, C. Thomas Harvie, Stephanie W. Bergeron and Richard J. Kramer to sign this Registration Statement on behalf of the Registrant and certain of the directors and officers of Registrant. 99 Not applicable. ITEM 9. UNDERTAKINGS. A. 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (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 (A)(1)(i) and (A)(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 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 II-9 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. B. 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. 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 foregoing provisions, 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 Act 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 Act and will be governed by the final adjudication of such issue. II-10 SIGNATURES 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 Akron, State of Ohio, on the 15th day of March, 2002. THE GOODYEAR TIRE & RUBBER COMPANY By: /s/ Stephanie W. Bergeron -------------------------------------- Stephanie W. Bergeron, Senior Vice President and Treasurer 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 date indicated.
SIGNATURE TITLE DATE --------- ----- ---- Samir G. Gibara Chairman of the Board, ) Chief Executive Officer ) and Director (Principal ) Executive Officer) ) ) Robert W. Tieken Executive Vice President ) (Principal Financial ) Officer) ) ) Richard J. Kramer Vice President - Corporate) By:/s/Stephanie W. Bergeron Finance (Principal ------------------------------- Accounting Officer) ) Stephanie W. Bergeron John G. Breen Director ) William E. Butler Director ) Signing as Attorney-in-Fact Thomas H. Cruikshank Director ) for the directors and officers William J. Hudson, Jr. Director ) whose names appear opposite Steven A. Minter Director ) Agnar Pytte Director ) March 15, 2002 Martin D. Walker Director ) )
II-11 Pursuant to the requirements of the Securities Act of 1933, The Goodyear Tire & Rubber Company, in its capacity as Plan Administrator of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees, has duly caused this Registration Statement to be signed on behalf of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees by the undersigned, thereunto duly authorized in the City of Akron, State of Ohio, on the 15th day of March, 2002. THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES BY: THE GOODYEAR TIRE & RUBBER COMPANY, THE PLAN ADMINISTRATOR By: /s/ Stephanie W Bergeron ------------------------------------------ Stephanie W Bergeron, Senior Vice President and Treasurer of The Goodyear Tire & Rubber Company II-12 INDEX OF EXHIBITS ----------------- EXHIBIT EXHIBIT ITEM NUMBER DESCRIPTION ---- ------ ----------- 4 4.1 Certificate of Amended Articles of Incorporation of Registrant, dated December 20, 1954, Certificate of Amendment to Amended Articles of Incorporation of Registrant, dated April 6, 1993, and Certificate of Amendment to Amended Articles of Incorporation of Registrant, dated June 4, 1996 (three documents comprising Registrant's Articles of Incorporation as amended to date). 4.2 Code of Regulations, adopted November 22, 1955, and amended April 5, 1965, April 7, 1980, April 6, 1981 and April 13, 1987. 4.3 Specimen nondenominational Certificate for shares of Common Stock, without par value, of Registrant, EquiServe Trust Company, N.A., Transfer Agent and Registrar. 4.4 Conformed copy of Rights Agreement, dated as of June 4, 1996, between Registrant and First Chicago Trust Company of New York, Rights Agent, as amended by that certain Amendment to Rights Agreement, dated as of February 8, 2000, between Registrant and First Chicago Trust Company of New York, Rights Agent, and the related Appointment of Successor Rights Agent, dated as of November 1, 2001, appointing EquiServe Trust Company, N.A., as Successor Rights Agent. 4.5 The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees (December 31, 2001 Restatement), as amended effective as of December 31, 2001 (the "Plan"). 4.6 Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust, dated July 1, 1984, relating to The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees and to certain other plans of The Goodyear Tire & Rubber Company, as amended November 1, 1995 (the "Trust Agreement"). EXHIBIT EXHIBIT ITEM NUMBER DESCRIPTION ---- ------ ----------- 5 5.1 Determination letter issued by the Internal Revenue Service dated May 22, 1995 regarding the Plan and a determination letter dated May 21, 1986 regarding the Plan Trust. 23 23.1 The consent of PricewaterhouseCoopers LLP, independent accountants, to the incorporation by reference in this Registration Statement on Form S-8 of their report dated February 4, 2002 appearing at page 52 of Registrant's Annual Report on Form 10-K for the year ended December 31, 2001, and of their report dated June 25, 2001, appearing in Annex A to The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees Annual Report on Form 11-K for the year ended December 30, 2001. 24 24.1 Power of Attorney, dated June 6, 2000, authorizing Robert W. Tieken, C. Thomas Harvie, Stephanie W. Bergeron and Richard J. Kramer to sign this Registration Statement on behalf of the Registrant and certain of the directors and officers of Registrant. EX-4.1 3 l93258aex4-1.txt EXHIBIT 4.1 EXHIBIT 4.1 CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY E.J. Thomas, President, and Arden E. Firestone, Secretary, of The Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office located at Akron, Ohio, do hereby certify that a meeting of the holders of the shares of Common Stock of said corporation (being the only class of shares outstanding) entitled to vote on the proposal to adopt the Amended Articles of Incorporation as contained in the following resolution was duly called and held on the 20th day of December, 1954, at which meeting a quorum of such shareholders was present in person or by proxy, and that by the affirmative vote of the holders of shares entitled under the Articles to exercise at least two-thirds of the voting power of the corporation on such proposal (the Articles not requiring a greater proportion of such voting power) the following resolution was adopted: RESOLVED, That The Goodyear Tire & Rubber Company hereby adopts the following Amended Articles of Incorporation and that the President or a Vice President and the Secretary or an Assistant Secretary of this Corporation are hereby authorized and directed, on behalf of this Corporation, to sign and file in the Office of the Secretary of State of the State of Ohio, so as to make such Amended Articles of Incorporation become effective, a certificate containing a copy of the resolution adopting such Amended Articles of Incorporation and a statement of the manner of the adoption thereof: AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY The Goodyear Tire & Rubber Company, a Corporation for profit heretofore organized under the General Incorporation Laws of the State of Ohio, adopts these Amended Articles of Incorporation: FIRST: The name of said Corporation shall be The Goodyear Tire & Rubber Company. SECOND: Said Corporation is to be located at Akron in Summit County, Ohio, and its principal business there transacted. THIRD: Said Corporation is formed for the following purposes: (a) To produce, manufacture, purchase, import, or otherwise acquire, to own, process, operate, develop and use, to sell, lease, exchange, export or otherwise dispose of or turn to account, and to generally deal in, and to render any service in respect of: rubber, both natural and synthetic, compounds thereof, substitutes therefor, substances having properties or 2 uses similar thereto, and articles produced in whole or in part therefrom, including without limitation tires and tubes of all types and kinds, belts, and mechanical goods, cotton, rayon and other fibrous materials and articles of which cotton, rayon or other fibrous materials are a component part, metals, rims and automotive parts and accessories, guns, ammunition and other articles useful in the national defense, aircraft and parts and accessories therefor, and, in general, goods, commodities, and articles of personal property of whatever nature, and to carry on and conduct the general business of manufacturing and merchandising. (b) To establish, maintain, and operate chemical, physical, and other laboratories and to carry on chemical, physical, and industrial research of every kind and character as may be necessary, useful or convenient in connection with any business of the Corporation, and to produce, manufacture, construct, import, purchase or otherwise acquire, to own, process, develop and use, to sell, lease, exchange, export or otherwise dispose of or turn to account and generally to deal in and with articles of substances invented or developed thereby. (c) To manufacture, construct, mine, produce, import, purchase, lease or otherwise acquire, hold, own, use, process, maintain, operate, export, mortgage, sell, convey, assign and otherwise dispose of, distribute, deal in and turn to account machinery, apparatus, tools, implements, equipment, materials, supplies, and other personal property of every kind and character which can or may be advantageously used, consumed or dealt in by the Corporation in connection with any business it is authorized to conduct; and, in general, to buy, sell, produce, manufacture, process, use, export, import, trade in, deal with and turn to account goods, wares, and merchandise of every class and description. (d) To purchase, lease or otherwise acquire, own, hold, use, maintain, operate, cultivate, develop, sell, lease, convey, exchange or otherwise dispose of real estate, leaseholds, and other interests in real estate, and to construct, equip, occupy, improve, use, operate, sell, lease, exchange or otherwise dispose of buildings, factories, hangars, mills, workshops, machineshops, laboratories, storehouses, offices, residences, stores, hotels, facilities, and structures of all kinds, necessary, useful or convenient in connection with any of the businesses or operations of the Corporation. (e) To secure, register, purchase, lease, license, or otherwise to acquire, and to hold, own, use, operate, develop, improve, introduce, grant licenses in respect of, sell, assign, and otherwise dispose of and turn to account, letters patent of the United States or any foreign country, patent rights, licenses, privileges, inventions, devices, improvements, formulas, concessions, processes, secret or otherwise, copyrights, trademarks, trade names and rights analogous thereto granted by, recognized or otherwise existing under the laws of the United States or any foreign country. (f) To borrow money or otherwise use its credit for its corporate purposes, to issue bonds, debentures, notes and other obligations, secured or unsecured, from time to time, for moneys borrowed or for property acquired, or for any other of the purposes of the Corporation, and to secure the same by mortgage, deed of trust, pledge, or other lien upon any or all of the properties, rights, privileges or franchises of the Corporation. (g) To purchase, by subscription or otherwise, or acquire in any manner, and to sell, negotiate, guarantee, assign, deal in, exchange, transfer, pledge or otherwise dispose of, shares of the capital stock, scrip, bonds, coupons, mortgages, debentures, debenture stock, acceptances, drafts, securities, and any other evidences of indebtedness of, or interest in, other corporations, joint stock companies or associations, whether public, private or municipal, or of any corporate body, domestic or foreign, and while the owner thereof, to 3 possess and exercise in respect thereof all the rights, powers, and privileges of ownership, including but not limited to the right to vote thereon. (h) To aid, in any manner whatsoever, any corporation, association, copartnership or individual in whose business the Corporation may be in any way interested or any of whose properties, including shares of capital stock, bonds or other obligations or securities, are held by the Corporation or in which it is in any way interested, and to do any acts or things which are or which may appear necessary, useful, convenient or appropriate for the preservation, protection, improvement or enhancement of the value of any such business or property, or for the promotion of any interests of the Corporation. (i) To lend money or credit, with or without security, and to guarantee and become surety for payment of money and the performance of contracts or obligations of any and all kinds, provided it shall not carry on the business of an indemnity or a surety company. (j) To purchase or otherwise acquire the whole or any part of the property, assets, business, good will, and rights, and to undertake or assume the whole or any part of the bonds, mortgages, franchises, leases, contracts, indebtedness, guarantees, liabilities, and obligations of any person, firm or corporation, and to pay therefor in whole or in part with shares of its own capital stock, cash, bonds, debentures, notes or other obligations, or evidences of indebtedness of the Corporation or otherwise; and to hold in any manner dispose of any part or all of the property, assets, business, good will, and right so acquired, and to conduct in any lawful manner the whole or any part of the business so acquired, and to exercise all the powers necessary or convenient in and about the management and conduct of such business. (k) In general, to carry on any lawful business whatsoever in connection with or incidental to the foregoing, or which has for its object the promotion, directly or indirectly, of the general interests of the Corporation, or the protection, improvement, preservation or enhancement of the value of its properties and rights, and to do whatever it may deem necessary, convenient or proper for the accomplishment of any one or more of the purposes of the Corporation, and, to the same extent and as fully as any natural person might lawfully or could do, to do all and every lawful act and thing, and to enter into and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic or government, or subdivision thereof, without limitation as to amount, necessary, suitable or convenient for the accomplishment of any of the purposes of the Corporation or incident to any of the powers hereinbefore enumerated, the enumeration of specific powers not being a limitation or restriction in any manner of the general powers of the Corporation. (l) to do all or any of such acts and things and exercise any of such acts in any state of the United States, in any district, territory, colony, protectorate or possession thereof, and in any and all foreign countries, and to maintain such offices, branches, plants, properties, plantations, mines, and establishments in any or all thereof that may be deemed advisable by the Corporation. FOURTH: The number of shares which the Corporation is authorized to have outstanding is 15,000,000, all of which shall be Common Stock with a par value of $5 each (being the shares heretofore authorized as shares with a par value of $10 each) having the terms and provisions set forth in these Amended Articles of Incorporation. Each holder of record of Common Stock shall be entitled to one vote for each share of said Common Stock standing in his name on the books of the Corporation. No holder of Common Stock, present, past, or future, shall be entitled as such as a matter of right to subscribe for or purchase any part of not exceeding 500,000 shares of such Common Stock which may, subsequent to October 31, 1954 be allotted and sold to employees of the Corporation or any of its subsidiaries, pursuant to such plan or plans for such allotment and sale as the Board of Directors has determined or may from time to time determine, whether any such shares of Common Stock shall be issued for cash, property, services or otherwise. FIFTH: The total stated capital of the Corporation at the time of adopting these Amended Articles of Incorporation is $45,532,000.00. SIXTH: These Amended Articles of Incorporation supersede and take the place of the heretofore existing Amended Articles of Incorporation, adopted March 31, 1952, and filed in the Office of the Secretary of the State of Ohio on April 3, 1952, including all Certificates of Amendment to Amended Articles of Incorporation subsequently filed in the Office of the Secretary of the State of Ohio. IN WITNESS WHEREOF, said E. J. Thomas, President, and Arden E. Firestone, Secretary, of The Goodyear Tire & Rubber Company, acting for and on behalf of said corporation, have hereunto subscribed their names and caused the seal of said corporation to be hereunto affixed this 20th day of December, 1954. By E. J. THOMAS President (CORPORATE SEAL) By ARDEN E. FIRESTONE Secretary UNITED STATES OF AMERICA ) STATE OF OHIO ) OFFICE OF THE SECRETARY OF STATE) I, , Secretary of State of the State of Ohio, do hereby certify that the foregoing is an exemplified copy, carefully compared by me with the original record now in my official custody as Secretary of State, and found to be true and correct, of the CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY filed in this office on the 30th day of December A.D. 1954 and recorded in Volume 696, Page 255, of the Records of Incorporations. WITNESS my hand and official seal, at Columbus, Ohio, this day of A.D. Secretary of State EXHIBIT 4.1 Continued CERTIFICATE OF AMENDMENT TO AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY Hoyt M. Wells, President, and James Boyazis, Secretary, of The Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office located at Akron, Summit County, Ohio, do hereby certify that a meeting of the holders of the shares of Common Stock of said corporation (being the only class of shares outstanding) entitling them to vote on the proposal to amend the Amended Articles of Incorporation thereof, as contained in the following resolution, was duly called and held on the 5th day of April, 1993, at which meeting a quorum of such shareholders was present in person or by proxy, and that by the affirmative vote of the holders of shares entitled under the Amended Articles of Incorporation to exercise at least two-thirds of the voting power of the corporation on such proposal (the Amended Articles of Incorporation not requiring a greater proportion of such voting power) the following resolution was adopted: RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the following amendment to its Amended Articles of Incorporation and that the President or a Vice President and the Secretary or an Assistant Secretary of The Goodyear Tire & Rubber Company are hereby authorized and directed to sign and file in the office of the Secretary of State of the State of Ohio a certificate containing a copy of the resolution adopting the amendment and a statement of the manner of its adoption: The Amended Articles of Incorporation are hereby amended by striking out in its entirety Article FOURTH and substituting in lieu thereof the following: FOURTH: The maximum number of shares which the Corporation is authorized to have outstanding is 350,000,000, consisting of 300,000,000 shares of Common Stock without par value (hereinafter referred to as "Common Stock") and 50,000,000 shares of Preferred Stock without par value (hereinafter referred to as "Preferred Stock"). The express terms of the shares of each class are as follows: PART A EXPRESS TERMS OF THE COMMON STOCK Section 1. General. The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof. Each share of Common Stock shall be equal to each other share of common Stock. Each holder of record of Common Stock shall be entitled to one vote for each share of said Common Stock standing in his or her name on the books of the Corporation upon all matters presented to the shareholders. Section 2. Preemptive Rights. No holder of Common Stock, present, past or future, shall be entitled to such as a matter of right to subscribe for or purchase any part of any new or additional issue of stock or of securities of the Corporation convertible into stock of any class whatsoever, whether now or hereafter authorized, and whether issued for cash, property, services or otherwise. 1 Section 3. Purchase of Shares by Corporation The Corporation is authorized to purchase shares of Common Stock at such times, in such manner, for such reasons and on such terms and conditions as shall be deemed appropriate by the Board of Directors. PART B EXPRESS TERMS OF THE PREFERRED STOCK Section 1. Series. The Preferred Stock may be issued from time to time in one or more series. All shares of Preferred Stock shall be of equal rank and the express terms thereof shall be identical, except in respect of the terms that may be fixed by the Board of Directors as hereinafter provided, and each share of each series shall be identical with all other shares of such series, except as to the date from which dividends are cumulative. Subject to the provisions of Sections 2 through 8, inclusive, of this Part B, which shall apply to all Preferred Stock, the Board of Directors is hereby authorized to cause shares of Preferred Stock to be issued in one or more series and with respect to each such series to determine and fix: (a) The designation of the series, which may be by distinguishing number, letter or title. (b) The authorized number of shares constituting the series, which number the Board of Directors may, except to the extent otherwise provided in the creation of the series, from time to time increase or decrease, but not below the number of shares thereof then outstanding. (c) The rate at which dividends shall be payable on shares of such series. (d) The dates on which dividends, if declared, shall be payable on shares of such series and the dates from which dividends shall be cumulative. (e) The redemption rights and price or prices, if any, for shares of the series. (f) The amount, terms, conditions and manner of operation of any retirement or sinking fund to be provided for the purchase or redemption of shares of the series. (g) The amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation. (h) Whether the shares of the series shall be convertible into shares of any other class or series, and, if so, the specification of such other class or series, the conversion price or prices or rate or rates, any adjustments thereof, the date or dates as of which such shares shall be convertible and all other terms and conditions upon which such conversion may be made. (i) The conditions or restrictions, if any, upon the issue of any additional shares of the same series or of any other class or series. The Board of Directors is authorized to adopt from time to time amendments to the Amended Articles of Incorporation fixing, with respect to each series, the matters described in clauses (a) to (i), inclusive, of this Section 1. Section 1-A. Series A $10.00 Preferred Stock, Without Par Value. A series of Preferred Stock is hereby created having the following terms: 1. Designation. The shares of such series are designated as: "Series A $10.00 Preferred Stock, without par value." 2 2. Authorized Number of Shares - Fractional Shares. The authorized number of shares constituting the Series A $10.00 Preferred Stock is 3,000,000. Series A $10.00 Preferred Stock may be issued in fractions of a shares which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A $10.00 Preferred Stock. 3. Dividends and Distributions. (A) Subject to any prior to superior rights of the holders of any series of Preferred Stock ranking prior and superior to the shares of Series A $10.00 Preferred Stock with respect to dividends that may be authorized by the Amended Articles of Incorporation, the holders of shares of Series A $10.00 Preferred Stock shall be entitled prior to the payment of any dividends on shares ranking junior to the Series A $10.00 Preferred Stock to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the last day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A $10.00 Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) subject to the provisions for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A $10.00 Preferred Stock. In the event the Corporation shall at any time after July 28, 1986 (the "Rights Declaration Date") (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series A $10.00 Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series A $10.00 Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Payment Date, a dividend of $10.00 per share on the Series A $10.00 Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A $10.00 Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A $10.00 Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A $10.00 Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. 3 (D) Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A $10.00 Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A $10.00 Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof. (E) Dividends in full shall not be declared or paid or set apart for payment on the Series A $10.00 Preferred Stock for a dividend period termination on a Quarterly Dividend Payment Date unless dividends in full have been declared or paid or set apart for payment on the Preferred Stock of all series (other than series with respect to which dividends are not cumulative from a date prior to such dividend date) for the respective dividend periods terminating on such dividend date. When the dividends are not paid in full on all series of the Preferred Stock, the shares of all series shall share ratably in the payment of dividends, including accumulations, if any, in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full. 4. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A $10.00 Preferred Stock unless, prior thereto, the holders of shares of Series A $10.00 Preferred Stock shall have received $10.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series A Liquidation Preference"). Following the payment of the full amount of the Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A $10.00 Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Adjustment") equal to the quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii) is hereinafter referred to as the "Adjustment Number"). Following the payment of the full amount of the Series A Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A $10.00 Preferred Stock and Common Stock, respectively, holders of Series A $10.00 Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock and Common Stock, on a per share basis, respectively. (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series A $10.00 Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock there were 4 outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 5. Conversion on Merger, Consolidation, etc. In case the Corporation shall enter into any merger, consolidation, combination or other transaction in which the shares of Common Stock are exchanged or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A $10.00 Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A $10.00 Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 6. Redemption. The outstanding shares of Series A $10.0 Referred Stock shall not be redeemable. 7. Condition to Issuance of any other Series. The Articles of Incorporation of the Corporation shall not be further amended to provide for the issuance of any other series of Preferred Stock without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series A $10.00 Preferred Stock, voting separately as one voting group. Section 2. Dividends. (a) The holders of Preferred Stock of each series, in preference of the holders of shares of Common Stock and of any other class of shares ranking junior to the Preferred Stock, shall be entitled to receive out of any funds legally available and when and as declared by the Board of Directors dividends in cash at the rate for such series fixed in accordance with the provisions of Section 1 of this Part B and no more, payable on the dividend payment dates fixed for such series. Such dividends shall be cumulative, in the case of shares of each particular series, from and after the date or dates fixed with respect to such series. No dividend may be paid upon or declared or set apart for any series of the Preferred Stock at any time unless at the same time a like proportionate dividend for the dividend periods terminating on the same date or any earlier date, ratably in proportion to the respective annual dividend rates, shall have been paid upon or declared or funds therefor set apart for all shares of Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. (b) So long as any Preferred Stock shall be outstanding, no dividend, except a dividend payable in Common Stock or other shares ranking junior to the Preferred Stock, shall be paid or declared or any distribution be made except as aforesaid on the Common Stock or any other shares ranking junior to the Preferred Stock, nor shall any shares of Common Stock or any other shares ranking junior to the Preferred Stock be purchased, retired or otherwise acquired by the Corporation (except out of the proceeds of the sale of Common Stock or other shares ranking junior to the Preferred Stock received by the Corporation on or subsequent to the date on which shares of Preferred Stock are first issued), unless (i) all accrued and unpaid dividends upon all Preferred Stock then outstanding payable on all dividend payment dates occurring on or prior to the date of such 5 action shall have been declared and paid or funds sufficient therefor, set apart, and (ii) at the date of such action there shall be no arrearages with respect to the redemption of Preferred Stock of any series from any sinking fund provided for shares of such series in accordance with the provisions of Section 1 of this Part B. Section 3. Redemption (a) Subject to the express terms of each series, the Corporation may from time to time redeem all or any part of the Preferred Stock of any series at the time outstanding (i) at the option of the Board of Directors at the applicable redemption price for such series fixed in accordance with the provisions of Section 1 of this Part B or (ii) in fulfillment of the requirements of any sinking fund provided for shares of such series at the applicable sinking fund redemption price fixed in accordance with the provisions of Section 1 of this Part B, together in each case with (1) all then unpaid dividends upon such shares payable on all dividend payment dates for such series occurring on or prior to the redemption date, plus (2) if the redemption date is not a dividend payment date for such series, a proportionate dividend, based on the number of elapsed days, for such series, for the period from the day following the most recent such dividend payment date through the redemption date. (b) Notice of every such redemption shall be mailed, postage prepaid, to the holders of record of the Preferred Stock to be redeemed at their respective addresses then appearing on the books of the Corporation, not less than 30 days nor more than 60 days prior to the date fixed for such redemption. At any time after notice has been given as above provided and before the date of redemption specified in such notice the Corporation may deposit the aggregate redemption price of the shares of Preferred Stock to be redeemed, together with an amount equal to the aggregate amount of dividends payable upon such redemption, with any bank or trust company in New York, New York, having capital and surplus of more than $100,000,000, named in such notice, and direct that such deposited amount be paid to the respective holders of the shares of Preferred Stock so to be redeemed upon surrender of the stock certificate or certificates held by such holders. After the mailing of such notice and the making of such deposit of money, such holders shall cease to be shareholders with respect to such shares and shall have no interest in or claim against the Corporation with respect to such shares, except only the right to receive such money from such bank or trust company without interest or to exercise, before the redemption date, any unexpired privileges of conversion. (c) In the event less than all of the outstanding shares of any series of Preferred Stock are to be redeemed, the Corporation shall select pro rata or by lot the shares so to be redeemed in such manner as shall be prescribed by the Board of Directors. (d) If the holders of shares of Preferred Stock which shall have been called for redemption shall not, without six years after such deposit, claim the amount deposited for the redemption thereof, any such bank or trust company shall, upon demand, pay over to the Corporation such unclaimed amounts and thereupon such bank or trust company and the Corporation shall be relieved of all responsibility in respect thereof and to such holders. (e) Any shares of Preferred Stock (i) redeemed by the Corporation pursuant to the provisions of this Section 3, (ii) purchased and delivered in satisfaction of any sinking fund requirements provided for shares of any series of Preferred Stock, (iii) converted in accordance with the express terms of any such series, or (iv) otherwise acquired by the Corporation, shall resume the status of authorized and unissued shares of Preferred Stock without serial designation. Section 4. Liquidation. (a) The holders of Preferred Stock of any series shall,in cash of voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, be 6 entitled to receive in full out of the assets of the Corporation, including its capital, before any amount shall be paid or distributed among the holders of shares of Common Stock or any other shares ranking junior to the Preferred Stock, the amounts fixed with respect to shares of such series in accordance with Section 1 of this Part B, plus an amount equal to (i) all then unpaid dividends upon such shares payable on all dividend payment dates for such series occurring on or prior to the date of payment of the amount due pursuant to such liquidation, dissolution or winding up, plus (ii) if such date is not a dividend payment date for such series, a proportionate dividend, based on the number of elapsed days, for the period from the day following the most recent such dividend payment date through such date of payment of the amount due pursuant to such liquidation, dissolution or winding up. In case the net assets of the Corporation legally available therefor are insufficient to permit the payment upon all outstanding shares of Preferred Stock of the full preferential amount to which they are respectively entitled, then such net assets shall be distributed ratably upon outstanding shares of Preferred Stock in proportion to the full preferential amount to which each such share is entitled. After payment to holders of Preferred Stock of the full preferential amounts as aforesaid, holders of Preferred Stock as such shall have no right or claim to any of the remaining assets of the Corporation. (b) The merger or consolidation of the Corporation into or with any other corporation, or the merger of any other corporation into it, or the sale, lease or conveyance of all or substantially all the property or business of the Corporation shall not be deemed to be a dissolution, liquidation or winding up for the purposes of this Section 4. Section 5. Voting. (a) The holders of Preferred Stock shall not be entitled to vote upon matters presented to the shareholders, except as provided in this Section 5 or as required by law. (b) Whenever, and so long as, the Corporation shall be in default of the payment of the equivalent of six full quarterly dividends (whether or not consecutive) on any series of Preferred Stock at the time outstanding, whether or not earned or declared, the holders of Preferred Stock of all series, voting separately as a class without regard to series, shall be entitled to elect, as herein provided, two members of the Board of Directors of the Corporation; provided, however, that the holders of shares of Preferred Stock shall not have or exercise such special class voting rights except at meetings of such shareholders for the election of directors at which the holders of not less than a majority of the outstanding shares of Preferred Stock of all series then outstanding are present in person or by proxy; and provided further that the special class voting rights provided for in this paragraph, when the same shall have become vested, shall remain so vested until all accrued and unpaid dividends on the Preferred Stock of all series then outstanding shall have been paid, whereupon the holders of Preferred Stock shall be divested of this special class voting rights in respect of subsequent elections of directors, subject to the revesting of such special class voting rights in the event of the occurrence of the default hereinabove specified in this Subsection (b). In the event of a default entitling the holders of Preferred Stock to elect two Directors as specified in this Subsection (b), a special meeting of such holders for the purpose of electing such directors shall be called by the Secretary of the Corporation upon written request of, or may be called by, the holders of record of at least 10% of the shares of Preferred Stock of all series at the time outstanding, and notice thereof shall be given in the same manner as that required for the annual meeting of shareholders; provided, however, that the Corporation shall not be required to call such special meeting if the annual meeting of shareholders shall be held within 120 days after the date of receipt of the foregoing written request from the holders of Preferred Stock. At any meeting at which the holders of Preferred Stock shall be entitled to elect Directors, the holders of a majority of the then outstanding shares of Preferred Stock of all series, present 7 in person or by proxy, shall be sufficient to constitute a quorum, and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be such a quorum shall be sufficient to elect the members of the Board of Directors which the holders of Preferred Stock are entitled to elect as hereinabove provided. Notwithstanding any provision of these Amended Articles of Incorporation or the Code of Regulations of the Corporation or any action taken by the holders of any class of shares fixing the number of Directors of the Corporation, the two Directors who may be elected by the holders of Preferred Stock pursuant to this Subsection (b) shall serve in addition to any other Directors then in office or proposed to be elected otherwise than pursuant to this Subsection (b). Nothing in this Subsection (b) shall present any change otherwise permitted in the total number of Directors of the Corporation or require the resignation of any Director elected otherwise than pursuant to this Subsection (b). Notwithstanding any classification of the other Directors of the Corporation, the two Directors elected by the holders of Preferred Stock shall be elected annually for terms expiring at the next succeeding annual meeting of shareholders. (c) The affirmative vote or consent of the holders of at least two-thirds of the shares of Preferred Stock at the time outstanding, voting or consenting separately as a class, given in person or by proxy either in writing or at a meeting called for the purpose, shall be necessary to effect any one or more of the following (but so far as the holders of Preferred Stock are concerned, such action may be effected with such vote or consent): (1) Any amendment, alteration or repeal of any of the provisions of the Amended Articles of Incorporation or of the Code of Regulations of the Corporation which adversely affects the preferences or voting or other rights of the holders of Preferred Stock; provided, however, that for the purpose of this Subsection (c) only, neither the Amendment of the Amended Articles of Incorporation so as to authorize, create or change the authorized or outstanding amount of Preferred Stock or of any shares of any class ranking on a parity with or junior to the Preferred Stock nor the amendment of the provisions of the Code of Regulations so as to change the number of directors of the Corporation shall be deemed to affect adversely the preferences or voting or other rights of the holders of Preferred Stock; and provided further, that if such amendment, alteration or repeal affects adversely the preferences or voting or other rights of one or more but not all series of Preferred Stock at the time outstanding, only the affirmative vote or consent of the holders of at least two-thirds of the number of the shares at the time outstanding of the series so affected shall be required; (2) The purchase or redemption (for sinking fund purposes or otherwise) of less than all of the Preferred Stock then outstanding expect in accordance with a stock purchase offer made to all holders of record of Preferred Stock, unless all dividends on all Preferred Stock then outstanding for all previous dividend periods shall have been declared and paid for funds therefor set apart and all accrued sinking fund obligations applicable thereto shall have been complied with; or (3) The authorization, creation or the increase in the authorized amount of any shares of any class or any security convertible into shares of any class, in either case ranking prior to the Preferred Stock. (d) The affirmative vote or consent of the holders of at least a majority of the shares of Preferred Stock at the time outstanding, voting or consenting separately as a class, given in person or by proxy either in writing or at a meeting called for the purpose, shall be necessary to effect any one or more of the following (but so far as the holders of Preferred Stock are concerned, such action may be effected with such vote or consent): (1) The sale, lease or conveyance by the Corporation of all or substantially all of its property or business; 8 (2) The consolidation of the Corporation with or its merger into any other corporation, unless the corporation resulting from such consolidation or surviving such merger will not have after such consolidation or merger any class of shares either authorized or outstanding ranking prior to or on a parity with the Preferred Stock except the same number of shares ranking prior to or on a parity with the Preferred Stock and having the same rights and preferences as the shares of the Corporation authorized and outstanding immediately preceding such consolidation or merger (and each holder of Preferred Stock immediately preceding such consolidation or merger shall receive the same number of shares with the same rights and preferences of the resulting or surviving corporation); or (3) The authorization of any shares ranking on a parity with the Preferred Stock or an increase in the authorized number of shares of Preferred Stock. (e) Neither the vote, consent nor any adjustment of the voting rights of holders of shares of Preferred Stock shall be required for an increase in the number of shares of Common Stock authorized or issued or for stock splits of the Common Stock or for stock dividends on any class of stock payable solely in Common Stock; and none of the foregoing action shall be deemed to affect adversely the preferences or voting or other rights of Preferred stock within the meaning and for the purpose of this Part B. Section 6. Convertible Series. If and to the extent that there are created series of Preferred Stock which are convertible (hereinafter referred to as "convertible series") into shares of Common Stock or into shares of any other class or series of the Corporation (hereinafter collectively called "conversion shares"), the following terms and provisions shall be applicable to all convertible series, except as may be otherwise expressly provided in the terms of any such series. (a) The holder of each share of a convertible series may exercise the conversion privilege in respect thereof by delivering to any transfer agent for the respective series the certificate for the share to be converted and written notice that the holder elects to convert such share. Conversion shall be deemed to have been effected immediately prior to the close of business on the date when such delivery is made, and such date is referred to in this Section as the "conversion date". On the conversion date or as promptly thereafter as practicable, the Corporation shall deliver to the holder of the stock surrendered for conversion, or as otherwise directed by him in writing, a certificate for the number of full conversion shares deliverable upon the conversion of such stock and a check or cash in respect of any fraction of a share as provided in subsection (b) of this Section 6. The person in whose name the stock certificate is to be registered shall be deemed to have become a holder of the conversion shares of record on the conversion date. No adjustment shall be made for any dividends on shares of stock surrendered for conversion or for dividends on the conversion shares delivered on conversion. (b) The Corporation shall not be required to deliver fractional shares upon conversion of shares of a convertible series. If more than one share shall be surrendered for conversion at one time by the same holder, the number of full conversion shares deliverable upon conversion thereof shall be computed on the basis of the aggregate number of shares so surrendered. If any fractional interest in a conversion share would otherwise be deliverable upon the conversion, the Corporation shall in lieu of delivering a fractional share therefor make an adjustment therefor in cash at the current market value thereof, computed (to the nearest cent) on the basis of the closing price of the conversion share on the last business day before the conversion date. For the purpose of this Section, the "closing price of the conversion share" on any business day shall be the last reported sales price regular way per share on such day, or, in 9 case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if the conversion shares are not then listed or admitted to trading on such Exchange, on the principal national securities exchange on which the conversion shares are listed or admitted to trading as determined by the Board of Directors, or if not so listed or admitted, the mean between the average bid and asked prices per conversion shares in the over-the-counter market as furnished by any member of the National Association of Securities Dealers or other nationally recognized organization of securities dealers selected from time to time by the Board of Directors for that purpose; and "business day" shall be each day on which the New York Stock Exchange or other national securities exchange or over-the-counter market used for the purposes of the above calculation is open for trading. (c) Upon conversion of shares of any convertible series, the stated capital of the conversion shares delivered upon such conversion shall be the aggregate par value of the shares so delivered having par value, or, in the case of shares without par value, shall be an amount equal to the stated capital represented by each such share outstanding at the time of such conversion multiplied by the number of such shares delivered upon such conversion. The stated capital of the Corporation shall be correspondingly increased or reduced to reflect the difference between the stated capital of the shares of the convertible series so converted and the stated capital of the shares delivered upon such conversion. (d) In the event of any reclassification or change of outstanding conversion shares (except a split or combination, or a change in par value, or a change from par value to no par value, or a change from no par value to par value), provision shall be made as part of the terms of such reclassification or change that the holder of each share of each convertible series then outstanding shall have the right to receive upon the conversion of such share, at the conversion rate or price which otherwise would be in effect at the time of conversion, with substantially the same protection against dilution as is provided in the terms of such convertible series, the same kind and amount of stock and other securities and property as he would have owned or have been entitled to receive upon the happening of any of the events described above had such share been converted immediately prior to the happening of the event. (e) In the event the Corporation shall be consolidated with or shall merge into any other corporation, provision shall be made as a part of the terms of such consolidation or merger whereby the holder of each share of each convertible series outstanding immediately prior to such event shall thereafter be entitled to such rights with respect to securities of the Corporation resulting from such consolidation or merger so that rights of such holders as specified in the terms of such convertible series shall not be substantially prejudiced; provided, however, that the provisions of this Subsection (e) shall be inapplicable if such consolidation or merger shall be approved by the holders of two-thirds of the outstanding shares of such convertible series of Preferred Stock. (f) The Corporation hereby reserves and shall at all times reserve and keep available free from preemptive rights, out of its authorized but unissued shares or treasury shares, for the purpose of delivery upon conversion of shares of each convertible series, such number of conversion shares as shall from time to time be sufficient to permit the conversion of all outstanding shares of all convertible series of Preferred Stock. Section 7. Preemptive Rights - Purchase of Shares by Corporation. (a) No holder of Preferred stock, present, past or future, shall be entitled as such as a matter of right to subscribe for or purchase any part of any new or additional stock of any series or class or of securities of the Corporation convertible into stock of any class whatsoever, whether now or hereafter authorized, and whether issued for cash, property, services or otherwise. 10 (b) The Corporation is authorized to purchase any shares of any series of Preferred Stock from time to time and at such times, in such manner, for such reasons and on such terms and conditions as shall be deemed appropriate by the Board of Directors. Section 8. Definitions. For the purpose of this Part B: Whenever reference is made to shares "ranking prior to the Preferred Stock," such reference shall mean and include all shares of the Corporation in respect of which the rights of the holders thereof either as to the payment of dividends or as to distribution in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Corporation are given preference over the right of the holders of Preferred Stock; whenever reference is made to shares "on a parity with the Preferred Stock", such reference shall mean and include all shares of the Corporation in respect of which the right of the holders thereof (i) are not given preference over the rights of the holders of Preferred Stock either as to the payment of dividends or as to distributions in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Corporation and (ii) either as to the payment of dividends or as to distributions in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or as to both, rank on an equality (except as to the amounts fixed therefor) with the rights of the holders of Preferred Stock; and whenever reference is made to shares "ranking junior to the Preferred Stock" such reference shall mean and include all shares of the Corporation in respect of which the rights of the holders thereof both as to the payment of dividends and as to distributions in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Corporation are junior and subordinate to the rights of the holders of the Preferred Stock. IN WITNESS WHEREOF, said Hoyt M. Wells, President, and James Boyazis, Secretary, of THE GOODYEAR TIRE & RUBBER COMPANY, acting for and on behalf of said corporation, have hereunto subscribed their names and caused the seal of said corporation to be hereunto affixed this 6th day of April, 1993. By: /s/ Hoyt M. Wells ----------------------------------- Hoyt M. Wells, President [SEAL] By: /s/ James Boyazis ----------------------------------- James Boyazis, Secretary 11 EXHIBIT 4.1 Continued CERTIFICATE OF AMENDMENT TO AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY Samir F. Gibara, President, and James Boyazis, Secretary, of The Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office located at Akron, Summit County, Ohio, do hereby certify that, pursuant to the authority conferred upon the Board of Directors of said corporation by Section 1 of Part B of ARTICLE FOURTH of the Amended Articles of Incorporation of the said corporation and by the Ohio General Corporation Law, at a meeting of the Board of Directors of said corporation duly called and held on the 4th day of June, 1996, at which meeting a quorum of the Board of Directors was at all times present, the Board of Directors was without shareholder action, which shareholder action was not required, the following resolution: RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the following amendment to its Amended Articles of Incorporation, as amended to date, and that the Chairman of the Board, the President or a Vice President and the Secretary or an Assistant Secretary of the Company are hereby authorized and directed to sign and file in the office of the Secretary of State of the State of Ohio a certificate containing a copy of the resolution adopting the amendment and a statement of the manner of its adoption: The Amended Articles of Incorporation of the Company are hereby amended to create a new series of Preferred Stock by adding a new Section 1-B to PART B of ARTICLE FOURTH as follows: Section 1-B. Series B Preferred Stock, Without Par Value. A series of Preferred Stock is hereby created having the following terms: 1. Designation. The shares of such series are designated as: "Series B Preferred Stock, without par value." 2. Authorized Number of Shares - Fractional Shares. The authorized number of shares constituting the Series B Preferred Stock is 7,000,000. Series B Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock. 3. Dividends and Distributions. (A) Subject to any prior and superior rights of the holders of any series of Preferred Stock ranking prior and superior to the shares of Series B Preferred Stock with 1 respect to dividends that may be authorized by the Amended Articles of Incorporation, the holders of shares of Series B Preferred Stock shall be entitled prior to the payment of any dividends on shares ranking junior to the Series B Preferred Stock to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the last day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater (a) $25.00 or (b) subject to the provisions for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Preferred Stock. In the event the Corporation shall at any time after July 29, 1996 (the "Rights Declaration Date") (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per share on the Series B Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series B Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. (D) Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, 2 which record date shall be no more than 60 days prior to the date fixed for the payment thereof. (E) Dividends in full shall not be declared or paid or set apart for payment on the Series B Preferred Stock for a dividend period terminating on the quarterly Dividend Payment Date unless dividends in full have been declared or paid or set apart for payment on the Preferred Stock of all series (other than series with respect to which dividends are not cumulative from a date prior to such dividend date) on such dividend date. When the dividends are not paid in full on all series of the Preferred Stock, the shares of all series shall share ratably in the payment of dividends, including accumulations, if any, in accordance with the sums which would be payable on such shares if all dividends were declared and paid in full. 4. Liquidation, Dissolution or Winding Up (A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received $25.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series B Liquidation Preference"). Following the payment of the full amount of the Series B Liquidation Preference, no additional distribution shall be made to the holders of shares of Series B Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Adjustment") equal to the quotient obtained by dividing (i) the Series B Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii) is hereinafter referred to as the "Adjustment Number"). Following the payment of the full amount of the Series B Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series B Preferred Stock and Common Stock respectively, holders of Series B Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Series B Preferred Stock and Common Stock, on a per share basis, respectively. (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series B Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series B Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of 3 Common Stock that were outstanding immediately prior to such event. 5. Conversion on Merger, Consolidation, etc. In case the Corporation shall enter into any merger, consolidation, combination or other transaction in which the shares of Common Stock are exchanged or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series B Preferred Stock shall at the time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 6. Redemption. The outstanding shares of Series B Preferred Stock shall not be redeemable. 7. Condition to Issuance of any other Series. The Articles of Incorporation of the Corporation shall not be further amended to provide for the issuance of any other series of Preferred Stock without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series B Preferred Stock, voting separately as one voting group. IN WITNESS WHEREOF, said Samir F. Gibara, President, and James Boyazis, Secretary, of The Goodyear Tire & Rubber Company, acting on behalf of said corporation, have hereunto subscribed their names and caused the seal of said corporation to be hereunto affixed this 4th day of June, 1996. By: /s/ Samir F. Gibara ------------------------------------ Samir F. Gibara, President By: /s/ James Boyazis ------------------------------------ James Boyazis, Secretary [SEAL] 4 UNITED STATES OF AMERICA, STATE OF OHIO, OFFICE OF THE SECRETARY OF STATE I, BOB TAFT, Secretary of State of the State of Ohio, do hereby certify that the foregoing is a true and correct copy, consisting of 4 pages, as taken from the original record now in my official custody as Secretary of State. WITNESS my hand and official seal at Columbus, Ohio, this 30th day of July, A.D., 1996. [SEAL OF THE SECRETARY OF STATE OF OHIO] By: /s/ Bob Taft ------------------------------------ BOB TAFT Secretary of State By: A Henderson ------------------------------------ NOTICE: THIS IS AN OFFICIAL CERTIFICATION ONLY WHEN REPRODUCED IN RED INK. EX-4.2 4 l93258aex4-2.txt EXHIBIT 4.2 EXHTBIT 4.2 ================================================================================ THE GOODYEAR TIRE & RUBBER COMPANY -------- CODE OF REGULATIONS -------- ADOPTED NOVEMBER 22, 1955 AS AMENDED APRIL 5, 1965 APRIL 7, 1980, APRIL 6, 1981 AND APRIL 13, 1987 ================================================================================ CODE OF REGULATIONS ARTICLE I SHAREHOLDERS SECTION 1. Annual Meeting. The annual meeting of shareholders of the Company for the election of directors, the consideration of reports to be laid before such meeting, and the transaction of such other business as may properly be brought before such meeting, shall be held at the principal office of the Company in Akron, Ohio, at ten o'clock a.m., or at such other time as may be designated by the Board of Directors, by the Chairman of the Board, or by the President and specified in the notice of the meeting, on the first Monday of April in each year, unless the Board of Directors by a resolution adopted on or before the first day of March of any year, shall fix a different date, which date may be any day, other than a Sunday or a legal holiday, during the period beginning April 1 and ending April 15 of such year, in which event the meeting shall be held on the date set by such resolution. SECTION 2. Special Meetings. Special meetings of the shareholders of the Company may be held on any business day, when called by the Chairman of the Board, or by the President, or by a Vice President, or by the Board acting at a meeting, or by a majority of the directors acting without a meeting, or by the persons who hold twenty-five per cent of all shares outstanding and entitled to vote thereat. Upon request in writing delivered either in person or by registered mail to the President or the Secretary by any persons entitled to call a meeting of shareholders, such officer shall forthwith cause to be given to the shareholders entitled thereto notice of a meeting to be held on a date not less than seven or more than sixty days after the receipt of such request, as such officer may fix. If such notice is not given within thirty days after the delivery or mailing of such request, the persons calling the meeting may fix the time of the meeting and give notice thereof in the manner provided by law or as provided in these Regulations, or cause such notice to be given by any designated representative. Each special meeting shall be called to convene between nine o'clock a.m. and four o'clock p.m. and shall be held at the principal office of the Company in Akron, Ohio, unless the same is called by the directors, acting with or without a meeting, in which case such meeting may be held at any place either within or without the State of Ohio designated by the directors and specified in the notice of such meeting. SECTION 3. Notice of Meetings. Not less than seven or more than sixty days before the date fixed for a meeting of shareholders, written notice stating the time, place, and purposes of such meeting shall be given by or at the direction of the Secretary or an Assistant Secretary or any other person or persons required or permitted by these Regulations to give such notice. The notice shall be given by personal delivery or by mail to each shareholder entitled to notice of the meeting who is of record as of the day next preceding the day on which notice is given or, if a record date therefor is duly fixed, of 3 record as of said date; if mailed, the notice shall be addressed to the shareholders at their respective addresses as they appear on the records of the Company. Notice of the time, place, and purposes of any meeting of shareholders may be waived in writing, either before or after the holding of such meeting, by any shareholder, which writing shall be filed with or entered upon the records of the meeting. SECTION 4. Quorum; Adjournment. Except as may be otherwise provided by law or by the Articles of Incorporation, at any meeting of the shareholders the holders of shares entitling them to exercise a majority of the voting power of the Company present in person or by proxy shall constitute a quorum for such meeting; provided, however, that no action required by law, the Articles, or these Regulations to be authorized or taken by a designated proportion of the shares of the Company may be authorized or taken by a lesser proportion; and provided, further, that the holders of a majority of the voting shares represented thereat, whether or not a quorum is present, may adjourn such meeting from time to time; if any meeting is adjourned, notice of such adjournment need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. SECTION 5. Proxies. Persons entitled to vote shares or to act with respect to shares may vote or act in person or by proxy. The person appointed as proxy need not be a shareholder. SECTION 6. Approval and Ratification of Acts of Officers and Board. Except as otherwise provided by the Articles of Incorporation or by law, any contract, act, or transaction, prospective or past, of the Company, or of the Board, or of the officers may be approved or ratified by the affirmative vote at a meeting of the shareholders, or by the written consent, with or without a meeting, of the holders of shares entitling them to exercise a majority of the voting power of the Company, and such approval or ratification shall be as valid and binding as though affirmatively voted for or consented to by every shareholder of the Company. ARTICLE II BOARD OF DIRECTORS SECTION 1. Number and Classification; Authority. The Board of Directors shall be composed of fifteen members and shall be divided into three classes (Class I, Class II and Class III), each class to consist of five directors unless the number of members of the Board of Directors or of any class is changed by action of the shareholders taken in accordance with the laws of the State of Ohio, the Articles of Incorporation and these Regulations or by a resolution adopted by the affirmative vote of a majority of the directors then in office. The directors may, from time to time, increase or decrease the number of directors, provided that the directors shall not increase the number of directors to more than nineteen persons or decrease the number of directors to less than eleven persons and, provided further, that the directors shall not decrease the number of directors in any class to fewer than three persons. Any director's office that is created by an increase in the number of directors pursuant to action taken by the Board of Directors 4 may be filled by the vote of a majority of the directors then in office. In the event of any increase in the number of directors of any class, any additional director elected to such class shall hold office for a term which shall coincide with the unexpired term of suck class. No reduction in the number of directors by action taken by the shareholders or the directors shall, of itself, shorten the term or result in the removal of any incumbent director. Except where the law, the Articles of Incorporation or these Regulations require action to be authorized or taken by the shareholders, all of the authority of the Company shall be exercised by the directors. SECTION 2. Election of Directors, Term of Office. At each annual meeting of shareholders, or at a special meeting called for the purpose of electing directors, each successor to the directors of the class whose term shall expire in that year shall be elected for a term of three years and shall hold office until the third annual meeting of shareholders following his or her election as a director and until his or her successor is elected and qualified, or until his or her earlier resignation, removal from office or death. At a meeting of shareholders at which directors of any class are to be elected, only persons nominated as candidates shall be eligible for election as directors and the candidates receiving the greatest number of votes shall be elected. A separate election shall be held for each class of directors at any meeting of shareholders at which a member of more than one class of directors is being elected. Directors elected at the first election for Class I directors shall hold office for a term of three years; directors elected at the first election for Class II directors shall hold office for a term of two years; and directors elected at the first election for Class III directors shall hold office for a term of one year; and in each instance such directors shall hold office until their successors are elected and qualified. SECTION 3. Vacancies; Resignations, Removal of Directors. In the event of the occurrence of any vacancy or vacancies in the Board, however caused, the remaining directors, though less than a majority of the whole authorized number of directors, may, by the vote of a majority of their number, fill any such vacancy for the unexpired term of the class in which such vacancy occurred. Any director may resign at any time by oral statement to that effect made at a meeting of the Board or in a writing to that effect delivered to the Secretary, such resignation to take effect immediately or at such other time as the director may specify. All the directors, or all the directors of a particular class, or any individual director, may be removed from office by the vote of the holders of shares entitling them to exercise two-thirds of the voting power of the Company entitled to vote to elect directors in place of the director or directors to be removed, provided that unless all the directors, or all the directors of a particular class, are removed, no individual director shall be removed if the votes of a sufficient number of shares are cast against such director's removal which, if cumulatively voted at an election of all the directors, or all of the directors of a particular class, as the case may be, would be sufficient to elect at least one director; provided further, that, if shareholders do not have the right to vote cumulatively under the law of Ohio or the Articles of Incorporation, such directors, class of directors or individual director may be removed from office by the vote of the holders of shares entitling them to exercise two-thirds of the voting power of the Company entitled to vote to elect directors in place of the director or directors to be removed. In the event of any 5 such removal, a new director may be elected at the same meeting for the unexpired term of each director removed. Failure to elect a director to fill the unexpired term of any director so removed from office shall be deemed to create a vacancy in the Board of Directors. Notwithstanding Article X of these Regulations, the provisions of this Section 3 of Article II may be amended, repealed or supplemented only by the shareholders at a meeting held for such purpose by the affirmative vote of the holders of shares entitling them to exercise two-thirds of the voting power of the Company on such proposal. SECTION 4. Meetings. Immediately after each annual meeting of the shareholders, the newly elected directors shall hold an organization meeting for the purpose of electing officers and transacting any other business. Notice of such meeting need not be given. Other meetings of the Board may be held at any time within or without the State of Ohio in accordance with the bylaws, resolutions, or other action by the Board. Unless otherwise expressly stated in the notice thereof, any business may be transacted at any meeting of the Board. SECTION 5. Quorum; Adjournment. A quorum of the Board shall consist of a majority of the directors then in office; provided that a majority of the directors present at a meeting duly held, whether or not a quorum is present, may adjourn such meeting from time to time; if any meeting is adjourned, notice of adjournment need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. At each meeting of the Board at which a quorum is present, all questions and business shall be determined by a majority vote of those present except as in these Regulations otherwise expressly provided. SECTION 6. Committees. The Board may from time to time create or appoint an Executive Committee, a Finance Committee, a combined Executive and Finance Committee, and any other committee or committees deemed advisable by the Board for the proper transaction of the Company's business. Any such committee shall be composed of not less than three directors (not less than five directors in the case of an Executive and Finance Committee), each of whom shall serve at the pleasure of, and be subject at all times to the control and direction of, the Board. Any such committee shall act only in the intervals between meetings of the Board and shall have such authority as adheres to the committee by virtue of the provisions of this section or as may, from time to time, be delegated by the Board, except that no committee shall have authority to fill vacancies in the Board or in any committee of the Board. Subject to the aforesaid exceptions, and in the absence of express delegation of authority by the Board, the Executive Committee may transact all business and do and perform all things which may or might be transacted or done by the Board, the Finance Committee shall have the authority usually and ordinarily possessed by finance committees, and the combined Executive and Finance Committee shall have the aforesaid authority of the Executive Committee and of the Finance Committee. Subject to the aforesaid exceptions with respect to the filling of vacancies in the Board or in any committee, any person dealing with the Company shall be entitled to rely upon any act of, or authorization of any act by, such committees, to the same extent as an act or authorization of the Board. Each committee shall keep full and complete records of all meetings and actions, which shall be open to inspection 6 by the directors. Unless otherwise ordered by the Board, any such committee may prescribe its own rules for calling and holding meetings, and for its own method of procedure, and may act by a majority of its members at a meeting or without a meeting by a writing or writings signed by all of its members. The directors may appoint one or more alternate members of any such committee to take the place of any absent member or members at any meeting of such committee and, if permitted by law, to join in any action of such committee authorized or taken without a meeting; each such alternate shall serve at the pleasure of, and be subject at all times to the control and direction of, the Board. SECTION 7. Bylaws. The Board may adopt bylaws for its own government, not inconsistent with the Articles of Incorporation or these Regulations. ARTICLE III OFFICERS SECTION 1. Election and Designation of Officers. The Board, at its organization meeting, may elect a Chairman of the Board and shall elect a President, a Secretary, a Treasurer, and, in its discretion, at any meeting of the Board, may elect one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, a Comptroller, one or more Assistant Controllers, and such other officers as the Board may deem necessary. The Chairman of the Board and the President shall be directors, but no one of the other officers need be a director. Any two or more of such offices may be held by the same person, but no officer shall execute, acknowledge, or verify any instrument in more than one capacity, if such instrument is required to be executed, acknowledged, or verified by two or more officers. SECTION 2. Term of Office; Vacancies. The officers of the Company shall hold office until the next organization meeting of the Board and until their successors are elected, except in case of resignation, death, or removal. The Board may remove any officer at any time with or without cause by a two-thirds vote of the members of the Board then in office. Any vacancy in any office may be filled by the Board. SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of shareholders and of the Board and shall have such authority and perform such duties as the Board may determine. SECTION 4. President. Except for meetings at which the Chairman of the Board, if any, presides in accordance with the preceding Section, the President shall preside at all meetings of shareholders and of the Board. Subject to directions of the Board, he shall have general executive supervision over the property, business, and affairs of the Company. SECTION 5. Vice Presidents. In case of the absence or disability of the President, or when circumstances prevent the President from acting, the Vice Presidents of the Company shall perform all the duties and possess all the authority of the President, and shall have priority in the performance of such duties and exercise of such authority in the order of their election by the Board. 7 SECTION 6. Secretary. The Secretary shall keep the minutes of meetings of the shareholders and of the Board. He shall keep such books as may be required by the Board, and shall give notices of shareholders' meetings and of Board meetings required by law, or by these Regulations, or otherwise. SECTION 7. Treasurer. The Treasurer shall receive and have in charge all money, bills, notes, bonds, stocks in other corporations, and similar property belonging to the Company, and shall do with the same as may be ordered by the Board. He shall keep accurate financial accounts and hold the same open for the inspection and examination of the directors. SECTION 8. Comptroller. The Comptroller shall exercise a general check upon the disbursement of funds of the Company and shall have general charge and supervision of the preparation of financial reports. SECTION 9. Other Officers. The Assistant Secretaries, Assistant Treasurers, and Assistant Comptrollers, if any, in addition to such authority and duties as the Board may determine, shall have such authority and perform such duties as may be directed by their respective principal officers. SECTION 10. Authority and Duties. The officers shall have such authority and perform such duties, in addition to those specifically set forth in these Regulations, as the Board may determine. The Board is authorized to delegate the duties of any officer to any other officer and generally to control the action of the officers and to require the performance of duties in addition to those mentioned herein. ARTICLE IV COMPENSATION The Board, by the affirmative vote of a majority of the directors in office, and irrespective of any personal interest of any of them, shall have authority to establish reasonable compensation, which may include pension, disability and death benefits, for services to the Company by directors and officers, or to delegate such authority to one or more officers or directors. ARTICLE V INDEMNIFICATION The Company shall indemnify each person who is or was a director, officer or employee of the Company, or of any other corporation which he served as such at the request of the Company, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit, or proceeding (whether brought by or in the right of the Company or such other corporation or otherwise), civil or criminal, or in connection with an appeal relating thereto, in which he may 8 become involved, as a party or otherwise, by reason of his being or having been a director, officer, or employee of the Company or of such other corporation, or by reason of any past or future action taken or not taken in his capacity as such director, officer, or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided such person acted, in good faith, in what he reasonably believed to be the best interests of the Company or such other corporation, as the case may be, and, in addition, in any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. As used in this Article, the terms "liability" and "expense" shall include, but shall not be limited to, counsel fees and disbursements and amounts of judgments, fines, or penalties against, and amounts paid in settlement by, a director, officer, or employee, other than amounts paid to the Company itself or to such other corporation served at the Company's request. The termination of any claim, action, suit, or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer, or employee did not meet the standards of conduct set forth in the first sentence of this Article. Any such director, officer, or employee referred to in this Article who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit, or proceeding of the character described herein shall be entitled to indemnification as of right. Except as provided in the preceding sentence, any indemnification hereunder shall be made at the discretion of the Company, but only if (1) the Board, acting by a quorum consisting of directors who are not parties to (or who have been wholly successful with respect to) such claim, action, suit, or proceeding, shall find that the director, officer, or employee has met the standards of conduct set forth in the first sentence of this Article, or (2) independent legal counsel (who may be the regular counsel of the Company) shall deliver to it their written advice that, in their opinion, such director, officer, or employee has met such standards. Expense incurred with respect to any such claim, action, suit, or proceeding may be advanced by the Company prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount unless it shall ultimately be determined that he is entitled to indemnification under this Article. The rights of indemnification provided in this Article shall be in addition to any rights to which any person concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors, and administrators of any such person. ARTICLE VI RECORD DATES For any lawful purpose, including, without limitation, the determination of the shareholders who are entitled to: (1) receive notice of or to vote at a meeting of shareholders, (2) receive payment of any dividend or distribution, (3) receive or exercise rights of purchase of or subscription for, or exchange or conversion of, shares or other securities, subject to contract rights with respect thereto, or 9 (4) participate in the execution of written consents, waivers, or releases, the Board may fix a record date which shall not be a date earlier than the date on which the record date is fixed and, in the cases provided for in clauses (1), (2), and (3) above, shall not be more than sixty days preceding the date of the meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date fixed for the receipt or the exercise of rights, as the case may be. The record date for the purpose of the determination of the shareholders who are entitled to receive notice of or to vote at a meeting of shareholders shall continue to be the record date for all adjournments of such meeting, unless the Board or the persons who shall have fixed the original record date shall, subject to the limitations set forth in this Article, fix another date, and in case a new record date is so fixed, notice thereof and of the date to which the meeting shall have been adjourned shall be given to shareholders of record as of such date in accordance with the same requirements as those applying to a meeting newly called. The Board may close the share transfer books against transfers of shares during the whole or any part of the period provided for in this Article, including the date of the meeting of shareholders and the period ending with the date, if any, to which adjourned. ARTICLE VII EXECUTION OF DOCUMENTS Except as otherwise provided in these Regulations, or by specific or general resolutions of the Board, all documents evidencing conveyances by or contracts or other obligations of the Company shall be signed by the Chairman of the Board, if any, the President, or a Vice President, and attested by the Secretary or an Assistant Secretary. ARTICLE VIII CERTIFICATES FOR SHARES SECTION 1. Form of Certificates and Signatures. Each holder of shares is entitled to one or more certificates, signed by the Chairman of the Board or the President or a Vice President and by the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer of the Company, which shall certify the number and class of shares held by him in the Company, but no certificate for shares shall be executed or delivered until such shares are fully paid. When such a certificate is countersigned by an incorporated transfer agent or registrar, the signature of any of said officers of the Company may be facsimile, engraved, stamped, or printed. Although any officer of the Company whose manual or facsimile signature is affixed to such a certificate so countersigned ceases to be such officer before the certificate is delivered, such certificate nevertheless shall be effective in all respects when delivered. 10 SECTION 2. Transfer of Shares. Shares of the Company shall be transferable upon the books of the Company by the holders thereof, in person, or by a duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares of the same class or series, with duly executed assignment and power of transfer endorsed thereon or attached thereto, and with such proof of the authenticity of the signatures to such assignment and power of transfer as the Company or its agents may reasonably require. SECTION 3. Lost, Stolen, or Destroyed Certificates. The Company may issue a new certificate for shares in place of any certificate theretofore issued by it and alleged to have been lost, stolen, or destroyed, and the Board may, in its discretion, require the owner, or his legal representatives, to give the Company a bond containing such terms as the Board may require to protect the Company or any person injured by the execution and delivery of a new certificate. SECTION 4. Transfer Agents and Registrars. The Board may appoint, or revoke the appointment of, transfer agents and registrars and may require all certificates for shares to bear the signatures of such transfer agents and registrars, or any of them. The Board shall have authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer, and registration of certificates for shares of the Company. ARTICLE IX AUTHORITY TO TRANSFER AND VOTE SECURITIES The Chairman of the Board, the President, and a Vice President of the Company are each authorized to sign the name of the Company and to perform all acts necessary to effect a transfer of any shares, bonds, other evidences of indebtedness or obligations, subscription rights, warrants, and other securities of another corporation owned by the Company and to issue the necessary powers of attorney for the same; and each such officer is authorized, on behalf of the Company, to vote such securities, to appoint proxies with respect thereto, and to execute consents, waivers, and releases with respect thereto, or to cause any such action to be taken. ARTICLE X AMENDMENTS The Regulations of the Company may be amended or new Regulations may be adopted by the shareholders, at a meeting held for such purpose by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Company on such proposal or, without a meeting, by the written consent of the holders of shares entitling them to exercise two-thirds of the voting power on such proposal. 11 EX-4.3 5 l93258aex4-3.txt EXHIBIT 4.3 EXHIBIT 4.3 COMMON STOCK COMMON STOCK M NUMBER SHARES [GOODYEAR LOGO] INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO THE GOODYEAR TIRE & RUBBER COMPANY THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK. SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP 382550 10 1 This is to Certify that is the owner of FULL-PAID AND NON-ASSESSABLE SHARES WITHOUT PAR VALUE OF THE COMMON STOCK OF The Goodyear Tire & Rubber Company transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. Witness the seal of the Corporation and the signatures of its duly authorized officers. Dated The Goodyear Tire & Rubber Company. /s/ C. T. Harvie /s/ Samir Gibara SECRETARY CHAIRMAN OF THE BOARD COUNTERSIGNED AND REGISTERED: EQUISERVE TRUST COMPANY, N.A. TRANSFER AGENT AND REGISTRAR. BY AUTHORIZED SIGNATURE. THE GOODYEAR TIRE & RUBBER COMPANY THE GOODYEAR TIRE & RUBBER COMPANY WILL MAIL, WITHOUT CHARGE, TO THE REGISTERED HOLDER OF THIS CERTIFICATE A COPY OF THE EXPRESS TERMS (AS SET FORTH IN THE ARTICLES OF INCORPORATION AND THE CODE OF REGULATIONS OF THE CORPORATION) OF THE SHARES OF THE COMMON STOCK OF THE CORPORATION AND OF OTHER CLASSES OR SERIES OF SHARES, IF ANY, WHICH THE CORPORATION IS AUTHORIZED TO ISSUE WITHIN FIVE DAYS AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR, ADDRESSED TO THE SECRETARY OF THE CORPORATION, AKRON, OHIO 44316. This certificate also evidences and entitles the holder hereof to certain Rights as set forth in a Rights Agreement between THE GOODYEAR TIRE & RUBBER COMPANY and FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Rights Agent, dated as of June 4, 1996 (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of THE GOODYEAR TIRE & RUBBER COMPANY. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. THE GOODYEAR TIRE & RUBBER COMPANY will mail to the holder of this certificate a copy of the Rights Agreement (as in effect on the date of mailing) without charge promptly after a receipt of a written request therefor. Under certain circumstances, Rights which are or were beneficially owned by Acquiring Persons or their Affiliates or Associates (as such terms are defined in the Rights Agreement), and any subsequent holder of such Rights, may become null and void. Explanation of Abbreviations: The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM as tenants in common JT TEN as joint tenants with right TEN ENT as tentants by the entireties of survivorship and not as tenants in common UNIF GIFT MIN ACT Uniform Gifts to Minors Act Additional abbreviations may also be used though not in the above list. - -------------------------------------------------------------------------------- ASSIGNMENT For value received, ___________________ hereby sell, assign and transfer unto (Please Print or Type Name and Address of Assignee) Name Insert here Social Security or Other Identifying Number of Assignee _______________________________________ Street SHARES _______________________________________ City, State and Zip Code - -------------------------------------------------------------------------------- (Please Print or Type Name and Address of Assignee) Name Insert here Social Security or Other Identifying Number of Assignee _______________________________________ Street SHARES _______________________________________ City, State and Zip Code - -------------------------------------------------------------------------------- of the capital stock represented by the within Certificate and do hereby irrevocably constitute and appoint ________________________ Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. Issue certificate to the same owner as shown on the face SHARES of this certificate for any shares not assigned above Dated __________________________ X ___________________________________________________________ (The signature here must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever.) SIGNATURE GUARANTEED: EquiServe Trust Company, N.A. is the successor Rights Agent to the above-referenced Agreement. EX-4.4 6 l93258aex4-4.txt EXHIBIT 4.4 EXHIBIT 4.4 ================================================================================ THE GOODYEAR TIRE & RUBBER COMPANY AND FIRST CHICAGO TRUST COMPANY OF NEW YORK, RIGHTS AGENT RIGHTS AGREEMENT DATED AS OF JUNE 4, 1996 ================================================================================ TABLE OF CONTENTS -----------------
Page ---- RIGHTS AGREEMENT Section 1. Certain Definitions....................................................................1 Section 2. Appointment of Rights Agent............................................................7 Section 3. Issue of Right Certificates............................................................7 Section 4. Form of Right Certificates.............................................................8 Section 5. Countersignature and Registration......................................................9 Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates................................9 Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.........................10 Section 8. Cancellation and Destruction of Right Certificates....................................12 Section 9. Reservation and Availability of Shares of Capital Stock...............................12 Section 10. Preferred Stock Record Date...........................................................14 Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights................................................................................14 Section 12. Certificate of Adjusted Purchase Price or Number of Shares............................22 Section 13. Combination, Consolidation, Merger or Sale or Transfer of Assets or Earning Power.........................................................................23 Section 14. Fractional Rights and Fractional Shares...............................................25 Section 15. Rights of Action......................................................................26 Section 16. Agreement of Right Holders............................................................26
-i- Section 17. Right Certificate Holder Not Deemed a Shareholder.....................................27 Section 18. Concerning the Rights Agent...........................................................27 Section 19. Merger or Consolidation or Change of Name of Rights Agent.............................28 Section 20. Duties of Rights Agent................................................................29 Section 21. Change of Rights Agent................................................................31 Section 22. Issuance of New Right Certificates....................................................32 Section 23. Redemption and Termination............................................................32 Section 24. Exchange..............................................................................34 Section 25. Notice of Certain Events..............................................................35 Section 26. Notices...............................................................................36 Section 27. Supplements and Amendments............................................................36 Section 28. Successors............................................................................37 Section 29. Determinations and Actions by the Board of Directors, etc.............................37 Section 30. Benefits of This Agreement............................................................38 Section 31. Severability..........................................................................38 Section 32. Governing Law.........................................................................38 Section 33. Counterparts..........................................................................38 Section 34. Descriptive Headings..................................................................38 Exhibit A Form of Articles of Amendment........................................................A-1 Exhibit B Form of Rights Certificate...........................................................B-1 Exhibit C Summary of Rights to Purchase Preferred Stock........................................C-1
-ii- RIGHTS AGREEMENT ---------------- RIGHTS AGREEMENT, dated as of June 4, 1996 (the "Agreement"), between THE GOODYEAR TIRE & RUBBER COMPANY, a Ohio corporation (the 'Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation (the "Rights Agent"). W I T N E S S E T H: -------------------- WHEREAS, the Board of Directors of the Company on June 4, 1996 (the "Rights Dividend Declaration Date") authorized and declared a dividend distribution (the "Distribution") of one Right for each outstanding share of the Common Stock, without par value, of the Company (the "Common Stock") outstanding at the close of business on July 29, 1996 (the "Record Date") and has authorized the issuance of one Right (as such number may hereinafter be adjusted pursuant to the provisions of Section 11(i) hereof) in respect of each share of Common Stock issued (whether originally issued or delivered from the Company's treasury shares) between the Record Date and the earlier of the Distribution Date or the Expiration Date (as such terms are hereinafter defined), each Right initially representing the right to purchase, under certain circumstances, one one-hundredth of a share of Series B Preferred Stock having the rights, powers and preferences set forth in the Articles of Amendment attached hereto as Exhibit A, upon the terms and subject to the conditions hereinafter set forth (the "Rights"); NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows: SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms have the meanings indicated: (a) "Acquiring Person" shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates (as such term is hereinafter defined) and Associates (as such term is hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of securities of the Company constituting a Substantial Block (as such term is hereinafter defined), but shall not include (i) the Company, any Subsidiary (as such term is hereinafter defined) of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company or any Person organized, appointed or established by the Company or any Subsidiary of the Company for or pursuant to the terms of any such plan (the Persons described in this clause (i) are herein referred to as "Exempt Persons"), (ii) any Person who or which, together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of a Substantial Block solely as a result of a change in the aggregate number of shares 1 of the Common Stock or other voting securities of the Company outstanding since the last date on which such Person acquired Beneficial Ownership of any securities of the Company constituting such Substantial Block, or (iii) any Person who or which, together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of a Substantial Block in the good faith belief that such acquisition would not (x) cause such Person and its Affiliates and Associates to become the Beneficial Owner of a Substantial Block and such Person relied in good faith in computing the percentage of its voting power on publicly filed reports or documents of the Company which are inaccurate or out-of-date or (y) otherwise cause a Distribution Date or the adjustment provided for in Section 11(a) to occur. Notwithstanding clause (iii) of the prior sentence, if any Person that is not an Acquiring Person due to such clause (iii) does not cease to be the Beneficial Owner of a Substantial Block by the close of business on the last Business Day of a period to be determined by the Board of Directors of the Company and specified in a notice from the Company that such Person is the Beneficial Owner of a Substantial Block, such Person shall, at the end of such specified period, become an Acquiring Person (and such clause (iii) shall no longer apply to such Person). No failure by the Board of Directors of the Company to give such notice for a period of time, and no notice specifying a particular time period by which such Person must cease to be the Beneficial Owner of a Substantial Block, shall be deemed a waiver of the right of the Board of Directors to subsequently give or modify such notice. For purposes of this definition, the determination whether any Person acted in "good faith" shall be conclusively determined by the Board of Directors of the Company, acting by a vote of those directors of the Company whose approval would be required to redeem the Rights under Section 23 hereof. (b) "Act" shall have the meaning set forth in Section 9(c) hereof. (c) "Adjustment Shares" shall have the meaning set forth in Section 11(a)(ii) hereof. (d) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date hereof. (e) "Agreement" shall have the meaning set forth in the introduction hereto. (f) A Person shall be deemed the "Beneficial Owner" of and shall be deemed to "beneficially own" any securities: (i) which such Person or any of such Person's Affiliates or Associates has, directly or indirectly, the right to acquire (whether such right is exercisable immediately or only after the passage of time or upon the occurrence of an event) pursuant to any agreement, arrangement or understanding (whether or not in writing), or upon the exercise of conversion rights, exchange rights, rights, 2 warrants or options, or otherwise; provided, however, that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially own," (1) securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange, (2) securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering Event, or (3) securities issuable upon exercise of Rights from and after the occurrence of a Triggering Event (as such term is hereinafter defined), which Rights were acquired by such Person or any of such Person's Affiliates or Associates prior to the Distribution Date or pursuant to Section 3(a) hereof ("Original Rights") or pursuant to Section 11(i) or Section 22 hereof in connection with an adjustment made with respect to any Original Rights; or (ii) which such Person or any of such Person's Affiliates or Associates has, directly or indirectly, the right to vote or dispose of or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including pursuant to any agreement, arrangement or understanding (whether or not in writing); provided, however, that a Person shall not be deemed the Beneficial Owner of, or to "beneficially own," any security under this subparagraph (ii) if the agreement, arrangement or understanding to vote such security (1) arises solely from a revocable proxy given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations of the Exchange Act and (2) is not then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report); (iii) which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of such Person's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the proviso to subparagraph (ii) of this paragraph (f)) or disposing of any securities of the Company; or (iv) which are directly, indirectly or constructively owned by such Person or any of such Person's Affiliates or Associates, within the meaning of Section 958 of the Internal Revenue Code of 1986, as amended. Notwithstanding the foregoing, nothing contained in this definition shall cause a Person ordinarily engaged in business as an underwriter of securities to be the "Beneficial Owner" of, or to "beneficially own", any securities acquired in a bona fide firm commitment underwriting pursuant to an underwriting agreement with the Company. (g) "Business Day" shall mean any day other than a Saturday, Sunday, or a day on which banking institutions in either the State of Ohio or the state (if other than Ohio) 3 in which the principal office of the Rights Agent are authorized or obligated by law or executive order to close. (h) "Certification" shall have the meaning set forth in Section 18 hereof. (i) "close of business" on any given date shall mean 5:00 P.M., Akron time, on such date; provided, however, if such date is not a Business Day it shall mean 5:00 P.M., Akron time, on the next succeeding Business Day. (j) "Common Stock" when used with reference to the Company shall mean the Common Stock, without par value, of the Company. "Common Stock" when used with reference to any Person other than the Company shall mean the capital stock with the greatest voting power of such Person or the equity securities or other equity interest having power to control or direct the management of such Person. (k) "common stock equivalent" shall have the meaning set forth in Section 11(a)(iii). (l) "Company" shall mean The Goodyear Tire & Rubber Company, an Ohio corporation. (m) "Current Value" shall have the meaning set forth in Section 11(a)(iii) hereof. (n) "current market price" shall have the meaning set forth in Section 11(d) hereof. (o) "Distribution" shall have the meaning set forth in the recitals hereto. (p) "Distribution Date" shall mean the earlier of (i) the close of business on the tenth Business Day after the Shares Acquisition Date (or, if the tenth Business Day after the Shares Acquisition Date occurs before the Record Date, the close of business on the Record Date) or (ii) the close of business on the tenth Business Day after the date of the commencement of, or first public announcement of the intent of any Person to commence, a tender or exchange offer if, upon consummation thereof, such Person would be an Acquiring Person. (q) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (r) "Exchange Ratio" shall have the meaning set forth in Section 24(a) hereof. (s) "Expiration Date" shall mean the earlier of (i) the Final Expiration Date, (ii) the time at which the Rights are redeemed as provided in Section 23 hereof, or (iii) the time at which all exercisable Rights are exchanged as provided in Section 24 hereof. 4 (t) "Final Expiration Date" shall mean the close of business on July 29, 2006. (u) "Independent Director" shall mean any member of the Board of Directors of the Company, while such person is a member of the Board, who is not an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a representative or nominee of an Acquiring Person or of any such Affiliate or Associate, and was a member of the Board prior to the time that any Person becomes an Acquiring Person, and any successor of an Independent Director, while such successor is a member of the Board, who is not an Acquiring Person or an Affiliate or Associate of an Acquiring Person, or a representative or nominee of an Acquiring Person or of any such Affiliate or Associate, and is recommended or elected to succeed the Independent Director by a majority of the Independent Directors. (v) "Original Rights" shall have the meaning set forth in the definition of "Beneficial Owner" above. (w) "Person" shall mean any individual, firm, corporation, partnership, association, joint stock company, trust, business trust, government or political subdivision, any unincorporated organization, or any other association or entity, including any "group" within the meaning of Section 13(d)(3) of the Exchange Act and the General Rules and Regulations thereunder. (x) "Preferred Stock" shall mean shares of Series B Preferred Stock, without par value, of the Company having the rights and preferences set forth in the form of Certificate of Amendment To Amended Articles of Incorporation attached to this Agreement as Exhibit A. (y) "Principal Party" shall have the meaning set forth in Section 13(b) hereof. (z) "Purchase Price" shall mean initially $250 per one one-hundredth of a share of Preferred Stock and shall be subject to adjustment from time to time as provided in this Agreement. (aa) "Record Date" shall mean the close of business on July 29, 1996. (bb) "Redemption Price" shall have the meaning set forth in Section 23(a) hereof. (cc) "Right Certificate" shall have the meaning set forth in Section 3(a) hereof. (dd) "Rights" shall have the meaning set forth in the recitals hereto. (ee) "Rights Agent" shall mean First Chicago Trust Company of New York, and its successors and assigns. 5 (ff) "Rights Dividend Declaration Date" shall mean June 4, 1996. (gg) "Section 11(a)(ii) Event" shall mean any event described in Section 11(a)(ii). (hh) "Section 11(a)(ii) Trigger Date" shall have the meaning set forth in Section 11(a)(iii). (ii) "Section 13 Event' shall mean any event described in Section 13(a). (jj) "Shares Acquisition Date" shall mean the first date of public announcement (which, for purposes of this definition, includes a report filed pursuant to Section 13(d) of the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has become such. (kk) "Spread" shall have the meaning set forth in Section 11(a)(iii) hereof. (ll) "Subsidiary" shall mean, with reference to any Person, any corporation (or other legal entity) of which an amount of voting securities (or comparable ownership interests) sufficient to elect at least a majority of the directors (or comparable persons) of such corporation (or other legal entity) is beneficially owned or otherwise controlled, directly or indirectly, by such Person. (mm) "Substantial Block" shall mean a number of shares of the Common Stock equal to or in excess of 15% of the number of shares of the Common Stock then outstanding. (nn) "Substitution Period" shall have the meaning set forth in Section 11(a)(iii) hereof. (oo) "Summary of Rights" shall have the meaning set forth in Section 3(b) hereof. (pp) "Trading Day" shall have the meaning set forth in Section 11(d) hereof. (qq) "Triggering Event" shall mean any Section 11(a)(ii) Event or Section 13 Event. (rr) "Voting Shares" shall mean all capital stock of the Company authorized to be issued from time to time under the Amended Articles of Incorporation of the Company which by its terms may be voted on all matters submitted to shareholders of the Company generally. SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the Rights Agent to act as agent for the Company in accordance with the terms and conditions 6 hereof, and the Rights Agent hereby accepts such appointment. The Company may from time to time act as Co-Rights Agent and may from time to time, upon ten calendar days' written notice to the Rights Agent, appoint such other Co-Rights Agents as it may deem necessary or desirable. In no event shall the Rights Agent have any duty to supervise or in any way be liable for such Co-Rights Agents. SECTION 3. ISSUE OF RIGHT CERTIFICATES. (a) Until the Distribution Date, (i) the Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by the certificates for the Common Stock registered in the names of the holders of the Common Stock (which certificates for the Common Stock shall be deemed also to be Right Certificates) and not by separate Right Certificates, and (ii) the right to receive Right Certificates will be transferable only in connection with the transfer of the Common Stock. As soon as practicable after receipt by the Rights Agent of written notice from the Company of the Distribution Date, the Rights Agent, at the Company's expense, will send by first-class, postage prepaid mail, to each record holder of the Common Stock as of the close of business on the Distribution Date, at the address of such holder shown on the records of the Company, a Right Certificate, in substantially the form of Exhibit B hereto, evidencing one Right for each share of the Common Stock so held, subject to adjustment as provided herein. As of and after the close of business on the Distribution Date, the Rights will be evidenced solely by such Right Certificates. (b) As soon as practicable following the Record Date, the Company will send a copy of a Summary of Rights to Purchase Common Stock, in substantially the form attached hereto as Exhibit C (the "Summary of Rights"), by prepaid mail, to each record holder of the Common Stock as of the close of business on the Record Date, at the address of such holder shown on the records of the Company. With respect to certificates for the Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by such certificates for the Common Stock, and the registered holders of the Common Stock shall also be the registered holders of the associated Rights. Until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any of the certificates for the Common Stock outstanding on the Record Date shall also constitute the transfer of the Rights associated with the Common Stock represented by such certificate. (c) Rights shall be issued in respect of all shares of Common Stock issued after the Record Date but prior to the earlier of the Distribution Date or the Expiration Date, or, in certain circumstances provided in Section 22 hereof, after the Distribution Date. Certificates representing such shares of Common Stock shall have impressed on, printed on, written on or otherwise affixed to them the following legend: This certificate also evidences and entitles the holder hereof to certain Rights as set forth in a Rights Agreement between THE GOODYEAR TIRE & RUBBER COMPANY and FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Rights Agent, dated as of June 4, 1996 (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of THE GOODYEAR TIRE & 7 RUBBER COMPANY. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. THE GOODYEAR TIRE & RUBBER COMPANY will mail to the holder of this certificate a copy of the Rights Agreement (as in effect on the date of mailing) without charge promptly after receipt of a written request therefor. Under certain circumstances, Rights which are or were beneficially owned by Acquiring Persons or their Affiliates or Associates (as such terms are defined in the Rights Agreement), and any subsequent holder of such Rights, may become null and void. After the due execution of any supplement or amendment to this Agreement in accordance with the terms hereof, the reference to this Agreement in the foregoing legend shall mean the Agreement as so supplemented or amended. Until the Distribution Date, the Rights associated with the Common Stock represented by certificates containing the foregoing legend shall be evidenced by such certificates alone, and the surrender for transfer of any of such certificates shall also constitute the transfer of the Rights associated with the Common Stock represented by such certificate. SECTION 4. FORM OF RIGHT CERTIFICATES. (a) The Right Certificates (and the forms of election to purchase shares and of assignment to be printed on the reverse thereof) shall be substantially the same as Exhibit B hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Rights may from time to time be listed, or to conform to usage. The Right Certificates shall be in machine-printable format and in a form reasonably satisfactory to the Rights Agent. Subject to the provisions of Section 11 and Section 22 hereof, the Right Certificates, whenever distributed, shall be dated as of the Record Date, shall show the date of countersignature, and on their face shall entitle the holders thereof to purchase such number of one one-hundredth of a share of Preferred Stock (or following a Triggering Event, Common Stock, other securities, cash or other assets, as the case may be) as shall be set forth therein at the Purchase Price per share set forth therein, but the number of such shares and the Purchase Price shall be subject to adjustment as provided herein. (b) Any Right Certificate issued pursuant to Section 3(a), 6, 7(e), 11(i) or 22 hereof that represents Rights beneficially owned by: (i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom such Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in writing) regarding the transferred Rights or (B) a transfer which the Board of Directors of the 8 Company has determined is part of a plan, arrangement or understanding (whether or not in writing) which has as a primary purpose or effect avoidance of Section 7(e) hereof, and any Right Certificate issued pursuant to Section 6, Section 11 or Section 22 hereof upon transfer, exchange, replacement or adjustment of any other Right Certificate referred to in this sentence, shall contain (to the extent feasible) the following legend: The Rights represented by this Right Certificate are or were beneficially owned by a Person who was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement). Accordingly, this Right Certificate and the Rights represented hereby may become null and void in the circumstances specified in Section 7(e) of the Rights Agreement. SECTION 5. COUNTERSIGNATURE AND REGISTRATION. (a) The Right Certificates shall be executed on behalf of the Company in the manner provided in the Code of Regulations of the Company for Common Stock certificates. The Right Certificates shall be manually countersigned by an authorized signatory of the Rights Agent and shall not be valid for any purpose unless so countersigned. In case any officer of the Company who shall have signed any of the Right Certificates shall cease to be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, such Right Certificates, nevertheless may be countersigned by the Rights Agent, issued and delivered with the same force and effect as though the person who signed such Right Certificates had not ceased to be such officer of the Company; and any Right Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Right Certificate, shall be a proper officer of the Company to sign such Right Certificate, although at the date of the execution of this Rights Agreement any such person was not such an officer. (b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its office designated for such purpose, books for registration and transfer of the Right Certificates issued hereunder. Such books shall show the names and addresses of the respective holders of the Right Certificates, the number of Rights evidenced on its face by each of the Right Certificates and the date of each of the Right Certificates. SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES. (a) Subject to the provisions of Section 4(b), 7(e) and Section 14 hereof, at any time after the close of business on the Distribution Date, and at or prior to the close of business on the Expiration Date, any Right Certificate or Certificates may be transferred, split up, combined or exchanged for another Right Certificate or Right Certificates, entitling the registered holder to purchase a like number of one one-hundredths of a share of Preferred Stock (or following a Triggering Event, Common Stock, other securities, cash or other assets, as the case may be) as the Right Certificate or Right Certificates surrendered then entitled such holder (or former holder in the case of a transfer) to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Right Certificates shall make such request in writing delivered to the Rights Agent, and shall surrender 9 the Right Certificate or Right Certificates to be transferred, split up, combined or exchanged at the principal office of the Rights Agent for such purpose. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered Right Certificate until the registered holder shall have completed and signed the certificate contained in the form of assignment on the reverse side of such Right Certificate and shall have provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner or Affiliates or Associates of such Beneficial, or of any other Person with which such holder or any of such holder's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of securities of the Company, as the Company shall reasonably request. Thereupon the Rights Agent shall, subject to Section 4(b), Section 7(e), Section 14 and Section 20(k) hereof, countersign and deliver to the Person entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested. The Company may require payment from a Right Certificates holder of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split up, combination or exchange of Right Certificates. (b) Upon receipt by the Company and the Right's Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, along with a signature guarantee and such other and further documentation as the Rights Agent may reasonably request, and if requested by the Company, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will make and deliver a new Right Certificate of like tenor to the Rights Agent for delivery to the registered owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated. SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS. (a) Subject to Section 7(e) hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein, including, without limitation, the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii), 23(a) and 24(b) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price for the total number of one one-hundredths of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the Expiration Date. (b) The Purchase Price for each one one-hundredth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be $250.00, shall be subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be payable in lawful money of the United States of America in accordance with Section 7(c) below. 10 (c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed and completed accompanied by payment of the Purchase Price per one one-hundredth of a share of Preferred Stock (or other securities, cash or other assets, as the case may be) to be purchased and an amount equal to any applicable transfer tax in cash, or by certified check or bank draft payable to the order of the Company, the Rights Agent shall thereupon, subject to Section 20(k) hereof, thereupon promptly (i) requisition from the Company certificates for the total number of one one-hundredths of a share of Preferred Stock to be purchased, (ii) if the Company shall have elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-hundredths of a share of Preferred Stock as are to be purchased (in which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent) and the Company hereby directs the depositary agent to comply with such request, (iii) when appropriate, requisition from any transfer agent of the Common Stock of the Company certificates for the total number of shares of Common Stock to be paid in accordance with Section 11(a)(i) and 11(a)(iii), (iv) when appropriate, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares in accordance with Section 14, (v) promptly after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered in such name or names as may be designated by such holder, and (vi) when appropriate, after receipt promptly deliver such cash to or upon the order of the registered holder of such Right Certificate. The payment of the then Purchase Price must be made in cash or by certified bank check or bank draft or money order payable to the order of the Company. In the event that the Company is obligated to issue other securities (including Common Stock), pay cash or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash or other property are available for distribution or payment by the Rights Agent, if and when appropriate. (d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof. (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person or of any such Associate or Affiliate who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person which whom the Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in writing) regarding the transferred Rights or (B) a transfer 11 which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding (whether or not in writing) which has as a primary purpose or effect the avoidance of this Section 7(e), shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person, or any of its Affiliates, Associates or transferees hereunder. (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner), Affiliates or Associates, or of any other Person with which such holder or any of such holder's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of any securities of the Company, as the Company shall reasonably request. SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All Right Certificates surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Rights Agent for cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Rights Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written request of the Company, destroy such canceled Right Certificates, and in such case shall deliver a certificate of destruction thereof to the Company. SECTION 9. RESERVATION AND AVAILABILITY OF SHARES OF CAPITAL STOCK. The Company covenants and agrees that: (a) It will, subject to Section 11(a)(iii), prior to the Distribution Date, seek to cause to be reserved and kept available out of its authorized and unissued Preferred Stock (and, following the occurrence of a Triggering Event, out of its authorized and unissued shares of Common Stock or its authorized and issued Common Stock held in treasury and/or other securities), the number of shares of Preferred Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities) that, as provided in this Agreement, will be sufficient to permit the exercise in full of all outstanding Rights (it being understood that any of the foregoing shares or securities may also be reserved for other purposes) or will take such other 12 steps as are appropriate to assure that the number of such shares or securities (or their equivalents) sufficient to permit the exercise in full of all outstanding Rights will be available upon such exercise. (b) So long as Preferred Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities) issuable upon the exercise of Rights may be listed on any national securities exchange, it will use its best efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed on such exchange upon official notice of issuance upon such exercise. (c) It will use its best efforts to (i) file, as soon as practicable following the first occurrence of a section 11(a)(ii) Event, or as soon as required by law, as the case may be, a registration statement under the Securities Act of 1933, as amended (the "Act"), with respect to the securities purchasable upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to become effective as soon as practicable after such filing, and (iii) cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Act) until the earlier of (A) the date as of which the Rights are no longer exercisable for such securities, and (B) the Expiration Date. The Company will also take such action as may be appropriate under the blue sky laws of the various states. The Company may temporarily suspend, for a period of time not to exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this Section 9(c), the exercisability of the Rights in order to prepare and file such registration statement and permit it to become effective. Upon any such suspension, the Company shall issue a public announcement and shall give simultaneous written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice to the Rights Agent at such time as the suspension is no longer in effect. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be exercisable in any jurisdiction unless the requisite qualifications in such jurisdiction shall have been obtained. Unless otherwise notified in writing by the Company, the Rights Agent may assume that any Right exercised is permitted to be exercised under applicable law and shall have no liability for acting in reliance upon such assumptions. (d) It will take all such action as may be necessary to ensure that all one one-hundredths of a share of Preferred Stock (and following the occurrence of a Triggering Event, Common Stock and/or other securities) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (subject to payment of the Purchase Price), be duly and validly authorized and issued and fully paid and nonassessable. (e) It will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the issuance or delivery of the Right Certificates or of any one one-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) upon the exercise of Rights. The Company shall not, however, be required (a) to pay any transfer tax which may be payable in respect of any transfer involved in the transfer or delivery of Right Certificates or the issuance or delivery of certificates for the one one-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as 13 the case may be) in a name other than that of the registered holder of the Right Certificate evidencing Rights surrendered for exercise or (b) to issue or deliver any certificates for one one-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) upon the exercise of any Rights until any such tax shall have been paid (any such tax being payable by the holder of such Right Certificate at the time of surrender) or until it has been established to the Company's satisfaction that no such tax is due. SECTION 10. PREFERRED STOCK RECORD DATE. Each Person in whose name any certificate for a number of one one-hundredths of a share of Preferred Stock (or shares of Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such fractional shares of the Preferred Stock (or shares of Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any applicable transfer taxes) was made; provided, however, that if the date of such surrender and payment is a date upon which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares (fractional or otherwise) on, and such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a shareholder of the Company with respect to shares for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. (a) (i) In the event the Company shall at any time after the Rights Dividend Declaration Date (A) declare a dividend on the Preferred Stock payable in shares of the Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive upon payment of the Purchase Price then in effect the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the 14 Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. (ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together with its Affiliates and Associates, becomes at any time after the Rights Dividend Declaration Date an Acquiring Person, except as the result of a transaction set forth in Section 13(a) hereof, then, prior to the date on which the Company's right of redemption pursuant to Section 23(a) expires (as the same may be extended pursuant to Section 27) with respect to an event described in this Section 11(a)(ii), proper provision shall be made so that each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right to receive, upon exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock, such number of shares of the Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one one-hundredths of a share of Preferred Stock for which such Right is then exercisable and dividing that product by (y) 50% of the current market price per share of the Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the occurrence of any one of the events listed above in this subparagraph (ii) (such number of shares is hereinafter referred to as the "Adjustment Shares"), provided that the Purchase Price and the number of Adjustment Shares shall be further adjusted as provided in this Agreement to reflect any events occurring after the date of such first occurrence. (iii) In the event that the number of shares of the Common Stock which are authorized by the Company's Amended Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (2) the Purchase Price (such excess, the "Spread"), and (B) with respect to each Right, make adequate provision to substitute for the Adjustment Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, preference shares, or units of preference shares, which a majority of the Independent Directors and the Board of Directors of the Company have deemed to have the same value as the Common Stock (such preference shares, "common stock equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by a majority of the Independent Directors and the Board of Directors of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires, as the same may 15 be extended pursuant to Section 27 (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of the Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of the Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (u) shall provide, subject to section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (v) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company will issue a public announcement and will give concurrent written notice to the Rights Agent stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement and notice to the Rights Agent at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the shares of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share on the Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent' shall be deemed to be the same as the value of the Common Stock on such date. The Company shall give the Rights Agent notice of the selection of any "common stock equivalent" under this Section 11(a)(iii). (b) In the event that the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar days after such record date) to subscribe for or purchase Preferred Stock (or securities having substantially the same or more favorable rights, privileges and preferences as Preferred Stock ("preferred stock equivalents")) or securities convertible into Preferred Stock or preferred stock equivalents at a price per share of Preferred Stock or per share of preferred stock equivalents (or having a conversion price per share, if a security convertible into Preferred Stock or preferred stock equivalents) less than the current market price (as defined in Section 11(d) hereof) per share of Preferred Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of the Preferred Stock outstanding on such record date plus the number of shares of the Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock so to be offered (or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such current market price and the denominator of which shall be the number of shares of the Preferred Stock outstanding on such record date plus the number of additional shares of the Preferred Stock and preferred stock equivalents to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially 16 convertible). In case such subscription price may be paid by delivery of consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (c) In the event that Company shall fix a record date for the making of a distribution to all holders of Preferred Stock (including any such distribution made in connection with a combination, consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular periodic cash dividend out of the retained earnings of the Company at a rate not in excess of 125% of the last cash dividend theretofore paid), assets, stock (other than a dividend payable in Preferred Stock, but including any dividend payable in Common Stock) or convertible securities, subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the current market price, as defined in Section 11(d), per one one-hundredth of a share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one one-hundredth of a share of Preferred Stock and the denominator of which shall be such current market price per one one-hundredth of a share of Preferred Stock. Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. (d) (i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the "current market price" per share of the Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d)) immediately prior to such date and, for purposes of computations made pursuant to Section 11(a)(iii) hereof, the "current market price" per share of the Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the current market price per share of the Common Stock is determined during the period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into such Common Stock (other than the Rights) or (B) any subdivision, combination or reclassification of such Common Stock, and prior to the expiration 17 of the requisite 30 Trading Day or 10 Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution or the record date for such subdivision, combination or reclassification, then, and in each such case, the current market price shall be appropriately adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of the Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of the Common Stock are listed or admitted to trading or, if the shares of the Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of the Common Stock are not quoted by such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the shares of the Common Stock selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the shares of the Common Stock, the fair value of such shares on such date shall be as determined in good faith by the Independent Directors if the Independent Directors constitute a majority of the Board of Directors or, in the event the Independent Directors do not constitute a majority of the Board of Directors, by an independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of the Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of the Common Stock are not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in the State of New York, are not authorized or obligated by law or executive order to close. If the Common Stock is not publicly held or not so listed or traded, "current market price" per share shall mean the fair value per share as determined in good faith by the Independent Directors if the Independent Directors constitute a majority of the Board of Directors or, in the event the Independent Directors do not constitute a majority of the Board of Directors, by an independent investment banking firm selected by the Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. (ii) For the purpose of any computation hereunder, the "current market price" per share of Preferred Stock shall be determined in the same manner as set forth above for the Common Stock in clause (i) of this Section 11(d) (other than the last sentence thereof). If the current market price per share of Preferred Stock cannot be determined in the manner provided above or if the Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of this Section 11(d), the "current market price" per share of Preferred Stock shall be conclusively deemed to be an amount equal to 100 (as such number may be appropriately 18 adjusted for such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock occurring after the date of this Agreement) multiplied by the current market price per share of the Common Stock. If neither the Common Stock nor the Preferred Stock is publicly held or so listed or traded, "current market price" per share of the Preferred Stock shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. For all purposes of this Agreement, the "current market price" of one one-hundredth of a share of Preferred Stock shall be equal to the "current market price" of one share of Preferred Stock divided by 100. (iii) If a security is not publicly held or not so listed or trade, "current market price" shall mean the fair value per share or other unit of such security, determined reasonably and in good faith the Board of Directors of the Company; provided, however, that if at the time of such determination there is an Acquiring Person, the current market price of such security on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. (iv) In the case of property other than securities, the current market price thereof shall be determined reasonably and in good faith by the Board of Directors of the Company, provided, however, that if at the time of such determination there is an Acquiring Person, the current market value of such property on such date shall be determined by a nationally recognized investment banking firm selected by the Board of Directors, which determination shall be described in a statement filed with the Rights Agent and shall be binding upon the Rights Agent and the holders of the Rights. (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest one ten-thousandth of a share of Common Stock or one-millionth of a share of Preferred Stock, as the case may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment or (ii) the Expiration Date. (f) If, as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of capital stock other than shares of Preferred Stock, thereafter the number of such other shares so receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Stock contained in Section 11(a) through (o) inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the shares of the Preferred Stock shall apply on like terms to any such other shares. 19 (g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one one-hundredths of a share of Preferred Stock purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein. (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Purchase Price as a result of the calculations made in Section 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one one-hundredths of a share of Preferred Stock (calculated to the nearest one-millionth) obtained by (i) multiplying (x) the number of one one-hundredths of a share of Preferred Stock covered by a Right immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price. (i) The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any adjustment in the number of one one-hundredths of a share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be exercisable for the number of one one-hundredths of a share of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after the adjustment of the Purchase Price. The Company shall make a public announcement and shall give simultaneous written notice to the Rights Agent of its election to adjust the number of Rights, indicating the record date for the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of Right Certificates on such record date Right Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Right Certificates on the record date specified in the public announcement. (j) Irrespective of any adjustment or change in the Purchase Price or the number of one one-hundredths of a share of Preferred Stock issuable upon the exercise of the Rights, the Right 20 Certificates theretofore and thereafter issued may continue to express the Purchase Price per one one-hundredth of a share and the number of one one-hundredths of a share which were expressed in the initial Right Certificates issued hereunder. (k) Before taking any action that would cause an adjustment reducing the Purchase Price below one one-hundredth of the then par value, if any, of a share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue such number of fully paid and nonassessable shares of such Preferred Stock at such adjusted Purchase Price. (l) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of one one-hundredths of a share of Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one one-hundredths of a share of Preferred Stock and other share capital or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. (m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that the Board of Directors of the Company shall determine to be advisable in order that any consolidation or subdivision of Preferred Stock, issuance wholly for cash of any of Preferred Stock at less than the current market price, issuance wholly for cash of Preferred Stock or securities which by their terms are convertible into or exchangeable for Preferred Stock, stock dividends or issuance of rights, options or warrants referred to hereinabove in this Section 11, hereafter made by the Company to holders of its Preferred Stock shall not be taxable to such shareholders. (n) The Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by Sections 23, 24 and 27 hereof, take (nor will it permit any of its Subsidiaries to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights. (o) The Company covenants and agrees that it shall not, at any time after a Section 11(a)(ii) Event, (i) combine or consolidate with any other Person, (ii) merge with or into any other Person, or (iii) sell or transfer (or permit any of its Subsidiaries to sell or transfer), in one or more transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its wholly-owned subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more 21 transactions each of which complies with Section 11(n)) if (x) at the time of or immediately after such combination, consolidation, merger or sale there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights or (y) prior to, simultaneously with or immediately after such combination, consolidation, merger or sale, the stockholders of the Person who constitutes, or would constitute, the "Principal Party" for purposes of Section 13(a) hereof shall have received a distribution of Rights previously owned by such Person or any of its Affiliates and Associates. (p) Notwithstanding anything in this Agreement to the contrary, prior to the Distribution Date, the Company may, in lieu of making any adjustment to the Purchase Price, the number of one one-hundredths of a share of Preferred Stock eligible for purchase on exercise of each Right or the number of Rights outstanding, which adjustment would otherwise be required by Sections 11(a)(i), 11(b), 11(c), 11(h) or 11(i), make.such other equitable adjustment or adjustments thereto as the Board of Directors (whose determination shall be conclusive) deems appropriate in the circumstances and not inconsistent with the objectives of the Board of Directors in adopting this Agreement and such Sections. (q) In the event the Company shall at any time after the date of this Agreement and prior to the Distribution Date (i) declare a dividend on the outstanding Common Stock payable in shares of Common Stock or (ii) effect a subdivision, combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of dividends in shares of Common Stock) into a greater or lesser number of shares of Common Stock, the number of Rights associated with each share of Common Stock shall be proportionately adjusted so that the number of Rights thereafter associated with each share of Common Stock following any such event shall equal the result obtained by multiplying the number of Rights associated with each share of Common Stock immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of any such event listed in clause (i) or (ii) above and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event listed in clause (i) or (ii) above. The adjustments provided for in this Section 11(q) shall be made successively whenever such a dividend is declared or paid or such a subdivision, combination or consideration is effected. SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES. Whenever an adjustment is made as provided in Sections 11 and 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment, and a brief statement of the facts accounting for such adjustment and the adjusted Purchase Price, (b) promptly file with the Rights Agent and with each transfer agent for the Common Stock a copy of such certificate and (c) mail a brief summary thereof to each holder of a Right Certificate in accordance with Section 26. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained. 22 SECTION 13. COMBINATION, CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER. (a) In the event that, following a Section 11(a)(ii) Event, directly or indirectly, (x) the Company shall combine or consolidate with, or merge with or into, any other Person (other than a Subsidiary of the Company in a transaction not prohibited by Section 11(n) hereof) and the Company shall not be the continuing or surviving corporation of such combination, consolidation or merger, (y) any Person (other than a Subsidiary of the Company in a transaction not prohibited by Section 11(n) hereof) shall combine, consolidate or merge with or into the Company and the Company shall be the continuing or surviving corporation of such combination, consolidation or merger and, in connection with such combination, consolidation or merger, all or part of the Common Stock shall be changed into or exchanged for shares or other securities of the Company of any other Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company or any of its wholly-owned Subsidiaries in one or more transactions each of which complies with Section 11(n) hereof), then, and in each such case, proper provision shall be made so that (i) each holder of a Right (except as provided in Section 7(e)) shall thereafter have the right to receive, upon the exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, such number of validly issued, fully paid, nonassessable and freely tradeable Common Stock of the Principal Party (as hereinafter defined), not subject to any liens, encumbrances, rights of call or first refusal, or other adverse claims as shall be equal to the result obtained by (1) multiplying the then current Purchase Price by the number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of such shares for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect immediately prior to such first occurrence), and dividing that product (which, following the first occurrence of a Section 13 Event, shall be referred to as the "Purchase Price" for each Right and for all purposes of this Agreement) by (2) 50% of the current market price per share of Common Stock of such Principal Party (determined in the manner described in Section 11(d)) on the date of consummation of such combination, consolidation, merger, sale or transfer; (ii) the Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the provisions of Section 11 shall thereafter apply to such Principal Party; (iv) such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of shares of its Common Stock in accordance with Section 9) in connection with such consummation as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to shares of its Common Stock thereafter deliverable upon the exercise of the Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the first occurrence of any Section 13 Event. (b) "Principal Party" shall mean 23 (1) in the case of any transaction described in clause (x) or (y) of the first sentence of Section 13(a), the Person that is the issuer of any securities into which shares of Common Stock of the Company are converted in such merger, combination or consolidation, and, if no securities are so issued, the Person that is the other party to the merger, combination or consolidation; and (2) in the case of any transaction described in clause (z) of the first sentence in Section 13(a), the Person that is the party receiving the greatest portion of the assets or earning power transferred pursuant to such transaction; provided, however, that in any such case, (x) if the Common Stock of such Person is not at such time and has not been continuously over the preceding 12-month period registered under Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another corporation the Common Stock of which is and has been so registered, "Principal Party" shall refer to such other Person; (y) if such Person is a direct or indirect Subsidiary or Affiliate of more than one Person, the Common Stocks of two or more of which are and have been so registered, "Principal Party" shall refer to whichever of such Persons is the issuer of the Common Stock having the greatest aggregate market value of shares outstanding; and (z) in case such Person is owned, directly or indirectly, by a joint venture formed by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set forth in (x) and (y) above shall apply to each of the chains of ownership having an interest in such joint venture as if such party were a "Subsidiary" of both or all of such joint ventures and the Principal Parties in each such chain shall bear the obligations set forth in this Section 13 in the same ratio as their direct or indirect interests in such Person bear to the total of such interests. (c) The Company shall not consummate any Section 13 Event unless the Principal Party shall have a sufficient number of authorized shares of Common Stock which are neither outstanding nor reserved for issuance to permit the exercise in full of the Rights in accordance with this Section 13 and unless prior thereto the Company and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a) and (b) of this Section 13 and further providing that, as soon as practicable after the date of any combination, consolidation, merger or sale of assets mentioned in paragraph (a) of this Section 13, the Principal Party will at its own expense: (i) prepare and file a registration statement under the Act with respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate form, will use its best efforts to cause such registration statement to become effective as soon as practicable after such filing and will use its best efforts to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Act) until the Expiration Date; (ii) use its best efforts to qualify or register the Rights and the securities purchasable upon exercise of the Rights under the blue sky laws of such jurisdictions as may be necessary or appropriate; 24 (iii) use its best efforts to list (or continue the listing of) the Rights and the securities purchasable upon exercise of the Rights on a national securities exchange or to meet the eligibility requirements for quotations on NASDAQ; and (iv) will deliver to holders of the Rights historical financial statements for the Principal Party and each of its Affiliates which comply in all respects with the requirements for registration on Form 10 under the Exchange Act. The provisions of this Section 13 shall similarly apply to successive Section 13 Events. In the event that a Section 13 Event shall occur at any time after the occurrence of a Section 11(a)(ii) Event, the Rights which have not theretofore been exercised shall thereafter become exercisable in the manner described in Section 13(a). SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The Company shall not be required to issue fractions of Rights or to distribute Right Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company shall pay to the registered holders of the Right Certificates with regard to which such fractional Rights would otherwise be issuable an amount in cash equal to the same fraction of the current market value of a whole Right. For the purposes of this Section 14(a), the current market value of a whole Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would have been otherwise issuable. The closing price for any day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to trading or, if the Rights are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by NASDAQ or such other system then in use, or, if on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the Board of Directors of the Company. If on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as determined in good faith by the Board of Directors of the Company shall be used. (b) The Company shall not be required to issue fractions of shares of Preferred Stock (other than fractions which are integral multiples of one one-hundredths of a share of Preferred Stock) upon exercise or exchange of the Rights or to distribute certificates which evidence fractional shares of Preferred Stock (other than fractions which are integral multiples of one one-hundredths of a share of Preferred Stock). In lieu of fractional shares of Preferred Stock that are not integral multiples of one one-hundredths of a share of Preferred Stock, the Company may pay to the registered holders of Right Certificates at the time the Rights evidenced thereby are exercised or exchanged as herein provided an amount in cash equal to the same fraction of the 25 current market value of one one-hundredth of a share of Preferred Stock. For purposes of this Section 14(b), the current market value of one one-hundredth of a share of Preferred Stock shall be one one-hundredth of the closing price of a share of Preferred Stock, as determined pursuant to Section 11(d) hereof, for the Trading Day immediately prior to the date of such exercise or exchange, as the case may be. (c) Following the occurrence of a Triggering Event, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Rights or to distribute certificates which evidence fractional shares of Common Stock. In lieu of fractional shares of Common Stock, the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one (1) share of Common Stock. For purposes of this Section 14(c), the current market value of one share of Common Stock shall be the closing price of one share of Common Stock (as determined pursuant to Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise. (d) The holder of a Right by the acceptance of the Right expressly waives his right to receive any fractional Rights or any fractional shares upon exercise or exchange of a Right, except as otherwise permitted by this Section 14. SECTION 15. RIGHTS OF ACTION. All rights of action in respect of this Agreement, are vested in the respective registered holders of the Right Certificates (and, prior to the Distribution Date, the registered holders of Common Stock); and any registered holder of any Right Certificate (or, prior to the Distribution Date, of the Common Stock), without the consent of the Rights Agent or of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common Stock), may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his right to exercise the Rights evidenced by such Right Certificate in the manner provided in such Right Certificate and in this Agreement. Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have an adequate remedy at law for any breach of this Agreement and will be entitled to specific performance of the obligations hereunder and injunctive relief against actual or threatened violations of the obligations hereunder of any Person subject to this Agreement. SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right by accepting the same consents and agrees with the Company and the Rights Agent and with every other holder of a Right that: (a) prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of the Common Stock; (b) after the Distribution Date, the Right Certificates will be transferable only on the registry books of the Rights Agent if surrendered at the principal 26 office of the Rights Agent, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate forms and certificates fully executed; (c) subject to Section 6, Section 7(e) and Section 7(f) hereof, the Company and the Rights Agent may deem and treat the Person in whose name the Right Certificate (or, prior to the Distribution Date, the associated Common Stock certificate) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right Certificates or the associated Common Stock certificate made by anyone other than the Company or the Rights Agent) for all purposes whatever; and neither the Company nor the Rights Agent, subject to the last sentence of Section 7(e) hereof, shall be required to be affected by any notice to the contrary; (d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation; provided, however, that the Company must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible. SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the Preferred Stock, Common Stock or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate shall have been exercised or exchanged in accordance with the provisions hereof. SECTION 18. CONCERNING THE RIGHTS AGENT. (a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties hereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, or expense, incurred without negligence, bad faith or willful misconduct on the part of the Rights Agent (including the reasonable 27 fees and expenses of counsel), for anything done or omitted by the Rights Agent in connection with the acceptance and administration of this Agreement, including the costs and expenses of defending against any claim of liability in the premises. (b) The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its administration of this Agreement in reliance upon any Right Certificate or certificate for the Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, instruction, adjustment notice, certificate, statement, or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons. (c) In addition to the foregoing, the Rights Agent shall be protected and shall incur no liability for, or in respect of, any action taken or omitted by it in connection with its administration of this Agreement in reliance upon (i) the proper execution of the certification appended to the Form of Assignment and the Form of Election to Purchase included as part of Exhibit B hereto (the "Certification"), unless the Rights Agent shall have actual knowledge that, as executed, the Certification is untrue, or (ii) the non-execution or failure to complete the Certification including, without limitation, any refusal to honor any otherwise permissible assignment or election by reason of such non-execution or failure. SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT. (a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any corporation succeeding to the corporate trust business and/or the stock transfer business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Rights Agent under the provisions of Section 21. In case at the time such successor Rights Agent shall succeed to the agency created by this Agreement, any of the Right Certificates shall have been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of the predecessor so countersigned; and in case at that time any of the Right Certificates shall not have been countersigned, any successor Rights Agent may countersign such Right Certificates either in the name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such Right Certificates shall have the full force provided in the Right Certificates and in this Agreement. (b) In case at any time the name of the Rights Agent shall be changed and at such time any of the Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Right Certificates so countersigned; and in case at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may countersign such Right Certificates either in its prior name or in its changed name; and in all such cases such Right Certificates shall have the full force 28 provided in the Right Certificates and in this Agreement. SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of Right Certificates, by their acceptance thereof, shall be bound: (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the opinion of such counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such opinion. The Company shall only be responsible for reasonable fees and expenses of counsel engaged by the Rights Agent with the Company's prior express written consent. (b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by any one of the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate. (c) The Rights Agent shall be liable hereunder only for its own negligence, bad faith or willful misconduct. (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Right Certificates (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only. (e) The Rights Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be responsible for any change in the exercisability of the Rights (including the Rights becoming void pursuant to Section 7(e) hereof) or any adjustment required under the provisions of Sections 11 or 13 hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment (except with respect to the exercise of Rights 29 evidenced by Right Certificates after actual notice of any such adjustment); nor shall it be responsible for any determination by the Board of Directors of the Company of the current market value of the Rights or Preferred Stock pursuant to the provisions of Section 14 hereof; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of the Preferred Stock or Common Stock or other securities to be issued pursuant to this Agreement or any Right Certificate or as to whether any shares of Preferred Stock or Common Stock will, when issued, be validly authorized and issued, fully paid and nonassessable. (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement. (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder and certificates delivered pursuant to any provision hereof from any one of the Chairman of the Board, the President, any Vice President, the Secretary or the Treasurer of the Company, and is authorized to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer. (h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for any other legal entity. (i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either by itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided reasonable care was exercised in the selection and continued employment thereof. (j) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there 30 shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. (k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting the Company. The Company shall give the Rights Agent prompt written instructions as to the action to be taken regarding the Right Certificates involved. The Rights Agent shall not be liable for acting in accordance with such instructions. SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon thirty (30) days' notice in writing mailed to the Company and to each transfer agent of the Preferred Stock and the Common Stock by registered or certified mail, and, at the Company's expense, to the holders of the Right Certificates by first class mail. The Company may remove the Rights Agent or any successor Rights Agent upon thirty (30) days' notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Preferred Stock and the Common Stock by registered or certified mail, and to the holders of the Right Certificates by first class mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate (who shall, with such notice, submit his Right Certificate for inspection by the Company), then the Company shall become the temporary Rights Agent and the registered holder of any Right Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, shall be (a) a corporation organized and doing business under the laws of the United States or of the State of New York (or of any other state of the United States so long as such corporation is authorized to do business as a banking institution in the State of New York), in good standing, having a principal office in the State of New York, which is authorized under such laws to exercise corporate trust powers and/or stock transfer powers and is subject to supervision or examination by federal or state authority or which has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50 million. After appointment, the successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment the Company shall file notice thereof in writing with the predecessor Rights Agent 31 and each transfer agent of the Preferred Stock and Common Stock and mail a notice thereof in writing to the registered holders of the Right Certificates. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be. SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of the provisions of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect any adjustment or change in the Purchase Price and the number or kind or class of shares or other securities or property purchasable under the Right Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale of shares of the Common Stock following the Distribution Date and prior to the Expiration Date of the Rights, the Company (a) shall, with respect to shares of the Common Stock so issued or sold pursuant to the exercise of options or under any employee plan or arrangement, or upon the exercise, conversion or exchange of securities hereinafter issued by the Company, and (b) may, in any other case, if deemed necessary or appropriate by the Board of Directors of the Company, issue Right Certificates representing the appropriate number of Rights in connection with such issuance or sale; provided, however, that (i) no such Right Certificate shall be issued if, and to the extent that, the Company shall be advised by counsel that such issuance would create a significant risk of material adverse tax consequences to the Company or the Person to whom such Right Certificate would be issued, and (ii) no such Right Certificate shall be issued if, and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof. SECTION 23. REDEMPTION AND TERMINATION. (a) The Board of Directors of the Company may, at its option, at any time prior to the earlier of (x) the close of business on the tenth Business Day following the Shares Acquisition Date (or if the Shares Acquisition Date shall have occurred prior to the Record Date, the close of business on the tenth Business Day following the Record Date), or (y) the Final Expiration Date, redeem all but not less than all of the then outstanding Rights at a redemption price of $0.001 per Right as appropriately adjusted to reflect any stock split, dividend of shares or similar transaction occurring after the date hereof (such redemption price being hereinafter referred to as the "Redemption Price"), and the Company may, at its option, pay the Redemption Price either in shares of the Common Stock (valued at their current market price as defined in Section 11(d) on the date of the redemption), other securities, cash, other assets or any other form of consideration deemed appropriate by the Board of Directors; provided, however, that if the Board of Directors of the Company authorizes redemption of the Rights in either of the circumstances set forth in clauses (x) or (y) below then there must be Independent Directors in office and such authorization shall require the concurrence of a majority of the Independent Directors: (x) such authorization occurs on or after the Shares Acquisition Date or (y) such authorization occurs on or after the date of a change (resulting from a proxy or consent solicitation) in a majority of the Directors of the Company in office at the commencement of such solicitation if any Person who is a participant in such solicitation has stated (or if upon the commencement of such solicitation a majority of the 32 directors of the Company has determined in good faith) that such Person (or any of its Affiliates or Associates) intends to take, or may consider taking, any action which would result in such Person becoming an Acquiring Person or which would cause the occurrence of a Triggering Event. Notwithstanding anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event until such time as the Company's right of redemption hereunder has expired, as the same may be extended pursuant to Section 27 hereof. (b) In deciding whether or not to exercise the Company's right of redemption hereunder, the directors of the Company shall act in good faith, in a manner they reasonably believe to be in the best interests of the Company and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances, and they may consider the long-term and short-term effects of any action upon employees, customers and creditors of the Company and upon communities in which offices or other establishments of the Company are located, and all other pertinent factors. (c) Immediately upon the action of the Board of Directors of the Company ordering the redemption of the Rights, and without any further action and without any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price for each Right held. Within ten Business Days after the action of the Board of Directors ordering the redemption of the Rights, the Company shall give notice of such redemption to holders of the then outstanding Rights by mailing such notice to the Rights Agent and to all such holders at their last addresses as they appear upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the Transfer Agent for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made. Neither the Company nor any of its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in any manner other than that specifically set forth in this Section 23, and other than in connection with the repurchase of Common Stock prior to the Distribution Date. (d) In the event the Company shall at any time after the date of this Rights Agreement (i) pay any dividend on Common Stock in shares of Common Stock, (ii) subdivide the outstanding shares of Common Stock into a greater number of shares or (iii) combine the outstanding shares of Common Stock into a smaller number of shares of the outstanding shares of Common Stock, then and in each such event the Redemption Price after such event shall equal the Redemption Price immediately prior to such event multiplied by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately prior to such event and the denominator of which is the number of shares of Common Stock outstanding immediately after such event; provided, however, that in each case such adjustment to the Redemption Price shall be made only if the amount of the Redemption Price shall be reduced or increased by $0.0001 per Right. 33 SECTION 24. EXCHANGE. (a) The Board of Directors of the Company may, at its option, at any time on or after the occurrence of a Section 11(a)(ii) Event, exchange all or part of the then outstanding and exercisable Rights (which shall not include Rights that have become void pursuant to the provisions of Section 7(e) hereof) for shares of Common Stock at an exchange ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be empowered to effect such exchange at any time after any Person (other than an Exempt Person), together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common Stock of the Company. (b) Immediately upon the action of the Board of Directors of the Company ordering the exchange of any Rights pursuant to subsection (a) of this Section 24 and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive that number of shares of Common Stock equal to the number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give notice of any such exchange in accordance with Section 26 hereof; provided, however, that the failure to give, or any defect in, such notice shall not affect the validity of such exchange. Each such notice of exchange will state the method by which the exchange of the shares of Common Stock for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other than Rights which have become void pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights. (c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute for any share of the Common Stock exchangeable for a Right (i) common stock equivalents, (ii) Preferred Stock (or preferred stock equivalents, as such term is defined in Section 11(b) hereof), (iii) cash, (iv) debt or other securities of the Company, (v) other property, or (vi) any combination of the foregoing, having an aggregate value which a majority of the Independent Directors and the Board of Directors of the Company shall have determined in good faith to be equal to the current market price of one share of the Common Stock on the Trading Day immediately preceding the date of exchange pursuant to this Section 24. (d) In the event that there shall not be sufficient shares of Common Stock or Preferred Stock (or preferred stock equivalents) issued but not outstanding or authorized but unissued to permit any exchange of Rights as contemplated in accordance with this Section 24, the Company shall take all such action as may be necessary to authorize additional shares of Common Stock or Preferred Stock (or preferred stock equivalents) for issuance upon exchange of the Rights. (e) The Company shall not be required to issue fractions of Common Stock or to distribute certificates which evidence fractional shares of Common Stock. If the Company elects not to issue such fractional shares of Common Stock, the Company shall pay, in lieu of such fractional shares of Common Stock, to the registered holders of the Right Certificates with regard to which such fractional shares of Common Stock would otherwise be issuable, an 34 amount in cash equal to the same fraction of the current market price of a whole share of Common Stock. For the purposes of this paragraph (e), the current market price of a whole share of Common Stock shall be the closing price of a share of Common Stock (as determined pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange pursuant to this Section 24. SECTION 25. NOTICE OF CERTAIN EVENTS. In case the Company shall propose at any time following the Distribution Date (a) to declare or pay any dividend payable in shares of any class to the holders of its Preferred Stock or to make any other distribution to the holders of its Preferred Stock (other than a regular periodic cash dividend at a rate in excess of 125% of the rate of the last cash dividend theretofore paid), or (b) to offer to the holders of its Preferred Stock rights or warrants to subscribe for or to purchase any additional shares of the Preferred Stock or share capital of any class or any other securities, rights or options, or (c) to effect any reclassification of its Preferred Stock (other than a reclassification involving only the subdivision of outstanding Preferred Stock), or (d) to effect any combination, consolidation or merger into or with any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(n) hereof), or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to, any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more transactions each of which complies with Sections 11(n) hereof), or (e) to declare or pay any dividend on the Common Stock payable in Common Stock or to effect a subdivision, combination or consolidation of the Common Stock (by reclassification or otherwise), or (f) to effect the liquidation, dissolution or winding up of the Company, then, in each such case, the Company shall give to the Rights Agent and to each holders of a Right, in accordance with Section 26, a notice of such proposed action, which shall specify the record date for the purposes of such dividend of shares, distribution of rights or Rights, or the date on which such reclassification, combination, consolidation, merger, sale, transfer, liquidation', dissolution, or winding up is to take place and the date of participation therein by the holders of the Preferred Stock and/or Common Stock, if any such date is to be fixed, and such notice shall be so given in the case of any action covered by clause (a) or (b) above at least twenty (20) days prior to the record date for determining holders of the Preferred Stock and/or Common Stock for purposes of such action, and in the case of any such other action, at least twenty (20) days prior to the date of the taking of such proposed action or the date of participation therein by the holders of its Common Stock, whichever shall be the earlier. In case a Section 11(a)(ii) Event shall occur, then, in any such case, the Company shall as soon as practicable thereafter give to the Rights Agent and to each holder of a Right, to the extent feasible and in accordance with Section 26, a notice of the occurrence of such event, which shall specify the event and the consequences of the event to holders of Rights under Section 11(a)(ii). 35 SECTION 26. NOTICES. Notices or demands authorized by this Agreement to be given or made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows: The Goodyear Tire & Rubber Company 1144 East Market Street Akron, Ohio 44316-0001 Attention: General Counsel Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Right Certificate to or on the Rights Agent shall be sufficiently given or made if sent by first class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows: First Chicago Trust Company of New York 525 Washington Boulevard Suite 4660 Jersey City, New Jersey 07310 Attention: Tenders and Exchanges Administration Notices or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Right Certificate (or, prior to the Distribution Date, to the holder of any certificate representing shares of Common Stock) shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company. SECTION 27. SUPPLEMENTS AND AMENDMENTS. Prior to the earlier of the Distribution Date or the Shares Acquisition Date and subject to the penultimate sentence of this Section 27, the Company may from time to time supplement or amend this Agreement without the approval of any holders of Right Certificates. From and after the earlier of the Distribution Date or the Shares Acquisition Date, and subject to the penultimate sentence of this Section 27, the Company may from time to time supplement or amend this Agreement without the approval of any holders of Right Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) to lengthen the time period during which the Rights may be redeemed following the Shares Acquisition Date for up to an additional twenty Business Days beyond the time period set forth in Section 23(a) (provided, that any such lengthening shall be effective only if a majority of the Board of Directors of the Company is comprised of Independent Directors and a majority of such Independent Directors concur in such lengthening) or (iv) to change or supplement the provisions hereunder in any manner which the Company may deem necessary or desirable and which shall not adversely affect the interests of the holders of Right Certificates (other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person); provided, however, that this Agreement shall not be supplemented or amended in any way (other than 36 pursuant to clauses (i) and (ii) above) unless such amendment is approved by a majority of the Independent Directors whose determination shall be final and the Independent Directors constitute a majority of the Board of Directors. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall execute such supplement or amendment. Notwithstanding anything in this Agreement to the contrary, no supplement or amendment shall be made on or after the Distribution Date which changes the Redemption Price, the Final Expiration Date, the Purchase Price or the number of one one-hundredths of a share of Preferred Stock for which a Right is then exercisable. Prior to the earlier of the Shares Acquisition Date or the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders of Common Stock. SECTION 28. SUCCESSORS. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the provisions of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company (and, where specifically provided for herein, the Independent Directors) shall have the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to the Board or the Company (or, as expressly provided, the Independent Directors), or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including a determination to redeem or not redeem the Rights or to amend the Agreement). All such actions, calculations, interpretations and determinations (including, for the purpose of clause (ii) below, all omissions with respect to the foregoing) which are done or made by the Board (or, as provided for, by the Independent Directors) in good faith, shall (i) be final, conclusive and binding on the Company, the Rights Agent, the holders of the Right Certificates and all other parties, and (ii) not subject the Board or the Independent Directors to any liability to the holders of the Right Certificates or to any other Person. SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Stock) any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, registered holders of the Common Stock). The Rights Agent is the Agent of the Company and not of the holders of the Rights 37 and/or Rights Certificates. SECTION 31. SEVERABILITY. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated; provided, however, that notwithstanding anything in this Agreement to the contrary, if any such term, provision, covenant or restriction is held by such court or authority to be invalid, void or unenforceable and the Board of Directors of the Company determines in its good faith judgment that severing the invalid language from this Agreement would adversely affect the purpose or effect of this Agreement, the right of redemption set forth in Section 23 hereof shall be reinstated and shall not expire until the close of business on the tenth day following the date of such determination by the Board of Directors. SECTION 32. GOVERNING LAW. This Agreement and each Right Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Ohio and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. SECTION 33. COUNTERPARTS. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. SECTION 34. DESCRIPTIVE HEADINGS. Descriptive headings of the several Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 38 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. [SEAL] THE GOODYEAR TIRE & RUBBER COMPANY /s/ Samir F. Gibara Attest: By:______________________________ Name: Samir F Gibara, Title: President and Chief Executive Officer /s/ James Boyazis By: _______________________________ Name: James Boyazis, Title: Secretary [SEAL] FIRST CHICAGO TRUST COMPANY OF NEW YORK (AS RIGHTS AGENT) /s/ John G. Herr Attest: By: ________________________________ Name: John G. Herr Title: Assistant Vice President /s/ Joanne Gorostiola By: ___________________________ Name: Joanne Gorostiola Title: Assistant Vice President 39 EXHIBIT A --------- CERTIFICATE OF AMENDMENT TO AMENDED ARTICLES OF INCORPORATION OF THE GOODYEAR TIRE & RUBBER COMPANY Samir F. Gibara, President, and James Boyazis, Secretary, of The Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office located at Akron, Summit County, Ohio, do hereby certify that, pursuant to the authority conferred upon the Board of Directors of said corporation by Section 1 of Part B of ARTICLE FOURTH of the Amended Articles of Incorporation of the said corporation and by the Ohio General Corporation Law, at a meeting of the Board of Directors of said corporation duly called and held on the 4th day of June, 1996, at which meeting a quorum of the Board of Directors was at all times present, the Board of Directors was without shareholder action, which shareholder action was not required, the following resolution: RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the following amendment to its Amended Articles of Incorporation, as amended to date, and that the Chairman of the Board, the President or a Vice President and the Secretary or an Assistant Secretary of the Company are hereby authorized and directed to sign and file in the office of the Secretary of State of the State of Ohio a certificate containing a copy of the resolution adopting the amendment and a statement of the manner of its adoption: The Amended Articles of Incorporation of the Company are hereby amended to create a new series of Preferred Stock by adding a new Section 1-B to PART B of ARTICLE FOURTH as follows: Section 1-B. Series B Preferred Stock, Without Par Value. A series of Preferred Stock is hereby created having the following terms: 1. Designation. The shares of such series are designated as: "Series B Preferred Stock, without par value." 2. Authorized Number of Shares - Fractional Shares. The authorized number of shares constituting the Series B Preferred Stock is 7,000,000. Series B Preferred Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the A-1 benefit of all other rights of holders of Series B Preferred Stock. 3. Dividends and Distributions. (A) Subject to any prior and superior rights of the holders of any series of Preferred Stock ranking prior and superior to the shares of Series B Preferred Stock with respect to dividends that may be authorized by the Amended Articles of Incorporation, the holders of shares of Series B Preferred Stock shall be entitled prior to the payment of any dividends on shares ranking junior to the Series B Preferred Stock to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the last day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $25.00 or (b) subject to the provisions for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Preferred Stock. In the event the Corporation shall at any time after July 29, 1996 (the "Rights Declaration Date") (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per share on the Series B Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series B Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is A-2 a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. (D) Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof. (E) Dividends in full shall not be declared or paid or set apart for payment on the Series B Preferred Stock for a dividend period terminating on the quarterly Dividend Payment Date unless dividends in full have been declared or paid or set apart for payment on the Preferred Stock of all series (other than series with respect to which dividends are not cumulative from a date prior to such dividend date) on such dividend date. When the dividends are not paid in full on all series of the Preferred Stock, the shares of all series shall share ratably in the payment of dividends, including accumulations, if any, in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full. 4. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received $25.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series B Liquidation Preference"). Following the payment of the full amount of the Series B Liquidation Preference, no additional distributions shall be made to the holders of shares of Series B Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Adjustment") equal to the quotient obtained by dividing (i) the Series B Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii) is hereinafter referred to as the "Adjustment Number"). Following the payment of the full amount of the Series B Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series B Preferred Stock and Common Stock, respectively, holders of Series B Preferred Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Series B Preferred Stock and Common Stock, on a per share basis, respectively. A-3 (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series B Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series B Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 5. Conversion on Merger, Consolidation, etc. In case the Corporation shall enter into any merger, consolidation, combination or other transaction in which the shares of Common Stock are exchanged or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series B Preferred Stock shall at the time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 6. Redemption. The outstanding shares of Series B Preferred Stock shall not be redeemable. 7. Condition to Issuance of any other Series. The Articles of Incorporation of the Corporation shall not be further amended to provide for the issuance of any other series of Preferred Stock without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series B Preferred Stock, voting separately as one voting group. IN WITNESS WHEREOF, said Samir F. Gibara, President, and James Boyazis, Secretary, of The Goodyear Tire & Rubber Company, acting on behalf of said corporation, have A-4 hereunto subscribed their names and caused the seal of said corporation to be hereunto affixed this 4th day of June, 1996. By: ________________________________ Samir F. Gibara, President By: ________________________________ James Boyazis, Secretary [SEAL] A-5 EXHIBIT B --------- (Form of Right Certificate] Certificate No. R- Rights NOT EXERCISABLE AFTER JULY 29, 2006 OR EARLIER IF NOTICE OF REDEMPTION OR EXCHANGE IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES RIGHTS MAY NOT BE EXERCISABLE. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]* FIRST CHICAGO TRUST COMPANY OF NEW YORK Right Certificate This certifies that _____________, or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement dated as of June 4, 1996 (the "Rights Agreement") between THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (the "Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M. (Akron time) on July 29, 2006 at the office of the Rights Agent, or its successors as Rights Agent, in New York, New York, one one-hundredth of a fully paid and nonassessable share of the Series B Preferred Stock, without par value (the "Preferred Stock"), of the Company, at a - ---------- *The portion of the legend in brackets shall be inserted only if applicable. B-1 purchase price of $250.00 per share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related certificate duly executed. The number of Rights evidenced by this Right Certificate (and the number of shares which may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of July 29, 1996, based on the Preferred Stock of the Company as constituted at such date. Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (ii) a transferee of any such Acquiring Person, Associate of Affiliate, or (iii) under certain circumstances specified in the Rights Agreement, a transferee of a person who after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such Rights from and after the occurrence of such Section 11(a)(ii) Event. As provided in the Rights Agreement, the Purchase Price and the number of shares of Preferred Stock or other securities which may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events, including Triggering Events (as such term is defined in the Rights Agreement). This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are on file at the above-mentioned office of the Rights Agent and at the executive offices of the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the designated office of the Rights Agent, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of one one-hundredths of a share of Preferred Stock as the.Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof, along with a signature guarantee and such other and further documentation as the Rights Agent may reasonably request, another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate (a) may be redeemed by the Company at its option at a redemption price of $.001 per Right at any time prior to the earlier of the close of business on (i) the tenth Business Day following the Shares Acquisition Date or (ii) the final Expiration Date, or (b) may be exchanged B-2 in whole or in part for shares of the Common Stock, and/or other securities, cash or other assets of the Company deemed to have the same value as shares of the Common Stock, at any time after a Section 11(a)(ii) Event. No fractional shares of the Preferred Stock (or other securities) will be issued upon the exercise or exchange of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one one-hundredth of a share of Preferred Stock which may, at the option of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement. No holder of this Right Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of the Common Stock or of any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting shareholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have been exercised or exchanged for shares of the Common Stock as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signature of the proper officers of the Company and its corporate seal. Dated as of , . [SEAL] ATTEST: THE GOODYEAR TIRE & RUBBER COMPANY By: ______________________________ By: _______________________________ Name: Name: Title: Title: Countersigned: FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Rights Agent By: Authorized Signature Date: B-3 (Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT ------------------ (To be executed by the registered holder if such holder desires to transfer the Right Certificates.) FOR VALUE RECEIVED __________________________ hereby sells, assigns and transfers unto _________________________________________________________________ ________________________________________________________________________________ (Please print name and address of transferee) ________________________________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ___________________ Attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: ____________________, ____ ____________________________________________ Signature Signature Guaranteed: (Signatures must be guaranteed.) B-4 CERTIFICATE ----------- The undersigned hereby certifies by checking the appropriate boxes that: (1) This Right Certificate / / is / / is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined pursuant to the Rights Agreement); (2) After due inquiry and to the best knowledge of the undersigned, it / / did / / did not acquire the Rights evidenced by this Right Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person. (3) Exercising this Right Certificate will / / will not / / enable the undersigned, its Affiliates, its Associates, and/or any other Person with which the undersigned or any of the undersigned's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of securities of the Company, to become an Acquiring Person. Dated: _________________ ________________________________ Signature Signature Guaranteed: (Signatures must be guaranteed.) NOTICE ------ The signature to the foregoing Assignment and Certificate must correspond to the name as written upon the face of this Right Certificate in every particular, without alteration or enlargement or any change whatsoever. B-5 FORM OF ELECTION TO PURCHASE ---------------------------- (To be executed if holder desires to exercise Rights evidenced by the Right Certificate.) To The Goodyear Tire & Rubber Company: The undersigned hereby irrevocably elects to exercise _________________ ___________________ Rights represented by this Right Certificate to purchase the shares of the Series B Preferred Stock issuable upon the exercise of such Rights (or such other securities of the Company or of any other Person which may be issuable upon the exercise of the Rights) and requests that certificates for such shares be issued in the name of: Please insert social security or other taxpayer identifying number ________________________________________________________________________________ (Please print name and address) ________________________________________________________________________________ If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered in the name of and delivered to: Please insert social security or other taxpayer identifying number ________________________________________________________________________________ (Please print name and address) ________________________________________________________________________________ Dated: ___________________ _____________________________ Signature Signature Guaranteed: (Signature must conform in all (Signatures must be guaranteed.) respects to name of holder as specified on the face of this Right Certificate) B-6 CERTIFICATE ----------- The undersigned hereby certifies by checking the appropriate box that: (1) This Right Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined pursuant to the Rights Agreement); (2) After due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Right Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person. (3) Exercising this Right Certificate will [ ] will not [ ] enable the undersigned, its Affiliates, its Associates, and/or any other Person with which the undersigned or any of the undersigned's Affiliates or Associates has any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of securities of the Company, to become an Acquiring Person. Dated: ______________________ ________________________________ Signature Signature Guaranteed: (Signatures must be guaranteed.) _________________________________ NOTICE ------ The signature to the foregoing Election to Purchase and Certificate must correspond to the name as written upon the face of this Right Certificate in every particular, without alteration or.enlargement or any change whatsoever. B-7 EXHIBIT C --------- SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK On June 4, 1996 the Board of Directors of THE GOODYEAR TIRE & RUBBER COMPANY (the "Company") declared a dividend distribution of one Right for each outstanding share of Common Stock, without par value (the "Common Stock"), of the Company. The distribution is payable on July 29, 1996 (the "Record Date") to the shareholders of record on the Record Date. Each Right entitles the registered holder to purchase from the Company one one-hundredth of a share of Series B Preferred Stock, without par value (the "Preferred Stock"), or in certain circumstances, Common Stock, other securities, cash or assets as summarized below, at a price of $250.00 (the "Purchase Price"), subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement") between the Company and First Chicago Trust Company of New York, as Rights Agent (the "Rights Agent"). Distribution Date; Transfer of Rights - ------------------------------------- Until the earlier to occur of (i) ten Business Days following the date (the "Shares Acquisition Date") of the public announcement that a person or group of affiliated or associated persons (an "Acquiring Person") has acquired, or obtained the right to acquire, beneficial ownership of a number of shares of the Common Stock equal to 15% or more of the outstanding shares of the Common Stock or (ii) ten Business Days following the commencement or announcement of an intention to make a tender offer or exchange offer if, upon consummation thereof, such person would be an Acquiring Person (the earlier of such dates being called the "Distribution Date"), the Rights will be evidenced, with respect to any of the Common Stock certificates outstanding as of the Record Date, by such Common Stock certificate. The Rights Agreement provides that, until the Distribution Date, the Rights will be transferred with and only with the Common Stock. Until the Distribution Date (or earlier redemption or expiration of the Rights), new Common Stock certificates issued after the Record Date upon transfer or new issuance of the common Stock will contain a notation incorporating the Rights Agreement by reference. Until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any of the Common Stock certificates outstanding as of the Record Date will also constitute the transfer of the Rights associated with the Common Stock represented by such certificate. As soon as practicable following the Distribution Date, separate certificates evidencing the Rights ("Right Certificates") will be mailed to holders of record of the Common Stock as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the Rights. The Rights are not exercisable until the Distribution Date. The Rights will expire at the close of business on July 29, 2006, unless earlier redeemed or exchanged by the Company as described below. C-1 Exercise of Rights for Shares of the Common Stock of the Company - ---------------------------------------------------------------- In the event that a Person becomes an Acquiring Person at any time following the Rights Dividend Declaration Date, each holder of a Right will, after the Distribution Date, have the right to receive, upon exercise, shares of Common Stock (or, in certain circumstances, cash, property or other securities of the Company) having a value equal to two times the Purchase Price of the Right then in effect. Notwithstanding any of the foregoing, following the occurrence of the event set forth in this paragraph, all Rights that are, or (under certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring Person will be null and void. Exercise of Rights for Shares of the Acquiring Company - ------------------------------------------------------ In the event that, at any time following a Section 11(a)(ii) Event, (i) the Company is acquired in a merger or other business combination transaction, or (ii) 50% or more of the Company's assets or earning power is sold or transferred, each holder of a Right (except Rights which previously have been voided as set forth above) shall thereafter have the right to receive, upon exercise, the common stock or other capital stock of the acquiring company having a value equal to two times the Purchase Price of the Right then in effect. The events set forth in this paragraph and in the preceding paragraph are referred to as "Triggering Events." Adjustments to Purchase Price - ----------------------------- The Purchase Price payable, and the number of shares of Preferred Stock (or Common Stock or other securities, as the case may be) issuable upon exercise of the Rights are subject to adjustment from time to time to prevent dilution (i) in the event of a dividend of shares on, or a subdivision, combination or reclassification of, the Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights or warrants to subscribe for shares of the Preferred Stock or convertible securities at less than the current market price of the Preferred Stock or (iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends or dividends payable in the Preferred Stock) or of subscription rights or warrants (other than those referred to above). Prior to the Distribution Date, the Board of Directors of the Company may make such equitable adjustments as it deems appropriate in the circumstances in lieu of any adjustment otherwise required by the foregoing. With certain exceptions, no adjustment in the Purchase Price will be required until the time at which cumulative adjustments require an adjustment of at least 1% in such Purchase Price. No fractional shares will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the Common Stock on the last trading date prior to the date of exercise. C-2 Redemption and Exchange of Rights - --------------------------------- At any time prior to 5:00 P.M. Akron time on the tenth day following the Shares Acquisition Date, the Company may redeem the Rights in whole, but not in part, at a price of $.001 per Right (the "Redemption Price"). Under certain circumstances set forth in the Rights Agreement, the decision to redeem shall require the concurrence of a majority of the Independent Directors. Immediately upon the action of the Board of Directors of the Company electing to redeem the Rights with, if required, the concurrence of the Independent Directors, the Company shall make announcement thereof, and upon such action, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. At any time after the occurrence of any of the events set forth under the heading "Exercise of Rights for shares of the Common Stock of the Company" above, the Board of Directors may exchange the Rights (other than Rights owned by an Acquiring Person, which have become void), in whole or in part, at an exchange ratio of one share of the Common Stock, and/or other securities, cash or other property deemed to have the same value as one share of the Common Stock, per Right, subject to adjustment. Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder of the Company, including, without limitation, the right to vote or to receive dividends. Amendments to Terms of the Rights - --------------------------------- Any of the provisions of the Rights Agreement may be amended by the Board of Directors of the Company prior to the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be amended by the Board in order to cure any ambiguity, defect or inconsistency, or to make changes which do not adversely affect the interests of holders of Rights (excluding the interest of any Acquiring Person); provided, that no supplement or amendment may be made on or after the Distribution Date which changes those provisions relating to the principal economic terms of the Rights. The Board may also, with the concurrence of a majority of the Independent Directors, extend the redemption period for up to an additional twenty Business Days. The term "Independent Directors" means any member of the Board of Directors of the Company who was a member of the Board prior to the time that any person becomes an Acquiring Person, and any person who is subsequently elected to the Board if such person is recommended or elected by a majority of the Independent Directors, but shall not include an Acquiring Person or any representative thereof. A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated June 11, 1996. A copy of the Rights Agreement is available free of charge from the Company. This summary description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement, which is hereby incorporated herein by reference. C-3 AMENDMENT TO RIGHTS AGREEMENT THIS AMENDMENT TO RIGHTS AGREEMENT, dated as of February 8, 2000 (this "Amendment Agreement") between The Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation (the "Rights Agent"). WITNESSETH; that, WHEREAS, the Company and the Rights Agent are parties to that certain Rights Agreement, dated as of June 4, 1996 (the "Rights Agreement"); and WHEREAS, the Board of Directors of the Company, comprised entirely of Independent Directors (as defined in the Rights Agreement) at its meeting duly convened and held on February 8, 2000, in accordance with the authority conferred upon it under Section 27 of the Rights Agreement, unanimously declared that it would be desirable and appropriate and in the best interests of the holders of the Common Stock and the Rights (as defined in the Rights Agreement) to amend the Rights Agreement to modify the definition of "Independent Director" and add certain related definitions; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows: 1. Unless otherwise expressly defined in this Amendment Agreement, capitalized and other terms for which meanings are provided in the Rights Agreement shall have such meanings when used in this Amendment Agreement. 2. Effective February 8, 2000, the Rights Agreement shall be, and it hereby is, amended by: (a) Deleting paragraph (u) of Section 1 of the Rights Agreement in its entirety and inserting in lieu thereof a new paragraph (u) of Section 1 of the Rights Agreement providing in its entirety as follows: "(u) "Independent Director" shall mean any member of the Board of Directors of the Company, while such person is a member of the Board, who is not an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a representative or nominee of an Acquiring Person or any such Affiliate or Associate, and was a member of the Board prior to the time that any Person becomes an Acquiring Person, and any successor of any Independent Director, while such successor is a member of the Board, who is not an Acquiring Person or an Affiliate or Associate of an Acquiring Person, or a representative or nominee of an Acquiring Person 1 or of any such Affiliate or Associate, and is elected by a vote of the shareholders of the Company or by a majority of the Independent Directors; provided, that any member of the Board who is a Qualified Acquiring Person, or an Affiliate or Associate of a Qualified Acquiring Person or a representative or nominee of a Qualified Acquiring Person or of any such Affiliate or Associate, who was elected by the shareholders of the Company or by a majority of the Independent Directors shall also be an Independent Director." (b) Inserting a new paragraph (ss) of Section 1 of the Rights Agreement providing in its entirety as follows: "(ss) "Qualified Acquiring Person" shall mean any Person (including an Acquiring Person) who or which has made a Qualified Offer." (c) Inserting a new paragraph (tt) of Section 1 of the Rights Agreement providing in its entirety as follows: "(tt) "Qualified Offer" shall mean an offer for all of the outstanding shares of the Common Stock which meets all of the following requirements: (i) such offer is: (1) an all-cash offer for all of the shares of the Common Stock outstanding and the Person making the offer (prior to the date such offer is commenced within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act) has (A) cash or cash equivalents on hand for the full amount necessary to consummate such all-cash offer and has irrevocably committed in writing to the Company to utilize such cash or cash equivalents for such purpose, or (B) has obtained financing in the full amount necessary to consummate such offer and has entered into, and provided to the Company with complete copies of, definitive financing agreements for funds for such offer which, when added to the amount of cash and cash equivalents available as provided in clause (A) above, are in an amount not less than the full amount necessary to consummate such offer, which agreements are with one or more responsible financial institutions having the capacity to provide such funds; where "the full amount" shall be an amount sufficient to pay for all shares of the Common Stock outstanding on a fully diluted basis in cash pursuant to the offer and to pay all related expenses; or (2) an exchange or other similar offer to acquire all of the shares of the Common Stock outstanding for securities or a combination of securities and cash (which cash component, if any, shall be fully-financed as provided at subpart (1) above); and 2 (ii) such offer remains open for at least 60 Business Days; provided, however, that (A) if there is an increase in the price of such offer, such amended offer shall remain open for at least an additional 30 Business Days after the last such increase, and (B) such offer must remain open for at least an additional 30 Business Days after the date, if any, on which such Person reduces the per share price offered; and (iii) such offer is accompanied by a written opinion, in customary form, of a nationally recognized investment banking firm which is addressed to the Company and the holders of the Common Stock (other than the Person making such offer) and states that the consideration to be paid (whether in cash, securities or a combination of cash and securities) to the holders of the Common Stock pursuant to the offer is fair to such holders from a financial point of view and includes any written presentation of such firm showing the analysis and range of values underlying such conclusion and such written opinion is dated, and is provided to the Company, within five Business Days and not less than two Business Days prior to the date such offer is commenced, and an updated version of such opinion is dated and provided to the Company with two Business Days prior to the date the offer is consummated. 3. Nothing set forth in this Amendment Agreement shall in any manner be construed to alter the rights of the holder of the Rights or the terms and conditions of the Rights or the Rights Agreement other than expressly as set forth herein. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Rights Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written. THE GOODYEAR TIRE & RUBBER COMPANY By: /s/ C. Thomas Harvie ----------------------------------- C. Thomas Harvie, Senior Vice President ATTEST: /s/ James Boyazis - ---------------------------------------- James Boyazis, Secretary FIRST CHICAGO TRUST COMPANY OF NEW YORK By: /s/ Michael S. Duncan ------------------------------------- Michael S. Duncan, Director Corporate Actions 3 APPOINTMENT OF SUCCESSOR RIGHTS AGENT KNOW ALL MEN BY THESE PRESENTS, that The Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"), is a party to that certain RIGHTS AGREEMENT, June 4, 1996 (the "Rights Agreement"), between the Company and First Chicago Trust Company of New York ("First Chicago") that in accordance with Section 2 of the Rights Agreement, First Chicago was appointed the Rights Agent under the Rights Agreement, to act in such capacity as agent for the Company in accordance with the terms and conditions of the Rights Agreement; that First Chicago has, by written notice to the Company resigned as the Rights Agent under the Rights Agreement effective as of October 31, 2001; and that, in accordance with the provisions of Section 21 of the Rights Agreement, the Company desires to appoint EQUISERVE TRUST COMPANY, N.A. ("EquiServe") as the successor Rights Agent under the Rights Agreement, such appointment to be effective as of the opening of business on November 1, 2001; NOW, THEREFORE, in accordance with the provisions of Section 21 of the Rights Agreement, the Company does hereby appoint EquiServe as the Rights Agent under the Rights Agreement, effective at the opening of business on November 1, 2001, to act in such capacity as the successor to First Chicago on and after November 1, 2001 and until EquiServe shall resign, be removed or shall otherwise become incapable of acting. The Company does hereby advise and confirm unto EquiServe that, on or before the issuance of Rights Certificate pursuant to the Rights Agreement, the Company shall cause a written notice to be sent to each shareholder of record of the Company, and to every person entitled to receive a Rights Certificate, stating that EquiServe has been appointed by the Company as the successor Rights Agent effective as of the opening of business on November 1, 2001 and that each reference to First Chicago in the form of Right Certificate and in the legend on certificates for shares of the Common Stock shall hereafter be replaced by the following: "EquiServe Trust Company, N.A., successor Rights Agent" or, in the case of existing certificates, the legend shall be amended by adding: "EquiServe Trust Company, N.A., is the successor Rights Agent". The Company also confirms that any and all correspondence, notices, demands, and other written instruments given or made by the Company will be sent by first class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows: EquiServe Trust Company, N.A. 525 Washington Blvd. Jersey City, New Jersey 07310 IN WITNESS WHEREOF, THE GOODYEAR TIRE & RUBBER COMPANY has caused this Appointment of Successor Rights Agent to be executed by its officers thereunto duly authorized as of this 1st day of November, 2001. [CORPORATE SEAL] THE GOODYEAR TIRE & RUBBER COMPANY Attest: /s/ Bertram Bell By: /s/ Richard J. Kramer - ------------------------ ------------------------- Bertram Bell Richard J. Kramer, Assistant Secretary Vice President Corporate Finance ACCEPTANCE OF APPOINTMENT AS RIGHTS AGENT KNOW ALL MEN BY THESE PRESENTS, that EquiServe Trust Company, N.A., ("EquiServe"): (1) Has received a copy of the Rights Agreement, dated as of June 4, 1996 (the "Rights Agreement") between The Goodyear Tire & Rubber Company (the "Company") and First Chicago Trust Company, N.A. ("First Chicago"), certified as true, correct and complete by the Secretary of the Company; and (2) Represents that it is a corporation duly organized and doing business under the laws of the United States, in good standing and having its principal office in the State of New Jersey, which is authorized under the laws of the United States to exercise corporate trust powers, is authorized to do business as a trust company in the State of New York with an address of 100 Williams Street, Galleria, New York 10038, and is subject to supervision or examination by Federal authorities and authorities of the States of New Jersey and New York, and has a combined capital and surplus of in excess of $50 million; and, therefore, in accordance with Section 21 of the Rights Agreement, is authorized to act as the Rights Agent thereunder, and (3) Does hereby accept the appointment by the Company as the Rights Agent under the Rights Agreement, as the successor to First Chicago, effective as of the opening of business on November 1, 2001; and (4) Does hereby advise the Company that any and all correspondence, notices, demands and other written instruments shall be sufficiently given or made to EquiServe in its capacity as the Rights Agent under the Rights Agreement if sent by first class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows: EquiServe Trust Company, N.A. 525 Washington Blvd. Jersey City, New Jersey 07310 IN WITNESS WHEREOF, EQUISERVE TRUST COMPANY, N.A. has caused this Acceptance of Appointment as Rights Agent to be duly executed by an officer thereunto duly authorized as of the 1st day of November, 2001. EQUISERVE TRUST COMPANY, N.A By: /s/ Thomas A. Ferrari --------------------- Senior Vice President EX-4.5 7 l93258aex4-5.txt EXHIBIT 4.5 Exhibit 4.5 THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES (December 31, 2001 Restatement) TABLE OF CONTENTS
ARTICLE PAGE - ------- ---- I THE PLAN................................................................................................. 1 II DEFINITIONS.............................................................................................. 2 2.1 Meaning of Definitions.......................................................................... 2 2.2 Pronouns........................................................................................ 9 III EMPLOYEE PARTICIPATION...................................................................................10 3.1 Eligibility and Election to Participate.........................................................10 3.2 Notification of New Participants................................................................10 3.3 Effect and Duration.............................................................................10 3.4 Changes in Employment Status; Transfers of Employment...........................................10 3.5 Reemployment of a Participant...................................................................11 3.6 Qualified Military Service......................................................................11 IV TAX-DEFERRED CONTRIBUTIONS MADE ON BEHALF OF PARTICIPANTS................................................12 4.1 Tax-Deferred Contributions......................................................................12 4.2 Amount of Tax-Deferred Contributions............................................................12 4.3 Limitation on Tax-Deferred Contributions of Highly Compensated Employees........................13 4.4 Administration..................................................................................14 4.5 Limitation on Employer Contributions............................................................15 4.6 Changes in Compensation Reduction Authorization.................................................15 4.7 Suspension of Contributions.....................................................................15 4.8 Catch-Up Contributions..........................................................................15 V AFTER-TAX CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS.......................................................16 5.1 After-Tax Contributions.........................................................................16 5.2 Amount of After-Tax Contributions...............................................................16 5.3 Administration..................................................................................16 5.4 Changes in Payroll Deduction Authorization......................................................16
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ARTICLE PAGE - ------- ---- 5.5 Rollover Contributions.........................................................................17 VI MATCHING EMPLOYER CONTRIBUTIONS.........................................................................18 6.1 Payment of Contributions.......................................................................18 6.2 Limitation on Amount...........................................................................18 6.3 Allocation of Matching Employer Contributions..................................................19 6.4 Prevented Contributions........................................................................19 6.5 Determination of Annual Employer Contribution Rate.............................................20 6.6 Determination of Amount of Employer Contribution...............................................20 6.7 Effect of Plan Termination.....................................................................20 6.8 Limitation on Matching Employer Contributions and After-Tax Contributions of Highly Compensated Employees...................................................................20 VII DEPOSIT AND INVESTMENT OF CONTRIBUTIONS.................................................................23 7.1 Deposit of Contributions.......................................................................23 7.2 Investment Elections of Participants...........................................................23 7.3 Election to Transfer Interest Between Funds....................................................23 7.4 Election to Transfer Matching Employer Contribution Interest from Goodyear Stock Fund.....................................................................................24 VIII ESTABLISHMENT OF FUNDS AND PARTICIPANTS' ACCOUNTS.......................................................25 8.1 Establishment of General Fund..................................................................25 8.2 Investment Funds...............................................................................25 8.3 Goodyear Stock Fund and Suspense Fund..........................................................26 8.4 Appointment of Investment Managers.............................................................28 8.5 Income on Trust Funds..........................................................................28 8.6 Separate Accounts..............................................................................28 8.7 Sub-Accounts...................................................................................28 8.8 Account Balances...............................................................................28 8.9 Funds from Predecessor Plans...................................................................28 IX LIMITATIONS ON ALLOCATIONS TO ACCOUNTS..................................................................30 9.1 Limitation on Crediting of Contributions.......................................................30 9.2 Scope of Limitation............................................................................34
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ARTICLE PAGE - ------- ---- X VALUATIONS, DIVIDEND REINVESTMENTS, AND VOTING..........................................................35 10.1 Valuation of Participant's Interest............................................................35 10.2 Reinvestment or Distribution of Dividends......................................................36 10.3 Voting Company Stock...........................................................................36 10.4 Finality of Determinations.....................................................................36 10.5 Notification...................................................................................37 10.6 Procedures Regarding Offers to Acquire Company Stock...........................................37 XI WITHDRAWALS WHILE EMPLOYED..............................................................................40 11.1 Withdrawal of After-Tax Contributions..........................................................40 11.2 Withdrawal of Matching Employer Contributions..................................................40 11.3 Withdrawal of Tax-Deferred Contributions and Catch-Up Contributions............................40 11.4 Conditions and Limitations on Hardship Withdrawals.............................................41 11.5 Special Age 70-1/2 Distribution................................................................42 11.6 Adjustment of Accounts.........................................................................42 XII TERMINATION OF PARTICIPATION AND DISTRIBUTION...........................................................43 12.1 Termination of Participation...................................................................43 12.2 Vesting of Separate Accounts...................................................................44 12.3 Distribution...................................................................................44 12.4 Required Commencement of Distribution..........................................................45 12.5 Form of Distribution...........................................................................46 12.6 Election of Former Vesting Schedule............................................................46 12.7 Buy Back of Forfeited Amounts..................................................................47 12.8 Disposition of Forfeited Balances..............................................................47 12.9 Effect of Company's Determination..............................................................48 12.10 Reemployment of a Former Participant...........................................................48 12.11 Restrictions on Alienation.....................................................................48 12.12 Facility of Payment............................................................................49 12.13 Distributions to Other Qualified Plans.........................................................49 12.14 ESOP Required Distribution.....................................................................49 12.15 Right of First Refusal.........................................................................50 12.16 Rights to Put Company Stock....................................................................50
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ARTICLE PAGE - ------- ---- 12.17 Other Options..................................................................................52 12.18 Nonterminable Protection and Rights............................................................52 XIII BENEFICIARIES...........................................................................................53 13.1 Designation of Beneficiary.....................................................................53 13.2 Beneficiary in the Absence of Designation......................................................53 XIV ADMINISTRATION..........................................................................................54 14.1 Authority of Company...........................................................................54 14.2 Action of Company..............................................................................54 14.3 Claims Review Procedure........................................................................55 14.4 Indemnification................................................................................55 14.5 Qualified Domestic Relations Orders............................................................56 14.6 Acquisition Loans..............................................................................56 XV TRUSTEE AND TRUST AGREEMENT.............................................................................58 XVI AMENDMENT AND TERMINATION...............................................................................59 16.1 Amendment......................................................................................59 16.2 Limitation on Amendment........................................................................59 16.3 Termination....................................................................................59 16.4 Withdrawal of an Employer......................................................................60 16.5 Corporate Reorganization.......................................................................61 XVII ADOPTION BY SUBSIDIARIES; EXTENSION TO NEW BUSINESS OPERATIONS..........................................62 17.1 Adoption by Subsidiaries.......................................................................62 17.2 Extension to New Business Operations...........................................................62 XVIII MISCELLANEOUS PROVISIONS................................................................................63 18.1 No Commitment as to Employment.................................................................63 18.2 Benefits.......................................................................................63 18.3 No Guarantees..................................................................................63 18.4 Expenses.......................................................................................63 18.5 Precedent......................................................................................63
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ARTICLE PAGE - ------- ---- 18.6 Duty to Furnish Information....................................................................63 18.7 Withholding....................................................................................63 18.8 Merger, Consolidation, or Transfer of Plan Assets..............................................64 18.9 Back Pay Awards................................................................................64 18.10 Condition on Employer Contributions............................................................64 18.11 Return of Contributions to Participants........................................................65 18.12 Return of Contributions to an Employer.........................................................65 18.13 Validity of Plan...............................................................................65 18.14 Parties Bound..................................................................................65 18.15 Independent Appraisals.........................................................................65 XIX TOP-HEAVY PROVISIONS....................................................................................67 19.1 Applicability..................................................................................67 19.2 Top-Heavy Definitions..........................................................................67 19.3 Accelerated Vesting............................................................................69 19.4 Top-Heavy Employer Contribution................................................................69 19.5 Adjustments to Section 415 Limitations.........................................................70 19.6 Compensation Taken Into Account................................................................70 XX LOANS...................................................................................................71 20.1 Application for Loan...........................................................................71 20.2 Reduction of Account Upon Distribution.........................................................71 20.3 Requirements to Prevent a Taxable Distribution.................................................72 20.4 Administration of Loan Investment Funds........................................................72 20.5 Default........................................................................................73 20.6 Changes in Employment Status and Transfers of Employment Before Loan Is Repaid in Full........................................................................................73 XXI ELIGIBLE ROLLOVER DISTRIBUTIONS.........................................................................74 21.1 Direct Rollover................................................................................74 21.2 Definitions....................................................................................74 XXII MINIMUM EMPLOYER CONTRIBUTION...........................................................................76 22.1 Contribution of the Minimum Employer Contribution..............................................76
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ARTICLE PAGE - ------- ---- 22.2 Allocation of Minimum Employer Contribution....................................................76 XXIII MERGER OF CELERON CORPORATION EMPLOYEE SAVINGS PLAN.....................................................78 23.1 Merger of Plans................................................................................78 23.2 Establishment of Separate Accounts and Sub-Accounts............................................78 XXIV MERGER OF BRAD RAGAN, INC. EMPLOYEE SAVINGS PLAN........................................................79 24.1 Merger of Plans................................................................................79 24.2 Establishment of Separate Accounts and Sub-Accounts............................................79 XXV MERGER OF THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR HOURLY EMPLOYEES.................80 25.1 Merger of Plans................................................................................80 25.2 Establishment of Separate Accounts and Sub-Accounts............................................80 XXVI MERGER OF THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EXPATRIATE EMPLOYEES....................................................................................81 26.1 Merger of Plans................................................................................81 26.2 Establishment of Separate Accounts and Sub-Accounts............................................81
-vi- THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES (December 31, 2001 Restatement) ARTICLE I THE PLAN This Plan shall be known as The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees and constitutes a modification, restatement, and continuation of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees, as heretofore in effect, that was originally effective with respect to eligible salaried employees as of July 1, 1984. That portion of the Plan that consists of Matching Employer Contributions and amounts attributable thereto constitutes a stock bonus plan that is intended to qualify under Section 401(a) of the Internal Revenue Code that is intended to be an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Internal Revenue Code and Section 407(d)(6) of the Act, and the remainder of the Plan constitutes a profit-sharing plan that is intended to qualify under Section 401(a) of the Internal Revenue Code that includes a qualified cash-or-deferred arrangement under Section 401(k) of the Internal Revenue Code. This restatement shall be effective as of December 31, 2001. -1- ARTICLE II DEFINITIONS 2.1 MEANING OF DEFINITIONS. As used herein, the following words and phrases shall have the meanings hereinafter set forth, unless a different meaning is plainly required by the context: (a) The "Act" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a section of the Act shall include such section and any comparable section or sections of any future legislation that amends, supplements, or supersedes such section. (b) An "Acquisition Loan" shall mean each loan, assumption of an obligation, or obligation entered into by the Trustee for the purpose of acquiring Company Stock from (a) a "disqualified person" within the meaning of Section 4975(e) of the Code or a "party in interest" within the meaning of Section 3(14) of the Act, or (b) any other person if the obligation payable to such other person is guaranteed by a disqualified person or party in interest, subject to the provisions of Section 14.6. (c) An "After-Tax Contribution" shall mean the amount which a Participant has elected to have deducted from his Compensation in accordance with the provisions of Section 5.1. (d) The "Beneficiary" of a Participant, or of a Former Participant, shall mean the person or persons who, under the provisions of Article XIII, shall be entitled to receive distribution hereunder in the event such Participant or Former Participant dies before his interest shall have been distributed to him in full. (e) A "Catch-Up Contribution" shall mean the pre-tax contribution amount an eligible Participant has elected to have deducted from his Compensation in accordance with the provisions of Section 4.8. (f) The "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. Reference to a section of the Code shall include such section and any comparable section or sections of any future legislation that amends, supplements, or supersedes such section. (g) The "Company" shall mean The Goodyear Tire & Rubber Company, its corporate successors, and any corporation or corporations into or with which it may be merged or consolidated; and a "subsidiary of the Company" shall mean a subsidiary of the Company or of any of its subsidiaries and shall include any related corporation. (h) The "Company Stock" shall mean common stock of the Company. -2- (i) The "Compensation" of a Participant for any period shall mean the entire amount of compensation paid, or which would have been paid except for the provisions of the Plan, any salary reduction election made by the Participant under Section 125 of the Code, and after December 31, 2000, any salary reduction election made by the Participant for qualified transportation fringe benefits under Section 132(f)(4) of the Code, to such Participant during such period by reason of his employment as an Employee, including payments made under bonus and profit-sharing plans, commissions, overtime pay, and vacation pay, as recorded in the records of an Employer or any subsidiary of the Company, but excluding any imputed income, any supplemental unemployment benefit payments, any payments under plans imposed by governments other than the United States, any payments made for transportation, any special allowances, or any adjustments to cover conditions or circumstances peculiar to service in foreign countries. The Compensation of a Participant shall not include any payment made (i) in the Common Stock of the Company or in any other security issued by the Company under the Company's Key Personnel Incentive Profit Sharing Plan, or in cash to cover amounts withheld with respect to any such payment in Common Stock or other security issued by the Company; (ii) under the Company's 1982 Employees' Stock Option Plan, or any similar plan, with respect to stock options or stock appreciation rights granted thereunder, whether in the Common Stock of the Company, any other security issued by the Company, or cash; or (iii) in the Common Stock of the Company, in any other security issued by the Company, or in cash under the 1989 Goodyear Performance and Equity Incentive Plan, or any similar plan or successor plan, whether such payment is in respect of the grant or exercise of a stock option or a stock appreciation right, the grant or issuance of restricted stock, or any other grant or award thereunder. In addition to other applicable limitations which may be set forth in the Plan and notwithstanding any other contrary provision of the Plan, compensation taken into account under the Plan shall not exceed $150,000, adjusted for changes in the cost of living as provided in Section 401(a)(17)(B) and Section 415(d) of the Code, for the purpose of calculating a Plan Participant's accrued benefit (including the right to any optional benefit provided under the Plan) for any Plan year commencing after December 31, 1993. However, the accrued benefit determined in accordance with this provision shall not be less than the accrued benefit determined on December 31, 1993, without regard to this provision. (j) The "Continuous Service" of a Participant shall mean the period of time (computed to the nearest 1/12th of a year) between his Employment Commencement Date and his most recent Severance Date, provided, however, that in the case of a person who is absent from the service of the Employer on account of maternity or paternity reasons, as defined in paragraph (dd) of this Section 2.1, the person's Continuous Service shall not include the period of absence between the first and second anniversaries of the first date of such absence. -3- (k) An "Employee" shall mean a "domestic employee," as hereinafter defined, upon the merger of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Expatriate Employees into the Plan a "foreign employee," and upon the merger of The Goodyear Tire & Rubber Company Employee Savings Plan for Hourly Employees into the Plan an "hourly employee," other than any such employee (i) who is a "Leased Employee," as hereinafter defined, (ii) who is covered by a collective bargaining agreement unless such agreement or the Plan specifically provides for coverage by the Plan, (iii) who has the job description of "service worker," (iv) who is located and serving at a location operating under the Wingfoot, Allied, Kelly-Springfield Puerto Rico, or Dunlop name, (v) who is a leased employee provided through a non-affiliated service provider, whether or not the employee is a common-law employee of the Company or a subsidiary of the Company, or (vi) who has signed an agreement which comports to classify the employee as an independent contractor, consultant, or third-party, whether or not the employee is a common-law employee of the Company or a subsidiary of the Company. (vii) A "domestic employee" shall mean any officer or salaried employee of an Employer who is located and serving within the continental United States, Alaska, or Hawaii. (viii) A "foreign employee" shall mean any officer or salaried employee of an Employer who was a participant in the Plan as a domestic employee and who is located and serving without the continental United States, Alaska, and Hawaii, or any salaried employee of a foreign subsidiary of an Employer if (A) such employee is a citizen or resident of the United States, was a participant in the Plan as a domestic employee, and was transferred to such foreign subsidiary from the employ of an Employer, and (B) pursuant to Section 3121(l) of the Code an agreement is in effect extending the insurance system established by the federal Social Security Act to service outside the United States by employees of such foreign subsidiary who are citizens of the United States. (ix) For the purposes hereof, a "salaried employee" shall include only an employee who has been designated as such in accordance with the policy of his Employer, which policy shall be applied on a uniform and non-discriminatory basis. (x) For the purposes hereof, an "hourly employee" shall include only an employee who has been designated as such in accordance with the policy of his Employer, which policy shall be applied on a uniform and non-discriminatory basis. (xi) A "Leased Employee" shall mean any person who performs services for an Employer (the "recipient") (other than an employee of the recipient) pursuant to an agreement between the recipient and any other person (the "leasing organization") on a substantially full-time basis for a period of at -4- least one year, provided that such services are performed under primary direction or control by the recipient. Any Leased Employee, other than an "excludable leased employee," shall be treated as an employee of the Employer for which he performs services for all purposes of the Plan with respect to the provisions of Sections 401(a)(3), (4), (7), and (16), and 408(k), 410, 411, 415, and 416 of the Code; provided, however, that no Leased Employee shall accrue a benefit hereunder based on service as a Leased Employee except as otherwise specifically provided in the Plan. (xii) An "excludable leased employee" means any Leased Employee of the recipient who is covered by a money purchase pension plan maintained by the leasing organization which provides for (A) a nonintegrated employer contribution on behalf of each participant in the plan equal to at least 10 percent of compensation, (B) full and immediate vesting, and (C) immediate participation by employees of the leasing organization (other than employees who perform substantially all of their services for the leasing organization or whose compensation from the leasing organization in each plan year during the four-year period ending with the plan year is less than $1,000); provided, however, that Leased Employees do not constitute more than 20% of the recipient's nonhighly compensated workforce. (l) An "Employer" shall mean (i) the Company, and (ii) any domestic subsidiary of the Company that adopts the Plan as hereinafter provided, so long as it continues as a subsidiary of the Company. (m) The "Employer Contribution Rate" shall mean the percentage rate to be used by the Employers for a specific Plan year in determining the amount of Matching Employer Contribution for such Plan year. (n) The "Employment Commencement Date" of a Participant shall mean the date on which he first performed an Hour of Service with the Company or any subsidiary of the Company, subject to the following provisions: (i) If more than 12 months after an employee's Severance Date occurs, such employee again performs an Hour of Service, his Employment Commencement Date shall be advanced by the period of time between such Severance Date and the date he again performed an Hour of Service unless (ii) applies. (ii) If an employee, who either had been a Participant for less than three continuous years or had less than five years of Continuous Service as of a Severance Date, again performs an Hour of Service more than 12 months after such Severance Date, his Employment Commencement Date shall be changed to the date he again performed an Hour of Service, but only if the period of time between such Severance Date and the date such employee again performed an Hour of Service equals or exceeds the greater of five -5- years or the period of time between his Employment Commencement Date and such Severance Date. (iii) If an employee's Severance Date occurs by reason of entering active military service with the armed forces of the United States and if he has reemployment rights with his Employer, his Employment Commencement Date shall not be advanced so long as he returns to employment with the Company or any subsidiary of the Company within the time prescribed by federal law. The "Employment Commencement Date" of a Participant who was an employee of Goodyear Dunlop North America, Ltd. on or after September 1, 1999, who became an Employee after August 1, 2000, shall mean the date on which he first performed an Hour of Service for Dunlop Tire Corp. or Goodyear Dunlop North America, Ltd., subject to the foregoing provisions. (o) An "Enrollment Date" shall mean the first day of each month. (p) A "Former Participant" shall mean a Participant who has incurred a Settlement Date but who still has an interest under the Plan. (q) The "General Fund" shall mean the common trust fund established in accordance with the provisions of Section 8.1 as required to hold and administer any assets of the Trust Fund that are not allocated among any separate Investment Funds as may be provided in the Plan or Trust Agreement. No General Fund shall be established if all assets of the Trust Fund are allocated among separate Investment Funds. (r) The "Goodyear Stock Fund" shall mean the Investment Fund established in accordance with the provisions of Section 8.3. (s) A "Highly Compensated Employee" shall mean any Employee or a former Employee who is a "highly compensated active employee" or a "highly compensated former employee" as defined hereunder. A "highly compensated active employee" includes any Employee who performs services for an Employer or any related corporation during the Plan year who (i) was a 5% owner, as defined in Section 416(i)(1)(A)(iii) of the Code, at any time during the Plan year or the "look back year," or (ii) received "compensation" from the Employers and related corporations during the "look back year" in excess of $80,000 (subject to adjustment annually at the same time and in the same manner as under Section 415(d) of the Code). A "highly compensated former employee" includes any Employee who (iii) separated from service from an Employer and all related corporations (or is deemed to have separated from service from an Employer and all related corporations) prior to the Plan year, (iv) performed no services for an Employer or any related corporation during the Plan year, and (v) was a "highly compensated active employee" for either the separation year or any Plan year ending on or after the date the Employee attained age 55, as determined under the -6- rules in effect under Section 414(q) of the Code for such year. For purposes of this definition, the following terms have the following meanings: (vi) An employee's "compensation" means compensation as defined in Section 415(c)(3) of the Code and regulations issued thereunder. (vii) The "look back year" means the calendar year beginning within the 12-month period immediately preceding the Plan year for which the testing is being performed. (t) An "Hour of Service" with respect to a Participant shall mean each hour for which he is paid, or entitled to payment, for the performance of duties for the Company or any subsidiary of the Company. The rules set forth in Department of Labor Regulations Section 2530.200b-2 and Section 2530.200b-3, which relate to determining Hours of Service attributable to reasons other than the performance of duties and crediting hours to computation periods, are hereby incorporated into the Plan by reference. In the case of an employee of Goodyear Dunlop North America, Ltd. on or after September 1, 1999, who became an Employee after August 1, 2000, an "Hour of Service" with respect to a Participant shall include each hour for which he was paid, or entitled to payment, for the performance of duties for Dunlop Tire Corp. or Goodyear Dunlop North America, Ltd. (u) An "Investment Fund" shall mean any separate investment trust fund established from time to time by the Trustee as may be provided in the Plan or the Trust Agreement to which assets of the Trust Fund may be allocated and separately invested. (v) A "Matching Employer Contribution" shall mean the amount which the Employers shall be obligated to contribute to the Plan in accordance with the provisions of Section 6.1. (w) A "Participant" shall mean an Employee who elects to participate in the Plan in accordance with the provisions of Article III, and whose participation has not been terminated. A Participant shall also mean, except for purposes of Section 3.1, Section 4.1, and Section 5.1, an Employee who elects to make a rollover contribution to the Plan in accordance with the provisions of Section 5.5, and the alternate payee with respect to a Participant pursuant to a qualified domestic relations order, as defined in Section 414(p) of the Code. (x) The "Plan" shall mean this Employee Savings Plan for Salaried Employees, as from time to time in effect. (y) The "Plan Administrator," which is the administrator for purposes of the Act and the plan administrator for purposes of the Code, shall mean the Company. (z) A "Plan year" shall mean: (i) For Plan years beginning prior to January 1, 1998, the calendar year; -7- (ii) For the Plan year beginning on January 1, 1998, the period commencing on January 1, 1998, and ending on December 30, 1998; and (iii) For the Plan years beginning after December 30, 1998, the 12-month period commencing on December 31 and ending on December 30. (aa) A "related corporation" shall mean any corporation, other than an Employer, which is a member of a controlled group of corporations of which an Employer is a member as determined under Section 1563(a) of the Code, without regard to Section 1563(a)(4) and Section 1563(e)(3)(C) of the Code. Furthermore, the term shall include any trade or business (whether or not incorporated), other than an Employer, which is a member of a group under common control of which an Employer is also a member, as determined under Section 414(c) of the Code. The term shall also include each organization, other than an Employer, that is a member of an affiliated service group of which an Employer is also a member as determined under Section 414(m) of the Code, and any entity, other than an Employer, which is required to be aggregated with an Employer under Section 414(o) of the Code. (bb) A "separate account" shall mean the account maintained by the Trustee in the name of a Participant that reflects his interest in the Trust Fund and any sub-accounts established thereunder, as provided in Article VIII. (cc) The "Settlement Date" of a Participant shall mean the date on which a Participant ceases to be a Participant in accordance with Section 12.1. (dd) The "Severance Date" of a Participant shall mean the earliest of (i) the date on which he retires, dies, quits, or is discharged; or (ii) the date on which he ceases to accrue continuous service credit in accordance with the uniform policy adopted by his Employer with respect to leaves of absence or layoffs, but in no event earlier than the first anniversary of the first day of a period in which he remains absent (with or without pay) from the service of the Company and all subsidiaries of the Company. Notwithstanding the foregoing, the Severance Date of a Participant who is absent from the service of his Employer for maternity or paternity reasons beginning on or after January 1, 1985, shall be the second anniversary of the first date of such absence. For purposes of this paragraph (dd), an absence from employment for maternity or paternity reasons means an absence due to (1) the pregnancy of the Employee, (2) the birth of a child of the Employee, (3) the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (4) the provision of parental care for such child for a period beginning immediately following such birth or placement. An absence from work will be treated as an absence for maternity or paternity reasons only if and to the extent that the Employee furnishes to the Company such timely information as it may reasonably require to establish that the absence is for one or more of the four maternity or paternity reasons specified herein and to establish the number of days of absence attributable to such reason or reasons. Notwithstanding the foregoing, the transfer of an Employee to Dunlop Tires -8- North America, Ltd after September 1, 1999, shall not cause a Severance Date to occur; the Employee will not incur a Severance Date until a Severance Date occurs for such Employee with respect to Dunlop Tires North America, Ltd or an Employer and all related corporations; and such Employee's Continuous Service shall include service at Dunlop Tires North America, Ltd after September 1, 1999. (ee) The "Suspense Fund" shall mean the trust fund established and maintained in accordance with the provisions of Section 8.3. (ff) The "Tax-Deferred Contribution" with respect to a Participant shall mean the percentage by which a Participant has elected to have his Compensation reduced in accordance with Section 4.1 and which shall be contributed to the Plan on his behalf by his Employer in accordance with the provisions of Section 4.4. (gg) The "Trust Agreement" shall mean the agreement entered into between the Company and the Trustee, as provided in Article XV hereof, together with all amendments thereto. (hh) The "Trustee" shall mean the trustee which at the time shall be designated, qualified, and acting under the Trust Agreement. (ii) The "Trust Fund" shall mean the trust maintained by the Trustee under the Trust Agreement, which trust is called the "Trust Fund for The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees." (jj) A "valuation date" shall mean each business day of the Plan year. 2.2 PRONOUNS. The masculine pronoun wherever used herein shall include the feminine in any case so requiring. -9- ARTICLE III EMPLOYEE PARTICIPATION 3.1 ELIGIBILITY AND ELECTION TO PARTICIPATE. Each Employee who is a Participant under the Plan on January 1, 1997, shall continue as a Participant on and after that date. Each other Employee shall become a Participant as of the Enrollment Date next following the date on which he completes three months of Continuous Service, or any subsequent Enrollment Date, if he has timely filed with the Company an election in the manner and form as prescribed by the Company. An Employee's election shall contain (a) his authorization for his Employer to reduce his Compensation and to make Tax-Deferred Contributions on his behalf in accordance with the provisions of Sections 4.1 and 4.2, (b) an authorization for his Employer to make any payroll deductions with respect to his After-Tax Contributions to the Plan in accordance with the provisions of Sections 5.1 and 5.2, (c) his authorization for his employer to reduce his Compensation and make Catch-Up Contributions on his behalf in accordance with the provisions of Section 4.8, and (d) his election as to the investment of his Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions in accordance with the provisions of Section 7.2. An Employee's election to become a Participant under this Section 3.1 shall be timely only if received by the Company in the manner and form as prescribed by the Company by the 15th day of the month prior to the Enrollment Date as of which his participation is to become effective. 3.2 NOTIFICATION OF NEW PARTICIPANTS. As soon as practicable after each Enrollment Date, each Employer shall notify the Company of Employees becoming Participants on such date. 3.3 EFFECT AND DURATION. Upon becoming a Participant, an Employee shall be entitled to the benefits and shall be bound by all the terms and conditions of the Plan and the Trust Agreement. Each Employee who becomes a Participant shall remain a Participant until his participation is terminated as provided in Article XII. 3.4 CHANGES IN EMPLOYMENT STATUS; TRANSFERS OF EMPLOYMENT. If an Employee who is a Participant ceases to be an Employee but continues in the employment of (i) an Employer in some other capacity or (ii) a related corporation, he shall nevertheless continue as a Participant until his status as a Participant is otherwise terminated in accordance with the provisions of the Plan. In either case, such Participant shall share in Matching Employer Contributions for any payroll period of such participation only to the extent and on the basis of Tax-Deferred Contributions made on his behalf for such payroll period and his After Tax Contributions made during such payroll period; no Tax-Deferred Contributions or Catch-Up Contributions shall be made on behalf of such Participant in accordance with the terms of his Compensation reduction authorization except on the basis of his Compensation for services as an Employee; and -10- such Participant shall not be permitted to make After-Tax Contributions or Catch-Up Contributions at any time during which he is employed in any capacity other than as an Employee. Moreover, if a person is transferred directly from employment (iii) with an Employer in a capacity other than as an Employee or (iv) with a related corporation to employment with an Employer as an Employee, he shall become a Participant as of the date he is so transferred if he had completed three months of Continuous Service as of the immediately preceding Enrollment Date and if he makes his election in accordance with the provisions of Section 3.1. 3.5 REEMPLOYMENT OF A PARTICIPANT. If a retired or Former Participant is reemployed by an Employer or a related corporation after he incurs a Settlement Date under Section 12.1, he shall again become a Participant on the date he is reemployed by an Employer and makes his election in accordance with the provisions of Section 3.1, unless he is not reemployed as an Employee, in which case he shall again become a Participant on the first date thereafter on which he does become an Employee if he has properly made such election. 3.6 QUALIFIED MILITARY SERVICE. Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Section 414(u)(4) of the Code. -11- ARTICLE IV TAX-DEFERRED CONTRIBUTIONS MADE ON BEHALF OF PARTICIPANTS 4.1 TAX-DEFERRED CONTRIBUTIONS. The provisions of this Section 4.1 and Section 4.2 shall be subject to the provisions of Sections 3.1, 3.4, 4.6, and 4.7. Commencing with the first payment of Compensation to a Participant on or after the Enrollment Date occurring on February 1, 1996, or the Enrollment Date as of which he becomes a Participant, if later, each Participant shall elect to have Tax-Deferred Contributions made to the Plan on his behalf by his Employer as hereinafter provided. 4.2 Amount of Tax-Deferred Contributions. The amount of Tax-Deferred Contributions to be made to the Plan on behalf of a Participant by his Employer shall be an integral percentage of his Compensation of not less than one percent nor more than fifty percent and shall not, when aggregated with all other elective deferrals of the Participant with respect to the calendar year, exceed $10,500 (or such adjusted amount established by the Secretary of the Treasury pursuant to Section 402(g)(5) of the Code). The percentage rate of Tax-Deferred Contributions to be made on a Participant's behalf, when combined with his percentage rate of After-Tax Contributions, shall in no event exceed fifty percent of his Compensation. In the event a Participant so elects to have his Employer make Tax-Deferred Contributions on his behalf, his Compensation shall be reduced for each payroll period by the percentage he elects to have contributed on his behalf to the Plan in accordance with the terms of the Compensation reduction authorization in effect pursuant to Section 3.1 or 4.6, subject, however, to the $9,500 (or adjusted) annual aggregate limitation on Tax-Deferred Contributions and other elective deferrals. In the event that a Participant's aggregate elective deferrals with respect to a calendar year, including his Tax-Deferred Contributions hereunder, exceed the then applicable annual aggregate limitation on elective deferrals, the Participant, not later than the first March 1 following the close of the calendar year, may allocate the excess deferrals among the plans under which the deferrals occurred and notify each plan of the portion allocated to it, and the Company, not later than the first April 15 following the close of the calendar year, shall distribute to the Participant the annual amount of the excess deferral allocated to the Plan and any income allocable thereto, provided, however, that any such distributed excess deferral shall nevertheless be taken into account for purposes of computing deferral percentages for the Plan year under Section 4.3. In any case where an excess deferral has been distributed to a Participant pursuant to this Section 4.2, any Matching Employer Contributions attributable to such distributed excess deferral (and the income allocable thereto) shall be forfeited by the Participant at the time of the distribution and shall be treated as a forfeiture under the Plan as of the last day of the month in which the distribution occurs in accordance with the provisions of Section 12.8. The amount of excess deferrals to be distributed for a taxable year will be reduced by excess -12- contributions previously distributed or recharacterized under Section 4.3 for the Plan year beginning in such taxable year. 4.3 LIMITATION ON TAX-DEFERRED CONTRIBUTIONS OF HIGHLY COMPENSATED EMPLOYEES. Notwithstanding anything to the contrary contained in the Plan, no Tax-Deferred Contributions made with respect to a Plan year on behalf of eligible Highly Compensated Employees may result in an average deferral percentage for Highly Compensated Employees that exceeds the greater of: (a) a percentage that is equal to 125 percent of the average deferral percentage for all other eligible Employees for the preceding Plan year; or (b) a percentage that is not more than 200 percent of the average deferral percentage for all other eligible Employees for the preceding Plan year and that is not more than two percentage points higher than the average deferral percentage for all other eligible Employees for the preceding Plan year. For purposes of applying the limitation contained in this Section 4.3, the deferral percentage for any Highly Compensated Employee who is eligible to have contributions made on his behalf under two or more arrangements described in Section 401(k) of the Code that are maintained by an Employer or a related corporation shall be determined as if all such contributions and any contributions described in Section 401(k)(3)(D) of the Code were made under a single arrangement. The maximum amount permitted to be contributed to the Plan on a Highly Compensated Employee's behalf under this Section 4.3 shall be determined by reducing Tax-Deferred Contributions made on behalf of Highly Compensated Employees in order of their actual deferral percentages beginning with the highest amount of such contributions. In the event that Tax-Deferred Contributions with respect to a Plan year for eligible Highly Compensated Employees would otherwise exceed the limit specified in the preceding paragraph, the Tax-Deferred Contributions made with respect to a Highly Compensated Employee that exceed the maximum amount permitted to be contributed to the Plan on his behalf under this Section 4.3 will be excess contributions and, along with the income but minus the loss allocable thereto, shall be distributed to the Highly Compensated Employees prior to the end of the next following Plan year, or, alternatively, to the extent provided in regulations, shall become After-Tax Contributions at the election of the Highly Compensated Employees and shall be subject to the provisions of the Plan applicable thereto; provided, however, that excess contributions will not be recharacterized with respect to a Highly Compensated Employee to the extent that the recharacterized amounts, in combination with After-Tax Contributions actually made by the Highly Compensated Employee, exceed the maximum amount of After-Tax Contributions (determined prior to applying Section 401(m)(2)(A) of the Code) that the Employee is permitted to make under the Plan in the absence of recharacterization, and that recharacterized excess contributions will remain subject to the nonforfeitability requirements and distribution limitations that apply to Tax-Deferred Contributions. The amount of excess contributions to be distributed or recharacterized shall be reduced by -13- excess deferrals previously distributed under Section 4.2 for the taxable year ending in the same Plan year. If such excess contributions are distributed more than 2-1/2 months after the last day of the Plan year for which the excess occurred, an excise tax may be imposed under Section 4979 of the Code on the Employer maintaining the plan with respect to such amounts. If such excess contributions are not distributed by the close of the Plan year following the Plan year for which the excess occurred, the cash or deferred arrangement will fail to satisfy the requirements of Section 401(k)(3) of the Code for the Plan year for which the excess occurred and for all subsequent years the excess contributions remain in the Trust. The income allocable to excess Tax-Deferred Contributions shall be determined by multiplying the gain or loss allocable for the Plan year to the Tax-Deferred Contributions by a fraction, the numerator of which is the amount of the Participant's excess Tax-Deferred Contributions and the denominator of which is the sum of (i) the balance of the Participant's sub-accounts reflecting the Tax-Deferred Contributions as of the beginning of the Plan year, plus (ii) the Tax-Deferred Contributions made on behalf of the Participant. The amount eligible to be distributed or alternatively recharacterized as After-Tax Contributions shall be determined by reducing the maximum percentage of Tax-Deferred Contributions from fifty percent to such smaller percentage that will result in the limits set forth above not being exceeded, in accordance with procedures adopted by the Company. Each Highly Compensated Employee affected by a reduction in the percentage of Tax-Deferred Contributions being made on his behalf shall be notified by the Company of the reduction as soon as practicable. For purposes of this Section 4.3, the "deferral percentage" of an Employee for a Plan year shall be the ratio of his Tax-Deferred Contributions with respect to the Plan year to his Compensation for such Plan year; an "eligible Employee" shall mean an Employee who has met the eligibility requirements of Section 3.1 to become a Participant, whether or not he has become a Participant; and an "eligible Highly Compensated Employee" shall mean a Highly Compensated Employee who has met the eligibility requirements of Section 3.1 to become a Participant, whether or not he has become a Participant. In any case where an amount of Tax-Deferred Contributions has been distributed to a Participant in order to satisfy the limitations of this Section 4.3, any Matching Employer Contributions attributable to such distributed Tax-Deferred Contributions (and the income allocable thereto) shall be forfeited by the Participant at the time of the distribution and shall be treated as a forfeiture under the Plan as of the last day of the month in which the distribution occurs in accordance with the provisions of Section 12.8. 4.4 ADMINISTRATION. Each Employer shall cause to be delivered to the Trustee in cash all Tax-Deferred Contributions made with respect to payroll periods ending during each calendar month in accordance with the provisions of Section 4.2, but not later than the 30th day of the next succeeding calendar month. Subject to the provisions of Article X, the Trustee shall credit the amount of Tax-Deferred Contributions made by each Employer on behalf of each Participant for each payroll period ending during a calendar month and received by it to such Participant's separate account no later than the last day of such month. -14- 4.5 LIMITATION ON EMPLOYER CONTRIBUTIONS. Notwithstanding anything to the contrary contained in the Plan, each Employer's contribution to the Plan for any Plan year shall be made only out of the current or net income of such Employer and shall not exceed the limitation specified in Section 6.2. 4.6 CHANGES IN COMPENSATION REDUCTION AUTHORIZATION. A Participant may change the percentage of his Compensation that his Employer contributes on his behalf as a Tax-Deferred Contribution as of the first day of any calendar month by filing an amended Compensation reduction authorization with the Company by the 15th day of the month prior to the date with respect to which such change is to become effective, in the manner and form, or at such other time, as prescribed by the Company, except that he shall be limited to selecting an integral percentage of his Compensation of not less than zero percent or more than fifty percent. The percentage rate of Tax-Deferred Contributions to be made on a Participant's behalf, when combined with his percentage rate of After-Tax Contributions, shall in no event exceed fifty percent of his Compensation. Tax-Deferred Contributions shall be made on behalf of such Participant by his Employer, pursuant to his amended Compensation reduction authorization filed in accordance with the foregoing provisions of this Section 4.6, commencing with Compensation paid to such Participant on or after the date with respect to which such filing is effective, until otherwise altered or terminated in accordance with the Plan. 4.7 SUSPENSION OF CONTRIBUTIONS. A Participant's Tax-Deferred Contributions with respect to a calendar year shall automatically be suspended on the date that his Tax-Deferred Contributions for the calendar year first equal or exceed $10,500 (or such adjusted amount established by the Secretary of the Treasury pursuant to Section 402(g)(5) of the Code), except to the extent permitted under Section 4.8 and Section 414(v) of the Code, if applicable. Any such automatic suspension shall be in effect only for the remaining portion, if any, of the then current calendar year. 4.8 CATCH-UP CONTRIBUTIONS All employees who are eligible to make elective deferrals under this Plan and who have attained age 50 before the close of the Plan year shall be eligible to make catch-up contributions after December 31, 2001, in accordance with, and subject to the limitations of, Section 414(v) of the Code. Such catch-up contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Sections 402(g) and 415 of the Code. The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the making of such catch-up contributions. -15- ARTICLE V AFTER-TAX CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS 5.1 AFTER-TAX CONTRIBUTIONS. The provisions of this Section 5.1 and Section 5.2 shall be subject to the provisions of Sections 3.1, 3.4, 5.4, and 5.5. Commencing with the first payment of Compensation to a Participant on or after the Enrollment Date as of which he becomes a Participant, each Participant whose percentage rate of Tax-Deferred Contributions would otherwise be limited by paragraph (a) or (b) of Section 4.3 may, in addition to any Tax-Deferred Contributions that are being made on his behalf, make an After-Tax Contribution to the Plan as hereinafter provided. 5.2 AMOUNT OF AFTER-TAX CONTRIBUTIONS. A Participant may make an After-Tax Contribution to the Plan that shall be an integral percentage of his Compensation of not less than one percent or more than fifty percent. The percentage rate of After-Tax Contributions, when combined with the percentage rate of Tax-Deferred Contributions to be made on such Participant's behalf, shall in no event exceed fifty percent of his Compensation. Each Participant who is contributing under this Section 5.2 shall have the amount of his After-Tax Contribution deducted from his Compensation by his Employer no less frequently than once each calendar month in accordance with the terms of the payroll deduction authorization in effect for such Participant pursuant to Section 3.1 or 5.4. 5.3 ADMINISTRATION. Each Employer shall cause to be delivered to the Trustee in cash all After-Tax Contributions deducted from the Compensation of Participants with respect to each payroll period ending during each calendar month in accordance with the provisions of Section 5.2, but not later than the 30th day of the next succeeding calendar month. Subject to the provisions of Article X, the Trustee shall credit the amount of After-Tax Contributions made by each Participant for each payroll period ending during a calendar month and received by it to such Participant's separate account no later than the last day of such month. 5.4 CHANGES IN PAYROLL DEDUCTION AUTHORIZATION. A Participant may change the percentage of his Compensation that he contributes to the Plan as his After-Tax Contributions or terminate such After-Tax Contributions as of the first day of any calendar month by providing an amended payroll deduction authorization by the 15th day of the month prior to the date on which such change is to become effective, in the manner and form, or at such other time, as prescribed by the Company. Furthermore, a Participant whose Tax-Deferred Contributions have, in whole or in part, been recharacterized as After-Tax Contributions in accordance with the provisions of Section 4.3 may change the percentage of his Compensation that he contributes to the Plan as his After-Tax Contributions as of the first day of any calendar month by -16- providing an amended payroll deduction authorization by the 15 day of the month prior to the date on which such change is to become effective, in the manner and form, or at such other time, as provided by the Company. In any such case, a Participant shall be limited to selecting an integral percentage of his Compensation of not less than zero percent nor more than fifty percent. The percentage rate of After-Tax Contributions, when combined with the percentage rate of Tax-Deferred Contributions to be made on such Participant's behalf, shall in no event exceed fifty percent of his Compensation. After-Tax Contributions shall be made by such Participant, and deducted by his Employer, pursuant to his amended payroll deduction authorization filed in accordance with the foregoing provisions of this Section 5.4, commencing with Compensation paid to such Participant on or after the date with respect to which such filing is effective, until otherwise altered or terminated in accordance with the Plan. 5.5 ROLLOVER CONTRIBUTIONS. Any Employee, regardless of whether he has satisfied the eligibility requirements of Section 3.1, Participant, or Former Participant who was a participant in another plan qualified under Sections 401 or 403 of the Code and who receives an eligible rollover distribution within the meaning of Section 402(c)(4) of the Code from such plan may elect to make a rollover contribution to the Plan. An Employee, Participant, or Former Participant shall make a rollover contribution to the Plan either by a direct rollover pursuant to Section 401(a)(31) of the Code, or by delivering, or causing to be delivered, to the Trustee the cash that constitutes the rollover contribution amount within (60) days of receipt of the distribution from such other plan, in either case in the manner prescribed by the Company. A separate sub-account shall be established pursuant to Section 8.7 for the rollover contribution, and the rollover contribution shall be invested pursuant to the investment election of the Employee, Participant, or Former Participant in effect under Section 7.2 with respect to the investment of Tax-Deferred Contributions and After-Tax Contributions. An Employee, Participant, or Former Participant who makes a rollover contribution to the Plan who does not already have an investment election in place under Section 7.2 shall also make such an investment election. An Employee's, Participant's, or Former Participant's interest in his sub-account for rollover contributions shall be fully vested at all times. -17- ARTICLE VI MATCHING EMPLOYER CONTRIBUTIONS 6.1 PAYMENT OF CONTRIBUTIONS. Each Employer shall cause to be paid to the Trustee as its Matching Employer Contribution hereunder for each payroll period an amount that is equal to the Employer Contribution Rate multiplied by the aggregate of: (a) the Tax-Deferred Contribution made by such Employer on behalf of each Participant with respect to such payroll period; plus (b) the After-Tax Contribution made by each Participant during such payroll period based on Compensation paid by such Employer during such payroll period; provided, however, that such aggregate amount shall not include any portion of the sum of the Tax-Deferred Contributions and After-Tax Contributions of a Participant with respect to such payroll period that is in excess of six percent of his Compensation for such payroll period. In addition to the Matching Employer Contribution payable pursuant to the immediately preceding sentence, for each payroll period each Employer shall cause to be paid to the Trustee a further Matching Employer Contribution (an "additional Matching Employer Contribution") for the account of each Participant employed by the Employer who, prior to such payroll period, had all of his Tax-Deferred Contributions and After-Tax Contributions suspended (either voluntarily or involuntarily) at a time when the aggregate of such contributions for the calendar year exceeded six percent of his Compensation paid during the calendar year and prior to the suspension. The additional Matching Employer Contribution payable with respect to a payroll period for the account of a Participant described in the preceding sentence is to equal the Employer Contribution Rate multiplied by six percent of the Compensation paid to him for such payroll period; provided, however, that such additional Matching Employer Contribution shall be paid for the account of a Participant only until such time as the aggregate amount of his Tax-Deferred Contributions and After-Tax Contributions for the calendar year equals six percent of the Compensation that has been paid to him with respect to the calendar year. All Matching Employer Contributions for any payroll period ending during a calendar month shall be paid in cash or in Company Stock to the Trustee not later than the 30th day of the next succeeding calendar month. In any case, the Matching Employer Contribution for each payroll period ending during a calendar month, regardless of when actually paid, shall for all purposes of the Plan be deemed to have been made no later than the last day of such month. 6.2 LIMITATION ON AMOUNT. Notwithstanding anything to the contrary contained in the Plan, the Matching Employer Contributions of the Employers for any Plan year, when combined with the Tax-Deferred Contributions made by the Employers for such Plan year, shall be made only out of the current or accumulated net income of the respective Employers and shall in no event -18- exceed (i) the maximum amount which will constitute an allowable deduction for such year to the Employers under Section 404 of the Code, (ii) the maximum amount which may be contributed by the Employers under Section 415 of the Code, or (iii) the maximum amount which may be contributed pursuant to any wage stabilization law, or any regulation, ruling, or order issued pursuant to law. 6.3 ALLOCATION OF MATCHING EMPLOYER CONTRIBUTIONS. The Matching Employer Contributions for each payroll period ending during a calendar month shall be allocated no later than the last day of such month among Participants and Former Participants on whose behalf Tax-Deferred Contributions were made or who made After-Tax Contributions during such payroll period. The allocation to be made to each such Participant and Former Participant for such payroll period shall be an amount equal to the Employer Contribution Rate multiplied by the aggregate of (a) the amount contributed to the Plan on his behalf as a Tax-Deferred Contribution for such payroll period, plus (b) the amount he contributed to the Plan as an After-Tax Contribution for such payroll period; provided, however, that such aggregate amount shall not include any portion of the sum of the Tax-Deferred Contributions and After-Tax Contributions of the Participant with respect to a payroll period that is in excess of six percent of his Compensation for such payroll period. An Employer's Matching Employer Contribution for a Participant or Former Participant shall be allocated with respect to the Tax-Deferred Contributions made on his behalf and his After-Tax Contributions only to the extent that such Tax-Deferred Contributions and such After-Tax Contributions are based on Compensation paid, or which would have been paid but for the provisions of the Plan, by such Employer during such payroll period. Further, a Participant or Former Participant with respect to whom an Employer has made an additional Matching Employer Contribution for a calendar month in accordance with Section 6.1 shall receive an allocation equal to the amount of such additional Matching Employer Contribution made for his account. Subject to the provisions of Article IX, the Trustee shall credit the amount so allocated to each such Participant or Former Participant to his separate account no later than the last day of the month during which such payroll period ends. 6.4 PREVENTED CONTRIBUTIONS. The provisions of this Section 6.4 shall be given full force and effect notwithstanding anything to the contrary, other than Section 6.2, contained in the Plan. In the event that any Employer which together with any other Employers hereunder constitutes an affiliated group within the meaning of Section 1504 of the Code is prevented from paying any part or all of its contribution to be made for any Plan year hereunder by reason of its having no current or accumulated net income or because such net income is less than the contribution which such Employer would otherwise have made, then the amount thereof so prevented shall be paid by the other Employers in such affiliated group, in such proportion and to such extent as prescribed under Section 404(a)(3)(B) of the Code. Such amount for all purposes of the Plan shall be deemed to be a contribution made for such Plan year by the Employer on behalf of which it was made. In the event an Employer which is not a member of such an affiliated group is prevented from paying all -19- or part of its contribution for any Plan year, the amount so prevented shall not be paid by any other Employer. 6.5 DETERMINATION OF ANNUAL EMPLOYER CONTRIBUTION RATE. The Board of Directors of the Company shall determine the percentage to be used as the Employer Contribution Rate for each Plan year. The Employer Contribution Rate for a specific Plan year shall be announced to Employees by November 15 of the preceding Plan year. 6.6 DETERMINATION OF AMOUNT OF EMPLOYER CONTRIBUTION. The Company shall determine the amount to be contributed by each Employer for each payroll period in accordance with the provisions of the Plan. 6.7 EFFECT OF PLAN TERMINATION. Notwithstanding anything to the contrary contained in the Plan, any termination of the Plan shall terminate the liability of the Employers to make further contributions to the Plan, other than contributions for any payroll period ended prior to the time of such termination, and other than the Minimum Employer Contribution under Section 22.1. 6.8 LIMITATION ON MATCHING EMPLOYER CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS OF HIGHLY COMPENSATED Employees. Notwithstanding anything to the contrary contained in the Plan, no Matching Employer Contributions or After-Tax Contributions made with respect to a Plan year on behalf of eligible Highly Compensated Employees may result in an average contribution percentage for Highly Compensated Employees that exceeds the greater of (a) a percentage that is equal to 125 percent of the average contribution percentage for all other eligible Employees for the preceding Plan year, or (b) a percentage that is not more than 200 percent of the average contribution percentage for all other eligible Employees for the preceding Plan year and that is not more than two percentage points higher than the average contribution percentage for all other eligible Employees for the preceding Plan year. In the event the Matching Employer Contributions and After-Tax Contributions with respect to a Plan year for eligible Highly Compensated Employees would otherwise exceed the limit specified in the preceding sentence, a certain amount of the Matching Employer Contributions and After-Tax Contributions, along with the income but minus the losses allocable thereto, shall be distributed or forfeited prior to the end of the next following Plan year, with such certain amount and the treatment thereof to be determined as follows: (c) First, the maximum percentage of After-Tax Contributions shall be reduced, in accordance with procedures adopted by the Company, from fifty percent to the -20- greater of six percent or such percentage that will result in the average contribution percentage limit specified above not being exceeded, and the excess amount of After-Tax Contributions attributable to such reduction shall be distributed to the Highly Compensated Employees who made the excess contributions; (d) second, if application of (c) does not cause the Plan to meet the average contribution percentage limit specified above, the maximum percentage of After-Tax Contributions shall be further reduced from six percent to such smaller percentage that, taking into account the reduction in the After-Tax Contributions and the loss of the Matching Employer Contribution related thereto, will result in the average contribution percentage limit specified above not being exceeded, and the excess amount of After-Tax Contributions attributable to such reduction shall be distributed to the Highly Compensated Employees who made the excess contributions; (e) third, if (d) is applicable, and a Highly Compensated Employee receiving a distribution thereunder of excess After-Tax Contributions was fully vested in amounts credited to his Goodyear Stock Fund Account as of the time such excess contribution occurred, that portion of the Matching Employer Contribution for such Plan year that relates to the After-Tax Contributions distributed under (d) shall also be distributed to the Highly Compensated Employee; and (f) fourth, if (d) is applicable but (e) is not applicable, that portion of the Matching Employer Contribution for such Plan year that relates to the After-Tax Contribution distributed under (d) shall be treated as a forfeiture under the Plan as of the last day of the next following Plan year. The income allocable to excess Matching Employer Contributions and After-Tax Contributions shall be determined in the same manner set forth in Section 4.3, by substituting "excess Matching Employer Contributions and After-Tax Contributions" for "excess Tax-Deferred Contributions." For purposes of this Section 6.8, the "contribution percentage" of an Employee for a Plan year shall be the ratio of his aggregate After-Tax Contributions and Matching Employer Contributions with respect to the Plan year to his Compensation for such Plan year, except that, to the extent permitted by regulations to be promulgated by the Secretary of the Treasury, the Company may elect to take into account in computing the numerator of each eligible Employee's Contribution percentage the Tax-Deferred Contribution made on behalf of the eligible Employee for the Plan year; an "eligible Employee" shall mean an Employee who has met the eligibility requirements of Section 3.1 to become a Participant, whether or not he has become a Participant; and an "eligible Highly Compensated Employee" shall mean a Highly Compensated Employee who has met the eligibility requirements of Section 3.1 to become a Participant, whether or not he has become a Participant. The determination hereunder of whether excess After-Tax Contributions or Matching Employer Contribution have been made by an eligible Employee with the respect to a Plan year shall occur after first determining the amount, if any, of that portion of the Tax-Deferred Contribution of the eligible Employee that is in excess of the annual aggregate limitation on Tax-Deferred -21- Contributions and then determining the amount, if any, of Tax-Deferred Contributions made on behalf of the eligible Employee that are in excess of the limitations imposed under Section 4.3. For Plan years commencing prior to December 31, 2001, notwithstanding anything to the contrary contained in the Plan, the following multiple use limitation as required under Section 401(m) of the Code shall apply: the sum of the average deferral percentage and the average contribution percentage for Highly Compensated Employees may not exceed the aggregate limit. The aggregate limit is the sum of (g) 125 percent of the greater of the average contribution percentage or the average deferral percentage for all other eligible Employees and (h) the lesser of 200 percent of, or two percentage points plus, the lesser of such average contribution percentage or such average deferral percentage, or, if it would result in a larger aggregate limit, the sum of (i) 125 percent of the lesser of the average contribution percentage or the average deferral percentage for all other eligible Employees and (j) the lesser of 200 percent of, or two percentage points plus, the greater of such average contribution percentage or such average deferral percentage. In the event that, after the satisfaction of the limitations in Section 4.3 and this Section 6.8, it is determined that contributions under the Plan fail to satisfy this multiple use limitation, the multiple use limitation shall be satisfied by further reducing the contribution percentages of Highly Compensated Employees (beginning with the highest amount of such contributions) to the extent necessary to eliminate such excess, with such further reductions to be treated as excess contributions and disposed of as provided in this Section 6.8. -22- ARTICLE VII DEPOSIT AND INVESTMENT OF CONTRIBUTIONS 7.1 DEPOSIT OF CONTRIBUTIONS. All Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions shall be deposited by the Trustee upon receipt in the Investment Funds as the Company shall direct and all Matching Employer Contributions shall be deposited by the Trustee upon receipt in the Goodyear Stock Fund; provided, however, that the Company's directions with respect to all Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions shall be based on the investment election of each Participant made in accordance with the provisions of Section 7.2. For all purposes hereunder, Tax-Deferred Contributions, After-Tax Contributions, Catch-Up Contributions and Matching Employer Contributions for each payroll period ending during a calendar month shall be deemed to have been deposited no later than the last day of such month. The Trustee shall have no duty to collect or enforce payment of contributions or inquire into the amount or method used in determining the amount of contributions, and shall be accountable only for contributions received by it. 7.2 INVESTMENT ELECTIONS OF PARTICIPANTS. Each Participant shall, upon electing to participate under the Plan in accordance with the provisions of Section 3.1, make an investment election in the manner prescribed by the Company, directing the manner in which his Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions shall be deposited and held by the Trustee. The investment election of a Participant with respect to his Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions shall specify the percentage of such contributions that is to be deposited in each of the Investment Funds, which percentage amounts must be whole percentage amounts not in excess in the aggregate of 100%. The investment election by a Participant shall remain in effect until he ceases to be a Participant in accordance with the provisions of the Plan; provided, however, that a Participant may change his investment election, at any time, in the manner and form as prescribed by the Company by making a new election specifying a change in his investment election. Any such change must again specify a percentage of the Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions of the Participant that is to be deposited in each of the Investment Funds, which percentage amounts must be whole percentage amounts not in excess in the aggregate of 100%, and shall not affect the amounts credited to any separate account or sub-account of the Participant or to any Investment Fund as of any date prior to the date on which such change is to become effective. 7.3 ELECTION TO TRANSFER INTEREST BETWEEN FUNDS. A Participant or a Beneficiary who has an interest in an Investment Fund (other than an interest in the Goodyear Stock Fund attributable to Matching Employer Contributions that has not been transferred previously under Section 7.4) may elect at any time to -23- transfer all or a portion of such interest to another Investment Fund. The Participant election or Beneficiary election must specify the Investment Fund from which the transfer is to be made, either that the total balance in that Investment Fund is to be transferred or a lesser dollar amount that is to be transferred, each Investment Fund to which the transfer is to be made, and a percentage of the amount transferred that is to be transferred to each Investment Fund, which percentage must be an integral multiple of 1%. Any such transfer election must be made in the manner and form and at the time prescribed by the Company. Once the election becomes effective, it shall be irrevocable. Notwithstanding the foregoing, a Participant or a Beneficiary may not transfer any portion of an interest in the Stable Value Fund directly to a Self-Directed Account. 7.4 ELECTION TO TRANSFER MATCHING EMPLOYER CONTRIBUTION INTEREST FROM GOODYEAR STOCK FUND. A Participant who has attained age 52 and who has an interest in the Goodyear Stock Fund attributable to Matching Employer Contributions, or a Beneficiary with respect to such a Participant, may elect at any time to transfer all or a portion of such interest to another Investment Fund. The Participant election or Beneficiary election must specify a dollar amount that is to be transferred, each Investment Fund to which a transfer is to be made, and the percentage of the total amount to be transferred to each such Investment Fund. Any such transfer election must be made in the manner and form and at the time prescribed by the Company. -24- ARTICLE VIII ESTABLISHMENT OF FUNDS AND PARTICIPANTS' ACCOUNTS 8.1 ESTABLISHMENT OF GENERAL FUND. The Trustee shall establish a General Fund as required to hold and administer any assets of the Trust Fund that are not allocated among the separate Investment Funds as provided in the Plan or the Trust Agreement. The General Fund shall be held and administered by the Trustee as a separate common trust fund. The interest of each Participant, Former Participant, or Beneficiary under the Plan in the General Fund shall be an undivided interest. 8.2 INVESTMENT FUNDS. The Trustee shall establish the following Investment Funds: (a) A Stable Value Fund which shall be invested primarily in contracts with banks, insurance companies, or other financial institutions which provide for rates of return for particular periods of time. Additionally, the Stable Value Fund may be invested in investment grade securities which provide for fixed or determinable rates of return. The securities may be held directly by the Plan, in group trusts, or in separate accounts of insurance companies. (b) An S&P 500 Index Stock Equity Fund which shall be invested primarily in the 500 stocks that comprise the S&P 500 Composite Index. (c) Asset Allocation Funds comprised of the following three balanced funds: (i) A Conservative Asset Allocation Fund which shall be invested primarily in bonds and stocks with a target allocation of 60% bonds and 40% United States stocks. (ii) A Moderate Asset Allocation Fund which shall be invested primarily in bonds and stock with a target allocation of 40% bonds and 60% United States stocks. (iii) An Aggressive Asset Allocation Fund which shall be invested primarily in bonds and stocks with a target allocation of 65% United States stocks, 15% international stocks, and 20% bonds. (d) A Large Capitalization Stock Equity Fund which shall be invested primarily in common stocks of medium and large companies that have better-than-average prospects for appreciation. (e) A Small Capitalization Stock Equity Fund which shall be invested primarily in small company stocks that are expected to provide long-term capital growth. -25- (f) An International Stock Equity Fund which shall be invested primarily in common stocks and debt obligations of companies and governments outside of the United States that are expected to produce long-term capital growth. (g) A Self-Directed Account in which the Participant, Former Participant, or Beneficiary may direct the investment of all or any part of his separate account among a list of mutual funds selected by the Company and the Trustee. The provisions of this paragraph (g) of Article 8.2 shall be effective only if and to the extent that the Company, in its discretion, implements them. (h) If a loan from the Plan to a Participant is approved in accordance with the provisions of Article XX, the Company shall direct the establishment and maintenance of a Loan Investment Fund in the Participant's name. Notwithstanding any other provision of the Plan to the contrary, income received with respect to a Participant's Loan Investment Fund shall be allocated and the Loan Investment Fund shall be administered as provided in Article XX. The Company may determine from time to time to direct (i) the closing of an Investment Fund or Investment Funds or (ii) the establishment and maintenance of an additional Investment Fund or Investment Funds and shall select the investments for such Investment Fund or Investment Funds. The Company shall communicate the same and any changes therein in writing to the Plan Administrator and the Trustee. All assets of each Investment Fund, except for a Self-Directed Account or a Loan Investment Fund, shall be held and administered by the Trustee as a separate trust fund. The interest of each Participant, Former Participant, or Beneficiary under the Plan in any Investment Fund, other than a Self-Directed Account or a Loan Investment Fund, and other than an Investment Fund that consists of a mutual fund, shall be an undivided interest. The interest of each Participant, Former Participant, or Beneficiary under the Plan in any Investment Fund that consists of a mutual fund shall be an undivided interest in the units of the mutual fund held by the Plan. All assets of each Self-Directed Account and each Loan Investment Fund shall be held and administered as a separate trust fund. 8.3 GOODYEAR STOCK FUND AND SUSPENSE FUND. The Company shall direct the establishment and maintenance of a Goodyear Stock Fund to which Matching Employer Contributions shall be allocated, together with any Tax-Deferred Contributions, After-Tax Contributions, Catch-Up Contributions and Rollover Contributions made by or on behalf of a Participant that he elects to have allocated to the Goodyear Stock Fund. Subject to the provisions of the Trust Agreement, the assets of the Goodyear Stock Fund shall be invested by the Trustee primarily in Company Stock. Assets of the Goodyear Stock Fund may also be invested by the Trustee in interest-bearing common, commingled, group, or collective trust funds maintained by the Trustee exclusively for the short-term investment of assets of tax-qualified benefit plans. The Trustee may purchase Company Stock on the open market through a national securities exchange or in the over-the-counter market through a broker-dealer which is a member of the National Association of Securities Dealers. In addition, the Trustee may purchase Company Stock from the Company or another qualified plan of the Company -26- participating in the collective trust in accordance with the requirements of Section 408 of the Act. The Goodyear Stock Fund shall be held and administered as a separate Investment Fund. The interest of each Participant, Former Participant, or Beneficiary under the Plan in the Goodyear Stock Fund shall be an undivided interest. The Company shall also direct the establishment and maintenance of a Suspense Fund, to hold and administer any Company Stock that is pledged as collateral for any Acquisition Loan. No Participant, Former Participant, or Beneficiary shall have an interest in the Suspense Fund. Subject to the provisions of Section 18.15, the assets of the Suspense Fund shall be valued at fair market value as of each valuation date. In any Plan Year that any shares of Company Stock are no longer required to be pledged as collateral for such a loan, the Trustee shall release such shares from encumbrance in the Suspense Fund and shall transfer them to the Goodyear Stock Fund as of the last day of such Plan Year. The number of such shares to be released from the Suspense Fund for allocation to Participants for each Plan year shall be based upon one of the following two formulae: (a) PRINCIPAL AND INTEREST RELEASE FORMULA. For each Plan Year during the duration of such a loan, the number of shares released must equal the number of encumbered shares held in the Suspense Fund immediately before release for the current Plan Year multiplied by a fraction. The numerator of the fraction is the amount of principal and interest paid for the year. The denominator of the fraction is the sum of the numerator plus the principal and interest to be paid for all future years. Subject to the requirements of regulations issued under the Act and the Code, the number of future years under the loan must be definitely ascertainable and must be determined without taking into account any possible extensions or renewal periods. If the interest rate is variable, the interest to be paid in future years must be computed by using the interest rate applicable as of the end of the Plan Year. (b) PRINCIPAL-ONLY RELEASE FORMULA. As an alternative to the formula described above, the Plan may release shares of Company Stock from the Suspense Fund using the formula described above but calculated only with reference to principal payments. If this second formula is used, the following additional requirements apply: (i) the loan must provide for annual payments of principal and interest at a cumulative rate that is not less rapid at any time than level annual payments of such amounts for 10 years; (ii) interest included in any payment may be disregarded only to the extent that it would be determined to be interest under standard loan amortization tables; and (iii) this alternate formula may not be used from the time that, by reason of a renewal, extension, or refinancing, the sum of the expired duration of the Acquisition Loan, the renewal period, the extension period, and the duration of a new loan exceeds 10 years. If the Company Stock held as collateral for such a loan includes more than one class of stock, the number of shares of each class to be released for a Plan year shall be determined by applying the same formula and same fraction to each class of Company Stock. Any shares so released and transferred shall be allocated in the same manner as Employer Contributions for such Plan year as set forth in Section 6.3. -27- 8.4 APPOINTMENT OF INVESTMENT MANAGERS. As provided in the Trust Agreement, the Company may appoint one or more investment managers (as defined in Section 3(38) of ERISA) with respect to any portion of any trust fund established under this Article VIII. 8.5 INCOME ON TRUST FUNDS. Any dividends, interest, distributions, or other income received by the Trustee in respect of a Fund shall be reinvested by the Trustee in the respective Fund for which such income was received. 8.6 SEPARATE ACCOUNTS. As of the first date a contribution is made by or on behalf of an Employee, there shall be established a separate account in his name reflecting his interest in the Trust Fund. Each separate account shall be maintained and administered for each Participant, Former Participant, and Beneficiary in accordance with the provisions of the Plan. 8.7 SUB-ACCOUNTS. The separate account of each Participant, Former Participant, and Beneficiary shall be divided into individual sub-accounts reflecting the portion of such account which is derived from Matching Employer Contributions, Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions. Each sub-account shall reflect separately contributions allocated to each Investment Fund and the earnings and losses attributable thereto. Such other sub-accounts may be established as are necessary or appropriate to reflect the interest of a Participant, Former Participant, or Beneficiary in the Trust Fund. 8.8 ACCOUNT BALANCES. For all purposes hereof, the balance of each separate account of a Participant, Former Participant, or Beneficiary, including sub-accounts, as of any date shall be the balance of such account or sub-account after all credits and charges thereto, for and as of such date, have been made as provided herein. 8.9 FUNDS FROM PREDECESSOR PLANS. At the direction of the Company, the Trustee is authorized to accept the transfer of funds being held by the funding agent for a predecessor plan (as hereinafter defined) for the benefit of an eligible Employee, provided that at no time in the course of the transfer shall such funds be made available to the eligible Employee. The Trustee shall have no duty to verify whether the amount of any predecessor plan funds delivered to it is correct, and shall have no duty of inquiry into the administration of any predecessor plan or of any prior trust or other funding agency for a predecessor plan. The Trustee shall deposit all funds received by it from a predecessor plan in the Investment Funds in accordance with the directions of the Company, which shall be based on the investment elections of the eligible Employees made in the form and manner prescribed by the Company. The -28- Trustee shall establish and maintain a separate account and such sub-accounts in the name of an eligible Employee as are necessary to reflect his interest that is attributable to predecessor plan funds and to reflect the portion of his predecessor plan funds that is attributable to voluntary after-tax contributions, to contributions made pursuant to a cash or deferred arrangement qualified under Section 401(k) of the Code, and to other employer contributions. Each such separate account shall, upon each valuation date, share in the net increase or decrease in the value of the assets of the Investment Funds maintained under the Plan on the basis of the balance of such separate account immediately prior to the valuation date in accordance with Section 10.1, provided, however, that such balance for this purpose only shall be reduced by the amount of any funds transferred to the Trustee since the immediately preceding valuation date. With the exception of funds transferred from a predecessor plan maintained by an Employer or a related corporation, which shall be vested in accordance with the next following sentence of this Section 8.9, all predecessor plan funds shall at all times be fully vested and nonforfeitable. The vested interest of a Participant in funds transferred from a predecessor plan maintained by an Employer or a related corporation shall be determined as of the date of transfer based on the vesting provisions of the predecessor plan in effect on such date, and on and after the date of transfer the vested interest shall be determined based on the vesting provisions of the Plan or, in the event an election under Section 12.6 applies with respect to the Participant, based on the vesting provisions of the predecessor plan as of the date of transfer. Predecessor plan funds shall be distributed at such times and according to such methods as are generally provided under the Plan. In addition, predecessor plan funds attributable to voluntary, after-tax contributions made under the predecessor plan shall be subject hereunder to the withdrawal provisions applicable to After-Tax Contributions and predecessor plan funds that were contributed pursuant to a cash or deferred arrangement qualified under Section 401(k) of the Code shall be subject hereunder to the withdrawal and distribution provisions applicable to Tax-Deferred Contributions. For purposes of this Section 8.9, a predecessor plan shall mean any other defined contribution plan that complies with the requirements of Section 401(a) of the Code and satisfies the conditions specified in Section 401(a)(11)(B)(iii) of the Code. -29- ARTICLE IX LIMITATIONS ON ALLOCATIONS TO ACCOUNTS 9.1 LIMITATION ON CREDITING OF CONTRIBUTIONS. Notwithstanding anything to the contrary contained in the Plan, the amount of Matching Employer Contributions, Tax-Deferred Contributions, and After-Tax Contributions, which may be credited to the separate account of any Participant or Former Participant shall be subject to the following provisions: (a) For purposes of this Section 9.1, the "annual addition" with respect to a Participant or Former Participant shall mean the sum for any calendar year of the following amounts: (i) Tax-Deferred Contributions, After-Tax Contributions, and Matching Employer Contributions that are credited to the separate account of such Participant or Former Participant for such calendar year pursuant to Sections 4.4, 5.3, and 6.4, and (ii) the amount, if any, of Employer Contributions and forfeitures and employee after-tax contributions that are credited to the Participant or Former Participant for such calendar year under any other qualified defined contribution plan (whether or not terminated) maintained by an Employer or a related corporation concurrently with the Plan, and amounts described in Sections 415(l)(2) and 419A(d)(2) allocated to the Participant or Former Participant for such calendar year. (b) For purposes of this Section 9.1, the "compensation" of a Participant or Former Participant shall mean (in contrast with Compensation as defined in paragraph (i) of Section 2.1) his wages, salaries, and other amounts received for personal services actually rendered in the course of employment with an Employer or a related corporation, excluding, however, (i) for calendar years beginning before January 1, 1998, contributions made by an Employer or a related corporation to a plan of deferred compensation (including Tax-Deferred Contributions hereunder) to the extent that, before the application of the limitations of Section 415 of the Code to such plan, the contributions are not includable in the gross income of the Participant or Former Participant for the taxable year in which contributed; (ii) for calendar years beginning before January 1, 1998, contributions made by an Employer or a related corporation on his behalf to a simplified employee pension described in Section 408(k) of the Code; (iii) any distributions from a plan of deferred compensation (other than amounts received pursuant to an unfunded non-qualified plan in the year -30- such amounts are includable in the gross income of the Participant or Former Participant); (iv) amounts received from the exercise of a non-qualified stock option or when restricted stock or other property held by the Participant or Former Participant becomes freely transferable or is no longer subject to substantial risk of forfeiture; (v) amounts received from the sale, exchange, or other disposition of stock acquired under a qualified stock option; and (vi) any other amounts that receive special tax benefits, such as premiums for group term life insurance (but only to the extent that the premiums are not includable in the gross income of the Participant or Former Participant). (c) The annual addition with respect to a Participant or Former Participant shall not exceed the lesser of (i) $35,000 for the calendar year beginning January 1, 2001, and $40,000 for the calendar year beginning January 1, 2002, and each calendar year thereafter (subject to adjustment annually pursuant to Internal Revenue Service regulations and rulings under Section 415 of the Code), or (ii) 25 percent for the calendar year beginning January 1, 2001, and100 percent for the calendar year beginning January 1, 2002, and each calendar year thereafter, of such Participant's compensation, as defined in Section 415(c)(3) of the Code and regulations issued thereunder, for such calendar year. The compensation limit referred to in this subparagraph (ii) shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(b) or Section 419A(F)(2) of the Code) which is otherwise treated as an annual addition. If as a result of the allocation of forfeitures, a reasonable error in estimating the Participant's compensation, a reasonable error in determining the amount of elective deferrals (within the meaning of Section 402(g)(3) of the Code) that may be made with respect to any individual under the limits of Section 415 of the Code, or other reasonable facts and circumstances that the Commissioner of the Internal Revenue finds to justify the availability of the rules set forth below, the annual addition to the separate account of a Participant or Former Participant in any calendar year would exceed the amount that may be applied for his benefit under the limitation contained in this Section 9.1 absent such limitation, the amount of his After-Tax Contributions for such calendar year and of that portion of the Matching Employer Contributions that would be allocated to such Participant or Former Participant under Section 6.3 based thereon, but that would exceed the limitation herein, shall be reduced (applying the same percentage reduction with respect to both such After-Tax Contributions and Matching Employer Contributions) to the extent necessary to eliminate such excess. The -31- amount of any such reduction of After-Tax Contributions shall be returned to such Participant or Former Participant (plus the earnings, if any, attributable to such amount), and the amount of any such reduction of Matching Employer Contributions shall be deemed a forfeiture for such calendar year and shall be applied against the Company's Matching Employer Contribution obligation as described below. If the limitation contained in this Section 9.1 would still be exceeded after application of the previous sentence, the amount of the Tax-Deferred Contributions made on behalf of such Participant or Former Participant for such calendar year and that portion of the Matching Employer Contribution that would be allocated to such Participant or Former Participant under Section 6.3 based thereon, but that would exceed the limitation herein, shall be reduced (applying the same percentage reduction with respect to both Tax-Deferred Contributions and Matching Employer Contributions) to the extent necessary to eliminate such excess. The amount of any such reduction of Tax-Deferred Contributions shall be applied as the initial Tax-Deferred Contributions made by the Participant for the next following limitation year until such amount is exhausted, unless the Participant is not covered by the Plan as of the end of the limitation year, in which event such amount shall be deemed a forfeiture for such calendar year and shall be applied against the Company's Matching Employer Contribution obligation as described below. The amount of any such reduction of Matching Employer Contributions shall be deemed a forfeiture for such calendar year and shall be applied against the Company's Matching Employer Contributions obligation as described below. Amounts which are deemed forfeitures hereunder with respect to the Company for a calendar year shall be held unallocated in a suspense account established with respect to the Company and shall for all Plan purposes be applied against the Company's Matching Employer Contribution obligation for the next following calendar year (and succeeding calendar years, as necessary). No such suspense account shall share in any increase or decrease in the net worth of the Investment Funds. (d) For calendar years beginning before January 1, 2000, if any Participant or Former Participant in the Plan also shall be covered by a qualified defined benefit plan (whether or not terminated) maintained by an Employer or a related corporation concurrently with the Plan, the sum of subparagraphs (i) and (ii) below shall in no event exceed 1.0 in any calendar year where (i) is the defined benefit plan fraction (determined as of the close of such calendar year), the numerator of which is the projected annual benefit of such Participant or Former Participant under such plan and the denominator of which is the lesser of (1) the product of 1.25 multiplied by the dollar limitation in effect under Section 415(b)(1)(A) of the Code for such calendar year, or (2) the product of 1.4 multiplied by the amount which may be taken into account under Section 415(b)(1)(B) of the Code with respect to such Participant or Former Participant for such calendar year; and -32- (ii) is the defined contribution plan fraction, the numerator of which is the sum of the annual addition to the separate accounts of such Participant or Former Participant as of the close of such calendar year and for each prior year of service with an Employer or a related corporation and the denominator of which is the sum of the lesser of the following amounts determined for such calendar year and each prior year of service with an Employer or a related corporation: (1) the product of 1.25 multiplied by the dollar limitation in effect under Section 415(c)(1)(A) of the Code for such calendar year determined without regard to Section 415(c)(6), or (2) the product of 1.4 multiplied by the amount which may be taken into account under Section 415(c)(1)(B) (or Section 415(c)(7) or (8), if applicable) with respect to such Participant or Former Participant for such calendar year. In the event the special limitation contained in this paragraph (d) is exceeded, the benefits otherwise payable to the Participant or Former Participant under any such qualified defined benefit plan shall be reduced to the extent necessary to meet such limitation. If the Plan satisfied the applicable requirements of Section 415 of the Code as in effect for all limitation years beginning before January 1, 1987, an amount shall be subtracted from the numerator of the defined contribution plan fraction (not exceeding such numerator) as prescribed by the Secretary of the Treasury so that the sum of the defined benefit plan fraction and the defined contribution plan fraction computed under Section 415(e)(1) of the Code, as revised by the Tax Reform Act of 1986, does not exceed 1.0 for such limitation year. (e) In the event that a Participant or Former Participant is covered by any other qualified defined contribution plan (whether or not terminated) maintained by an Employer or a related corporation concurrently with the Plan, the procedure set forth in paragraph (c) of this Section 9.1 shall be implemented first by returning the contributions made by the Participant or Former Participant for such calendar year under all of the defined contribution plans other than the Plan. If the limitation contained in this Section 9.1 is still not satisfied after returning all of the contributions made by the Participant or Former Participant under all such other plans, the procedure set forth in paragraph (c) of this Section 9.1, without regard to the foregoing provisions of this paragraph (e), shall be invoked to eliminate any such excess. If the limitation contained in this Section 9.1 is still not satisfied after invocation of the procedure set forth in paragraph (c) of this Section 9.1, the portion of the Employer contributions and of forfeitures for the calendar year under all such other plans, which has been allocated to such Participant thereunder, but which exceeds the limitation herein, shall be deemed a forfeiture for such calendar year and shall, subject to the provisions of this Section 9.1, be reallocated among and credited to the separate accounts of the remaining Participants and Former Participants in such other plans who are eligible to share in such contributions and forfeitures for such calendar year; provided, however, that the amount of the Employer contributions and of any forfeitures which is deemed a forfeiture under this paragraph (e) shall be effected -33- on a pro rata basis among all of such plans, including the Plan, unless the Participant or Former Participant is covered by a money purchase pension plan or a tax credit plan meeting the requirements of Section 409 of the Code, in which event the forfeiture shall be effected first under the Plan (and any other defined contribution plan which is not a money purchase pension plan nor a tax credit plan) and, if the limitation is still not satisfied, then under such money purchase pension plan, and finally, if the limitation is still not satisfied, then under such tax credit plan. In the event that a Participant or Former Participant is covered by a qualified defined benefit plan, the procedure set forth in paragraph (d) of this Section 9.1 shall be implemented prior to effecting any reduction in the benefit of such Participant or Former Participant under the defined contribution plans. (f) In the event that the limitations of paragraph (d) of this Section 9.1 are applicable, the following adjustments shall be made for purposes of applying such paragraph (d): If, before October 3, 1973, the Participant or Former Participant was an active participant in a qualified defined benefit plan maintained by an Employer and otherwise satisfies the requirements of Section 2004(d)(2) of the Act, the defined benefit plan fraction described in subparagraph (d)(i) shall not exceed 1.0. (g) For purposes of this Section 9.1, the meaning of "related corporation" shall be as modified by Section 415(h) of the Code. 9.2 SCOPE OF LIMITATION. The limitations contained in this Article IX shall be applicable only with respect to benefits provided pursuant to the defined contribution plans and defined benefit plans described in Section 415(k) of the Code. -34- ARTICLE X VALUATIONS, DIVIDEND REINVESTMENTS, AND VOTING 10.1 VALUATION OF PARTICIPANT'S INTEREST. As of each valuation date hereunder, the Trustee shall adjust each separate account of each Participant, Former Participant and Beneficiary, and any sub-account maintained thereunder, to reflect any increase or decrease in the value of the Trust Fund since the immediately preceding valuation date in the following manner: (a) The Trustee shall value all of the assets of the Goodyear Stock Fund at fair market value. (b) The Trustee shall value all of the assets of the other Investment Funds with respect to which no investment manager has been appointed at fair market value and each investment manager shall value all of the assets of the Investment Fund with respect to which he has been appointed at fair market value and shall provide the same to the Trustee. In valuing the Investment Funds with respect to which no investment manager has been appointed that consist of mutual funds, the Trustee may rely on price data supplied by the mutual fund manager. (c) The Trustee shall then ascertain the net increase or decrease in the value of the respective Investment Funds which is attributable to net income, investment management fees, and all profits and losses, realized and unrealized, since the immediately preceding valuation date, on the basis of the valuation provided under paragraphs (a) and (b) of this Section 10.1, and after making appropriate adjustments for the amount of all contributions made with respect to the month in which such valuation date occurs and for any distributions and withdrawals from the respective Investment Funds since such preceding valuation date and prior to such date. (d) The Trustee shall then allocate the net increase or decrease in the value of the respective Investment Funds as thus determined among all Participants, Former Participants, and Beneficiaries who have an interest in the respective Investment Funds, separately with respect to each of such Investment Funds, in the ratio that the balance of each separate account maintained under such Investment Fund on the date immediately preceding such valuation date bears to the aggregate of the balances of all such separate accounts on the day immediately preceding such valuation date, and shall credit or charge, as the case may be, each such separate account with the amount of its allocated share. Moreover, the Trustee shall in the same manner credit or charge any sub-account maintained thereunder with the amount of its allocated share. (e) Finally, the Trustee shall then credit to the appropriate separate account and sub-accounts of each Participant and Former Participant, as applicable and in accordance with the provisions of Article VIII, the Tax-Deferred Contributions -35- made on his behalf, his After-Tax Contributions, and his share of Matching Employer Contributions made since the immediately preceding valuation date. The Trustee may maintain its records for the Plan on the basis of unit accounting. 10.2 REINVESTMENT OR DISTRIBUTION OF DIVIDENDS. Except as may be otherwise elected by the Participant with respect to Company Stock attributable to Matching Employer Contributions, all dividends and other earnings of the Goodyear Stock Fund shall be used by the Trustee to purchase additional Company Stock. If so elected by a Participant, any cash dividends on Company Stock attributable to Matching Employer Contributions or any portion thereof not used for payment of principal and/or interest on an Acquisition Loan allocated to the Participant's account shall be paid currently (or within 90 days after the end of the Plan Year in which the dividends are paid to the Trust) in cash to the Participant. 10.3 VOTING COMPANY STOCK. All voting rights on Company Stock held in the Goodyear Stock Fund and the Suspense Fund shall be exercised by the Trustee only as directed by Participants, Former Participants, and Beneficiaries acting in their capacity as "Named Fiduciaries" (as defined in Section 402 of the Act). At least 30 days prior to each annual or special meeting of its shareholders, the Company shall cause to be sent to each Participant, and to each Former Participant and Beneficiary, a copy of the proxy solicitation material therefor, together with a form requesting that each such Participant, Former Participant, or Beneficiary give to the Trustee or proxy solicitation and tabulation agent his confidential instructions with respect to the manner in which his proportionate interest in the Company Stock held in the Goodyear Stock Fund and the Suspense Fund shall be voted by the Trustee. Upon timely receipt of such instructions, the Trustee (after combining votes of fractional shares to give effect to the greatest extent to the instructions received) shall vote the Company Stock as instructed. If voting instructions with respect to any Company Stock are not timely received by the Trustee for a particular shareholder's meeting, such Company stock shall not be voted. Instructions received from individual Participants, Former Participants, and Beneficiaries by the Trustee shall be held in the strictest confidence and shall not be divulged or released to any person, including officers or employees of the Company. 10.4 FINALITY OF DETERMINATIONS. The Trustee shall have exclusive responsibility for determining the net income, liabilities, and value of the assets of the Goodyear Stock Fund and for determining the balance of each separate account and sub-account maintained hereunder. The Trustee shall have exclusive responsibility for determining the net income, liabilities, and value of the assets of the other Investment Funds with respect to which no investment manager has been appointed, and each investment manager shall have exclusive responsibility for determining the net income, liabilities, and value of the assets of the Investment Fund with respect to which he has been appointed. In determining the net income, liabilities, -36- and value of the assets of the Investment Funds with respect to which no investment manager has been appointed that consist of mutual funds, the Trustee may rely on information provided by the mutual fund manager. The Trustee's and investment manager's determinations thereof shall be conclusive upon the Employers, and all Participants, Former Participants, and Beneficiaries hereunder. 10.5 NOTIFICATION. As soon as reasonably possible after the end of each Plan year, the Company shall notify each Participant, Former Participant, and Beneficiary of the balance of his separate account and sub-accounts as of the last day of such Plan year. 10.6 PROCEDURES REGARDING OFFERS TO ACQUIRE COMPANY STOCK All decisions with respect to offers to acquire Company Stock held in the Goodyear Stock Fund and the Suspense Fund shall be made only by the Participants, Former Participants, and Beneficiaries acting in their capacity as Named Fiduciaries in accordance with the provisions of this Section 10.6 set forth below; provided, however, that the provisions of this Section 10.6 shall not be applicable with respect to sales of Company Stock by the Trustee for the purposes of making distributions under the terms of the Plan, payment of expenses, and meeting other cash requirements of the Trust. (a) In the event an offer shall be received by the Trustee to purchase or exchange any Company Stock held by the Trust, the Trustee will advise each Participant, Former Participant, and Beneficiary who has an interest in the Goodyear Stock Fund in writing of the terms of the offer as soon as practicable after its commencement and will furnish each such person with a form by which he may instruct the Trustee confidentially whether or not to tender or exchange Company Stock represented by his Goodyear Stock Fund account. The materials furnished to the Participants, Former Participants, and Beneficiaries shall include (i) a notice from the Trustee that the Trustee will not tender or exchange any Company Stock for which timely instructions are not received by the Trustee and (ii) such related documents as are prepared by any person and provided to the shareholders of the Company pursuant to applicable law. The Company and the Trustee may also provide Participants, Former Participants, and Beneficiaries with such other material concerning the offer as the Trustee or the Company in its discretion determines to be appropriate; provided, however, that prior to any distribution of materials by the Company, the Trustee shall be furnished with sufficient numbers of complete copies of all such materials. The Company will cooperate with the Trustee to ensure that Participants, Former Participants, and Beneficiaries receive the requisite information in a timely manner. (b) The Trustee shall tender or not tender Company Stock or exchange or not exchange Company Stock held in the Goodyear Stock Fund (including fractional shares) only as and to the extent instructed by the Participants, Former Participants, and Beneficiaries as Named Fiduciaries with respect to Company Stock represented by their respective Goodyear Stock Fund accounts. If tender or -37- exchange instructions for Company Stock held in the Goodyear Stock Fund represented by the Goodyear Stock Fund account of any Participant, Former Participant, or Beneficiary, as the case may be, are not timely received by the Trustee, the Trustee will treat the non-receipt as a direction not to tender or exchange such Company Stock. The instructions received by the Trustee from Participants, Former Participants, and Beneficiaries shall be held by the Trustee in strict confidence and shall not be divulged or released to any person, including directors, officers, or employees of the Company, or of any other company, except as otherwise required by law. (c) Each Participant for whom there is maintained a Goodyear Stock Fund account and who is entitled to direct the Trustee whether or not to tender or exchange Company Stock represented by his Goodyear Stock Fund account shall, as a Named Fiduciary, separately direct the Trustee with respect to the tender or exchange of a portion of the Company Stock that is held in the Suspense Fund. Such direction shall apply to the number of shares of Company Stock held in the Suspense Fund multiplied by a fraction, the numerator of which is the number of shares of Company Stock held in the Goodyear Stock Fund in which the Participant has an interest, and the denominator of which is the total number of shares of Company Stock held in the Goodyear Stock Fund reflecting the interest of all Participants who have provided directions to the Trustee under this Section 10.6. For purposes of determining the fraction in the preceding sentence, shares of Company Stock held in the Goodyear Stock Fund with respect to which Participants, Former Participants, and Beneficiaries are deemed to have issued a direction not to tender Shares (because the Trustee did not receive timely instructions from such persons, as described in paragraph (b) of this Section 10.6), shall not be counted in either the numerator or the denominator of said fraction. (d) In the event, under the terms of an offer or otherwise, any shares of Company Stock tendered for sale, exchange, or transfer pursuant to such offer may be withdrawn from such offer, the Trustee shall follow such instructions respecting the withdrawal of such securities from such offer in the same manner and the same proportion as shall be timely received by the Trustee from the Participants, Former Participants and Beneficiaries as Named Fiduciaries, entitled under this Section 10.6 to give instructions as to the sale, exchange, or transfer of securities pursuant to such offer. (e) In the event that an offer for fewer than all of the shares of Company Stock held by the Trustee shall be received by the Trustee, each Participant, Former Participant, and Beneficiary who has an interest in any Company Stock held in the Goodyear Stock Fund subject to such offer shall be entitled to direct the Trustee as to the acceptance or rejection of such offer (as provided by this Section 10.6) with respect to the largest portion of such Company Stock as may be possible given the total number or amount of shares of Company Stock the Plan may sell, exchange, or transfer pursuant to the offer based upon the instructions received by the Trustee from all other persons who shall timely instruct the Trustee pursuant to this Section 10.6 to sell, exchange, or transfer such shares pursuant to such -38- offer, each on a pro rata basis in accordance with the number or amount of such shares of Company Stock represented by his Goodyear Stock Fund account. (f) In the event an offer shall be received by the Trustee and instructions shall be solicited from Participants, Former Participants and Beneficiaries pursuant to paragraphs (a) through (e) of this Section 10.6, and prior to termination of such offer, another offer is received by the Trustee for the securities subject to the first offer, the Trustee shall use its best efforts under the circumstances to solicit instructions from the Participants, Former Participants, and Beneficiaries to the Trustee (i) with respect to securities tendered for sale, exchange, or transfer pursuant to the first offer, whether to withdraw such tender, if possible, and, if withdrawn, whether to tender any securities so withdrawn for sale, exchange, or transfer pursuant to the second offer and (ii) with respect to securities not tendered for sale, exchange, or transfer pursuant to the first offer, whether to tender or not to tender such securities for sale, exchange, or transfer pursuant to the second offer. The Trustee shall follow all such instructions received in a timely manner from Participants, Former Participants, and Beneficiaries in the same manner and in the same proportion as provided in paragraphs (a) through (e) of this Section 10.6. With respect to any further offer for any Company Stock received by the Trustee and subject to any earlier offer (including successive offers from one or more existing offerors), the Trustee shall act in the same manner as described above. (g) A Participant's, Former Participant's, or Beneficiary's instructions to the Trustee to tender or exchange Company Stock will not be deemed a withdrawal or suspension from the Plan or a forfeiture of any portion of such person's interest in the Plan. Funds received in exchange for tendered shares will be credited to the Goodyear Stock Fund account of the person with respect to whom such shares of Company Stock were tendered or the Suspense Fund from which such shares of Company Stock were tendered and will be used by the Trustee to purchase Company Stock, as soon as practicable. In the interim, the Trustee will invest such funds in short-term investments permitted under the Plan. -39- ARTICLE XI WITHDRAWALS WHILE EMPLOYED 11.1 WITHDRAWAL OF AFTER-TAX CONTRIBUTIONS. A Participant may elect to withdraw in cash an amount equal to all or any portion of the value of the balance of his sub-account attributable to his After-Tax Contributions as of the most recent valuation date. In the event a Participant has more than one Investment Fund in his sub-account attributable to After-Tax Contributions and he withdraws only a portion of the balance of such sub-account, the withdrawal shall be charged to each of the Investment Funds in the ratio that the balance of the sub-account invested in the Investment Fund as of the most recent valuation date bears to the balance of the sub-account as of such date. 11.2 WITHDRAWAL OF MATCHING EMPLOYER CONTRIBUTIONS. Prior to his attainment of age 59-1/2, a Participant may not withdraw amounts attributable to Matching Employer Contributions unless the Company has made a determination that a hardship exists and such withdrawal is made in accordance with the provisions of Section 11.4. A Participant who has attained the age of 59-1/2 may elect to withdraw in cash an amount equal to all or any portion of his vested interest in the value of the balance of his sub-account attributable to Matching Employer Contributions as of the most recent valuation date. A Participant's vested interest in Matching Employer Contributions shall be the amount in which he would be vested under Section 12.2 had he terminated his employment with his Employer. In the event a Participant has one or more Investment Funds in his sub-account attributable to Matching Employer Contributions and he withdraws only a portion of the balance of such sub-account, the withdrawal shall be charged to each of the Investment Funds in the ratio that the balance of the sub-account invested in the Investment Fund as of the most recent valuation date bears to the balance of the sub-account as of such date. 11.3 WITHDRAWAL OF TAX-DEFERRED CONTRIBUTIONS AND CATCH-UP CONTRIBUTIONS. Prior to his attainment of age 59-1/2, a Participant may not withdraw amounts attributable to Tax-Deferred Contributions or Catch-Up Contributions unless the Company has made a determination that a hardship exists and such withdrawal is made in accordance with the provisions of Section 11.4. A Participant who has attained the age of 59-1/2 may elect to withdraw in cash an amount equal to all or any portion of the value of the balance of his sub-account attributable to his Tax-Deferred Contributions and his sub-account attributable to his Catch-Up Contributions as of the most recent valuation date. In the event a Participant has more than one Investment Fund in his sub-account(s) attributable to Tax-Deferred Contributions and Catch-Up Contributions and he withdraws only a portion of the balance of such sub-account(s), the withdrawal shall be charged to each of the Investment Funds in the ratio that the balance of the sub-account(s) invested in the Investment Fund as of the most recent valuation date bears to the balance of the sub-account(s) as of such date. -40- 11.4 CONDITIONS AND LIMITATIONS ON HARDSHIP WITHDRAWALS. Notwithstanding anything to the contrary contained in this Article XI, the restrictions imposed in Sections 11.2 and 11.3 which prohibit withdrawal of amounts attributable to Tax-Deferred Contributions, Catch-Up Contributions and Matching Employer Contributions prior to the attainment of age 59-1/2 shall be inapplicable in any case in which the Company, with respect to a withdrawal made hereunder, has made a determination that the withdrawal is necessary to satisfy an immediate and heavy financial need of the Participant in accordance with the provisions of this Section 11.4. The Company shall grant a hardship withdrawal only if it determines that the withdrawal is necessary to meet an immediate and heavy financial need of the Participant. An immediate and heavy financial need of the Participant means a financial need on account of: (a) medical expenses described in Section 213(d) of the Code incurred by the Participant, the Participant's spouse, or any dependent of the Participant (as defined in Section 152 of the Code); (b) purchase (excluding mortgage payments) of a principal residence for the Participant. (c) payment of tuition, related educational fees, and room and board expenses for the next 12 months of post-secondary education for the Participant, the Participant's spouse, or any dependent of the Participant; (d) the need to prevent the eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal residence; or (e) funeral expenses of a member of the Participant's family. A withdrawal shall be deemed to be necessary to satisfy an immediate and heavy financial need of a Participant only if all of the following requirements are satisfied: (f) The withdrawal is not in excess of the amount of the immediate and heavy financial need of the Participant. (g) The Participant has obtained all distributions, other than hardship distributions, and all non-taxable loans currently available under all plans maintained by the Company or any related corporation. (h) The Participant's Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions and the Participant's elective tax-deferred contributions and employee after-tax contributions under all other tax-qualified plans maintained by the Company or any related corporation shall be suspended for at least 12 months after his receipt of the withdrawal and he may not have any further Tax-Deferred Contributions or Catch-Up Contributions made on his behalf nor shall he make any further After-Tax Contributions until the Enrollment Date next following the expiration of 12 months after the effective date of such -41- withdrawal; provided, however, that this paragraph (h) shall not apply if the Participant has attained age 59-1/2. Effective January 1, 2002, 12 months will be replaced with 6 months in this subparagraph. (i) The Participant shall not make Tax-Deferred Contributions, Catch-Up Contributions or elective tax-deferred contributions under any other tax-qualified plan maintained by the Company or any related corporation for the Participant's taxable year immediately following the taxable year of the withdrawal in excess of the applicable limit under Section 402(g) of the Code for such next taxable year less the amount of the Participant's Tax-Deferred Contributions, Catch-Up Contributions and elective tax-deferred contributions under any other plan maintained by the Company or any related corporation for the taxable year of the withdrawal; provided, however, that this paragraph (i) shall not apply if the Participant has attained age 59-1/2. The maximum amount that a Participant may withdraw because of a hardship is (i) the balance of his sub-account attributable to Tax-Deferred Contributions, exclusive of any earnings credited to such amounts after December 31, 1988, except to the extent permitted by regulations issued under Section 401(k) of the Code, (ii) his vested interest in his sub-account attributable to Matching Employer Contributions, (iii) the balance of his sub-account attributable to Catch-Up Contributions, exclusive of any earnings, and (iv) the balance of his sub-account attributable to After-Tax Contributions. Hardship withdrawals shall be made effective as of the date on which the withdrawal application is filed and shall be paid to the Participant as soon as practicable thereafter. A Participant shall not fail to be treated as an eligible Employee for the purposes of applying the limitations contained in Sections 4.3 and 6.8 of the Plan merely because his Tax-Deferred Contributions and After-Tax Contributions are suspended in accordance with this Section 11.4. 11.5 SPECIAL AGE 70-1/2 DISTRIBUTION. Notwithstanding any other provisions of the Plan to the contrary, a Participant may elect to commence distribution of his vested interest in his separate account as of any date after such Participant has attained age 70-1/2. Any distribution of a Participant's interest under this Section 11.5 shall be made in accordance with the otherwise applicable provisions of Article XII. 11.6 ADJUSTMENT OF ACCOUNTS. The Trustee shall adjust the separate account and sub-accounts of each Participant who makes a withdrawal under Section 11.1, 11.2, 11.3, 11.4, or 11.5 to reflect such withdrawal as of the date of such withdrawal, charging any such withdrawal against the Investment Funds, as appropriate. -42- ARTICLE XII TERMINATION OF PARTICIPATION AND DISTRIBUTION 12.1 TERMINATION OF PARTICIPATION. Each Participant shall cease to be a Participant hereunder on the first to occur of the following dates: (a) on the date such Participant's employment with an Employer or a related corporation is terminated after he has attained age 65; (b) on the date such Participant's employment with an Employer or a related corporation is terminated because of physical or mental disability preventing his continuing in the service of such employer, as determined by the Company upon the basis of a written certificate of a physician acceptable to it or, if earlier, on the first anniversary of the first day of a period in which he remains absent from the service of the Company and all subsidiaries of the Company because of physical or mental disability preventing his continuing in the service of his employer, as determined by the Company upon the basis of a written certificate of a physician acceptable to it; (c) on the date such Participant's employment with an Employer or a related corporation is terminated because of the death of such Participant; (d) on the date such Participant's employment with an Employer or a related corporation is terminated after he has completed four years of Continuous Service; or (e) on the date such Participant's employment with an Employer or a related corporation is terminated under any other circumstances, including, in particular, (i) the date the Participant's employment with an Employer or related corporation is terminated in connection with the sale by the Employer or related corporation of substantially all of the assets used in a trade or business, even though the Participant continues employment with the entity acquiring such assets, and (ii) the date of the sale by an Employer or related corporation of its interest in a subsidiary that employs the Participant, even though the Participant continues employment with such subsidiary. provided, however, that if any such date shall be a valuation date, such Participant shall for all purposes hereof cease to be a Participant upon the next succeeding day. Written notice of a Participant's Settlement Date shall be given promptly by the Company to the Trustee. Notwithstanding anything to the contrary contained in the Plan, a Participant's right to receive distribution of the balance of his separate account as of his Settlement Date, in accordance with the provisions of this Article XII, shall be fully vested and nonforfeitable upon attainment of age 65. -43- 12.2 VESTING OF SEPARATE ACCOUNTS. A Participant's vested interest in his sub-accounts attributable to Tax-Deferred Contributions, After-Tax Contributions and Catch-Up Contributions shall be at all times 100%. As of a Participant's Settlement Date, and after notice thereof has been given as provided in Section 12.1, the balance of the Participant's sub-account attributable to Matching Employer Contributions shall be vested as follows: (a) In the event such Participant's Settlement Date occurs under the conditions specified in paragraph (a), (b), (c) or (d) of Section 12.1, such Participant shall be 100% vested in the entire balance of his sub-account attributable to Matching Employer Contributions as of such Settlement Date. (b) In the event such Participant's Settlement Date occurs under the conditions stated in paragraph (e) of Section 12.1, such Participant shall have no vested interest in his sub-account attributable to Matching Employer Contributions, and he shall in no event receive any distribution from his sub-account attributable to Matching Employer Contributions as of such Settlement Date. Furthermore, if such a Participant does not return to employment with an Employer or a related corporation within one year of his Severance Date, his interest in his sub-account attributable to Matching Employer Contributions shall be disposed of in accordance with the provisions of Section 12.8. If he returns to employment with an Employer or a related corporation within one year of his Severance Date, his interest in his sub-account attributable to Matching Employer Contributions shall continue to be determined in accordance with the provisions of the Plan, depending on whether he again becomes an active Participant in accordance with Section 3.5. 12.3 DISTRIBUTION. The Trustee shall make distribution to or for the benefit of the Former Participant or his Beneficiary, as the case may be, of his vested interest in his separate account, provided, however, that, in order to insure that all pre-Settlement Date contributions have been credited to the separate account of the Former Participant, no distribution shall be made prior to the last day of the month in which the Former Participant's Settlement Date occurs. Distribution shall be made in a lump-sum payment unless such Participant's Settlement Date occurred under the conditions specified in paragraph (a), (b), (c), or (d) of Section 12.1, in which event distribution shall be made by such one or more of the following methods as the Former Participant shall select: (a) in a single lump-sum payment; (b) in a series of annual, semiannual, quarterly, or monthly installments over a period not in excess of the life expectancy of the Former Participant, or his Beneficiary if the Former Participant has died, or a period not in excess of the joint life and last survivor expectancy of the Former Participant and his Beneficiary, calculated either once at the time installment payments begin or annually for the Former Participant and/or his Beneficiary, if his Beneficiary is his spouse, as determined -44- by the Former Participant at the time installment payments begin, such installments to be equal in amount except as necessary to adjust for any net income of and changes in the market value of the respective Funds, or by any other method reasonably calculated to provide a more rapid distribution of his interest; or (c) in a series of fixed annual installments over a period not in excess of the joint life and last survivor expectancy of the Former Participant and his Beneficiary. Distribution under any such method shall be made or commenced as soon as reasonably practicable after the Former Participant's Settlement Date, but in no event later than 60 days after the close of the Plan year in which the Former Participant terminated employment after having attained age 65; provided, that the Company with the consent of a Former Participant whose Settlement Date occurs under the conditions stated in either paragraph (a) or (d) of Section 12.1 may defer making or commencing distribution beyond the date otherwise specified in this sentence until the Former Participant attains age 70 or dies, or until the Plan is terminated, whichever first occurs. In the event that the Trustee is unable to make a distribution to a Former Participant or Beneficiary within one year of the date distribution is otherwise to be made in accordance with the provisions of this Section 12.3, due to its inability to find such Former Participant or Beneficiary, the entire interest of such Former Participant or Beneficiary shall be disposed of in accordance with the provisions of Section 12.8; provided, that in the event such Former Participant or Beneficiary shall at any time in the future make a claim for his interest in the Plan, it shall be paid to him as soon as possible. Notwithstanding the foregoing, if the balance carried in the separate account of a Former Participant, excluding the value of the Former Participant's Rollover Account, is in excess of $5,000 and the Former Participant has not attained age 65, no distribution shall be made to such Former Participant without his written consent. Without regard to the method of distribution of a Former Participant's benefit or whether distribution of the benefit of the Former Participant has commenced, a partial distribution may be made to the Former Participant or his Beneficiary once in any calendar year at any time after the Former Participant's Settlement Date when a vested interest remains credited to his separate account. The amount of the partial distribution shall be stated as a dollar amount or a percentage of the Former Participant's separate account, but not in excess of the Former Participant's vested interest in his separate account remaining under the Plan at the time of the distribution. 12.4 REQUIRED COMMENCEMENT OF DISTRIBUTION. Notwithstanding any other provisions of the Plan to the contrary, in no event shall the interest attributable to a Participant or Former Participant be distributed commencing later than the April 1 following the later of (a) the calendar year in which he attains age 70 1/2, or (b) except in the case of a Participant who is a five-percent owner with respect to the Plan year ending in the calendar year in which the Participant attains age 70-1/2, the calendar year in which he retires. In addition, in no event shall such interest be payable over a period extending beyond the life of the Participant or the joint lives of the Participant and his Beneficiary, or, alternatively, over a period extending -45- beyond the life expectancy of the Participant or the joint life expectancy of the Participant and his Beneficiary. A Participant, other than a five-percent owner, who has attained age 70-1/2 and has not retired and who has been receiving required minimum distributions from the Plan for any year prior to 1997 may elect not to receive any further distributions from the Plan until not later than April 1 following the calendar year in which he retires. If a Participant or Former Participant dies after distribution of his entire interest has been commenced, the remaining portion of his interest under the Plan, if any, shall be distributed to his Beneficiary at least as rapidly as under the method of distribution being used at the date of his death. If a Participant or Former Participant dies before the distribution of his entire interest has commenced, the entire interest attributable to such Former Participant must be distributed within 5 years after the date of his death; except that such 5-year distribution requirement shall not apply (i) to any portion of such Former Participant's interest under the Plan that is payable to his Beneficiary over the Beneficiary's lifetime, or over a period not extending beyond the life expectancy of his Beneficiary, so long as such distribution commences no later than one year after the date of such Former Participant's death (or such later date as may be prescribed by applicable Treasury Regulations), or (ii) to any portion of such Former Participant's interest under the Plan that is payable to his surviving spouse over the surviving spouse's lifetime, or over a period not extending beyond the life expectancy of such surviving spouse, so long as the distribution commences no later than the date on which the Former Participant would have attained age 70 1/2. If a surviving spouse dies before distribution commences pursuant to the immediately foregoing clause (ii), the 5-year distribution requirement applies as if the surviving spouse were the Former Participant. With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2002, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of the Code in accordance with the regulations under Section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. This provision shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under Section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service. 12.5 FORM OF DISTRIBUTION. All distributions under this Article XII with respect to any amount which is attributable to the interest of a Former Participant shall be made in the form of cash, except that if he or, if he is deceased, his Beneficiary so requests, the amount attributable to his interest in the Goodyear Stock Fund shall be paid in the form of Company Stock, with an amount equivalent in value to any fractional share of Company Stock paid in cash. 12.6 ELECTION OF FORMER VESTING SCHEDULE. In the event the Company adopts an amendment to the Plan that directly or indirectly affects the computation of a Participant's nonforfeitable interest attributable to Matching Employer Contributions, any Participant with three or more years of Continuous Service -46- shall have a right to have his nonforfeitable interest in amounts attributable to Matching Employer Contributions continue to be determined under the vesting schedule in effect prior to such amendment rather than under the new vesting schedule, unless the nonforfeitable interest of such Participant in amounts attributable to Matching Employer Contributions under the Plan, as amended, at any time is not less than such interest determined without regard to such amendment. An Employee shall exercise such right by giving written notice of his exercise thereof to the Company within 60 days after the latest of (i) the date he received notice of such amendment from the Company, (ii) the effective date of the amendment, or (iii) the date the amendment is adopted. Notwithstanding the foregoing provisions of this Section 12.6, the vested interest of each Participant on the effective date of such amendment shall not be less than his vested interest under the Plan as in effect immediately prior to the effective date thereof. 12.7 BUY BACK OF FORFEITED AMOUNTS. A Participant who forfeited all or a portion of the amounts credited to his sub-account attributable to Matching Employer Contributions in accordance with the provisions of Section 12.2 and who is reemployed by an Employer or a related corporation shall have such forfeited amounts recredited to his sub-account attributable to Matching Employer Contributions upon his subsequent reemployment as an Employee, without adjustment for interim gains or losses experienced by the Trust Fund, if: (a) he returns to employment with an Employer or a related corporation before he incurs five consecutive breaks in service commencing after the later of his Settlement Date or the date he received distribution of the vested portion of his separate account; (b) he resumes employment covered under the Plan before the end of the five-year period beginning on the date he is reemployed; and (c) if he received distribution of the vested portion of his separate account, he repays to the Plan the full amount of such distribution before the end of the five-year period beginning on the date he is reemployed. Funds needed in any Plan year to recredit the sub-account attributable to Matching Employer Contributions of such Participant with the amounts or prior forfeitures in accordance with the preceding sentence shall first come from forfeitures that arise during such Plan year, to the extent sufficient, next shall be provided by his Employer by way of a separate Matching Employer Contribution, and shall finally come from income earned by the Trust Fund in such Plan year. 12.8 DISPOSITION OF FORFEITED BALANCES. Whenever settlement is made with respect to a Former Participant on the occurrence of his Settlement Date and the balance of his sub-account attributable to Matching Employer Contributions is not vested, such balance shall be deemed a forfeiture for the month in which the settlement occurs. If settlement is not made with respect to a Former Participant on the occurrence of his Settlement Date and if the balance of his sub-account -47- attributable to Matching Employer Contributions is not vested, such balance shall be deemed a forfeiture for the month in which the fifth anniversary of his Severance Date occurs, unless he is reemployed as an Employee prior to such date. In either case, as of the last day of such month, the forfeitures attributable to each sub-account attributable to Matching Employer Contributions and to each other separate account shall be applied against the Matching Employer Contribution obligation of the Employers incurred during such month. Notwithstanding the foregoing, however, should the amount of all such forfeitures of Matching Employer Contributions for any Plan year exceed the amount of the Matching Employer Contribution obligation of the Employers for such Plan year, the excess amount of such forfeitures (together with any such forfeitures for prior Plan years not theretofore applied against such contribution obligation of the Employers) shall for all Plan purposes be applied against the Matching Employer Contribution obligation of the Employers for the next following Plan year. 12.9 EFFECT OF COMPANY'S DETERMINATION. In exercising its authority under this Article XII, the Company shall act in such manner as it shall in good faith determine will most adequately and fairly meet the needs of each Former Participant or Beneficiary, as the case may be. No authority shall be exercised in such manner as to discriminate between any class or group of Participants. The Company's determination of all questions which may arise under this Article XII (if made in accordance with the standards prescribed herein and in Section 14.1) shall be conclusive upon all persons claiming to have any interest hereunder. In making any determinations hereunder, the Company may rely upon any signed statement which the Participant files with it. 12.10 REEMPLOYMENT OF A FORMER PARTICIPANT. Subject to the provisions of Section 3.5 and Section 12.7, in the event a Former Participant is reemployed by an Employer, he shall be treated as a new employee for all purposes of the Plan. If he again becomes a Participant, he shall lose his right to any distributions or further distributions from the Trust Fund with respect to the prior termination of his employment, and his interest in the Trust Fund shall thereafter be treated in the same manner as that of any other Participant. 12.11 RESTRICTIONS ON ALIENATION. Except as provided in Section 401(a)(13)(B) of the Code (relating to qualified domestic relations orders), Sections 401(a)(13)(C) and (D) of the Code (relating to offsets ordered or required under a criminal conviction involving the Plan, a civil judgment in connection with a violation or alleged violation of fiduciary responsibilities under the Act, or a settlement agreement between the Participant and the Department of Labor in connection with a violation or alleged violation of fiduciary responsibilities under the Act, occurring after August 4, 1997), Section 1.401(a)-13(b)(2) of Treasury Regulations (relating to federal tax levies), or as otherwise required by law, no benefit under the Plan at any time shall be subject in any manner to anticipation, alienation, assignment (either at law or in equity), encumbrance, garnishment, levy, execution, or other legal or equitable process; -48- and no person shall have power in any manner to anticipate, transfer, assign (either at law or in equity), alienate or subject to attachment, garnishment, levy, execution, or other legal or equitable process, or in any way encumber his benefits under the Plan, or any part thereof, and any attempt to do so shall be void. 12.12 FACILITY OF PAYMENT. In the event that it shall be found that any individual to whom an amount is payable hereunder is incapable of attending to his financial affairs because of any mental or physical condition, including the infirmities of advanced age, such amount (unless prior claim therefor shall have been made by a duly qualified guardian or other legal representative) may, in the discretion of the Company, be paid to another person for the use or benefit of the individual found incapable of attending to his financial affairs or in satisfaction of legal obligations incurred by or on behalf of such individual. The Trustee shall make such payment only upon receipt of written instructions to such effect from the Company. Any such payment shall be charged to the sub-accounts from which any such payment would otherwise have been paid to the individual found incapable of attending to his financial affairs and shall be a complete discharge of any liability therefor under the Plan. 12.13 DISTRIBUTIONS TO OTHER QUALIFIED PLANS. In the case of a Participant or Former Participant whose vested interest in his separate account under the Plan has not been fully distributed and who is eligible to participate in another plan that is qualified under Section 401(a) of the Code, the Company may direct the Trustee to transfer the amount of such accounts under the Plan to the funding agent for such plan if the plan to receive the transfer (i) authorizes acceptance of such transfers, (ii) provides that transferred amounts shall be held in a separate account, and (iii) provides that the transferred amounts shall be fully vested and nonforfeitable, with the exception that in the case of a transfer of accounts to a plan of an Employer or related corporation, the Participant's or Former Participant's vested interest in such transferred accounts shall be determined as of the date of transfer based on the vesting provisions of the Plan in effect on such date, and on and after the date of transfer the vested interest shall be determined based on the vesting provisions of the transferee plan or, in the event an election of a prior vesting schedule applies with respect to the Participant or Former Participant, based on the vesting provisions of the Plan as of the date of transfer. 12.14 ESOP REQUIRED DISTRIBUTION. Notwithstanding the foregoing provisions of this Article XII, for purposes of compliance with the provisions of Section 4975(e)(7) and Section 409 of the Code, unless a Participant otherwise elects to defer the receipt of his Plan benefit, the distribution of the Participant's vested Plan benefit attributable to Matching Employer Contributions shall commence not later than one year after the close of the Plan Year: (a) in which the Participant separates from service by reason of normal retirement, disability, or death, or -49- (b) which is the fifth Plan Year following the Plan Year in which the Participant otherwise separated from service, and the Participant has not become re-employed by the Employer before distribution is required to begin under this Section 12.14. For purposes of this Section 12.14, however, if Company Stock acquired with the proceeds of an Acquisition Loan is credited to a Participant's account, the distribution requirement of this Section 12.14 shall not apply to such Company Stock (unless the Plan Administrator determines otherwise) until one year after the last day of the Plan Year in which the Acquisition Loan is paid in full. Distributions required under this Section 12.14 shall be made in substantially equal annual payments over a period of five years unless the Participant otherwise elects under provisions of the Plan other than this Section 12.14. In no event shall such distribution period exceed the period permitted under Section 401(a)(9) of the Code. 12.15 RIGHT OF FIRST REFUSAL. At any time that Company Stock is not publicly traded, all Company Stock attributable to Matching Employer Contributions distributed by the Trustee may, as determined by the Company, be subject to a "right of first refusal." Such a "right" shall provide that prior to any subsequent transfer, the Company Stock must first be offered by written offer to the Trust, and then, if refused by the Trust, to the Company. In the event that the proposed transfer constitutes a gift or other such transfer at less than fair market value, the price per share shall be the fair market value determined as of the valuation date coinciding with or immediately preceding the date offered to the Trust. In the event of a proposed purchase by a prospective bona fide purchaser, the offer to the Trustee and the Company shall be at the greater of fair market value or the price offered to be paid by the prospective bona fide purchaser; provided, however, that the Trust shall not purchase any Company Stock when the purchase price of such Company Stock is in excess of fiar market value. The Trust or the Company, as the case may be, may accept the offer at any time during a period not exceeding 14 days after receipt of such offer. 12.16 RIGHTS TO PUT COMPANY STOCK. If Company Stock distributed to a Participant, Former Participant, or Beneficiary is, at the time of the distribution, not publicly traded or is then subject to a trading limitation, the Participant, Former Participant, or Beneficiary will have an option (the "Put") to require the Company to purchase all of the shares of Company Stock attributable to Matching Employer Contributions actually distributed to him for the Option Price (as defined below). A "trading limitation" is a restriction under any federal or state securities law, or applicable regulation, or an agreement, which would make the Company Stock not as freely tradable as Company Stock not subject to the restriction. The Put may be exercised at any time during the Option Period (as defined below) by giving the Company written notice of the election to exercise the Put. (a) The "Option Period" is the 60-day period following the day on which a Participant, Former Participant, or Beneficiary receives a distribution. If the Participant, Former Participant, or Beneficiary does not exercise the Put during -50- the 60-day period, the Option Period will also be the 60-day period beginning on the 12-month anniversary of the day on which the Participant, Former Participant, or Beneficiary receives a distribution. The Option Period will be extended by the amount of time during which the Company is unable to honor the Put by reason of applicable federal or state law. (b) The "Option Price" will be the value of each share of Company Stock as of the valuation date immediately preceding the date the Put is exercised, multiplied by the number of shares of Company Stock to be sold under the Put, with appropriate adjustments to reflect intervening stock dividends, stock splits, stock redemptions, or similar changes to the number of outstanding shares. The Option Price will be payable in cash and/or in installments beginning not later than 30 days after the Company receives written notice of the election by the Participant, Former Participant, or Beneficiary to exercise the Put. If the distribution of Company Stock to the Participant, Former Participant, or Beneficiary constituted a distribution within one taxable year of the balance to the credit of the Account, the Company reserves the right to establish guidelines to be exercised in a uniform and nondiscriminatory manner to make payment for the shares of Company Stock subject to the Put on an installment basis in substantially equal annual, quarterly, or monthly payments over a period not to exceed five years. The Company will pay reasonable interest at least annually on the unpaid balance of the Option Price and will provide to the Participant, Former Participant, or Beneficiary adequate security with respect to the unpaid balance. The Put will not be assignable, except that the Participant's donees or, in the event of a Participant's death, his personal representative, will be entitled to exercise the Put. The Trustee in its discretion may, with the Company's consent, assume the Company's obligation under this Section 12.16 at the time a Participant, Former Participant, or Beneficiary exercises the Put. If the Trustee does assume the Company's obligations, the provisions of this Section 12.16 that apply to the Company will also apply to the Trustee. The Put will also apply to Company Stock that is publicly traded without restriction when distributed but which ceases to be publicly traded or which becomes subject to a trading limitation during the Option Period. In that event, the Corporation will notify in writing each Participant, Former Participant, or Beneficiary to whom the Put becomes applicable that the Company Stock held by the Participant, Former Participant, or Beneficiary is subject to the Put for the remainder of the applicable Option Period and will inform the Participant, Former Participant, or Beneficiary of the terms of the Put. If the written notice is given later than ten days after the Company Stock ceases to be publicly traded or becomes subject to a trading limitation, the period during which the Put may be exercised will be extended by the number of days between the tenth day and the date the notice is actually given. The Company will notify each Participant, Former Participant, and Beneficiary that is eligible to exercise the Put of the fair market value of each share of Company Stock as soon as practicable following its determination. The Company will send all notices required under this Section 12.16 to the last known address of a Participant, Former Participant, or Beneficiary, and it will be the duty of those persons to inform the Company of any changes in address. -51- 12.17 OTHER OPTIONS. Except as otherwise provided in this Article XII, no person may be required to sell Company Stock to the Company, nor may the Trust enter into an agreement that obligates the Trust to purchase Company Stock upon the death of a shareholder. 12.18 NONTERMINABLE PROTECTION AND RIGHTS. Except as provided in Sections 12.15 and 12.16 or as otherwise required by applicable law, no Company Stock acquired with the proceeds of an Acquisition Loan may be subject to a put, call, or other option, or buy-sell or similar arrangement while held by or when distributed from the Trust, whether or not such Acquisition Loan has been repaid or the Plan ceases to be an employee stock ownership plan. Moreover, if the Trustee holds or distributes any Company Stock acquired with the proceeds of an Acquisition Loan, which Company Stock is not publicly traded without restriction when distributed or which ceases to be so traded within 15 months after distribution, and either such Acquisition Loan is repaid or the Plan ceases to be an employee stock ownership plan, the Put described in Section 12.16 shall be nonterminable with respect to such Company Stock. -52- ARTICLE XIII BENEFICIARIES 13.1 DESIGNATION OF BENEFICIARY. In the case of a Participant or Former Participant who is not married, the Beneficiary to whom distribution shall be made hereunder in the event such Participant or Former Participant dies before his interest shall have been distributed to him in full shall be such person or persons designated by the Participant or Former Participant. In the case of a Participant or Former Participant who is married, the Beneficiary to whom distribution shall be made hereunder in the event such Participant or Former Participant dies before his interest shall have been distributed to him in full shall be his surviving spouse, if any, or alternatively such person or persons designated by the Participant or Former Participant, provided that such designation has been consented to by the surviving spouse, if any, of such Participant or Former Participant in the manner herein specified. A designation of Beneficiary hereunder may be changed at any time and from time to time by the Participant or Former Participant, provided that such change of designation has been consented to by the surviving spouse, if any, of such Participant or Former Participant in the manner herein specified. Any such designation or change of designation, with spousal consent when necessary, shall be made in writing in the form prescribed by the Company, and shall become effective only when filed by the Participant or Former Participant with the Company; provided, however, that any such designation or change of designation which is received by the Company after the death of the Participant or Former Participant shall be disregarded. Spousal consent, where required, shall be effective only if it is in writing, it includes an acknowledgment of the effect of the consent being given, and it is witnessed by a Plan representative or a notary public. Spousal consent shall not be required if a Plan representative finds that such spouse cannot be located or because of other circumstances set forth in Section 417(a)(2)(B) of the Code and regulations thereunder. Any consent by a spouse obtained under this Section 13.1 shall be effective only with respect to such spouse. 13.2 BENEFICIARY IN THE ABSENCE OF DESIGNATION. If a deceased Participant or Former Participant has no surviving spouse and if either no Beneficiary for such Participant or Former Participant shall have been designated, or if all those designated as his Beneficiary shall die prior to the death of such Participant or Former Participant, then the Beneficiary shall be one of the following: his surviving children per stirpes; if there are no surviving children, then his surviving parents per stirpes; if there are no surviving parents, then his surviving brothers and sisters per stirpes; if there are no surviving brothers or sisters, then the estate of such Participant or Former Participant. If any Beneficiary shall die after becoming entitled to receive distribution hereunder and before such distribution is made in full, and if no other Beneficiary shall have been designated to receive the balance of such distribution upon the happening of such contingency, the estate of such deceased Beneficiary shall become the Beneficiary as to such balance. -53- ARTICLE XIV ADMINISTRATION 14.1 AUTHORITY OF COMPANY. The Company shall have all the powers and authority expressly conferred upon it herein and further shall have the sole right to interpret and construe the Plan, and to determine any disputes arising thereunder, subject, however, to the provisions of Section 14.3. In exercising such powers and authority, the Company shall at all times exercise good faith, apply standards of uniform application, and refrain from arbitrary action. The Company may employ such attorneys, agents, and accountants as it may deem necessary or advisable to assist it in carrying out its duties hereunder. The Company and the Trustee shall be "named fiduciaries" as that term is defined in Section 402(a)(2) of the Act. The Company, by action of its Board of Directors, may: (a) allocate any of the powers, authority, or responsibilities for the operation and administration of the Plan, which are retained by it or to it granted by this Article XIV, to the Trustee; and (b) designate a person or persons other than the Company to carry out any of such powers, authority, or responsibilities; except that no power, authority, or responsibility of the Trustee shall be subject to the provisions of paragraph (b) of this Section 14.1, and except that no allocation or delegation by the Company of any of its powers, authority, or responsibilities to the Trustee shall become effective unless such allocation or delegation shall first be accepted by the Trustee in a writing signed by it and delivered to the Company. 14.2 ACTION OF COMPANY. Any act authorized, permitted, or required to be taken by the Company under the Plan, which has not been delegated in accordance with Section 14.1, may be taken by a majority of the members of the Board of Directors of the Company, either by vote at a meeting, or in writing without a meeting. All notices, advice, directions, certifications, approvals, and instructions required or authorized to be given by the Company under the Plan shall be in writing and signed by either (i) a majority of the members of the Board of Directors of the Company, or by such member or members as may be designated by an instrument in writing, signed by all the members thereof, as having authority to execute such documents on its behalf, or (ii) a person authorized to act for the Company in accordance with Section 14.1. Subject to the provisions of Section 14.3, any action taken by the Company which is authorized, permitted, or required under the Plan shall be final and binding upon the Employers, the Trustee, all persons who have or who claim an interest under the Plan, and all third parties dealing with the Employers or the Trustee. -54- 14.3 CLAIMS REVIEW PROCEDURE. Whenever the Company decides for whatever reason to deny, whether in whole or in part, a claim for benefits filed by any person (herein referred to as the "Claimant"), the Plan Administrator shall transmit a written notice of the Company's decision to the Claimant, which notice shall be written in a manner calculated to be understood by the Claimant and shall contain a statement of the specific reasons for the denial of the claim and a statement advising the Claimant that, within 60 days of the date on which he receives such notice, he may obtain review of the decision of the Company in accordance with the procedures hereinafter set forth. Within such 60-day period, the Claimant or his authorized representative may request that the claim denial be reviewed by filing with the Plan Administrator a written request therefor, which request shall contain the following information: (a) the date on which the Claimant's request was filed with the Plan Administrator; provided, however, that the date on which the Claimant's request for review was in fact filed with the Plan Administrator shall control in the event that the date of the actual filing is later than the date stated by the Claimant pursuant to this paragraph (a); (b) the specific portions of the denial of his claim which the Claimant requests the Plan Administrator to review; (c) a statement by the Claimant setting forth the basis upon which he believes the Plan Administrator should reverse the Company's previous denial of his claim for benefits and accept his claim as made; and (d) any written material (offered as exhibits) which the Claimant desires the Plan Administrator to examine in its consideration of his position as stated pursuant to paragraph (c) of this Section 14.3. The Pension Board shall conduct a full and fair review of the Company's decision denying the Claimant's claim for benefits at its next regularly scheduled quarterly meeting, unless the Pension Board deems that it needs more facts or the date determined pursuant to paragraph (a) of this Section 14.3 is within 30 days of such meeting, in which case the Pension Board shall conduct its review at its next following meeting. The Pension Board shall render its written decision following the review, written in a manner calculated to be understood by the Claimant, specifying the reasons and Plan provisions upon which its decision was based. 14.4 INDEMNIFICATION. In addition to whatever rights of indemnification the members of the Board of Directors of the Company, or any other person or persons (other than the Trustee) to whom any power, authority, or responsibility of the Company is designated pursuant to paragraph (b) of Section 14.1, may be entitled under the articles of incorporation or regulations of the Company, under any provision of law or under any other agreement, the Company shall satisfy any liability actually and reasonably incurred by any such -55- member or such other person or persons, including expenses, attorneys' fees, judgments, fines, and amounts paid in settlement, in connection with any threatened, pending or completed action, suit, or proceeding which is related to the exercising or failure to exercise by such member or such other person or persons of any of the powers, authority, responsibilities, or discretion of the Company as provided under the Plan, or reasonably believed by such member or such other person or persons to be provided hereunder, and any action taken by such member or such other person or persons in connection therewith. 14.5 QUALIFIED DOMESTIC RELATIONS ORDERS. The Company shall establish reasonable procedures to determine the status of domestic relations orders and to administer distributions under domestic relations orders which are deemed to be qualified orders. Such procedures shall be in writing and shall comply with the provisions of Section 414(p) of the Code and regulations issued thereunder. Notwithstanding any other provisions of the Plan to the contrary, if a qualified domestic relations order so provides, distribution may be made to an alternate payee pursuant to a qualified domestic relations order, as defined in Section 414(p) of the Code, regardless of whether the Participant's Settlement Date has occurred or whether the Participant is otherwise entitled to receive a distribution under the Plan. 14.6 ACQUISITION LOANS An Acquisition Loan shall be subject to the following requirements: (a) The proceeds of the Acquisition Loan must be used within a reasonable period of time after receipt by the Trustee only for any or all of the following purposes: (i) to acquire Company Stock; (ii) to repay such loan; or (iii) to repay a prior such loan. (b) The Acquisition Loan must be at a reasonable rate of interest and for a specific term; (c) Any collateral pledged to the creditor by the Trustee shall consist only of the assets purchased with the borrowed funds; (d) The creditor shall have no recourse against the Trust except with respect to the collateral pledged, the contributions of the Employers (other than contributions of Company Stock) that are made to the Trust to meet its obligations under such loan, and the earnings attributable to such collateral and the investment of such contributions, and payments made with respect to such loan by the Trustee during a Plan Year must not exceed an amount equal to the sum of such contributions and earnings received during or prior to such Plan Year less such payments in prior Plan Years; and -56- (e) In the event of default on the loan, the value of Trust assets transferred in satisfaction of the loan must not exceed the amount of default, and if the lender (other than a guarantor) is a disqualified person, the loan shall provide for a transfer of Trust assets upon default only upon and to the extent of the failure of the Trust to meet the payment schedule of the loan. Notwithstanding anything to the contrary contained in the Plan, the Company agrees to contribute to the Trust amounts sufficient to pay each installment of principal and interest on any Acquisition Loan on or before the date such installment is due. -57- ARTICLE XV TRUSTEE AND TRUST AGREEMENT The Company has executed a Trust Agreement with the Trustee, setting forth the terms, provisions, and conditions of a trust for the Plan, pursuant to which the Trustee shall hold, manage, and administer all trust property so as to effectuate the provisions of the Plan. The Trust Agreement is subject to amendment and termination, and the Company may change the Trustee, all as provided in the Trust Agreement. The terms and provisions of the Trust Agreement are hereby incorporated by reference. -58- ARTICLE XVI AMENDMENT AND TERMINATION 16.1 AMENDMENT. Subject to the provisions of Section 16.2, the Company may at any time and from time to time, by action of its Board of Directors, amend the Plan, except that the powers and duties of the Trustee shall not be substantially changed without its approval. Any such amendment shall be by written instrument executed by the Company and delivered to the Trustee, and may be made retroactively if in the opinion of the Company such amendment is necessary to enable the Plan and Trust Fund to meet the requirements of the Code (including the regulations and rulings issued thereunder) or the requirements of any governmental authority. 16.2 LIMITATION ON AMENDMENT. The Company shall make no amendment to the Plan which shall result in the forfeiture or reduction of the interest of any Employee, Participant, Former Participant or person claiming under or through any one or more of them pursuant to the Plan, except that nothing herein contained shall restrict the right to amend the provisions hereof relating to the administration of the Plan and Trust Fund. Moreover, no such amendment shall be made hereunder of the Trust Fund which shall permit any part of the property to revert to any Employer or be used or be diverted to purposes other than the exclusive benefit of employees, Participants, Former Participants, and Beneficiaries. 16.3 TERMINATION. The Company reserves the right, by action of its Board of Directors, to terminate the Plan as to all Employers at any time, which termination shall become effective upon notice in writing to the Trustee (the effective date of such termination being hereinafter referred to as the "termination date"). The Plan shall terminate automatically if there shall be a complete discontinuance of contributions hereunder by all Employers. In the event of the termination of the Plan, written notice thereof shall be given to all Participants, Former Participants, and Beneficiaries having an interest under the Plan and to the Trustee. Upon any such termination of the Plan, the Trustee, the investment managers, and the Company shall take the following actions for the benefit of Participants, Former Participants, and Beneficiaries: (a) As of the termination date, the Trustee shall value the Goodyear Stock Fund and the assets of the other Investment Funds with respect to which no investment manager has been appointed, and each investment manager shall value the assets of the Investment Funds with respect to which he has been appointed. In valuing the Investment Funds with respect to which no investment manager has been appointed that consist of mutual funds, the Trustee may rely on price data supplied by the mutual fund manager. The Trustee shall then adjust all separate accounts and sub-accounts in the manner provided in Section 10.1, with any -59- unallocated contributions being allocated as of the termination date in the manner otherwise provided in the Plan. The termination date shall become a valuation date for purposes of Article X. In determining the net worth of the Trust Fund hereunder, the Trustee shall include as a liability such amounts as in its judgment shall be necessary to pay all expenses in connection with the termination of the Trust Fund and the liquidation and distribution of the property of the Trust Fund, as well as other expenses, whether or not accrued, and shall include as an asset all accrued income. (b) The Trustee thereafter shall then dispose of all separate accounts to or for the benefit of each Participant, Former Participant, or Beneficiary in accordance with the provisions of Section 12.3. Notwithstanding anything to the contrary contained in the Plan, upon any such Plan termination, the interest of each Participant, Former Participant, and Beneficiary shall be fully vested and nonforfeitable; and, if there is a partial termination of the Plan, the interest of each Participant, Former Participant, and Beneficiary who is affected by such partial termination shall be fully vested and nonforfeitable. Moreover, no such Plan termination shall affect the continuance of distributions from any separate accounts of Former Participants whose Settlement Dates occurred prior to the termination date in accordance with the method determined by the Company prior to such date. 16.4 WITHDRAWAL OF AN EMPLOYER. An Employer other than the Company may, by action of its Board of Directors, withdraw from the Plan, such withdrawal to be effective upon notice in writing to the Trustee (the effective date of such withdrawal being hereinafter referred to as the "withdrawal date"), and shall thereupon cease to be an Employer for all purposes of the Plan. An Employer shall be deemed automatically to withdraw from the Plan in the event of its complete discontinuance of contributions, or (subject to Section 16.5) in the event it ceases to be a subsidiary. The withdrawal of an Employer shall be treated as a termination of the Plan with respect to such Employer, and with respect to Participants who at the time are employed by such Employer. In the event of any such withdrawal of an Employer, the Trustee, the investment managers, and the Company shall, as of the withdrawal date, take the action specified in Section 16.3, as on a termination of the Plan, except that there shall be a distribution from the separate accounts only in the case of Participants who are employed solely by the withdrawing Employer, and who, upon such withdrawal, are neither transferred to nor continued in employment with any other Employer or a related corporation. The interest of any Participant employed by such withdrawing Employer who is transferred to or continues in employment with any other Employer or a related corporation, and the interest of any Participant employed solely by an Employer other than the withdrawing Employer, or a related corporation, shall remain unaffected by such withdrawal; no adjustment in his separate account shall be made by reason of the withdrawal; and he shall continue as a Participant hereunder subject to the remaining provisions of the Plan. -60- 16.5 CORPORATE REORGANIZATION. The merger, consolidation, or liquidation of the Company or any Employer with or into the Company, any other Employer, or a related corporation shall not constitute a termination of the Plan as to the Company or such Employer. -61- ARTICLE XVII ADOPTION BY SUBSIDIARIES; EXTENSION TO NEW BUSINESS OPERATIONS 17.1 ADOPTION BY SUBSIDIARIES. Any subsidiary of the Company which at the time is not an Employer may, with the consent of the Board of Directors of the Company, adopt the Plan and become an Employer hereunder by causing an appropriate written instrument evidencing such adoption to be executed pursuant to the authority of its board of directors and filed with the Company and the Trustee. 17.2 EXTENSION TO NEW BUSINESS OPERATIONS. Should any Employer acquire or establish a new plant, division, or other business operation, such Employer may, by action of its board of directors, and with the consent of the Chairman of the Board, the President or an Executive Vice President of the Company, extend Plan coverage to such plant, division, or operation. -62- ARTICLE XVIII MISCELLANEOUS PROVISIONS 18.1 NO COMMITMENT AS TO EMPLOYMENT. Nothing herein contained shall be construed as a commitment or agreement upon the part of any Employee hereunder to continue his employment with an Employer, and nothing herein contained shall be construed as a commitment on the part of any Employer to continue the employment or rate of Compensation of any Employee hereunder for any period. 18.2 BENEFITS. Nothing in the Plan nor the Trust Agreement shall be construed to confer any right or claim upon any person, firm, or corporation other than the Employers, the Trustee, Participants, Former Participants, and Beneficiaries. 18.3 NO GUARANTEES. No Employer nor the Trustee guarantees the Trust Fund from loss or depreciation, nor the payment of any amount which may become due to any person hereunder. 18.4 EXPENSES. The expenses of administration of the Plan are considered expenses of the Plan and shall be paid in total from the Trust Fund and by the Company. The brokerage expenses of the Goodyear Stock Fund and the fees of the Trustee shall be paid by the Company. All expenses of the Investment Funds shall be paid from such Funds. 18.5 PRECEDENT. Except as otherwise specifically provided, no action taken in accordance with the Plan by the Employers or the Trustee shall be construed or relied upon as a precedent for similar action under similar circumstances. 18.6 DUTY TO FURNISH INFORMATION. Each of the Employers and the Trustee shall furnish to any of the others any documents, reports, returns, statements, or other information that any other reasonably deems necessary to perform its duties imposed hereunder or otherwise imposed by law. 18.7 WITHHOLDING. The Trustee shall withhold any tax which by any present or future law is required to be withheld, and which the Company notifies the Trustee in writing is to be so withheld, from any payment to any Participant, Former Participant, or Beneficiary hereunder. -63- 18.8 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS. The Plan shall not be merged or consolidated with any other plan, nor shall any of its assets or liabilities be transferred to another plan, unless, immediately after such merger, consolidation, or transfer of assets or liabilities, each Participant in the Plan would receive a benefit under the Plan which is at least equal to the benefit he would have received immediately prior to such merger, consolidation, or transfer of assets or liabilities (assuming in each instance that the Plan had then terminated). 18.9 BACK PAY AWARDS. The provisions of this Section 18.9 shall apply only to an Employee or Former Employee who becomes entitled to back pay by an award or agreement of an Employer without regard to mitigation of damages. If a person to whom this Section 18.9 applies was or would have become an Employee after such back pay award or agreement has been effected, and if any such person who had not previously become a Participant pursuant to Section 3.1 shall within 30 days of the date he receives notice of the provisions of this Section 18.9 make an election to become a Participant in accordance with such Section 3.1 (retroactive to any Enrollment Date as of which he was or has become eligible to do so), then such Participant may elect that any Tax-Deferred Contributions not previously made on his behalf but which, after application of the foregoing provisions of this Section 18.9, would have been made under the provisions of Article IV and any After-Tax Contributions which he had not previously made but which, after application of the foregoing provisions of this Section 18.9, he would have made under the provisions of Article V, shall be made out of the proceeds of such back pay award or agreement. To the extent that any additional Tax-Deferred Contributions or After-Tax Contributions are made during the month in accordance with the provisions of the foregoing sentence, his Employer shall make a Matching Employer Contribution for the Plan year in which such month occurs equal to the amount of the Matching Employer Contribution which would have been allocated to such Participant under the provisions of Article VI as in effect during each Plan year to which such additional contributions relate. The amounts of such additional contributions shall be credited to the separate account of such Participant or Former Participant, as appropriate. Any additional contributions made by such Participant and by an Employer pursuant to this Section 18.9 shall be made in accordance with, and subject to the limitations of the applicable provisions of Articles IV, V, and VI. 18.10 CONDITION ON EMPLOYER CONTRIBUTIONS. Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, any obligation of an Employer to make any contribution hereunder hereby is conditioned upon the continued qualification of the Plan under Section 401(a) of the Code, the exempt status of the Trust Fund under Section 501(a) of the Code, and the deductibility of the contribution under Section 404 of the Code. Except as otherwise provided in this Section 18.10, however, in no event shall any portion of the property of the Trust Fund ever revert to or otherwise inure to the benefit of an Employer or any related corporation. -64- 18.11 RETURN OF CONTRIBUTIONS TO PARTICIPANTS. Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, in the event of the cessation of a Participant's participation in the Plan, on a day other than the last day of a month, or in the event of any termination of the Plan, any After-Tax Contributions which have been deducted from the compensation of a Participant and any Tax-Deferred Contributions which would have reduced his Compensation during such month shall be returned to such Participant or his Beneficiary, and such After-Tax Contributions and Tax-Deferred Contributions shall be treated for all Plan purposes as if they had never been made. 18.12 RETURN OF CONTRIBUTIONS TO AN EMPLOYER. The corpus or income of the Trust may not be diverted to or used for other than the exclusive benefit of the Participants or their Beneficiaries. Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, in the event a Tax-Deferred Contribution or a Matching Employer Contribution: (a) is made under a mistake of fact, or (b) is conditioned upon deduction of the contribution under Section 404 of the Internal Revenue Code and such deduction is disallowed, or (c) is conditioned upon the initial qualification of the Plan, or the continuing qualification of the Plan following amendment, under Section 401(a) of the Internal Revenue Code and the Plan does not so qualify, such a contribution may be returned to the Employer within one (1) year after the payment of the contribution, the disallowance of the deduction to the extent disallowed, or the date of denial of the qualification of the Plan, whichever is applicable. 18.13 VALIDITY OF PLAN. The validity of the Plan shall be determined and the Plan shall be construed and interpreted in accordance with the laws of the State of Ohio. The invalidity or illegality of any provision of the Plan shall not affect the legality or validity of any other part thereof. 18.14 PARTIES BOUND. The Plan shall be binding upon the Employers, all Participants, Former Participants, and Beneficiaries hereunder, and, as the case may be, the heirs, executors, administrators, successors, and assigns of each of them. 18.15 INDEPENDENT APPRAISALS. Notwithstanding anything to the contrary contained in the Plan, all valuations of Company Stock or other Employer securities described in Section 4975(e)(8) of the Code -65- or in Treasury Reg. ss. 54.4975-12 that are not readily tradable on an established securities market with respect to activities carried on by the Plan shall be made as of the valuation date by an independent appraiser meeting requirements similar to those contained in Treasury regulations under Section 170(a)(1) of the Code. The value so determined shall be the value of such Shares or other Employer securities for all purposes of the Plan, including distributions to Participants and the purchase of shares under Sections 12.15 and 12.16 from Participants who are not "disqualified persons" under Section 4975 of the Code. If the Plan purchases Shares or other Employer securities from a "disqualified person," the fair market value shall be determined by an independent appraiser as of the date of the transaction. -66- ARTICLE XIX TOP-HEAVY PROVISIONS 19.1 APPLICABILITY. Notwithstanding anything to the contrary contained in the Plan, the provisions of this Article XIX shall be applicable during any Plan year in which the Plan is determined to be a top-heavy plan as hereinafter defined. In the event that the Plan is determined to be a top-heavy plan and upon a subsequent determination date is determined to no longer be a top-heavy plan, the vesting provisions specified in Section 12.2 and the contribution provisions specified in Section 6.1 shall again become applicable as of such subsequent determination date; provided, however, that in the event such prior vesting schedule does again become applicable, the provisions of Section 12.6 shall apply (i) to preserve the nonforfeitable accrued benefit of any Participant, Former Participant, or Beneficiary and (ii) to permit any Participant with three years of Continuous Service to elect to continue to have his nonforfeitable interest in his sub-account attributable to Matching Employer Contributions determined in accordance with the vesting schedule specified in Section 19.3. 19.2 TOP-HEAVY DEFINITIONS. For purposes of this Article XIX, the following definitions shall apply: (a) The "determination date" with respect to any Plan year shall mean the last day of the preceding Plan year (or, in the case of the first Plan year of the Plan, the last day of the first Plan year). (b) The "valuation date" with respect to any determination date shall mean the most recent revaluation date occurring within a 12-month period ending on the determination date. (c) A "key employee" shall mean any Employee or Former Employee who is a key employee pursuant to the provisions of Section 416(i)(1) of the Code and any Beneficiary of such Employee or Former Employee. (d) A "non-key employee" shall mean any Employee who is not a key employee. (e) A "top-heavy plan" with respect to a particular Plan year shall mean (i), in the case of a defined contribution plan, a plan for which, as of the determination date, the aggregate of the accounts (within the meaning of Section 416(g) of the Code and the regulations and rulings thereunder) of key employees exceeds 60 percent of the aggregate of the accounts of all participants under the plan, with the accounts valued as of the relevant valuation date, (ii), in the case of a defined benefit plan, a plan for which, as of the determination date, the present value of the cumulative accrued -67- benefits payable under the plan (within the meaning of Section 416(g) of the Code and the regulations and rulings thereunder) to key employees exceeds 60 percent of the present value of the cumulative accrued benefits under the plan for all employees, with present value of accrued benefits to be determined in accordance with the actuarial assumptions specified in such defined benefit plan, and (iii) any plan included in a required aggregation group that is a top-heavy group. Notwithstanding the foregoing, if a plan is included in a required or permissive aggregation group that is not a top-heavy group, such plan shall not be a top-heavy plan. In the case of a defined benefit plan, the accrued benefit of a Participant other than a key employee shall be determined under the method, if any, that uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer or if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of Section 411(b)(1)(C) of the Code. For purposes of this paragraph (e), for any Plan year beginning after December 31, 1984, the accounts and accrued benefits of any employee who has not performed an hour of service during the five-year period ending on the determination date shall be disregarded, and for each Plan year beginning after December 31, 2001, the accounts and accrued benefits of any employee who has not performed an hour of service during the one-year period ending on the determination date shall be disregarded. (f) A "super top-heavy plan" with respect to a particular Plan year shall mean a plan that, as of the determination date, would qualify as a top-heavy plan under the definition in paragraph (e) of this Section 19.2 with "90 percent" substituted for "60 percent" each place where "60 percent" appears in such definition. A plan is also a "super top-heavy plan" if it is part of a super top-heavy group. (g) A "required aggregation group" shall include (i) all plans of each Employer in which a key employee is a participant, and (ii) all other plans of such Employer, including any plans terminated during the five-year period ending on the determination date, which enable a plan described in (i) to meet the requirements of Sections 401(a)(4) or 410 of the Code. (h) A "permissive aggregation group" shall mean those plans included in each Employer's required aggregation group together with any other plan or plans of the Employer, so long as the entire group of plans would continue to meet the requirements of Sections 401(a)(4) and 410 of the Code. (i) A "top-heavy group" with respect to a particular Plan year shall mean a required or a permissive aggregation group if the sum, as of the determination date, of the present value of the cumulative accrued benefits for key employees under all defined benefit plans included in such group and the aggregate of the account balances of key employees under all defined contribution plans included in such group exceeds 60 percent of a similar sum determined for all employees covered by the plans included in such group. (j) A "super top-heavy group" with respect to a particular Plan year shall mean a required or permissive aggregation group that, as of the determination date, would qualify as a top-heavy group under the definition in paragraph (i) of this -68- Section 19.2 with "90 percent" substituted for "60 percent" each place where "60 percent" appears in such definition. 19.3 ACCELERATED VESTING. In the event the Plan is determined to be a top-heavy plan with respect to any Plan year beginning after December 31, 1983, a Participant whose Settlement Date occurs during such Plan year under the conditions specified in paragraph (e) of Section 12.1 shall be vested in a nonforfeitable percentage of the balance of his sub-account attributable to Matching Employer Contributions which shall be determined by application of the following vesting schedule: Years of Continuous Service Nonforfeitable Percentage --------------------------- ------------------------- Less than 2 years 0% 2 years but less than 3 years 25% 3 years but less than 4 years 50% 4 years but less than 5 years 75% 5 years or more 100% 19.4 TOP-HEAVY EMPLOYER CONTRIBUTION. In the event the Plan is determined to be a top-heavy plan with respect to any Plan year beginning after December 31, 1983, the Employer contributions and forfeitures allocated to the sub-account attributable to Matching Employer Contributions of each non-key employee who is a Participant (or who was eligible under Section 3.1 to become a Participant prior to the end of the Plan year but failed to make the written election described therein) and who is not separated from service with the Employer as of the end of the Plan year shall be no less than the lesser of (i) three percent of his compensation for the entire Plan year or (ii) the largest percentage of Compensation that is allocated for such Plan year to the sub-account attributable to Matching Employer Contributions of any key employee; except that, in the event the Plan is part of a required aggregation group, and the Plan enables a defined benefit plan included in such group to meet the requirements of Section 401(a)(4) or 410 of the Code, the minimum allocation of Employer contributions and forfeitures to the sub-account attributable to Matching Employer Contributions of each such non-key employee shall be three percent of the Compensation of the non-key employees. Any minimum allocation to the sub-account attributable to Matching Employer Contributions of a non-key employee required by this Section 19.4 shall be made without regard to any social security contribution made by an Employer on behalf of the non-key employee. Notwithstanding the minimum top-heavy allocation requirements of this Section 19.4, in the event that the Plan is a top-heavy plan, each non-key employee who is a Participant hereunder (or who was eligible under Section 3.1 to become a Participant prior to the end of the Plan year but failed to make the written election described therein) and who is also covered under a top-heavy defined benefit plan maintained by an Employer will receive the top-heavy benefits provided -69- under such defined benefit plan in lieu of the minimum top-heavy allocation under the Plan. 19.5 ADJUSTMENTS TO SECTION 415 LIMITATIONS. In the event that the Plan is a top-heavy plan and an Employer maintains a defined benefit plan covering some or all of the Employees that are covered by the Plan, Section 415(e)(6)(B)(i) of the Code shall be applied to the Plan by substituting "$41,500" for "$51,875", except that such substitutions shall not be applied to the Plan if (i) the Plan is not a super top-heavy plan, (ii) the Employer contribution for such Plan year for each non-key employee who is to receive a minimum top-heavy benefit hereunder is not less than four percent of such non-key employee's compensation, (iii) the minimum annual retirement benefit accrued by a non-key employee who participates under one or more defined benefit plans of an Employer or a related corporation is not less than the lesser of three percent times years of service with an Employer or a related corporation or thirty percent, and (iv) a non-key employee who participates under both a defined benefit plan and a defined contribution plan of an Employer receives an allocation of Employer contributions and forfeitures equal to at least seven and one-half percent of his Compensation. 19.6 COMPENSATION TAKEN INTO ACCOUNT. The annual compensation of any Participant to be taken into account under the Plan during any Plan year in which the Plan is determined to be a top-heavy plan shall not exceed $150,000 for Plan years beginning on or after January 1, 1994, subject to adjustment annually as provided in Section 401(a)(17)(B) and Section 415(d) of the Code. -70- ARTICLE XX LOANS 20.1 APPLICATION FOR LOAN. A Participant may make application to the Company for a loan from his separate account under the Investment Funds, in accordance with procedures established by the Company; provided, however, that no loan in excess of 50% of the Participant's vested interest under the Plan shall be made hereunder; and, provided further, that the amount of any loan must be at least $1,000. Loans shall not be made available to Highly Compensated Employees in an amount greater than the amount made available to other Employees and shall be subject to the following additional conditions: (a) At the time the loan is made, the Participant shall agree to repay the loan by payroll withholding; provided, however, that in the event a Participant terminates employment with the Employer prior to the repayment of any loan hereunder, such Former Participant may continue to repay the amount of his loan in monthly payments forwarded to the Trustee. Any loan may be repaid in full, without penalty, at any time after the loan has been in existence for at least three months. (b) A loan shall not be granted hereunder unless the Participant consents to the charging of his separate account in accordance with the provisions of Section 20.5 for unpaid principal and interest in the event the loan is declared to be in default. (c) As collateral for a loan granted hereunder, the Participant shall grant to the Plan a security interest in such Participant's separate account, which security interest shall not exceed 50% of such Participant's vested interest under the Plan, determined as of the date as of which the loan is made. (d) A Participant shall not have more than two loans outstanding at any time from the Plan and all other plans of the Employer and any related corporation. (e) Loans shall be made to Participants in accordance with written procedures established by the Company, which written procedures are hereby incorporated into and made a part of the Plan. 20.2 REDUCTION OF ACCOUNT UPON DISTRIBUTION. Notwithstanding any other provision of the Plan to the contrary, the amount of a Participant's separate account that is distributable to the Participant or his Beneficiary under the Plan shall be reduced by the portion of his vested interest that is held by the Plan as security for any loan outstanding to the Participant, provided that the reduction is used to repay the loan. If a distribution is made because of the death of a Participant prior to the commencement of a distribution of his separate account, and less than 100% of the Participant's vested interest in his separate account (determined without regard to the preceding sentence) is payable to such Participant's surviving spouse, then the balance of the Participant's vested interest in his separate account shall be adjusted by reducing -71- such Participant's vested account balance by the amount of the security used to repay the loan, as provided in the preceding sentence, prior to determining the amount of the Participant's separate account that is payable to such Participant's surviving spouse. 20.3 REQUIREMENTS TO PREVENT A TAXABLE DISTRIBUTION. Notwithstanding any other provision of the Plan to the contrary, the following terms and conditions shall apply to any loan made to a Participant under this Article XX. (a) The interest rate on any loan made to a Participant hereunder shall be the "prime rate" (as hereinafter defined) charged by the Trustee and in effect on the date the Participant's loan request is made, plus one percent. For purposes of determining the rate to be used in calculating the interest charged on loans made hereunder, the "prime rate" shall be the prime rate set by the Trustee from time to time as reported by it and as in effect on the first business day of each month. If the Trustee does not set a prime rate, the interest rate on any loan made to a Participant hereunder shall be a reasonable interest rate commensurate with current interest rates charged for loans made under similar circumstances by persons in the business of lending money. (b) The amount of any loan to a Participant (when added to the outstanding balance of all other loans to the Participant from the Plan and all other plans maintained by the Employer or a related corporation) shall not exceed the lesser of: (i) $50,000, reduced by the highest outstanding balance of any other loan to the Participant from the Plan and all other plans maintained by the Employer or a related corporation during the preceding 12-month period; or (ii) 50% of the vested portion of the Participant's separate account under the Plan and his vested interest under all other plans maintained by the Employer or a related corporation. (c) The repayment term of any loan granted to a Participant hereunder shall be 12, 24, 36, 48 or 54 months, as specified by the Participant. (d) Except as otherwise permitted under Treasury regulations, substantially level amortization shall be required over the term of the loan with payments being made not less frequently than quarterly. 20.4 ADMINISTRATION OF LOAN INVESTMENT FUNDS. Upon approval of a loan to a Participant hereunder, the Company shall direct the Trustee to establish a Loan Investment Fund in the name of such Participant, and to transfer to such Loan Investment Fund such portion of the Participant's separate account invested in the Investment Funds, other than amounts in either the Self-Directed Account or the Participant's Matching Employer Contributions Sub-Accounts, as shall equal the amount of the Participant's loan; provided, however, that the portion of the Participant's -72- investment in the Investment Funds that is to be debited for any loan to be made to the Participant hereunder shall be in the same proportion as the Participant's current balance in those Investment Funds. Any loan approved by the Company shall be made to the Participant out of the Participant's Loan Investment Fund. All principal and interest paid by the Participant on a loan made under this Article XX shall be deposited in his Loan Investment Fund and shall be transferred, upon receipt, to the Investment Funds in accordance with the Participant's most recent investment directions on the date of payment of the Loan Investment Fund. The balance of the Participant's loan shall be decreased by the amount of principal payments, and the Loan Investment Fund shall be terminated when the loan has been repaid in full. 20.5 DEFAULT. If a Participant fails to make, or fails to cause to be made, any payment required under the terms of the loan within 60 days following the date on which such payment shall become due, the Company may direct the Trustee to declare the loan to be in default, in accordance with the provisions of the Plan's written loan procedure, and the entire unpaid balance of such loan, together with accrued interest, shall be immediately due and payable. In any such event, if such balance and interest thereon is not then paid, the Trustee shall charge the separate account of the borrower with the amount of such balance and interest as of the earliest date, including the borrower's Severance Date, if applicable, upon which a distribution may be made from the Plan to the borrower without adversely affecting either the tax qualification of the Plan or the qualified status of the cash or deferred arrangement maintained under the Plan. 20.6 CHANGES IN EMPLOYMENT STATUS AND TRANSFERS OF EMPLOYMENT BEFORE LOAN IS REPAID IN FULL. Subject to the provisions of Section 3.4, in the event a Participant: (a) ceases to be an Employee but continues in the employment of (i) an Employer in some other capacity or (ii) a related corporation, and (b) becomes a participant in The Goodyear Tire & Rubber Company Employee Savings Plan for Bargaining Unit Employees, his separate account under the Plan and his Loan Investment Fund, if any, shall be transferred to the savings plan in which he becomes a participant. Any transfer of his separate account and Loan Investment Fund made in accordance with the provisions of this Section 20.6 shall be made as soon as administratively practicable after the Participant's change in employment status or transfer of employment, subject to compliance with Section 414(l) of the Code and the regulations thereunder. -73- ARTICLE XXI ELIGIBLE ROLLOVER DISTRIBUTIONS 21.1 DIRECT ROLLOVER. This Article XXI applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this Article XXI, a distributee may elect, at the time and in the manner prescribed by the plan administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. 21.2 DEFINITIONS. (a) Eligible rollover distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; any hardship withdrawal of Tax-Deferred Contributions after December 31, 1998; and the portion, excluding After-Tax Contributions, of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). (b) Eligible retirement plan: An eligible retirement plan is an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, an annuity contract described in Section 403(b) of the Code, an eligible plan under Section 457 of the Code, or a qualified trust described in Section 401(a) of the Code, that accepts the distributee's eligible rollover distribution. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code. (c) Distributee: A distributee includes an Employee or Former Employee. In addition, the Employee's or former Employee's surviving spouse and the Employee's or former Employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. -74- (d) Direct rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. -75- ARTICLE XXII MINIMUM EMPLOYER CONTRIBUTION 22.1 CONTRIBUTION OF THE MINIMUM EMPLOYER CONTRIBUTION. For each Plan year that the Board of Directors of The Goodyear Tire & Rubber Company authorizes, an Employer shall make a minimum aggregate contribution to the Plan in cash, at least equal to a specified dollar amount (the "Minimum Employer Contribution"). The Minimum Employer Contribution shall be set by the appropriate resolution of the Board of Directors of The Goodyear Tire & Rubber Company, or as delegated by the Board through an appropriate resolution on or before the last day of the Employer's taxable year that ends with or within such Plan Year. The Employer shall satisfy the Minimum Employer Contribution by "employer contributions" made at any time during the Plan year. The Minimum Employer Contribution shall be deemed to be satisfied for the Plan year as soon as the total of "employer contributions" for the Plan year equals the amount of the Minimum Employer Contribution. For purposes of this Section 22.1, "employer contributions" means any employer contributions under Section 404 of the Code, including, but not limited to, Tax-Deferred Contributions and Matching Employer Contributions. In accordance with the provisions of Section 18.10, but without regard to any exception provided in that Section or Section 18.12, the Minimum Employer Contribution, shall not revert to, or otherwise inure to the benefit of an Employer or any related corporation. 22.2 ALLOCATION OF MINIMUM EMPLOYER CONTRIBUTION. The Minimum Employer Contribution for the Plan year shall be allocated as follows: (a) First, the Minimum Employer Contribution for the Plan year shall be allocated during the Plan year to each Employee who is Participant on the first day of the Plan year to the extent that Tax-Deferred Contributions pursuant to Section 4.2 and Matching Employer Contributions pursuant to Section 6.3. These allocations shall be made to each such Participant's Tax-Deferred Contributions and Matching Employer Contributions sub-account, respectively. (b) Second, the balance of the Minimum Employer Contribution, if any, remaining after the allocation in Section 22.2(a) shall be allocated to each Non-Highly Compensated Employee who is a Participant on the first day of the Plan year and an Employee on the last day of the Plan year, in the same ratio that such Participant's Tax-Deferred Contributions during the Plan year bears to the Tax-Deferred Contributions of all such Participants during the Plan year. This allocation shall be made to each such Participant's Matching Employer Contributions sub-account. (c) Third, notwithstanding Article IX, if the total contributions allocated to a Participant's sub-accounts exceed the Participant's maximum annual addition limit -76- for any calendar year as a result of the Minimum Employer Contribution, then such excess shall be held in a suspense account as provided under Section 415 of the Code. Such amounts shall be applied to reduce Employer contributions in the next, and succeeding, calendar years. Each installment of the Minimum Employer Contribution shall be held in a separate contribution suspense account unless, or until, allocated on or before the end of the Plan year in accordance with this Section 22.2. Such suspense account shall not participate in the allocation of investment gains, losses, income and deductions of the Trust Fund as a whole, but shall be invested separately, as directed by the Employer, and all gains, losses, income and deductions attributable to such investment shall be allocated in proportion to Section 22.2(a) and (b) respectively. Notwithstanding any other provision of the Plan to the contrary, any allocation of Tax-Deferred Contributions to a Participant's account shall be made under either Section 4.2 or this Section 22.2, but not both Sections, and any allocation of Matching Employer Contributions shall be made under either Section 6.3 or this Section 22.2, as appropriate, but not both Sections. -77- ARTICLE XXIII MERGER OF CELERON CORPORATION EMPLOYEE SAVINGS PLAN 23.1 MERGER OF PLANS. Effective as of the close of business on December 31, 1999, the Celeron Corporation Employee Savings Plan (the "Celeron Plan"), maintained under a plan document amended and restated effective January 1, 1997, is hereby merged into and made a part of the Plan, and the trust maintained in connection with the Celeron Plan is hereby merged into and made a part of the Trust. Each person who was a participant or former participant in the Celeron Plan on December 31, 1999, shall become a Participant or Former Participant in the Plan on January 1, 2000, and on and after January 1, 2000, the provisions of this Article XXIII and the Plan shall govern with respect to the interests of the participants and former participants in the Celeron Plan. 23.2 ESTABLISHMENT OF SEPARATE ACCOUNTS AND SUB-ACCOUNTS. As soon as possible after January 1, 2000, and after the assets of the trust maintained in connection with the Celeron Plan have been received by the Trustee, separate accounts and sub-accounts shall be established in the name of each person who had a separate account under the Celeron Plan on December 31, 1999. There shall be credited to each separate account an amount equal to such person's prior separate account balance under the Celeron Plan as of December 31, 1999, and to each sub-account an amount equal to such person's prior separate sub-account balance of the corresponding type under the Celeron Plan as of December 31, 1999. -78- ARTICLE XXIV MERGER OF BRAD RAGAN, INC. EMPLOYEE SAVINGS PLAN 24.1 MERGER OF PLANS. Effective as of the close of business on November 30, 2001, the Brad Ragan, Inc. Employee Savings Plan (the "Brad Ragan Plan"), maintained under a plan document amended and restated effective January 1, 1997, is hereby merged into and made a part of the Plan, and the trust maintained in connection with the Plan is hereby merged into and made a part of the Trust. Each person who was a participant or former participant in the Brad Ragan Plan on November 30, 2001, shall become a Participant or Former Participant in the Plan on December 1, 2001, and on and after December 1, 2001, the provisions of this Article XXIV and the Plan shall govern with respect to the interests of the participants and former participants in the Brad Ragan Plan. 24.2 ESTABLISHMENT OF SEPARATE ACCOUNTS AND SUB-ACCOUNTS. As soon as possible after December 1, 2001, and after the assets of the trust maintained in connection with the Brad Ragan Plan have been received by the Trustee, separate accounts and sub-accounts shall be established in the name of each person who had a separate account under the Brad Ragan Plan on November 30, 2001. There shall be credited to each separate account an amount equal to such person's prior separate account balance under the Brad Ragan Plan as of November 30, 2001, and to each sub-account an amount equal to such person's prior separate sub-account balance of the corresponding type under the Brad Ragan Plan as of November 30, 2001. -79- ARTICLE XXV MERGER OF THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR HOURLY EMPLOYEES 25.1 MERGER OF PLANS. Effective as of the close of business on December 31, 2001, The Goodyear Tire & Rubber Company Employee Savings Plan for Hourly Employees (the "Hourly Plan"), maintained under a plan document amended and restated effective January 1, 2001, is hereby merged into and made a part of the Plan, and the trust maintained in connection with the Hourly Plan is hereby merged into and made a part of the Trust. Each person who was a participant or former participant in the Hourly Plan on December 31, 2001, shall become a Participant or Former Participant in the Plan on January 1, 2002, and on and after January 1, 2002, the provisions of this Article XXV and the Plan shall govern with respect to the interests of the participants and former participants in the Hourly Plan. 25.2 ESTABLISHMENT OF SEPARATE ACCOUNTS AND SUB-ACCOUNTS. As soon as possible after January 1, 2002, and after the assets of the trust maintained in connection with the Hourly Plan have been received by the Trustee, separate accounts and sub-accounts shall be established in the name of each person who had a separate account under the Hourly Plan on December 31, 2001. There shall be credited to each separate account an amount equal to such person's prior separate account balance under the Hourly Plan on December 31, 2001, and to each sub-account an amount equal to such person's prior separate sub-account balance of the corresponding type under the Hourly Plan as of December 31, 2001. -80- ARTICLE XXVI MERGER OF THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EXPATRIATE EMPLOYEES 26.1 MERGER OF PLANS. Effective as of the close of business on December 31, 2001, The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Expatriate Employees (the "Expatriate Plan"), maintained under a plan document amended and restated effective January 1, 2001, is hereby merged into and made a part of the Plan, and the trust maintained in connection with the Plan is hereby merged into and made a part of the Trust. Each person who was a participant or former participant in the Expatriate Plan on December 31, 2001, shall become a Participant or Former Participant in the Plan on January 1, 2002, and on and after January 1, 2002, the provisions of this Article XXV and the Plan shall govern with respect to the interests of the participants and former participants in the Expatriate Plan. 26.2 ESTABLISHMENT OF SEPARATE ACCOUNTS AND SUB-ACCOUNTS. As soon as possible after January 1, 2002, and after the assets of the trust maintained in connection with the Hourly Plan have been received by the Trustee, separate accounts and sub-accounts shall be established in the name of each person who had a separate account under the Expatriate Plan on December 31, 2001. There shall be credited to each separate account an amount equal to such person's prior separate account balance under the Expatriate Plan on December 31, 2001, and to each sub-account an amount equal to such person's prior separate sub-account balance of the corresponding type under the Expatriate Plan as of December 31, 2001. * * * EXECUTED at Akron, Ohio, this 20th day of December, 2001. THE GOODYEAR TIRE & RUBBER COMPANY By /s/ Donald D. Harper --------------------------------------- Vice President Attest: Bertram Bell ----------------------------- Assistant Secretary -81- ANNEX I THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES PROVISIONS APPLICABLE TO CERTAIN FORMER JACKSON EMPLOYEES Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, each person who was in the employ of the compression and injection molded, thermoset, sheet molded compound and reinforced thermoplastic products for original equipment manufacturers of passenger cars, light trucks, and heavy duty trucks business conducted by the Company at its Jackson, Ohio, plant (the "Jackson Business") on June 30, 1997, and who became an employee of Cambridge Industries, Inc. ("Cambridge") or any subsidiary or affiliate of Cambridge on June 30, 1997, as a result of the sale of substantially all the assets of the Jackson Business to Cambridge (a "Former Jackson Employee") shall have his entire interest under the Plan fully vested as of June 30, 1997, and thereafter his interest shall be nonforfeitable. -82- ANNEX II THE GOODYEAR TIRE & RUBBER COMPANY EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES PROVISIONS APPLICABLE TO CERTAIN FORMER CALHOUN EMPLOYEES Notwithstanding anything to the contrary contained in the Plan or the Trust Agreement, each person who was in the employ of the business conducted by the Company at, through, or in support of the Calhoun Facility: (i) of developing, manufacturing, marketing, distributing, selling, and servicing carboxylated styrene butadiene latices and any other products (other than vinyl pyridine latices) which are currently or have been previously manufactured at, or are currently or have been under development for manufacture at the Calhoun Facility, and (ii) developing (to the extent pertaining exclusively to Calhoun Facility products or processes), manufacturing, marketing, distributing, selling, and servicing vinyl pyridine latices in North America and exporting vinyl pyridine latices from North America (the "Calhoun Business") on February 28, 1998, and who became an employee of Gencorp Inc. ("Gencorp") or any subsidiary or affiliate of Gencorp on February 28, 1998, as a result of the sale of certain assets of the Calhoun Business to Gencorp shall have his entire interest under the Plan fully vested as of February 28, 1998, and thereafter his interest shall be nonforfeitable. -70- EX-4.6 8 l93258aex4-6.txt EXHIBIT 4.6 EXHIBIT 4.6 FOURTH AMENDMENT TO TRUST AGREEMENT FOR THE GOODYEAR TIRE & RUBBER COMPANY COMMINGLED TRUST THIS AMENDMENT, made and entered into this 1st day of November, 1995, by and between The Goodyear Tire & Rubber Company (the "Company") and The Northern Trust Company (the "Trustee"), W I T N E S E T H: - - - - - - - - - WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust (the "Trust Agreement") was entered into as of July 1, 1984, between the Company and Bankers Trust Company, as Trustee; and WHEREAS, pursuant to Article 12.4 of that certain Commingled Trust Agreement dated July 1, 1984, and confirmed by letter dated October 30, 1995, Company has removed Bankers Trust Company as Trustee under the Commingled Trust; and WHEREAS, by letter dated October 30, 1995, Company has appointed The Northern Trust Company as successor Trustee and The Northern Trust Company by same letter has accepted such appointment; and WHEREAS, the Trust Agreement has been amended on three prior occasions; and WHEREAS, it is desired hereby to further amend the Trust Agreement; NOW, THEREFORE, the Trust Agreement is hereby amended, effective as of November 1, 1995, to provide the following: Wherever in the Trust Agreement the words "Trustee", "Bankers Trust Company," or "Bankers" appears, such word shall be deemed to mean "The Northern Trust Company". Immediately upon receipt of the Fund, Trustee shall directly, or through its affiliate Hazlehurst & Associates ("Recordkeeper"), perform recordkeeping services to be described in a separate written agreement to be entered into between the Trustee and the Company. The Company hereby approves Trustee's engagement of Recordkeeper. Any change of Recordkeeper is subject to Company's prior written approval in its sole discretion. As described in the separate written agreement, Trustee shall remain responsible for the performance of the functions described therein, whether performed directly by it or through Recordkeeper. Trustee or Recordkeeper will be providing Company with various communications materials from time to time including, but not limited to, printed publications, participant correspondence, videotape and audiotape presentations, telephonic messages and so forth. In doing so, Trustee or Recordkeeper will be utilizing certain of Company's and its subsidiary's names, trademarks, tradenames, service marks, logos and other proprietary designations. Trustee acknowledges that neither it nor Recordkeeper shall acquire any right, title or interest in such designations by virtue of their use hereunder. The Trust Agreement is hereby further amended effective November 1, 1995 in the following particulars: I. Section 2.3 shall be amended by adding the following provisions immediately after the end of the first paragraph of that section: "The Trustee shall use its best efforts in all cases to move funds expeditiously, but shall in no event be required to advance its own funds for such purpose. Pending directions from the Recordkeeper to allocate contributions among the Discretionary or Directed Funds, the Trustee shall invest the contributions in short term investments in accordance with Section 4.2 hereof." To the extent that any portion of the Fund is invested in mutual fund shares, the 2 Company shall initially select such mutual funds and shall be responsible for retaining the availability of or terminating the availability of such funds and such portions shall be considered Directed Funds for purposes of this Agreement. Trustee shall be responsible for entering into appropriate custody agreements with the sponsor of a bank commingled fund or such other type of fund as required. The Company may authorize an Investment Manager to take such action with respect to assets of a Directed Fund subject to such Investment Manager's responsibility as are necessary to transfer assets between collective, commingled or group trust funds maintained by such Investment Manager or its bank affiliate. In such event, (i) it shall be the responsibility of the Company to monitor the actions of such Investment Manager and to determine whether or not such actions comply with the authorities delegated to such Investment Manager; and, (ii) the Trustee shall include the total market value of such Directed Fund as reported to it by such Investment Manager into the reports required of the Trustee under this Agreement, as well as reporting the activity between the Fund and the Directed Fund; however, the Trustee shall have no responsibility to incorporate the daily Directed Fund transactional activity on the individual assets of such Directed Fund into such reports. Trustee shall have no responsibility to report the individual assets held in such Directed Fund. Trustee shall calculate and report the daily unit values on both the Discretionary and Directed Funds using valuation methods as described in this Agreement to the extent applicable." Further, the next following paragraph in Section 2.3 shall be amended by adding the following phrase "the Company, with respect to assets for which it has, or has retained investment responsibility" between "shall mean" and "an investment adviser". Section 2.4 shall be amended by deleting from the fourth line of the first paragraph the 3 words "calendar quarter" and substituting therefor the word "month". In addition, the fourth sentence of Section 2.4 shall be deleted entirely and the following substituting therefor: "Assets shall be valued at their fair market values as the Trustee shall determine in accordance with methods consistently followed and uniformly applied at the close of business on the day of valuation; provided, however, the Trustee shall in good faith rely upon the determination of the issuing insurance company or other financial institution with respect to the fair market value of each insurance, investment or other such type of contract and upon the determination of the Investment Manager with respect to the fair market value of those assets for which it is responsible for which the Trustee does not have a readily ascertainable value." 2. 2.7 Loans to participants as provided in the Plans and described in the guidelines to be approved by the Company will be administered by the Recordkeeper pursuant to the recordkeeping agreement. As directed by the Recordkeeper, the Trustee shall distribute cash to such participants who are granted loans. Loan payments collected by the Company shall be forwarded to the Trustee. The amount of such loans shall be carried by the Trustee as an asset of the Trust equal to the combined unpaid principal balance of all participants. The Trustee shall have no responsibility for final approval of the guidelines set forth by the Company as to granting or administering participant loans, or for the collection and repayment of a loan. Section 4.2 of the Trust Agreement as previously amended, is hereby deleted entirely and the following substituted therefor: "Section 4.2 Subject to contrary instruction from the Investment Manager, with respect to cash balances of a Directed Fund and in its discretion with respect to assets of a Discretionary Fund, the Trustee may from time to time transfer cash to the Trustee or its affiliate as Trustee of any collective trust fund which is now or hereafter maintained as a 4 medium for the collective investment of funds of pension, profit sharing or other employee benefit plans and which is qualified under Section 401(a) and exempt from tax under Section 501(a) of the Internal Revenue Code of 1986, as amended, and may withdraw any part or all of the assets so transferred; any assets deposited with the trustees of a collective trust fund shall be held and invested by the trustee thereunder pursuant to all the terms and conditions of the Trust Agreement or Declaration of Trust establishing the fund which are hereby incorporated herein by reference and shall prevail over any contrary provision of this Trust Agreement." 3. Section 5.2 shall be amended by adding the following to the end of that section, that is to the end of the parenthetical material: ", except in a collective short-term investment fund in which the Trustee shall invest cash, subject to contrary instructions from the Investment Manager, as provided under Section 4.2." Section 5.3 is amended by deleting the word "written" from the thirteenth and eighteenth lines of that section. Section 5.4 is amended by inserting the word "bank" on the eighth line between the words "two" and "business". 4. Section 6.1(c) is amended by inserting "except as provided in Article XVI," at the beginning thereof. The following provisions shall be added to Section 6.1: "(d) To transfer assets of a Directed Fund to a common, collective or commingled trust fund exempt from tax under the Internal Revenue Code of 1986, as amended, maintained by an Investment Manager or its affiliate or by another Trustee who is designated by the Company, to be held and invested subject to all the terms and conditions thereof; (e) To invest and reinvest assets in units or participation in regulated investment companies (including those for which the Trustee or its affiliate is adviser); 5 (f) To enter into insurance, investment or such other types of contracts issued by an insurance company or other type of financial institution and the Trustee shall act with respect to any such contract only as directed by the Investment Manager." Further, Section 6.2 shall be added to the Trust Agreement, as follows: "(a) The Company has established the Goodyear Stock Fund which is to be composed of investments in common stock of the Company ("Company Stock"). The Company shall notify the Trustee in writing of the amount of such fund to be maintained in the collective short term investment fund. Any cash held by the Trustee from time to time in the Goodyear Stock Fund may be invested in collective short term investment funds of the Trustee. The Company may authorize and direct the, Trustee in writing to seek to obtain settlement for sales of Company Stock on an expedited basis under certain circumstances in which case the Trustee shall carry out its responsibilities for execution of Company Stock sale transactions in accordance with such direction and subject to any limitations expressed therein. Except for the short term investment of cash, the Company has limited the investment power of the Trustee in the Goodyear Stock Fund to the purchase of Company Stock. (b) A participant shall be a "named fiduciary" under ERISA to the extent of the parlicipant's authority to direct the investment in, voting, tender, exchange or sale of Company Stock allocated to the participant's account and their proportionate share of unallocated Company Stock." 6.3 An Investment Manager may direct in writing that the custody of assets of a Directed Fund (other than those invested in a collective or group trust fund) be maintained with one or more persons or entities designated by the Investment Manager to maintain custody of assets of a Directed Fund ("Custodial Agent"). In such event, the Investment Manager shall 6 approve, and direct the Trustee to enter into a custody agreement with the Custodial Agent, which custody agreement may authorize the Custodial Agent to maintain custody of such assets with one or more subagents, (including a broker or dealer registered under the Securities Exchange Act of 1934 or a nominee of such broker or dealer). The Custodial Agent shall have custodial responsibility for any assets maintained with the Custodial Agent or its subagents pursuant to the custody agreement. Not withstanding any other provision of this Agreement, including, but not limited to, Section 15.1, the Company agrees to indemnify The Northern Trust Company from any liability, loss and expense, including legal fees and expenses, which The Northern Trust Company may sustain by reason of acting in good faith, in accordance with any directions of the Investment Manager pursuant to this Section 6.3. 5. The second paragraph of Section 8.1 is hereby amended by deleting the last sentence from that paragraph. Further, the third paragraph of Section 8.1 is deleted and the following substituted therefor: "To the extent, if any, that the Trustee shall be required to value the assets of any Directed Fund for any purpose, including any accounting as hereinabove provided, the Trustee may carry out such valuation in accordance with the procedures for assessing fair market value as provided in Section 2.4." 6. Section 10.3 is hereby amended by adding the following to the end of the third line: "or in such other form, including transmission by electronic means, as agreed upon by such person or committee and the Trustee," 7. Section 12.4 is hereby amended by deleting the parenthetical information on the third from the last and next to the last lines at the end of the first paragraph and substituting therefor the following: 7 "(including a collective short term investment fund maintained by the Trustee)" 8. Section 13.1 shall be amended by deleting the words "New York" at the end thereof and substituting therefor the word "Ohio". Section 15.1 is hereby amended by inserting "or upon the direction of the Company," in (i) of the second paragraph thereof, between "or to appoint such Investment Manager under such Plans," and "or anything omitted to be done in good faith,". Section 15.1 is further amended by adding the following to the end of the second paragraph: ", or (iii) as a direct or indirect result of any act or failure to act in good faith of the Trustee in connection with the purchase, retention, voting, tender, exchange or sale of Company Stock, except to the extent such amounts arise from the Trustee's negligent performance of processing functions in connection with Company Stock that are expressly allocated to the Trustee under the terms of this Agreement, or from the Trustee's negligent performance of trade execution responsibilities with respect to Company Stock transactions, or from intentional wrongdoing of Trustee." Article XVI is hereby amended by adding the following Section 16.2 immediately following Section 16. 1: 16.2 At least thirty (30) days prior to each annual or special meeting of its shareholders, the Company shall cause to be sent to each participant, and to each former participant and beneficiary, a copy of the proxy solicitation material therefor together with a form requesting that each such participant, former participant or beneficiary give to the Trustee (or to a tabulating agent appointed by the Company, provided, however, the Trustee reserves the right to appoint the tabulating agent if the Trustee, in the reasonable exercise of its discretion, determines that such appointment by the Trustee is necessary for it to fulfill its 8 fiduciary responsibilities) his confidential instructions with respect to the manner in which his proportionate interest in the Company Stock held in the Goodyear Stock Fund shall be voted by the Trustee. If the participant, former participant or beneficiary furnishes such instructions to the Trustee or to the tabulating agent within the time specified in the notification, the Trustee shall vote such Company Stock in accordance with such instructions. Furthermore, the Trustee shall vote the Company Stock with respect to which it or the tabulating agent does not receive instructions as specified above, and all unallocated Company Stock held in the Goodyear Stock Fund in the same proportion as it votes the Company Stock for which it received instructions as specified above. Instructions received from individual participants, former participants and beneficiaries by the Trustee or the tabulating agent shall be held in the strictest confidence and shall not be divulged or released to the Company, its officers, directors or employees." IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the day and year first entered above. THE GOODYEAR TIRE & RUBBER COMPANY By: /s/ James Boyazis -------------------------------------- Title: Vice President -------------------------------- Attest: /s/ Patricia A. Kemph ---------------------------------- Title: Assistant Secretary ---------------------------- THE NORTHERN TRUST COMPANY By: /s/ Peter R. Sparrow -------------------------------------- Title: Vice President -------------------------------- Attest: /s/ John H. Torn ---------------------------------- Title: Assistant Secretary ---------------------------- 9 EXHIBIT 4.6 (Continued) THIRD AMENDMENT TO TRUST AGREEMENT FOR THE GOODYEAR TIRE & RUBBER COMPANY COMMINGLED TRUST THIS AMENDMENT, made and entered into this 13TH day of January, 1994, by and between The Goodyear Tire & Rubber Company (the "Company") and Bankers Trust Company (the "Trustee"), W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust (the "Trust Agreement") was entered into as of July 1, 1984, between the Company and the Trustee; WHEREAS, the Trust Agreement has been amended on two prior occasions; and WHEREAS, it is desired hereby further to amend the Trust Agreement to provide for an updated list of the eligible Plans of the Company, its subsidiaries and affiliates; NOW, THEREFORE, Schedule A of the Trust Agreement is hereby amended, effective as of January 1, 1994, to provide as follows: SCHEDULE A TO TRUST AGREEMENT FOR THE GOODYEAR TIRE & RUBBER COMPANY COMMINGLED TRUST The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees The Goodyear Tire & Rubber Company Employee Savings Plan for Bargaining Unit Employees The Goodyear Tire & Rubber Company Employee Savings Plan Without Matching Contributions for Bargaining Unit Employees The Goodyear Tire & Rubber Company Employee Savings Plan for Hourly Employees The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Expatriate Employees Celeron Corporation Employee Savings Plan * * * IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the day and year first entered above. THE GOODYEAR TIRE & RUBBER COMPANY By /s/ Samil F. Gibara ------------------------------------- Title: Vice President ------------------------------ Attest /s/ Patricia A. Kemph ------------------------------ Title: Assistant Secretary BANKERS TRUST COMPANY By -------------------------------------- Title: Vice President Attest: ------------------------------ Title: Vice President - 2 - EXHIBIT 4.6 (Continued) SECOND AMENDMENT TO TRUST AGREEMENT FOR THE GOODYEAR TIRE & RUBBER COMPANY COMMINGLED TRUST THIS AMENDMENT, made and entered into this day of December, 1987, by and between The Goodyear Tire & Rubber Company (the "Company") and Bankers Trust Company (the "Trustee"), W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust (the "Trust Agreement") was entered into as of July 1, 1984, between the Company and the Trustee; and WHEREAS, it is desired hereby to amend the Trust Agreement to provide for investment of trust assets in an equity fund maintained by the Trustee; NOW THEREFORE, Section 4.2 of the Trust Agreement is hereby amended, effective as of January 1, 1987, to provide as follows: 4.2 Any other provisions of this Agreement to the contrary notwithstanding, the Trustee may in its discretion transfer from time to time, (a) any part or all of the assets of Part C of the Fund, and (b) cash balances of Parts A and B of the Fund to the trustee of the General Employee Benefit Trust (hereinafter referred to as the "General Trust") created by Bankers Trust Company under Declaration of Trust dated May 28, 1956, as the same may have heretofore been or may hereafter be amended, to be held subject to all of the provisions thereof and to be commingled with the assets of other trusts participating therein; PROVIDED, HOWEVER, that any assets of the Fund allocated to a Directed Fund shall be transferred to the General Trust only upon the direction of the Investment Manager and with the approval of the Trustee of the General Trust, and provided, further, that any assets of a Directed Fund or of Parts A and B of the Fund transferred to the General Trust shall be invested only in one or more special purpose investment funds established from time to time for the purpose of providing a vehicle for short term investment of participating trusts. Upon the direction of the Investment Manager, the Trustee shall cause the withdrawal of all or part of the equitable share of the Commingled Trust in the General Trust, subject to the provisions thereof to the extent that such equitable share is attributable to assets of a Directed Fund. To the extent of the equitable share of the Commingled Trust in the General Trust, the General Trust shall be part of each Plan pursuant to which the Commingled Trust has been adopted. In the event of conflict between the provisions of this Agreement and the General Trust, the provisions of the General Trust shall control. * * * IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the day and year first entered above. THE GOODYEAR TIRE & RUBBER COMPANY By /s/ G. R. Heigieries -------------------------------- Title: Vice President Attest: P. A. Kemph ------------------------------ Title: Assistant Secretary BANKERS TRUST COMPANY By /s/ Robert M. Bynke -------------------------------- Title: Vice President Attest: Ronni E. Weiss ------------------------------ Title: Assistant Vice President 0055P EXHIBIT 4.6 (Continued) FIRST AMENDMENT TO TRUST AGREEMENT FOR THE GOODYEAR TIRE & RUBBER COMPANY COMMINGLED TRUST WHEREAS, the Trust Agreement for The Goodyear Tire & Rubber Company Commingled Trust (the "Trust Agreement"), was entered into as of July 1, 1984, between The Goodyear Tire & Rubber Company (the "Company") and Bankers Trust Company; and WHEREAS, it is desired hereby to amend the Trust Agreement to provide a procedure for the disposition of the stock of the Company during a tender offer; NOW, THEREFORE, the Trust Agreement is hereby amended in the respects hereinafter set forth: 1. The Trust Agreement is amended by the addition of new Article XVI at the end thereof to provide as follows: ARTICLE XVI ----------- SECTION 16.1. In the event that any person (other than the Company or any affiliate thereof) shall make a tender offer for any Company Stock, the Company undertakes to promptly provide a copy of the offer, and any other material infor- mation concerning such offer, to each Plan par- ticipant who has an account invested in Company Stock together with a form for furnishing to the Trustee instructions as to whether Company Stock credited to such accounts should be tendered. Each participant may elect that all, but not less than all, of the Company Stock credited to his account be tendered by the Trustee on his behalf. Upon receipt of instructions from a participant to so tender, the Trustee shall tender all such Company Stock credited to such participant's account. Any Company Stock held by the Trustee as to which it receives no instruction from the participant to whose account such stock is cred- ited shall not be tendered. In the event that the participants' instructions cannot otherwise be returned to the Trustee in a timely fashion, the Company agrees to collect and tabulate such instructions in a manner that will assure a con- fidential and accurate tabulation and timely tender by the Trustee. Any securities received by the Trustee as a result of having tendered Company Stock, as hereinabove provided, shall be held, and any cash so received shall be invested in short term investments, pending any further action which the Trustee may be required to take pursuant to the Plan. Notwithstanding anything in this Agreement to the contrary, during the period of any tender offer for Company Stock, the Trustee shall refrain from making purchases of Company Stock under this Agreement. The Trustee shall be entitled to reasonable compensation and reimbursement for its out-of-pocket expenses for any services attributable to the duties and responsibilities described in this Section 16.1. The Company hereby agrees to hold the Trustee harmless and to indemnify the Trustee from and against any and all losses, claims, dam- ages, liabilities or expenses whatsoever (includ- ing, but not limited to, any and all expenses reasonably incurred in investigation, preparing or defending against any litigation or proceed- ing, commenced or threatened, or any claim what- soever), (a) arising out of, relating to or in connection with any tender offer of the kind referred to above, whether in respect of the solicitation of directions from Plan partici- pants, or tabulating, reporting or acting upon such directions or otherwise, or (b) arising out of or based upon any untrue statement or alleged untrue statement contained in any in- strument, document or other material furnished by or through the Company to Plan participants, or otherwise used by the Company or authorized by it for use in respect of, any such tender offer or arising out of or based upon an omission or alleged omission to state a material fact re- quired to be stated or necessary to make other - 2 - statements made in any such material not mislead- ing, except, solely in the case of indemnifica- tion pursuant to clause (a), for a loss, claim, damage, liability or expense primarily attrib- utable to the bad faith or negligence of the Trus- tee. If a claim is made against the Trustee, the Trustee shall notify the Company of any action commenced against the Trustee within a reasonable time after the Trustee shall have been served with the summons or other first legal process giving information as to the nature and basis of the claim. However, failure to so notify the Company shall not relieve the Company from any liability which it may have on account of this indemnity or otherwise of the Trustee shall sus- tain the burden of proving that the Company has not been prejudiced in any material respect by such failure. The Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff after the Trustee has given the Company reasonable notice of the proceeding, the Company agrees to indemnify the Trustee from and against any loss or liability by reason of such settlement or judgment. The indemnity agreement set forth above shall remain operative and in full force and effect whether or not the Trustee shall have resigned or been replaced and regard- less or any termination of the Plan or the Trust or any investigation made by or on behalf of the Trustee. EXECUTED at Akron, Ohio, this 20TH day of November, 1986. THE GOODYEAR TIRE & RUBBER COMPANY By /s/ James R. Glass ---------------------------------- Attest: Title: Executive Vice President /s/ John M. Russ -------------------------- Title: Assistant Secretary BANKERS TRUST COMPANY By /s/ Robert M. Bynke ---------------------------------- Title: Vice President Attest: /s/ Ronnie E. Weiss -------------------------- Title: Assistant Vice President EXHIBIT 4.6 (Continued) COMMINGLED TRUST AGREEMENT -------------------------- Agreement and Declaration of Trust made as of July 1, 1984, by and between THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (hereinafter referred to as the "Company") and BANKERS TRUST COMPANY, a New York Corporation (hereinafter referred to as the "Trustee"). W I T N E S S E T H - - - - - - - - - - WHEREAS, the Company desires to establish a commingled trust known as the The Goodyear Tire & Rubber Company Commingled Trust (the "Commingled Trust") which will serve as a medium for commingling the assets of the trusts (the "Trusts") established under the eligible employee benefit plans of the Company, its subsidiaries and affiliates (the "Plans"); WHEREAS, the Plans listed on Schedule A, annexed hereto, are eligible Plans of the Company, its subsidiaries and affiliates; and WHEREAS, the trust agreements pursuant to which Trusts have been established provide that the assets thereof may be transferred to and held by the Trustee in common with the assets of trusts established under the Plans. NOW, THEREFORE, the Company and the Trustee agree as follows: ARTICLE I --------- 1.1 The Company hereby establishes with the Trustee a Commingling Trust consisting of such sums of money and such property acceptable to the Trustee as shall from time to 2 time be paid or delivered to the Trustee from the Trusts and the earnings and profits thereon. All such money and property, all investments made therewith and proceeds thereof and all earnings and profits thereon, less the payments or other distributions which, at the time of reference, shall have been made by the Trustee, as authorized herein, are referred to herein as the "Fund" and shall be held by the Trustee, IN TRUST, and dealt with in accordance with the provisions of this Agreement. ARTICLE II ---------- 2.1 The assets of a Trust may be transferred to the the Commingled Trust and such Trust may become a Participating Trust thereby only if all of the following conditions have been met: (a) The Company, or a subsidiary, or an affiliate has established the Trust; (b) It is maintained in connection with a Plan which is qualified under Section 401(a) of the Internal Revenue Code of 1954, as amended; (c) Such Trust is qualified under Section 401(a) of the Internal Revenue Code of 1954, as amended and exempt from taxation under Section 501(a) such Code, as amended; (d) The Trust is authorized by the terms of the trust agreement (the "Trust Agreement") pursuant to which it has been established to commingle its assets with assets of other trusts established under the Plans; (e) The Commingled Trust is maintained at all times as a domestic trust in the United States; 3 (f) Bankers Trust Company is trustee of such Trust; and (g) Such Trust is permitted in its governing trust instrument to commingle its assets with assets of other trusts through the medium of a common, collective or commingled trust. The Trusts established under the Plans listed on Schedule A annexed hereto shall be deemed Participating Trusts as of the date first written above without any further action on the part of any one. 2.2 When the assets of a Participating Trust under the Plan of any subsidiary or affiliate of the Company are transferred to the Commingled Trust, such subsidiary or affiliate shall be bound by the decisions, instructions, actions and directions of the Company under this Agreement and the Trustee shall be fully protected by the Company and such subsidiary or affiliate in relying upon such decisions, instructions, actions and directions of the Company. The Trustee shall not be required to give notice to or obtain the consent of any such subsidiary or affiliate with respect to any action which is taken by the Trustee pursuant to this agreement, and the Company shall have the sole authority to enforce this Agreement on behalf of any such subsidiary or affiliate. 2.3 Responsibility for the management and control of the assets of Plans utilizing the Commingled Trust (including the power to acquire or dispose of such assets) may be vested in the discretion of the Company, in the Trustee and/or in such one or more Investment Managers appointed by the Company pursuant to the provisions of such Plans. That portion of the Fund for which the Trustee shall 4 have such responsibility is hereinafter referred to as the "Discretion- ary Fund". Any portion of the Fund over which an Investment Manager shall have such responsibility is hereinafter referred to as a "Directed Fund". Allocation of assets of the Fund between or among any Discretionary or Directed Funds shall be determined by the Company. For efficiency or convenience of investment or administration, the Fund or any such Discretionary or Directed Fund may be divided into such one or more sub-funds as the Company or the Trustee may deem advisable. For the purposes of this Agreement, "Investment Manager" shall mean an investment adviser registered under the Investment Advisers Act of 1940, a bank (other than the Trustee) as defined in that Act, or an insurance company qualified to perform invest- ment management services under the laws of more than one State, which shall have acknowledged in writing that it is a fiduciary with respect to all Participating Plans, and which shall have the power to manage, acquire and dispose of Plan assets. 2.4 The Trustee shall maintain a separate account reflecting the equitable share in the Fund of each Participating Trust. For this purpose, the Trustee shall determine the value of the assets of the Fund as of the last day of each calendar quarter and as of such other dates as the Trustee may deem appropriate or the Company may direct. In addition, for the convenience of the Company, the Company may request the Trustee to include in such account assets which do not constitute part of the Fund, for the purposes of determining the value of all of the assets of such Participating Trusts. Assets shall be valued at their market 5 values at the close of business on the date of valuation, or, in the absence of readily ascertainable market values, at such values as the Trustee shall determine in accordance with methods consistently followed and uniformly applied. Anything herein to the contrary notwithstanding, with respect to assets constituting part of a Directed Fund hereunder or in the event that assets which do not constitute part of the Fund are included in such valuation or account at the request of the Company, the Trustee may rely for all purposes of this Agreement, including for the purpose of determining the value of such assets as of any quarterly or other valuation date, on any certified appraisal or other form of valuation submitted to it by the Investment Manager or by the person or persons controlling such assets. 2.5 By entering into this Agreement the Trustee does not assume any responsibility or undertake any duty to enforce payment of any contribution to any Plan, any responsibility for the adequacy of the Fund or the funding standards adopted by the sponsor of any Plan to meet or discharge any pension or other liabilities under such plan, or any responsibility under the terms of this Agreement for the management or control of any Directed Funds. No duties or obligations shall be imposed upon the Trustee unless they have been specifically undertaken by the express terms of this Agreement. 2.6 Except as may otherwise be permitted by law, at no time prior to the satisfaction of all liabilities with respect to participants and their beneficiaries under any Plan shall any part of the equitable share of such Plan in the Fund be used for, 6 or diverted to, any purposes other than for the exclusive benefit of such employees and their beneficiaries, and for defraying reasonable expenses of administering such Plans. ARTICLE III ----------- 3.1 The Trustee shall: (a) hold the assets from time to time constituting the Fund in its own name or in the name of a nominee under such conditions of custody and safekeeping as it shall deem appropriate for the particular type of trust asset, and collect all interest, dividend and other income thereon; (b) invest and reinvest the Discretionary Fund as pro- vided in Article IV; (c) settle purchases and sales for any Directed Fund upon the instructions of the Investment Manager as provided in Article V; (d) pay monies to or on the order of the Company in accordance with the provisions of each Participating Trust including, when the Company shall so order, payments directly to or for the benefit of the members and their benefici- aries, or to an insurance company to provide, by the purchase of an annuity contract, or otherwise, for the payment of benefits; (e) transfer any portion of the Fund on the order of the Company to any insurance company, bank, or other financial institution or other trustee to provide an alternative or additional funding medium or investment vehicle for the management and/or control of plan assets; and 7 3.2 Any orders pursuant to subparagraphs (d) and (e) of Article 3.1 may, but need not specify the application to be made of monies so ordered, and the Trustee may charge such distribution against any portion of the Fund, as the Company may direct. The Trustee may assume that any such orders are not contrary to any applicable law. The Trustee shall not be responsible in any way respecting the determination, computation, payment or application of any benefit, for the form, terms or issuer of any contract issued by an insurance company, bank or other financial institution which it is directed to purchase with assets of the Fund (whether or not such contract is purchased to provide primarily for the payment of benefits under any Plan or primarily as an investment vehicle or funding medium), for performing any functions under any insurance or other contract which it may be directed to purchase and hold as contract holder thereunder (other than the execution of any documents incidental thereto on the instructions of the Company) or for the terms of any trust agreement under which any trustee to which it shall deliver any assets of the Fund on the order of the Company is acting, or for any other matter affecting the admin- istration of a Plan by the Company or any other person or persons to whom responsibility for Plan administration is allocated or delegated pursuant to the terms of the Plan. ARTICLE IV ---------- 4.1 The Trustee shall invest and reinvest the Discre- tionary Fund in accordance with the terms of the Trust Agreement as a single fund without distinction between principal and income in 8 investments authorized in such Parts as may be established hereunder pursuant to the terms of the Trust Agreement (and as may from time to time constitute part of the Discretionary Fund pursuant to the terms of the Plan) in such shares and proportions in accordance with the terms of the Plan (as certified to the Trustee by the Company); except that, to the extent permitted in the Trust Agreement, the Trustee is authorized to hold in the Discretionary Fund uninvested cash awaiting investment and such additional cash balances as it shall deem reasonable or necessary to meet anticipated distributions from or administrative costs of any Plan or the Fund, without incurring any liability for the payment of interest on such cash. The Trustee shall discharge the foregoing powers and discretions in accordance with the funding policy and, to the extent the Plans provide, guidelines established by the Company from time to time and communicated in writing to the Trustee. The Trustee shall have no responsibility with respect to the formulation of any funding, investment or diversification policy embodied in any such direction. In addition, if the Company has exercised its discretion to vest responsibility for the management and control of any portion of the Fund in one or more Investment Managers or, if the Commingled Trust is not the only funding medium under a Plan, then the Company shall be responsible under such Plan and this Agreement for determining the diver- sification policy with respect to the investment of such Plan assets (including the Fund) for monitoring adherence to such policy and for advising the Trustee with respect to its compliance with any investment limitations on Employer or 9 other securities or property contained in such Plan or imposed on such Plan by applicable statute. 4.2 The Trustee may in its discretion transfer from time to time cash balances accumulated pursuant to this Agreement to the trustee of the General Employee Benefit Trust (hereinafter referred to as the "General Trust") created by Bankers Trust Company under Declaration of Trust dated May 28, 1956, as the same may have heretofore been or may hereafter be amended, to be held subject to all of the provisions thereof and to be commingled with the assets of other trusts participating therein; provided, however, that any assets of the Fund allocated to a Directed Fund shall be transferred to the General Trust only upon the direction of the Investment Manager and with the approval of the Trustee of the General Trust, and provided, further, that any assets transferred to the General Trust shall be invested only in one or more special purpose investment funds established from time to time for the purpose of providing a vehicle for short term investment of participating trusts. Upon the direction of the Investment Manager, the Trustee shall cause the withdrawal of all or part of the equitable share of the Commingled Trust in the General Trust, subject to the provisions thereof to the extent that such equitable share is attributable to assets of a Directed Fund. To the extent of the equitable share of the Commingled Trust in the General Trust, the General Trust shall be part of each Plan pursuant to which the Commingled Trust has been adopted. In the event of conflict between the provisions of this Agreement and the General Trust, the provisions of the General Trust, shall control. 10 ARTICLE V --------- 5.1 The investment and reinvestment of any Directed Fund established under this Agreement shall be under the exclusive management and control of the Investment Manager appointed by the Company. The Trustee shall not be a party to any agreement with the Investment Manager, and the terms and conditions of appointment, authority and retention of the Investment Manager shall be the sole responsibility of the Company. The Company shall certify in writing to the Trustee: (a) that it has appointed an Investment Manager in accordance with procedures provided in each Plan; (b) that the Investment Manager is an "Investment Manager" as such term is defined in Article 2.3 of this Agreement; and (c) the assets of the Fund to be allocated to the Directed Fund over which such Investment Manager shall have responsibility. The Investment Manager shall furnish the Trustee from time to time with the names and signatures of those persons authorized to direct the Trustee on its behalf hereunder. The Trustee shall have the right to request that all directions by an Investment Manager pursuant to this Agreement be in writing and shall assume no liability hereunder for failure to act pursuant to such directions unless and until it shall receive directions in form satisfactory to it. 5.2 All transactions in or from a Directed Fund related to the acquisition or disposal of assets, as well as all purchases and sales of assets, shall be made upon such terms and conditions and from or through such principals and agents, 11 as the Investment Manager shall direct. No directed transactions shall be executed through the facilities of the Trustee except in those instances where the Trustee shall make available its facilities solely for the purposes of temporary investment of cash reserves of a Directed Fund. (However, nothing herein shall confer any authority or obligation upon the Trustee to invest or reinvest the cash balances of any Directed Fund unless and until it receives directions from the Investment Manager.) 5.3 Supervision of the Investment Manager shall be the exclusive responsibility of the Company. Therefore, the Trustee shall be under no duty or obligation to review or to question any direction of the Investment Manager, or to review the securities or other property held in any Directed Fund with respect to prudence, proper diversification of Fund or Plan assets or compliance with any limitation on the Investment Manager's authority under the terms of the Plan, any agreement entered into between the Company and the Investment Manager or imposed by applicable law, or to make any suggestions to the Company or the Investment Manager with respect to the investment and reinvestment of any Directed Fund. The Trustee shall be fully protected in acting or omitting to act in accordance with or in the absence of the written directions of the Investment Manager and shall be under no liability for any loss of any kind which may result by reason of any action taken or omitted by it in good faith in accordance with any direction of the Investment Manager or by reason of inaction in the absence of written directions from the Investment Manager. 12 5.4 The Trustee shall not be deemed to have any responsibility to manage and control any asset held in a Directed Fund upon the resignation or removal of an Investment Manager unless and until it has been notified in writing by the Company that the Investment Manager's authority has terminated and that such Directed Fund assets are to be integrated with the Discretionary Fund. Such notice shall not be deemed effective until two business days after it has been received by the Trustee. In the event that the assets of a Directed Fund shall become integrated at any time with the Discretionary Fund, the Trustee shall not be liable for any losses to the Fund resulting from the disposition of any investment made by an Investment Manager or for the holding of any illiquid or unmarketable securities or the holding of any other asset acquired by the Investment Manager if the Trustee is unable to dispose of such investment because of any Securities Laws restrictions or if an orderly liquidation of such investment is impractical under prevailing conditions, or for failure to comply with any investment or diversification limitations imposed by the Company pursuant to the power reserved to it under Article 4.1 or for any other violation of the terms of the Agreement, the Plans or applicable law or laws as a result of the addition of Directed Fund assets to the Discretionary Fund. 5.5 The Trustee shall not be liable for the acts or omissions of any Investment Manager unless the Trustee knowingly participates in, or knowingly undertakes to conceal, an act or 1 3 omission of such Investment Manager knowing such act or omission constitutes a breach of fiduciary responsibility by the Investment Manager. If the Trustee has knowledge of a breach committed by the Investment Manager, it shall notify the Company in writing thereof, and the Company shall thereafter assume full responsi- bility to all persons interested in the Plans to remedy such breach. 5.6 It is understood by the parties hereto that while the Trustee will perform certain ministerial duties (such as custodial, reporting, recording, and bookkeeping functions) with respect to Directed Funds, such duties do not involve the exer- cise of any discretionary authority or other authority to manage and control assets of the Directed Funds and will be performed in the normal course by officers and other employees of the Trustee who are unfamiliar with investment management. It is agreed between the parties to this Agreement that the Trustee is not undertaking any duty or obligation expressed or implied to review and will not be deemed to have any knowledge of or responsibility with respect to or to have participated in any transaction involving the investment of the Directed Funds as a result of the performance of or information received in the course of performing such ministerial duties. Therefore, in the event that "knowledge" of the Trustee shall be a prerequisite to im- posing a duty upon or determining liability of the Trustee under any Plan or this Agreement or any statute regulating the conduct of such Trustee with respect to such Directed Funds as a result 14 of any act or omission of the Investment Manager, or as a result of any transaction engaged in by the Investment Manager, then the receipt and processing of investment orders or other documents relating to plan assets by an officer or other employee of the Trustee engaged in the performance of purely ministerial functions referred to in this Article 5.6 shall not constitute "knowledge" of the Trustee. ARTICLE VI ---------- 6.1 Without in any way limiting the powers and discretions conferred upon the Investment Manager by the other provisions of this Agreement or by law, any Investment Manager appointed hereunder shall have the following powers and discretions with respect to the Directed Fund subject to its management and control, and, upon the directions of such Investment Manager, the Trustee shall make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out such powers and discretions: (a) to sell, exchange, convey, transfer or otherwise dispose of any property constituting the Directed Fund by private contract or at public auction, and no person dealing with the Investment Manager or the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expediency or propriety of any such sale or other disposition; (b) to enter into contracts or to make commitments either alone or in company with others to sell at any future date 1 5 any property acquired for the Directed Fund or to purchase at a future date any property which it may be authorized to acquire under this Agreement; and (c) to vote upon any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options and to make any payments incidental thereto; to consent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held in the Directed Fund. Notwithstanding the powers hereinabove conferred on the Trustee, the Trustee shall purchase and retain Company Stock as provided in the Trust Agreement regardless of market fluctuations and, in the normal course, the Trustee shall sell stock only as permitted in the Trust Agreement. ARTICLE VII ----------- 7.1 The Trustee, with respect to the Discretionary Fund, shall be vested with all of the powers and discretions vested in the Investment Manager by Article 6.1. 7.2 In addition, the Trustee is hereby authorized in its discretion: 16 (a) to register any securities held in the Fund in its own name or in the name of a nominee and to hold any investment in bearer form, and to combine certificates representing such investments with certificates of the same issue held by the Trustee in other fiduciary capacities or to deposit or to arrange for the deposit of such securities in any qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instru- mentality thereof, with a federal reserve bank, but the books and records of the Trustee shall at all times show that all such investments are part of the Fund; (b) to employ suitable agents, depositories and coun- sel, domestic or foreign, and to charge their reasonable expenses and compensation against the Fund; (c) to borrow money, with the consent of the Company, from any source as may be necessary or advisable to effectuate the purposes of the Trust on such terms and conditions as the Trustee, in its absolute discretion, may deem advisable; (d) to deposit any funds of the Commingled Trust in interest bearing account deposits maintained by or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee; 17 (e) to organize corporations under the laws of any state for the purpose of acquiring or holding title to any property for the Fund or to request the Company to appoint another trustee for such purpose; and (f) to make any distribution or transfer of the Discretionary Fund assets in cash or in kind as the Trustee in its absolute discretion shall determine and, in furtherance thereof, to value such assets, which valuation shall be conclusive and binding on all persons; ARTICLE VIII ------------ 8.1 The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions hereunder for the Fund (including any Directed Fund) and all accounts, books and records relating thereto shall be open to inspection and audit at all reasonable times by any persons designated by the Company. In addition, within ninety (90) days following the close of each fiscal year, and within ninety (90) days after the removal or resignation of the Trustee, the Trustee shall file with the Company a written account setting forth all receipts and disbursements of the Fund and all investments and other transactions effected by it upon its own authority or pursuant to the directions of any Investment Manager, or the Company or any Committee as herein provided during the period accounted for. Within sixty 18 (60) days from the date of filing such annual or other account, the Trustee, if requested by the Company, will also serve copies of such account upon any persons designated by the Company as having administrative responsibility with respect to any Plan. Upon the expiration of ninety (90) days from the date of filing such account, the Trustee shall be forever released and discharged from all liability and accountability to the Company or any person upon whom the Trustee has served a copy of the account with respect to the accuracy of such accounting and the propriety of all acts and failures to act of the Trustee reflected in such account for which it shall be responsible hereunder, except with respect to any such acts or transactions as to which the Company or any person upon whom the account has been served shall within such 90 day period file with the Trustee specific written objections. To the extent, if any, that the Trustee shall be required to value the assets of any Directed Fund for any purpose, including any accounting as hereinabove provided, the Trustee may rely for all purposes of this Agreement on any certified appraisal or other form of valuation submitted to it by the Investment Manager or responsible for the management and control of such Directed Fund. 8.2 Except to the extent that Sections 502 and 504 of the Employee Retirement Income Security Act of 1974 ("ERISA"), as the same may be amended from time to time, may provide otherwise, in order to protect the Trust from the expenses which might 19 otherwise be incurred, no one other than the Company may require the Trustee to account or may institute an action or proceeding against the Trustee or the Fund. However, nothing herein shall in any way limit the Trustee's right to bring any action or proceeding to settle its account or for such other relief as it may deem appropriate. 8.3 The Trustee may from time to time consult with counsel, who may be counsel to the Company, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder and the Trustee shall be fully protected, to the extent permitted by law, in acting in good faith upon the advice of counsel. ARTICLE IX ---------- 9.1 All taxes (excluding transfer taxes on shares of Company stock distributed to participants or their beneficiaries that may be levied or assessed under existing or future laws upon the Fund or the income thereof shall be paid from the Fund. All other expenses incurred by the Trustee in connection with its administration of the Commingled Trust, including fees for legal services rendered to the Trustee (whether or not rendered in connection with a judicial or administrative proceeding and whether or not incurred while it is acting as Trustee), such compensation to the Trustee as may be agreed upon from time to time between the Trustee and an officer of the Company, and all other proper 20 charges and disbursements of the Trustee, shall be paid in accordance with the provisions of the Plans but until paid shall constitute a charge upon the Fund. Any amount paid from the Fund which is specifically allocable to a particular Participating Trust or Plan shall be charged against the equitable share of such Participating Trust or Plan; any amount paid from the Fund which is allocable to all of the Participating Trusts shall be charged against the Fund as a whole. ARTICLE X --------- 10.1 Whenever the provisions of this Agreement require or permit any action to be taken by the Company or any subsidiary or affiliate, such action may be taken by the Board of Directors of the corporation taking the same or by any person authorized to act on behalf of such corporation by such Board of Directors. Any re- solution adopted by the Board of Directors of any participating corporation shall be certified to the Trustee by the Secretary or an Assistant Secretary of such corporation under its corporate seal, and the Trustee may rely upon any resolution so certified until revoked or modified by a further resolution similarly certified to the Trustee. 10.2 The Company shall furnish the Trustee from time to time with a certificate of its Secretary or an Assistant Secretary as to the names and signatures of all persons designated as members of any committee, and any other person or persons, authorized to issue orders, requests, instructions and objections to the 21 Trustee pursuant to the provisions of this Agreement including but not limited to the persons designated pursuant to the Plans to direct the Trustee under Article 3.1 (d). 10.3 All orders, requests, instructions and objections of any of the persons or committees authorized to act in accord- ance with the provisions of this Agreement shall be in writing, and the Trustee shall be fully protected in acting in accordance therewith. 10.4 The Trustee shall have the right to assume in the absence of written notice to the contrary, that no event consti- tuting a change in membership or authority of any committee or terminating any Investment Manager's authority has occurred. ARTICLE XI ---------- 11.1 If Bankers Trust Company is at any time acting as a successor Trustee or succeeds to responsibilities hereunder for management of plan assets with respect to the Fund (or any portion thereof), the Company hereby agrees to hold Bankers Trust Company harmless from and against all taxes, expenses (including counsel fees), liabilities, claims, damages, actions, suits or other charges incurred by or assessed against it as successor Trustee, as a direct or indirect result of any act or omission of a pre- decessor trustee or any other person charged under any agreement affecting Fund assets for investment responsibility with respect to such assets. 22 ARTICLE XII ----------- 12.1 Upon receipt of notice from the Company of the termination, the disqualification under Section 401(a), or the withdrawal from the Commingled Trust, of any Participating Trust or Plan or any part thereof, the Trustee shall withdraw and segregate the share of the assets of the Fund allocable to such Participating Trust or Plan or part thereof and shall either dispose of such segregated share in accordance with the directions of the Company or continue to hold such segregated share, IN TRUST, as a separate trust governed by the same provisions as this Agreement, except that if such segregated share is equal to an entire Participating Trust or Plan in the Fund, the company or successor thereto which had established such Participating Trust or Plan shall thereafter be deemed to be "the Company" for all purposes of the Agreement. If such segregated share is less than the entire equitable share of a Participating Trust or Plan in the Fund, the Company shall certify to the Trustee, that portion of the equitable share of such Participating Trust or Plan attributable to the participants and their beneficiaries on whose account such assets are to be segregated. The Trustee's valuation of the assets to be withdrawn for such purpose shall be conclusive and binding on all persons, corporations or others interested in the Commingled Trust. 12.2 Subject only to Article 2.6, the Company reserves the right at any time and from time to time to terminate or to amend, in whole or in part, any or all of the provisions of this Agreement by notice thereof in writing delivered to the Trustee; 23 provided that, no such amendment which affects the rights, duties or responsibilities of the Trustee may be made without its consent, and provided further that, except as may be otherwise provided under Section 403 (c) of ERISA, no instrument of termination or amendment shall authorize or permit, at any time prior to the sat- isfaction of all liabilities with respect to the members and their beneficiaries under the Plans, any part of the corpus or income of the Fund to be used for or diverted to purposes other than for the exclusive benefit of such members and their beneficiaries. 12.3 In the event of the termination of the Commingled Trust as above provided (or of all the Participating Trusts or Plans under which it was established), the Trustee shall continue to administer the Fund as hereinabove provided until all of the purposes for which it has been established have been accomplished or dispose of the Fund after the payment or other provision of all expenses incurred in the administration and termination of the Commingled Trust (including any compensation to which the Trustee may be entitled), all in accordance with the written order of the Company or the Committee or any successor thereto. Until the final distribution of such Fund, the Trustee shall continue to have and may exercise all of the powers and discretions conferred upon it by this Agreement. 12.4 The Trustee may be removed by the Company at any time upon sixty (60) days' notice in writing to the Trustee and the Committee. The Trustee may resign at any time upon sixty (60) days' notice in writing to the Company and the Committee. Upon 24 such removal or resignation of the Trustee, the Company shall either appoint a successor trustee who shall have the same powers and duties as those conferred upon the Trustee hereunder and, upon acceptance of such appointment by the successor trustee, the Trustee shall assign, transfer and pay over to such successor trustee the funds and properties then constituting the Fund, or the Company shall establish an alternative funding medium and the Trustee shall assign, transfer and pay over the Fund, as then constituted, upon the directions of the Company. The Trustee is authorized, however, to reserve such amount as to it may seem advisable for payments of its fees and expenses in connection with the settlement of its account or otherwise, and any balance of such reserve remaining after the payment of such fees and expenses shall be paid over to the successor trustee or alterna- tive funding medium, as the case may be. Notwithstanding any provision of the Plans or this Agreement to the contrary, the Trustee is hereby authorized to invest and reinvest such reserves in any investment or investment vehicle (including the General Trust) appropriate for the temporary investment of cash reserves of trusts. If for any reason the Company cannot or does not act in the event of the resignation or removal of the Trustee, as herein- above provided, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor Trustee. Any ex- penses incurred by the Trustee in connection therewith shall be paid from the Fund as an expense of administration. 25 12.5 Anything hereinabove to the contrary notwith- standing, the Trustee may condition its delivery, transfer or distribution of any asset under this Article upon the Trustee's receiving assurances satisfactory to it that the approval of ap- propriate governmental or other authorities has been secured and that all notice and other procedures required by applicable law have been complied with. ARTICLE XIII ------------ 13.1 To the extent that State Law shall not have been preempted by the provisions of the ERISA of 1974 or any other laws of the United States heretofore or hereafter enacted, as the same may be amended from time to time, this Agreement shall be administered, construed and enforced according to the laws of the State of New York. ARTICLE XIV ----------- 14.1 The Company shall provide the Trustee with copies of all documents constituting the Plans at the time the Agreement is executed by the Company or adopted under any other plan, as provided in Article II, and all other documents amending or supplementing the Plans promptly upon their adoption. The Trustee shall be entitled to rely upon the Company's attention to this obligation and shall be under no duty to inquire of the Company as to the existence of any documents not provided by the Company hereunder. 26 ARTICLE XV ---------- 15.1 The Company recognizes that a burden of litigation may be imposed upon the Trustee, as a result of some act or trans- action for which it has no responsbility or over which it has no control under this Agreement. Therefore, pursuant to a resolution of its Board of Directors and in consideration of the Trustee's agreeing to enter into this Agreement, the Company hereby agrees to hold harmless Bankers Trust Company, individually and as Trustee under said Agreement, and Bankers Trust Company's directors, officers, and employees from and against all amounts, including without limita- tion taxes, expenses (including reasonable counsel fees), liabili- ties, claims, damages, actions, suits or other charges, incurred by or assessed against Bankers Trust Company, individually or as Trustee, or its directors, officers or employees, (i) as a direct or indirect result of anything done in good faith, or alleged to have been done, by or on behalf of Bankers Trust Company in reliance upon the directions of any Investment Manager appointed by the Company, or any person or committee authorized to act on behalf of the Company or to appoint such Investment Manager under such Plans, or anything omitted to be done in good faith, or alleged to have been omitted, in the absence of such directions, or (ii) as a direct or indirect result of the failure of the Company or such person or committee, as a co-fiduciary under said Plans, directly or through its agents, to adequately, carefully and diligently discharge its responsibilities with respect to the selection, supervision and/or retention of any Investment Manager. 27 Anything hereinabove to the contrary notwithstanding, the Company shall have no responsibility to Bankers Trust Company under the foregoing investment manager undertaking if Bankers Trust Company knowingly participated in or knowingly concealed any act or omission of any Investment Manager knowing that such act or omission constituted a breach of such Investment Manager's responsibilities under said Plan, or if Bankers Trust Company fails to perform any of the duties specifically undertaken by it under the provisions of said Agreement, or if Bankers Trust Com- pany fails to act in conformity with the directions of an authorized representative of the Investment Manager. PROVIDED, HOWEVER, Bankers Trust Company shall not be deemed to have "parti- cipated" in a breach by an Investment Manager for the purposes of this undertaking as a result of the performance by Bankers Trust Company or its officers, employees or agents of any custodial, reporting, recording, and bookkeeping functions with respect to any assets of any Plan managed by an Investment Manager or as a result of settling purchase and sale transactions entered into by the Investment Manager, or to have "knowledge" of any such breach as a result of the information received by Bankers Trust Company or its officers, employees or agents in the normal course in per- forming such functions or settling such transactions. The Company further agrees that the undertakings made in this Article of this Agreement shall be binding on its suc- cessors or assigned and shall survive termination, amendment or 28 restatement of this Agreement, or the resignation or removal of the Trustee, and that this Article shall be construed as a con- tract between the Company and the Trustee according to the laws of the State of New York in effect from time to time. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized and their corporate seals to be hereunto affixed and attested to as of the day and year first above written. (Corporate Seal) THE GOODYEAR TIRE & RUBBER COMPANY Attest: By /s/ James R. Glass /s/ John Davies ---------------------------------- Assistant Secretary Executive Vice President (Title) (Corporate Seal) BANKERS TRUST COMPANY Attest: By /s/ Robert E. Isaacson ---------------------------------- /s/ J. Torn Vice President Vice President 29 STATE OF OHIO ) : COUNTY OF SUMMIT ) On this 28TH day of December, in the year 1984, before me personally came James R. Glass to me known, who, being by me duly sworn, did depose and say that he resides at Akron, Ohio that he is Executive Vice President of The Goodyear Tire & Rubber Company the corporation described in and which executed the above 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. /s/ Linda A. Fleming ------------------------------------------- Notary Public LINDA A. FLEMING, Notary Public Residence-Summit County State Wide Jurisdiction, Ohio My Commission Expires May 14, 1986 STATE OF NEW YORK ) : COUNTY OF NEW YORK) On this 13th day of August , in the year 1984 before me personally came Robert E. Isaacson to me known, who, being by me duly sworn, did depose and say that he resides at Valley Stream, N.Y. that he is Vice President of BANKERS TRUST COMPANY, the corporation described in and which executed the above in- strument; 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. /s/ Laura Breen ------------------------------------------- Notary Public LAURA BREEN Notary Public, State of New York No. 41-4757699 Qualified in Queens County Commission Expires March 30, 1986 EX-5.1 9 l93258aex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR P.O. BOX 2508 CINCINNATI, OH 45201 Employer Identification Number: 34-0253240 Date: MAY 22, 1995 File Folder Number: 340001449 THE GOODYEAR TIRE & RUBBER COMPANY Person to Contact: C/O KENT L. MANN CATHERINE WAITE THOMPSON, HINE & FLORY Contact Telephone Number: 1100 NATIONAL CITY BANK BUILDING (513) 684-3079 CLEVELAND, OH 44114-3070 Plan Name: EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES Plan Number: 004 Dear Applicant: We have made a favorable determination on your plan, identified above, based on the information supplied. Please keep this letter in your permanent records. Continued qualification of the plan under its present form will depend on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.) We will review the status of the plan in operation periodically. The enclosed document explains the significance of this favorable determination letter, points out some features that may affect the qualified status of your employee retirement plan, and provides information on the reporting requirements for your plan. It also describes some events that automatically nullify it. It is very important that you read the publication. This letter relates only to the status of your plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes. This determination is subject to your adoption of the proposed amendments submitted in your letter dated April 26, 1995. The proposed amendments should be adopted on or before the date prescribed by the regulations under Code section 401(b). This determination letter is applicable for the amendment(s) adopted on December 20, 1994. This plan has been mandatorily disaggregated, permissively aggregated, or restructured to satisfy the nondiscrimination requirements. This plan satisfies the nondiscrimination in amount requirement of section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe harbor described in the regulations. This letter is issued under Rev. Proc. 93-39 and considers the amendments required by the Tax Reform Act of 1986 except as otherwise specified in this letter. This plan satisfies the nondiscriminatory current availability require- Letter 835 (DO/CG) -2- THE GOODYEAR TIRE & RUBBER COMPANY ments of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits, rights, and features that are currently available to all employees in the plan's coverage group. For this purpose, the plan's coverage group consists of those employees treated as currently benefiting for purposes of demonstrating that the plan satisfies the minimum coverage requirements of section 410(b) of the Code. This letter may not be relied upon with respect to whether the plan satisfies the qualification requirements as amended by the Uruguay Round Agreements Act, Pub. L. 103-465. We have sent a copy of this letter to your representative as indicated in the power of attorney. If you have questions concerning this matter, please contact the person whose name and telephone number are shown above. Sincerely yours, /s/ C. Ashley Bullard ---------------------------- C. Ashley Bullard District Director Enclosures: Publication 794 Reporting & Disclosure Guide for Employee Benefit Plans Letter 835 (DO/CG) INTERNAL REVENUE SERVICE Department of the Treasury District P.O. Box 2508, Cincinnati, OH 45201 Director FF-340001449 Goodyear Tire and Rubber Company Person to Contact: 1144 East Market Street Denise McMickens Akron, Ohio 44114 Telephone Number: 216-522-3295 Refer Reply to: EP/EO Date: MAY 21, 1986 Name of Trust: Commingled Trust Date Trust was Executed: July 1, 1984 Dear Sir or Madam: Based on the information supplied, we find that the master (group) trust is a pooled fund arrangement as described in Revenue Ruling 81-100, 81-13 I.R.B. 32. The trust is tax exempt under section 501(a) of the Internal Revenue Code with respect to the funds that equitably belong to its participating trusts that are qualified under section 401(a). The trust is also tax exempt under section 408(e) with respect to the funds that equitably belong to its participating individual retirement accounts that are qualified under section 408. Participation in the master trust is limited to pension, profit-sharing, and stock bonus plans that are qualified under Code section 401(a) and are tax exempt under section 501(a) and individual retirement accounts that are qualified under section 408 and are tax exempt under section 408(e). The trust is subject to the provisions of section 502 (relating to feeder organizations), section 503 (relating to prohibited transactions), and sections 511 to 515 (relating to tax on unrelated business income). The trustee of the master trust is governed by the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974 (ERISA) and, subject to the exceptions explained in this Act, has full responsibility for the investment of assets held by the trust. The information in this letter relates only to the status of the master trust under the Internal Revenue Code and not to the effect of any other Federal or local statutes. Please keep this determination letter in your permanent records. If you have any questions concerning this matter, please contact the person whose name and telephone number are shown above. Sincerely yours, /s/ James J. Ryan --------------------------- James J. Ryan District Director Letter 1520(P) EX-23.1 10 l93258aex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 4, 2002 relating to the financial statements and financial statement schedule of The Goodyear Tire & Rubber Company, which appears in The Goodyear Tire & Rubber Company's Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the incorporation by reference in this Registration Statement of our report dated June 25, 2001 relating to the financial statements of the Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees, which appears in the Annual Report of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees on Form 11-K for the year ended December 30, 2000. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Cleveland, Ohio March 15, 2002 EX-24.1 11 l93258aex24-1.txt EXHIBIT 24.1 EXHIBIT 24.1 ------------ THE GOODYEAR TIRE & RUBBER COMPANY POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that the undersigned, THE GOODYEAR TIRE & RUBBER COMPANY, a corporation organized and existing under the laws of the State of Ohio, and the undersigned directors and officers of THE GOODYEAR TIRE & RUBBER COMPANY, hereby constitute and appoint Robert W. Tieken, C. Thomas Harvie, Stephanie W. Bergeron and Richard J. Kramer, and any one or more of them, their true and lawful attorneys-in-fact and agents, to do any and all of the acts and things and to execute any and all instruments which said attorneys and agents or any one of them may deem necessary and advisable to enable the said THE GOODYEAR TIRE & RUBBER COMPANY to comply with the Securities Act of 1933, as amended (the "Act"), and any rules, regulations and requirements of the Securities and Exchange Commission (the "Commission") in respect thereof, in connection with the registration under the Act of (i) up to a maximum of 20,000,000 shares of its Common Stock in connection with the operation of The Goodyear Tire & Rubber Company Employee Savings Plan for Salaried Employees (the "Salaried Plan"), which registration shall also register any interests in the Salaried Plan required to be registered under the Act and the resale of such shares by certain participants in the Salaried Plan, (ii) up to a maximum of 15,000,000 shares of Common Stock in connection with the operation of The Goodyear Tire & Rubber Company Employee Savings Plan for Bargaining Unit Employees (the "B-U-E Plan"), which registration shall also register interests in the B-U-E Plan required to be registered under the Act, and (iii) up to a maximum of 2,000,000 shares of Common Stock in connection with the operation of The Goodyear Tire & Rubber Company Employee Savings Plan for Hourly Employees (the "Hourly Plan"), which registration shall also register any interests in the Hourly Plan required to be registered under the Act; including specifically the power and authority to sign the name THE GOODYEAR TIRE & RUBBER COMPANY and the names of the undersigned directors and officers in the capacities indicated below (i) to (a) a Registration Statement on Form S-8 in respect of the Salaried Plan, (b) a Registration Statement on Form S-8 in respect of the B-U-E Plan, and (c) a Registration Statement on Form S-8 in respect of the Hourly Plan, or to one or more Registration Statements on Form S-8 in respect of any combination of said Plans, (ii) to any and all amendments to or constituting a part of any one or more or all of such Registration Statements which may from time to time be filed with the Commission, and (iii) to any and all instruments or documents filed with the Commission as a part of or in connection with such Registration Statements or amendments thereto. Each of the undersigned hereby ratifies and confirms all that the said attorneys-in-fact and agents, or any of one or more them, shall do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have subscribed or caused to be subscribed these presents this 6th day of June, 2000. Attest: THE GOODYEAR TIRE & RUBBER COMPANY /s/James Boyazis By /s/ Samir G. Gibara - ------------------------------ ------------------------------------------- James Boyazis, Secretary Samir G. Gibara, Chairman of the Board, Chief Executive Officer and President Chairman of the Board, Chief Executive Officer and President, Director /s/ Samir G. Gibara (principal executive officer) ------------------------------------- Samir G. Gibara Executive Vice President (principal financial officer) /s/ Robert W. Tieken ------------------------------------- Robert W. Tieken Vice President - Corporate Finance /s/ Richard J. Kramer (principal accounting officer) ------------------------------------- Richard J. Kramer Director /s/ John G. Breen ------------------------------------- John G. Breen Director /s/ William E. Butler ------------------------------------- William E. Butler Director /s/ Thomas H. Cruikshank ------------------------------------- Thomas H. Cruikshank Director /s/ Katherine G. Farley ------------------------------------- Katherine G. Farley Director /s/ William J. Hudson, Jr. ------------------------------------- William J. Hudson, Jr. Director /s/ Steven A. Minter ------------------------------------- Steven A. Minter Director /s/ Agnar Pytte ------------------------------------- Agnar Pytte Director /s/ George H. Schofield ------------------------------------- George H. Schofield Director /s/ William C. Turner ------------------------------------- William C. Turner Director /s/ Martin D. Walker ------------------------------------- Martin D. Walker -----END PRIVACY-ENHANCED MESSAGE-----