<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 30, 1996
______________
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from_________________to__________________
Commission File Number 0-3400
TYSON FOODS, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0225165
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2210 West Oaklawn Drive, Springdale, Arkansas 72762-6999
(Address of principal executive offices and zip code)
(501) 290-4000
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
___ ___
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding March 30, 1996
____________________________________ __________________________
Class A Common Stock, $.10 Par Value 76,490,768 Shares
Class B Common Stock, $.10 Par Value 68,454,388 Shares
Page 1
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TYSON FOODS, INC.
INDEX
PAGE
____
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets
March 30, 1996 and September 30, 1995 3-4
Consolidated Condensed Statements of Income
for the Three Months and Six Months Ended
March 30, 1996 and April 1, 1995 5
Consolidated Condensed Statements of Cash Flows
for the Six Months Ended March 30, 1996 and
April 1, 1995 6
Notes to Consolidated Condensed Financial Statements 7-8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-12
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 13
Item 3. Defaults Upon Senior Securities 13
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14-15
SIGNATURES 16
2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
<TABLE>
<CAPTION>
TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions)
(Unaudited)
March 30, September 30,
ASSETS 1996 1995
_______________________________________ __________ ____________
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 33.2 $ 33.1
Accounts receivable 555.7 494.7
Inventories:
Finished and work-in-process 516.2 417.6
Live poultry and hogs 349.3 321.0
Seafood related products 79.1 75.1
Hatchery eggs and feed 67.0 58.6
Supplies 78.4 77.1
________ ________
Total inventories 1,090.0 949.4
Other current assets 36.2 42.6
________ ________
Total Current Assets 1,715.1 1,519.8
Net Property, Plant, and Equipment 2,011.0 2,013.5
Excess of Investments over Net Assets Acquired 796.7 808.1
Investments and Other Assets 101.1 102.9
________ ________
Total Assets $4,623.9 $4,444.3
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
<TABLE>
<CAPTION>
TYSON FOODS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions except per share data)
(Unaudited)
March 30, September 30,
LIABILITIES AND SHAREHOLDERS' EQUITY 1996 1995
_______________________________________ _________ ____________
<S> <C> <C>
Current Liabilities:
Notes payable $ 51.2 $ 95.2
Current portion of long-term debt 218.2 269.0
Trade accounts payable 276.2 274.7
Other accrued liabilities 224.7 226.9
________ ________
Total Current Liabilities 770.3 865.8
Long-Term Debt 1,853.4 1,620.5
Deferred Income Taxes 473.5 479.7
Other Liabilities 8.3 10.6
Shareholders' Equity:
Common stock ($.10 par value):
Class A-Authorized 900 shares;
issued 79.7 shares at
3-30-96 and 9-30-95 8.0 8.0
Class B-Authorized 900 shares;
issued 68.5 shares at
3-30-96 and 9-30-95 6.8 6.8
Capital in excess of par value 375.4 377.9
Retained earnings 1,211.6 1,162.3
Currency translation adjustment (5.1) (5.2)
________ ________
1,596.7 1,549.8
Less treasury stock, at cost-
3.2 shares at 3-30-96 and
3.4 shares at 9-30-95 75.6 79.2
Less unamortized deferred compensation 2.7 2.9
________ ________
Total Shareholders' Equity 1,518.4 1,467.7
________ ________
Total Liabilities and Shareholders' Equity $4,623.9 $4,444.3
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
<TABLE>
<CAPTION>
TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(In millions except per share data)
(Unaudited)
Three Months Ended Six Months Ended
__________________ ________________
March 30, April 1, March 30, April 1,
1996 1995 1996 1995
_________ _______ ________ _______
<S> <C> <C> <C> <C>
Sales $1,587.7 $1,343.1 $3,134.5 $2,669.4
Cost of Sales 1,358.4 1,073.0 2,638.1 2,130.5
_______ _______ _______ _______
Gross Profit 229.3 270.1 496.4 538.9
Expenses:
Selling 140.1 119.2 269.3 236.2
General and administrative 27.1 28.8 52.7 59.4
Amortization 6.9 6.4 13.8 12.9
_______ _______ _______ _______
Operating Income 55.2 115.7 160.6 230.4
Other Expense (Income):
Interest 33.1 28.1 68.1 53.5
Foreign currency exchange (1.7) 14.1 9.0 19.9
Other .3 1.2 (2.8) 1.8
_______ _______ _______ _______
Income Before Taxes on Income
and Minority Interest 23.5 72.3 86.3 155.2
Provision for Income Taxes 8.7 27.4 31.9 59.4
Minority Interest in Net Loss(Income)
of Consolidated Subsidiary (.4) 5.6 3.3 6.9
_______ _______ _______ _______
Net Income $ 14.4 $ 50.5 $ 57.7 $ 102.7
======= ======= ======= =======
Average Shares Outstanding 145.3 145.0 145.3 145.0
===== ===== ===== =====
Earnings Per Share $0.10 $0.35 $0.40 $0.71
===== ===== ===== =====
Cash Dividends Per Share:
Class A $0.0300 $0.0200 $0.0600 $0.0400
======= ======= ======= =======
Class B $0.0270 $0.0167 $0.0540 $0.0334
======= ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
<TABLE>
<CAPTION>
TYSON FOODS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
Six Months Ended
_________________
March 30, April 1,
1996 1995
_________ ________
<S> <C> <C>
Cash Flows from Operating Activities:
Net income $ 57.7 $ 102.7
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation 106.0 86.3
Amortization 13.8 12.9
Deferred income taxes (6.2) 3.7
Foreign currency exchange loss 9.0 19.9
Minority interest (3.3) (6.9)
Loss on dispositions of property and equipment 1.4 3.4
Decrease in accounts receivable (62.6) 1.9
Increase in inventories (142.4) (74.0)
Decrease in trade accounts payable (1.8) (29.2)
Net change in other current assets and
liabilities 6.2 1.3
______ ______
Cash Provided by Operating Activities (22.2) 122.0
Cash Flows from Investing Activities:
Additions to property, plant and equipment (119.1) (181.5)
Proceeds from sale of property, plant and
equipment 5.5 6.2
Net change in other assets and liabilities 3.5 (15.6)
______ ______
Cash Used for Investing Activities (110.1) (190.9)
Cash Flows from Financing Activities:
Net change in notes payable (44.0) 19.4
Proceeds from long-term debt 489.3 122.3
Repayments of long-term debt (305.7) (25.7)
Purchase of treasury shares (1.3) (26.9)
Other (6.4) (2.5)
______ ______
Cash Provided by (Used for) Financing Activities 131.9 86.6
Effect of Exchange Rate Change on Cash .5 (5.0)
______ ______
Increase (Decrease) in Cash and Cash Equivalents .1 12.7
Cash and Cash Equivalents at Beginning of Period 33.1 27.0
______ ______
Cash and Cash Equivalents at End of Period $33.2 $39.7
===== =====
Supplemental Cash Flow Information
Cash paid during the period for:
Interest $64.2 $51.9
Income taxes $39.4 $54.6
</TABLE>
The accompanying notes are an integral part of these financial statements.
6
<PAGE>
TYSON FOODS, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. Accounting Policies
The consolidated condensed financial statements have been prepared by Tyson
Foods, Inc. (the "Company"), without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information
and accounting policies and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules
and regulations. Although the management of the Company believes that the
disclosures are adequate to make the information presented not misleading,
these consolidated condensed financial statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's latest annual report for the fiscal year ended
September 30, 1995. The preparation of consolidated condensed financial
statements requires management to make estimates and assumptions.
These estimates and assumptions affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of the consolidated financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates. In the opinion of the management of the
Company, the accompanying consolidated condensed financial statements
contain all adjustments, consisting of normal recurring accruals necessary
to present fairly the financial position as of March 30, 1996 and September
30, 1995, the results of operations for the three months and six months
ended March 30, 1996 and April 1, 1995 and cash flows for the six months
ended March 30, 1996 and April 1, 1995. The results of operations for the
three months and six months ended March 30, 1996 and April 1, 1995, and
cash flows for the six months ended March 30, 1996 and April 1, 1995, are
not necessarily indicative of the results to be expected for the full year.
Certain amounts in the April 1, 1995 consolidated condensed financial
statements have been reclassified to conform with the March 30, 1996
presentation.
The Notes to Consolidated Financial Statements for the year ended September
30, 1995, reflect the significant accounting policies, debt provisions,
borrowing arrangements, dividend restrictions, contingencies and
commitments of the Company. There were no material changes in such items
during the six months ended March 30, 1996, except as disclosed below.
2. Change in Accounting Principle
Effective October 1, 1995, the Company adopted Statement of Financial
Accounting Standards No. 121 (SFAS No. 121), "Accounting for the Impairment
of Long-Lived Assets and for Long-Lived Assets to be Disposed Of." Under
SFAS No. 121, impairment losses are recognized when information indicates
the carrying amount of long-lived assets, identifiable intangibles and
goodwill related to those assets will not be recovered through future
operations or sale. Impairment losses for assets to be held or used in
operations will be based on the excess of the carrying amount of the asset
over the asset's fair value. Assets held for disposal, except for
discontinued operations, will be carried at the lower of carrying amount or
fair value less cost to sell. The effect of adopting SFAS No. 121 was not
material.
7
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TYSON FOODS, INC.
3. Stock-Based Compensation
The Company currently accounts for its stock-based compensation plans using
the provisions of Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees"(APB 25).
In October 1995, the FASB issued Statement of Financial Accounting
Standards No. 123, "Accounting for Stock-Based Compensation"(SFAS 123).
Under the provisions of SFAS 123, companies can elect to account for stock-
based compensation plans using a fair-value-based method or continue
measuring compensation expense for those plans using the intrinsic value
method prescribed in APB 25. SFAS 123 requires that companies electing to
continue using the intrinsic value method must make pro forma disclosures
of net income and earnings per share in its annual report as if the fair-
value-based method of accounting had been applied. SFAS 123 will be
effective for the Company's fiscal year ending September 1997. The Company
intends to continue to account for stock-based compensation using the
intrinsic value method, and accordingly, this pronouncement will not have
an effect on the Company's financial position or results of operations.
8
<PAGE>
TYSON FOODS, INC.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
FINANCIAL CONDITION
For the six months ended March 30, 1996, net cash totaling $22.2 million
was used for all operating activities. Operations provided $178.5 million
in cash offset by $200.7 million used for net changes in receivables,
inventories, payables and other items. Accounts receivable have increased
from 1995 fiscal year-end due to increased export sales and an increase in
total sales. Finished inventories have increased from 1995 fiscal year-end
due to increased grain costs, more volume from expansion and other general
inventory increases.
Financing activities provided net cash of $131.9 million, mainly due to
additional debt borrowings during the first six months of fiscal 1996. The
Company primarily used funds generated from financing activities to fund
$119.1 million of property, plant and equipment additions. The expenditures
for property, plant and equipment were related to acquiring new equipment
and upgrading facilities in order to maintain competitive standing and
position the Company for future opportunities. Additionally, the Company
makes a continuing effort to increase efficiencies, reduce overall cost and
meet or exceed environmental standards.
At March 30, 1996, working capital was $944.8 million compared to $654
million at 1995 fiscal year-end, an increase of $290.8 million. The current
ratio at March 30, 1996 was 2.2 to 1 compared to 1.8 to 1 at September 30,
1995. Working capital and the current ratio have increased since year-end
primarily due to increases in accounts receivable and inventories and a
decrease in notes payable and current portion of long-term debt. The
Company's foreseeable cash needs for operations and capital expenditures
will continue to be met through cash flows from operations and borrowings
supported by existing credit facilities as well as additional credit
facilities which the Company believes are available. Long-term debt has
increased $232.9 million since September 30, 1995. At March 30, 1996, long-
term debt was 55% of total capitalization compared to 52.5% at September
30, 1995.
The Company has unsecured revolving credit facilities totaling $1.5 billion
which supports the Company's commercial paper program. The $1 billion
facility expires in May 2000. At March 30, 1996, $1 billion was outstanding
under this facility consisting of $780 million in commercial paper and $220
million drawn under the revolver. The $500 million facility expires in May
1996. At March 30, 1996, the Company had $363.1 million available under
this revolving credit facility. Additional outstanding long-term debt at
March 30, 1996, consisted of $348.2 million of public debt, $297.7 million
of institutional notes, $35 million of bank notes and $172.5 million of
other indebtedness.
9
<PAGE>
TYSON FOODS, INC.
RESULTS OF OPERATIONS
Record high grain prices had a significant impact on our second quarter
earnings. Additionally, earnings were impacted by the oversupply of all
meats on the market and the recent uncertainty about sales of chicken to
Russia.
Sales for the second quarter of fiscal 1996 increased 18.2% over the same
quarter of fiscal 1995. This increase was largely due to an increase in
consumer poultry sales which increased fiscal 1996 second quarter total
sales by 17.6%. The tonnage volume of consumer poultry sales increased
28.3% offset slightly by a decrease in average sales prices of 3.5%. The
decrease in average sales prices for consumer poultry is mainly due to the
acquisition in September 1995 of two poultry operations which changed the
overall product mix toward more lower priced products.
Beef and pork sales decreased fiscal 1996 second quarter total sales by
3.9% compared to the same quarter of fiscal 1995. The decrease in beef and
pork sales was due to a 55.7% decrease in tonnage partially offset by a
31.6% increase in average sales prices. The decrease in tonnage is mainly
due to the sale in the fourth quarter of fiscal 1995 of the Company's swine
slaughter facility. In addition, the sale of this swine slaughter facility
eliminated lower priced fresh pork from the product mix which accounts for
the significant increase in average sales prices. On April 24, 1996, the
Company announced its intention to sell its beef further-processing
operations with plants in Texas and Iowa, as well as its pork further-
processing facility in Holland, Michigan. (See Part II. Item 5. Other
Information.)
Sales of Mexican food-based products and prepared foods as a group
decreased fiscal 1996 second quarter total sales by 0.1%. This decrease was
primarily due to a 4.3% decrease in average sales prices as well as a
change in product mix, partially offset by a 2.4% increase in tonnage.
Seafood sales increased fiscal 1996 second quarter total sales 0.7% due to
a 20.3% increase in tonnage offset by a 5.7% decrease in average sales
prices. The increase in seafood tonnage is mainly due to acquisitions at
the end of the third quarter of fiscal 1995. The seafood operations
continue to be affected by reduced quotas and other regulations which limit
its source of supply. Second quarter sales of live swine, animal foods, by-
products, and other as a group increased fiscal 1996 second quarter total
sales by 3.9% compared to the same quarter of last fiscal year.
Sales for the first six months of fiscal 1996 increased 17.4% over the same
period of fiscal 1995. This increase was largely due to an increase in
consumer poultry sales which increased fiscal 1996 first six months total
sales by 17.0%. The tonnage volume of consumer poultry sales increased
29.4% offset somewhat by a decrease in average sales prices of 5.2%. The
decrease in average sales prices for consumer poultry is mainly due to the
acquisitions in September 1995 of two poultry operations which changed the
overall product mix toward more lower priced products. Another contributing
factor to the decrease in average sales prices for consumer poultry was the
devaluation of the Mexican peso, which substantially lowered average sales
prices of the Company's Mexican poultry subsidiary, Trasgo S.A. de C.V.
("Trasgo").
10
<PAGE>
TYSON FOODS, INC.
Beef and pork sales decreased fiscal 1996 first six months total sales by
3.9% compared to the same period of fiscal 1995. The decrease in beef and
pork sales was due to a 54.6% decrease in tonnage partially offset by a
35.1% increase in average sales prices. The decrease in tonnage is mainly
due to the sale in the fourth quarter of fiscal 1995 of the Company's swine
slaughter facility. In addition, the sale of this swine slaughter facility
eliminated lower priced fresh pork from the product mix which accounts for
the significant increase in average sales prices.
Sales of Mexican food-based products and prepared foods as a group
decreased fiscal 1996 first six months total sales by 0.1%. This decrease
was primarily due to a 3.5% decrease in average sales prices as well as a
change in product mix, partially offset by a 2.0% increase in tonnage.
Seafood sales increased fiscal 1996 first six months total sales 0.6% due
to a 15.8% increase in tonnage partially offset by a 1.8% decrease in
average sales prices. The increase in seafood tonnage is mainly due to
acquisitions at the end of the third quarter of fiscal 1995. Sales of live
swine, animal foods, by-products, and other as a group increased fiscal
1996 first six months total sales by 3.8% compared to the same period of
last year.
The increase in cost of goods sold of 26.6% for the second quarter of
fiscal 1996 compared to the same quarter of fiscal 1995 was mainly the
result of a significant increase in the cost of grain used in the Company's
operations. Increases in the cost of ingredients used in feed for poultry
and swine and the ingredients used in Mexican food-based operations are
estimated to have increased cost of sales by $98 million during the second
quarter of fiscal 1996. Higher ingredient costs are anticipated to continue
for a period of time and the effect on the Company's cost of sales will
continue to be significant as these costs pass through inventories. The
impact of high ingredient costs on the Company's operations is difficult to
predict and is dependent upon various factors in the commodity grain market
as well as the market for finished products. The Company's emphasis on
adding value to its products through further-processing helps to offset a
portion of the impact of increased ingredient costs. Further, the Company
is making an effort to recover a portion of increased grain costs through
increased sales prices. However, because of the current excess supply of
poultry and alternative red meats in the market place there can be no
assurance that such costs can be passed on to the consumer in the future
through higher sales prices. As a percent of sales, cost of sales was 85.6%
for the second quarter of fiscal 1996 compared to 79.9% in the second
quarter of fiscal 1995.
The increase in cost of goods sold of 23.8% for the first six months of
fiscal 1996 compared to the same period of fiscal 1995 was mainly the
result of the increase in sales and a significant increase in the cost of
grain used in the Company's operations. As a percent of sales, cost of
sales was 84.2% for the first six months of fiscal 1996 compared to 79.8%
in the same period of fiscal 1995.
Operating expenses increased 12.8% for the second quarter of fiscal 1996
over the same quarter of fiscal 1995. While selling expense has increased
as sales volume has increased, selling expense as a percent of sales
decreased to 8.8% for the second quarter of fiscal 1996 as compared to 8.9%
for the second quarter of fiscal 1995. General and administrative expense,
11
<PAGE>
TYSON FOODS, INC.
as a percent of sales, was 1.7% in the second quarter of fiscal 1996
compared to 2.1% in the same period last year. The reduction in general and
administrative expense was primarily the result of a decrease in legal
costs and various cost reduction initiatives instituted by management.
Amortization expense was 0.4% of sales in the second quarter of fiscal 1996
compared to 0.5% of sales in the second quarter of fiscal 1995.
Operating expenses increased 8.8% for the first six months of fiscal 1996
over the same period of fiscal 1995. Selling expense as a percent of sales
decreased to 8.6% for the first six months of fiscal 1996 as compared to
8.8% for the same period of fiscal 1995. General and administrative
expense, as a percent of sales, was 1.7% in the first six months of fiscal
1996 compared to 2.2% in the same period last year. Amortization expense
was 0.4% of sales in the first six months of fiscal 1996 compared to 0.5%
of sales in the same period of fiscal 1995.
Interest expense increased 17.8% in the second quarter of fiscal 1996
compared to the same quarter of fiscal 1995. The Company had a higher level
of borrowing, mainly to fund acquisitions, which increased the Company's
average indebtedness by 37.5% over the same period last year. The Company's
short-term interest rates were approximately 9.6% lower than the same
period last year, which lowered the weighted average interest rate of all
Company debt to 7.2% compared to 7.9% for the same period last year.
Interest expense increased 27.3% in the first six months of fiscal 1996
compared to the same period of fiscal 1995. The Company had a higher level
of borrowing with the Company's average indebtedness increasing by 35% over
the same period last year. The Company's short-term interest rates were
approximately 3.7% higher than the same period last year, however the
weighted average interest rate of all Company debt decreased to 7.3%
compared to 7.5% for the same period last year.
The effective income tax rate for the second quarter and first six months
of fiscal 1996 was 37%, compared to 37.9% and 38.3% in the same periods of
fiscal 1995. In addition to reduced state income taxes, the tax rate was
impacted by an adjustment to the liability for deferred income taxes to
reflect the Company's current assessment of tax contingencies provided for
in prior years.
Trasgo's results of operations for the second quarter increased the
Company's consolidated net income by $0.4 million. The devaluation of the
Mexican peso adversely affected Trasgo's first six months of fiscal 1996
operating results. The Company's share of Trasgo's net loss for the first
six months of fiscal 1996 reduced the Company's consolidated net income by
$3.3 million ($0.02 per share). Management cannot predict the effect of
exchange rates on Trasgo's future operating results.
ENVIRONMENTAL MATTERS
The Company has a strong financial commitment to environmental matters.
During the first six months of fiscal 1996 the Company invested
approximately $22 million in water quality facilities, including capital
outlays of $3 million to build and upgrade facilities, and $19 million for
day-to-day operations of waste-water facilities.
12
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TYSON FOODS, INC.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
On April 13, 1995, a purported shareholder's derivative action (the
"Action") was filed by a single shareholder on the Company's behalf in the
Court of Chancery of Delaware against the directors and principal
shareholders of the Company. The Action alleges that such persons breached
their fiduciary duties to the Company as a result of their approval and/or
participation in certain transactions in fiscal year 1994 between the
Company and various officers and directors or their affiliates, including
certain lease, poultry supply, poultry grow-out, wastewater treatment and
research and development service arrangements (such transactions being more
fully described under the caption "Certain Transactions" in the Company's
Proxy Statement for its 1995 Annual Meeting). Additionally, the Action
alleges that the compensation and expense reimbursements paid to the
Company's Senior Chairman in fiscal year 1994, and the expense
reimbursements paid to him in fiscal year 1993, were excessive. The Action
seeks various remedies, including (i) voiding of the challenged
transactions and an accounting of profits derived therefrom, (ii) damages
resulting from the challenged transactions and (iii) costs, expenses and
attorney fees. The Company is named as a nominal defendant in the Action,
but no claim has been asserted against it.
On May 10, 1995, the defendants filed a Motion to Dismiss the Action
claiming failure by the plaintiff to (i) make a pre-suit demand for action
by the directors of the Company, (ii) obtain personal jurisdiction over
certain shareholder defendants and (iii) state a claim upon which relief
can be granted. On July 6, 1995, the Court of Chancery entered a stipulated
order dismissing the Action without prejudice as to certain of the non-
director defendants. The Motion to Dismiss as to the remaining defendants
is currently pending before the Court of Chancery. By Stipulation Order of
said Court dated October 18, 1995, and pursuant to agreement of the
parties, said Motion to Dismiss is being held in abeyance while settlement
discussions occur.
Since the Action purports to be a shareholder's derivative suit, any
recovery (except attorneys fees or other costs and expenses, if allowed)
would not be paid to the plaintiff, but rather would be paid directly to
the Company. The Company has undertaken to advance certain expenses of the
director defendants and, if applicable, may be required to satisfy certain
indemnification obligations with respect to such individuals. However,
Management does not believe that the Action or such indemnification
obligations will have a material adverse effect on the Company's financial
position or results of operations.
Item 2. Changes in Securities
Not Applicable
Item 3. Defaults Upon Senior Securities
Not Applicable
13
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TYSON FOODS, INC.
Item 4. Submission of Matters to a Vote of Security Holders
<TABLE>
<CAPTION>
The following directors were elected at the annual shareholders' meeting
held January 12, 1996:
<S> <C> <C>
DIRECTORS VOTES FOR VOTES WITHHELD
_________ _________ ______________
Neely Cassady 745,266,220 715,169
Lloyd V. Hackley 745,244,495 736,894
Shelby Massey 745,243,285 738,104
Joe F. Starr 745,286,431 694,958
Leland Tollett 745,288,650 692,739
Barbara Tyson 745,286,949 694,440
Don Tyson 745,287,620 693,769
John H. Tyson 745,277,609 703,780
Fred S. Vorsanger 745,262,065 719,324
Donald E. Wray 745,291,379 690,010
</TABLE>
No other items were voted upon at the annual shareholders' meeting or
during the quarter ended March 30, 1996.
Item 5. Other Information
On April 24, 1996, the Company announced its intention to sell its beef and
pork further-processing operations. The beef further-processing operations
include four plants located in Harlingen, Texas; Garland, Texas; Sioux
Center, Iowa and Orange City, Iowa. The pork further-processing operations
include one plant located in Holland, Michigan. The investment banking firm
of CS First Boston Corporation was retained as financial advisor to assist
the Company in pursuing the sale of these operations. To date no agreement
has been reached for the sale of these operations and there can be no
assurance if and when a sale will be consummated.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
The exhibits filed with this report are listed in the exhibit index at the
end of this Item 6.
(b) Reports on Form 8-K:
There were no reports filed on Form 8-K during the quarter ended
March 30, 1996.
14
<PAGE>
TYSON FOODS, INC.
EXHIBIT INDEX
The following exhibits are filed with this report.
Exhibit No. Page
___________ ____
3(a) Certificate of Incorporation of the Company as amended
(previously filed as Exhibit 3(a) to the Company's
Registration Statement on Form S-4 filed with the
Commission on July 8, 1992, Commission File No. 33-49368,
and incorporated herein by reference).
3(b) Amended and Restated Bylaws of the Company (previously
filed as Exhibit 3(a) to the Company's Annual Report
on Form 10-K for the fiscal year ended October 1, 1994,
Commission File No. 0-3400, and incorporated herein by
reference).
10(a) Retirement Savings Plan of Tyson Foods, Inc. qualified 17-81
under Section 401(k) of the Internal Revenue Code of
1986, as amended, originally effective as of
October 3, 1987, as amended and restated through
January 1, 1993; and Amendment Nos. 1-5 thereto.
10(b) Profit Sharing Plan and Trust of Tyson Foods, Inc., 82-107
as amended and restated through April 1, 1993;
Amendment No. 1 thereto, effective April 1, 1995;
and terminating resolution, effective March 31, 1996.
10(c) Tyson Foods, Inc. Employee Stock Ownership Plan, as 108-138
amended and restated through April 1, 1993; and
terminating resolution, effective March 31, 1996.
10(d) Tyson Foods, Inc. Employee Stock Purchase Plan, as 139-151
amended and restated through April 1, 1993; and
Amendment Nos. 1 and 2 thereto, effective
April 1, 1996.
10(e) Executive Savings Plan of Tyson Foods, Inc. 152-166
effective April 1, 1991; and Amendment No. 1
thereto, effective April 1, 1996.
11 Statement Regarding Computation of Per Share Earnings 167-168
27 Financial Data Schedule
15
<PAGE>
TYSON FOODS, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TYSON FOODS, INC.
Date: May 13, 1996 /s/ Gerald Johnston
____________ ________________________
Gerald Johnston
Executive Vice President,
Finance
Date: May 13, 1996 /s/ James G. Ennis
____________ __________________
James G. Ennis
Corporate Controller
16
<PAGE>
RETIREMENT SAVINGS PLAN
OF
TYSON FOODS, INC.
(Restated Effective January 1, 1993)
17
<PAGE>
TABLE OF CONTENTS
Section Page
DEFINITIONS
1.1 - Definitions...................................... 3
PARTICIPATION
2.1 - Eligibility for Initial Participation............ 19
2.2 - Active Participation............................. 19
2.3 - Leave of Absence and Termination of Service...... 20
2.4 - Participation Following Reemployment............. 23
2.5 - Rights of Other Employers to Participate in
the Plan........................................ 24
2.6 - Participation and Benefits for Participants
Transferred to or From Status as an Employee.... 25
PARTICIPANT CONTRIBUTIONS AND ROLLOVER
CONTRIBUTIONS
3.1 - Salary Deferral Contributions................... 27
3.2 - Rollover Contributions.......................... 33
EMPLOYER'S CONTRIBUTIONS
4.1 - Amount of Employer's Contributions.............. 36
4.2 - Limitation on Use of "Two Times" Test .......... 42
4.3 - Vesting of Employer Contribution Account ........ 43
4.4 - Vesting on Death, Disability or Normal
Retirement.................................... 44
4.5 - Vesting if Plan Terminated or Employer
Contributions Discontinued.................... 44
4.6 - Effect of Break in Service on Vesting........... 45
4.7 - Disposition of Forfeited Amounts................ 45
4.8 - Change in Vesting Schedule...................... 46
INVESTMENT OF CONTRIBUTIONS
5.1 - Investment Funds................................ 48
5.2 - Designation by Participant of Investment Funds.. 49
5.3 - Change of Investment Designation................ 49
5.4 - Transfers Among Investment Funds................ 50
5.5 - Special One Time Election ...................... 50
INDIVIDUAL ACCOUNTS
6.1 - Establishing and Maintaining Participant's
Accounts...................................... 52
18
<PAGE>
Section Page
ACCOUNTING
7.1 - Valuation of Accounts............................ 54
7.2 - Maximum Annual Addition on Behalf of any
Participant During any Limitation Year......... 57
7.3 - Crediting of Salary Deferral Contributions....... 62
7.4 - Allocation and Crediting of Employer's
Contributions.................................. 63
7.5 - Effective Date of Entries........................ 64
DISTRIBUTIONS
8.1 - Initial Distribution Date....................... 65
8.2 - Establishment of Distribution Account........... 65
8.3 - Date of Distribution ........................... 65
8.4 - Methods of Distribution......................... 67
8.5 - Deferred Retirement............................. 70
8.6 - Cash-Out Distributions.......................... 70
8.7 - Payment of Benefits Upon Death of Participant... 71
8.8 - Spousal Consent................................. 71
8.9 - Death Before Commencement of Benefits... ....... 71
8.10 - Withdrawals While Still Employed................ 72
8.11 - Eligible Rollover Distributions ................ 76
SPECIAL PROVISIONS APPLICABLE IF PLAN IS
TOP-HEAVY
9.1 - Applicability of Top-Heavy Plan Provisions...... 78
9.2 - Determination of Plan Years in Which Plan is
Top-Heavy..................................... 78
9.3 - Minimum Vesting for Top-Heavy Plan Year......... 82
9.4 - Minimum Contributions for Top-Heavy Plan Year... 83
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
10.1 - Participants to Furnish Required Information.... 84
10.2 - Beneficiaries................................... 85
10.3 - Contingent Beneficiaries........................ 86
10.4 - Participants' Rights in Trust Fund.............. 87
10.5 - Benefits not Assignable......................... 87
10.6 - Benefits Payable to Minors and Incompetents..... 88
10.7 - Conditions of Employment Not Affected by Plan... 89
10.8 - Notification of Mailing Address................. 89
10.9 - Lost Payee ..................................... 90
10.10- Written Communications Required................. 91
10.11- Benefits Payable at Office Trustee.............. 91
10.12- Appeal to Committee............................. 91
19
<PAGE>
Section Page
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
11.1 - Employer's Contribution Irrevocable............. 94
11.2 - Absence of Responsibility....................... 94
11.3 - Amendment of Plan............................... 94
11.4 - Termination of Plan............................. 97
11.5 - Merger of Plan.................................. 98
11.6 - Expenses of Administration...................... 98
11.7 - Formal Action by Employer....................... 99
ADMINISTRATION
12.1 - Administration by Committee..................... 100
12.2 - Officers and Employers of Committee............. 100
12.3 - Action by Committee............................. 101
12.4 - Rules and Regulations of Committee.............. 102
12.5 - Powers of Committee............................. 102
12.6 - Duties of Committee............................. 103
12.7 - Indemnification of Members of Committee......... 104
12.8 - Plan Fiduciaries................................ 105
12.9 - Applicable Law.................................. 107
TRUST FUND
13.1 - Purpose of Trust Fund........................... 108
13.2 - Benefits Supported Only by Trust Fund........... 108
13.3 - Trust Fund Applicable Only to Payment of
Benefits...................................... 108
LOANS TO PARTICIPANTS
14.1 - General Procedure ............................... 109
14.2 - Amount of Loans ................................. 109
14.3 - Loan Conditions ................................. 110
20
<PAGE>
RETIREMENT SAVINGS PLAN
OF
TYSON FOODS, INC.
The Retirement Savings Plan of Tyson Foods, Inc. (the "Plan"),
originally effective October 1, 1987, is hereby restated by Tyson Foods,
Inc. (the "Employer"), effective January 1, 1993, in order to continue to
provide a means for eligible employees to defer a portion of their
compensation and to encourage savings to provide additional financial
security for the future.
The Plan, as restated herein, reflects all amendments made by Employer
as required by TRA 1986, OBRA 1987, TAMRA 1988, OBRA 1989, RRA 1990, the
unemployment Compensation Act of 1992 and OBRA 1993, as well as numerous
Treasury regulation changes since the previous restatement. The Plan, as
restated herein, also reflects amendments associated with the mergers into
this Plan, effective July 1, 1991, of the following qualified retirement
plans (collectively the "Merged Plans"):
(1) the Tyson Employee Retirement Income Savings Plan (the
"Tyson Thrift Plan");
(2) the Henry House, Inc. Employees Savings Plan;
(3) the Victor F. Weaver, Inc. Retirement/Savings Plan;
(4) the Holly Farms Corporation and Subsidiaries Employee
Retirement Savings Plan for Hourly Employees; and
(5) the Holly Farms Corporation and Subsidiaries Employee
Retirement Savings Plan for Salaried Employees.
The Employer acknowledges receipt of all of the assets of the Merged
Plans effective July 1, 1991. Accordingly, the assets of the Plan and its
related Retirement Savings Trust of Tyson Foods, Inc. (the "Trust"),
including the assets transferred from the Merged Plans, shall be held,
administered and distributed for the purposes and in the manner set out in
the following restated Plan, to-wit:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS
(A) The following words and phrases shall have the meanings assigned
below unless a different meaning is plainly required by the context:
(1) "Accounting Date" shall mean the last day of each calendar
month of each Plan Year subsequent to the Effective Date of the Plan and
such other date or dates as may be established by the Committee during the
Plan Year.
(2) "Beneficiary" shall mean the person or persons on whose
behalf benefits may be payable under the Plan after a Participant's death
in accordance with the provisions hereof.
21
<PAGE>
(3) "Break in Service" shall mean, with respect to a Non-
Maritime Employee, the failure to complete more than 500 Hours of Service
during a Plan Year, or, with respect to a Maritime Employee, the failure to
complete more than 62 Days of Service during a Plan Year.
(4) "Committee" shall mean the administrative committee
appointed from time to time to administer the Plan pursuant to the
provisions of Section 12.1 hereof.
(5) "Company" shall mean Tyson Foods, Inc., and its successor or
successors.
(6) "Compensation" shall mean the compensation actually paid to
an Employee by the Employer as reported on the Employee's Federal income
tax withholding statement (Form W-2) or its subsequent equivalent;
exclusive however, of the following:
(a) relocation pay;
(b) any non-cash compensation;
(c) commissions; and
(d) compensation paid on an irregular or discretionarybasis
such as discretionary bonuses or special awards.
Provided, however, that for purposes of determining an individual's
"average deferral percentage" and/or "average contribution percentage"
under Sections 3.1(E) and 4.1(D) of the Plan, "Compensation shall include
all of the items of income described in subparagraphs (a) through (d) of
this Section 6.
Any amounts that would have been includable in the Employee's
Compensation as described above if they had not received special tax
treatment because they were deferred by the Employee through a salary
reduction agreement shall be added to the amount described above and
included in the Employee's "Compensation" for purposes of the Plan.
The annual Compensation of each Employee taken into account under the
Plan shall not exceed $200,000 or such other amount as may be specified by
the Secretary of the Treasury pursuant to his duties under 401(a)(17) of
the Code. In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the contrary,
for plan years beginning on or after January 1, 1994, the annual
compensation of each Employee taken into account under the Plan shall not
exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with section 401(a)(17)(B) of
the Internal Revenue Code. The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months,
the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period,
and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this Plan to the limitations under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current plan
year, the Compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
22
<PAGE>
determination period. For this purpose, for determination periods
beginning before the first day of the first plan year beginning on or after
January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
For purposes of applying the above limit to a Highly Compensated
Employee who is a 5% Owner (as defined in 416(i)(1) of the Code) or one of
the ten most highly paid Highly Compensated Employees, the Highly
Compensated Employee's family shall be treated as a single employee with
one Compensation and the limit shall be allocated among the family members
in proportion to each member's Compensation. For purposes of this
paragraph, a Highly Compensated Employee's family shall include his or her
spouse and his or her lineal descendants who have not reached the age of 19
before the end of the year.
The term "Compensation" is subject to any modifications that are
applicable under Section 9.4 hereof during years, if any, that the Plan is
top-heavy.
(7) "Controlled Group Member" shall mean:
(a) The Employer;
(b) Any corporation or association that is a member of a
controlled group of corporations (within the meaning of 1563(a) of the
Code, determined without regard to 1563(a)(4) and 1563(e)(3)(C) of said
Code, except that, for the purposes of applying the limitations on benefits
and contributions that are required under 415 of the Code and are described
in Section 7.2 hereof, such meaning shall be determined by substituting the
phrase "more than 50%" for the phrase "at least 80%" each place that it
appears in 1563(a)(1) of said Code) with respect to which the Employer is a
member;
(c) Any trade or business (whether or not incorporated) that is
under common control with the Employer as determined in accordance with
414(c) of the Code and regulations issued thereunder; and
(d) Any service organization that is a member of an affiliated
service group (within the meaning of 414(m) of the Code) with respect to
which the Employer is a member.
(8) "Designated Nonparticipating Employer" shall mean:
(a) Any Controlled Group Member that is not an Employer as
defined herein; and
(b) Any other corporation, association, proprietorship,
partnership, or other business organization that (i) is not an Employer and
(ii) the Company, by formal action on its part in the manner described in
Section 11.7 hereof designates on the basis of a uniform policy applied
without discrimination as a "Designated Nonparticipating Employer" for the
purposes of the Plan.
(9) "Effective Date of the Plan", as restated, shall mean January 1,
1993 or such later date as of which the Plan first became effective with
respect to the particular Employer concerned. The original effective date
of the Plan was October 1, 1987. Except as provided below, all amendments
to the Plan as reflected herein were effective April 1, 1991. However,
Sections 1.1(A)(1), (6), (10) and (17), 2.1, 7.2 and 8.4(B) were amended
effective October 1, 1987; Sections 3.1(E), 3.2, 4.1(A), 4.1(D), 4.2, 8.1,
8.2, 8.3, 8.4(A), 8.6, 8.10(4) and (8), 9.2 and 9.4 were amended effective
April 1, 1989; and Sections 1.1(A)(36), 3.2, 5.1, 5.3, 5.4 and 7.1 were
amended effective January 1, 1993.
(10) "Employee" shall mean a "Maritime Employee" or a "Non- Maritime
Employee", and shall include "leased employees" within the meaning of
Sections 414(n) and (o) of the Code. "Maritime Employee" shall mean any
person who, with respect to any Plan Year, is employed by the Employer in
the "Maritime Industry". "Maritime Industry" is that industry in which
Employees perform duties for the Employer on board commercial, exploratory,
23
<PAGE>
service or other vessels moving on the high seas, inland waterways, Great
Lakes, coastal zones, harbors and non-contiguous areas, or on offshore
ports, platforms or other similar sites. "Non-Maritime Employee" shall
mean any person, other than a "Maritime Employee", on the payroll of the
Employer whose wages from the Employer are subject to withholding for the
purposes of Federal income taxes and for the purposes of the Federal
Insurance Contributions Act. Employee will not include any person (a)
rendering services to the Employer as an independent contractor, (b)
serving the Employer as a member of its Board of Directors and not
otherwise employed by it, (c) not treated as an employee for purposes of
Federal Insurance Contributions Act or (d) engaged only in an advisory or
consulting capacity on a retainer or fee basis.
(11) "Employer" shall mean, collectively or distributively as the
context may indicate, the Company and any other corporations, associations,
joint ventures, proprietorships or partnerships that have adopted and are
participating in the Plan in accordance with the provisions of Section 2.5
hereof; provided, however, if the Plan is adopted on behalf of the
Employees of one or more, but less than all, divisions or facilities of an
employer, the term "Employer" shall apply only to the divisions or
facilities on behalf of whose Employees the Plan has been adopted.
(12) "Employer's Contributions" shall mean the amounts contributed by
the Employer to the Plan on behalf of the Participants, as more fully
described in Section 4.1 hereof.
(13) "Employer Contribution Account" shall mean the balance credited
to the individual account of the Participant to reflect his interest in the
Trust Fund that is attributable to the Employer's Contributions on his
behalf to the Plan. If applicable, the Employer Contribution Account shall
be divided into such subaccounts as are required to reflect the
Participant's interest in the various Investment Funds, as described in
Section 5 hereof.
(14) "Employment Commencement Date" means, in the case of a Non-
Maritime Employee, the first date on which such Employee completes an "Hour
of Service," or, in the case of a Maritime Employee, the first date on
which such Employee completes a "Day of Service"; provided that in the case
of a "Break in Service," an Employee's employment commencement date shall
be the first day thereafter on which he completes an "Hour of Service" or
"Day of Service", as the case may be.
(15) "Entry Date" shall mean the first day of each calendar month.
(16) "Family Member" shall mean an individual described in
414(q)(6)(B) of the Code.
(17) "Highly Compensated Employee" shall mean any Employee who, during
the Determination Year or the Look-Back Year -
(A) was at any time a "5-percent owner" (as defined in 16(q)(3)
of the Code,
(B) received compensation in excess of $75,000.
(C) received compensation in excess of $50,000 and was in the
Top-Paid Group of employees for such year, or
(D) was at any time an officer and received compensation
greater than 50 percent of the amount in effect under 415(b)(1)(A) of the
Code for such year.
The Secretary shall adjust the $75,000 and $50,000 amounts under this
Section at the same time and in the same manner as under 415(d) of the
Code. For purposes of this Section (17), the term "compensation" shall have
the meaning given such term by 414(q)(7) of the Code. An Employee not
described in (B), (C) or (D) above for the Look-Back Year (without regard
to this paragraph) shall not be treated as described in (B), (C) or (D) for
the Determination Year unless such Employee is a member of the group
24
<PAGE>
consisting of the 100 employees paid the greatest compensation during the
Determination Year.
Determination Year means the Plan Year for which the determination of
Highly Compensation Employee is being made. Look-Back Year means the twelve
(12) month period immediately preceding the Determination Year.
An Employee is in the Top-Paid Group of employees for any year if such
Employee is in the group consisting of the top 20 percent of the employees
when ranked on the basis of compensation paid during such year. For
purposes of (D), no more than 50 employees (or, if lesser, the greater of 3
employees or 10 percent of the employees) shall be treated as officers. If
for any year no officer of the Employer is described in (D), the highest
paid officer of the Employer for such year shall be treated as described in
(D).
Special Rules for Certain Family Members:
(y) General Rule. If an Employee is a Family Member of a 5- percent
owner (as described in subsection (A)) or of a Highly Compensated Employee
in the group consisting of the 10 most highly compensated Employees who are
Participants in this Plan for the Plan Year, then:
(1) such Employee will not be considered to be a separate
Employee for purposes of computing the Deferral Percentage Tests or the
Contribution Percentage Tests under the Plan;
(2) any compensation paid to such Employee and any contributions
made to such Employee's Accounts, shall for purposes of the Deferral
Percentage Tests and the Contribution Percentage Tests, be treated as if
made to or on behalf of such Employee's Family Member who is a 5-percent
owner or is one of the 10 most highly compensated Employees;
(z) Family Members. For purposes of this subsection, the term
"Family Member" shall mean with respect to an Employee, (1) the Employee's
spouse; (2) the Employee's lineal ascendants and descendants; and (3) the
spouses of such lineal ascendants and descendants.
"Non-Highly Compensated Employee" shall mean an Employee who is
neither a Highly Compensated Employee nor a Family Member (as defined
above) of a Highly Compensated Employee.
(18) "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These hours shall
be credited to the Employee for the computation period in which the duties
are performed; and
(b) Each hour for which an Employee is paid, or entitled to
payment, by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. Hours
under this subparagraph (b) shall be calculated and credited pursuant to
2530.200(b)-2 of the Department of Labor Regulations which are incorporated
herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer. The same hours
of service shall not be credited both under subparagraph (a) or (b), as the
case may be, and under this subparagraph (c). These hours shall be credited
to the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made; and
(d) Hours of service credited to Employees whose compensation
is not determined on the basis of certain amounts for each hour worked
25
<PAGE>
during a given period and whose hours are not required to be counted and
recorded by a separate federal statute such as the Fair Labor Standards Act
shall be at the rate of 45 hours of service for each week that the Employee
is entitled to be credited with at least one "hour of service" under the
provisions of this section.
(19) "Initial Distribution Date" shall mean the date which is
established following the Participant's termination of service for any
reason pursuant to Section 8.1 hereof for distribution of the value in his
individual accounts.
(20) "Internal Revenue Code" or "Code" shall mean the Internal Revenue
Code of 1986, as now or hereafter amended from time to time.
(21) "Limitation Year" shall mean the year used for application of the
limitations of 415 of the Code, and, unless the Employer elects a different
Limitation Year by formal action on its part in the manner described in
Section 11.7 hereof, shall be the Plan Year.
(22) "Participant" shall mean any person who has met the requirements
of Section 2.1 hereof and whose individual accounts have not been
subsequently distributed in full. "Active Participant" shall mean any
Participant who is currently making Salary Deferral Contributions to the
Plan.
(23) "Plan" shall mean the Retirement Savings Plan of Tyson Foods,
Inc., originally adopted effective October 1, 1987, restated effective
April 1, 1991 as set forth in this instrument and as it may hereafter be
amended from time to time.
(24) "Plan Year" shall mean the fiscal year on which the records of
the Plan are kept as reported from time to time by the plan administrator
to the Internal Revenue Service. The Plan Year, unless subsequently changed
in accordance with the rules or regulations issued by the Internal Revenue
Service or the Department of Labor, shall be the 12 month period beginning
April 1 of a given calendar year and ending on March 31st of the following
calendar year.
(25) "Rollover Contributions" shall mean the amounts of Rollover
Contributions, if any, made by an Employee to the Plan, as more fully
described in Section 3.2 hereof.
(26) "Rollover Contribution Account" shall mean the balance credited
to the account of the Participant to reflect his interest in the Trust Fund
that is attributable to his Rollover Contributions, if any, to the Plan as
described in Section 3.2 hereof. The Rollover Contribution Account shall be
divided into such subaccounts as are required to reflect the Participant's
interest in the various Investment Funds, as described in Section 5 hereof.
(27) "Salary Deferral Contributions" shall mean the contributions made
by the Employer on behalf of the Participant pursuant to Section 3.1
hereof. "Matched Salary Deferral Contributions" shall mean Salary Deferral
Contributions that are not in excess of 2% of the Participant's
Compensation for the Plan Year. "Unmatched Salary Deferral Contributions"
shall mean Salary Deferral Contributions that are in excess of 2% of the
Participant's Compensation for the Plan Year.
(28) "Salary Deferral Contribution Account" shall mean the balance
credited to the individual account of the Participant to reflect his
interest in the Trust Fund that is attributable to his Salary Deferral
Contributions to the Plan. If applicable, the Salary Deferral Contribution
Account shall be divided into such subaccounts as are required to reflect
the Participant's interest in the various Investment Funds, as described in
Section 5 hereof.
(29) "Salary Reduction Agreement" means an agreement between a
Participant and the Employer under which the Employer reduces the
Participant's Compensation and the Employer contributes the amount of the
26
<PAGE>
reduction to the Plan on behalf of the Participant as a Salary Deferral
Contribution.
(30) "Supplement" shall mean any Supplement that is attached to and
made a part of the Plan and which describes provisions or modifications to
the Plan which apply only to those employees of an Employer or Employers
specified in such supplement.
(31) "Total and Permanent Disability" means disability which, in the
opinion of the Committee, causes a Participant to be totally and presumably
permanently disabled, due to sickness or injury, so as to be completely
unable to perform any and every duty pertaining to his occupation from a
cause other than specified below:
(a) Excessive and habitual use by the Participant of drugs,
intoxicants or narcotics;
(b) Injury or disease sustained by the Participant while
willfully and illegally participating in fights, riots, civil insurrections
or while committing a felony;
(c) Injury or disease sustained by the Participant while
serving in any armed forces;
(d) Injury or disease sustained by the Participant diagnosed or
discovered subsequent to the date his service has terminated;
(e) Injury or disease sustained by the Participant while
working for anyone other than the Employer and arising out of such
employment; or
(f) Injury or disease sustained by the Participant as a result
of an act of war, whether or not such act arises from a formally declare
state of war.
(32) "Trust" and "Trust Fund" shall mean the trust fund established
pursuant to the terms of the Trust Agreement.
(33) "Trust Agreement" shall mean the Retirement Savings Trust of
Tyson Foods, Inc., adopted effective as of October 1, 1987, as set forth in
the agreement of that title to which the Plan is attached and as it may
thereafter be amended from time to time.
(34) "Trustee" shall mean the corporate trustee or trustees or the
individual trustee or trustees, as the case may be, appointed from time to
time pursuant to the provisions of the Trust Agreement to administer the
Trust Fund maintained for the purposes of the Plan.
(35) "Unallocated Limitation Account" shall mean that portion of the
Employer's Contribution, if any, which is being held unallocated due to the
provisions of Section 7.2 hereof.
(36) "Valuation Date", effective for the Plan Year quarter beginning
January 1, 1993, shall mean the last day of the months of March, June,
September and December.
(37) "Year of Service" means each twelve consecutive month period
during which a Non-Maritime Employee has at least one thousand (1,000)
Hours of Service, or, in the case of a Maritime Employee, 125 Days of
Service. For determining an Employee's eligibility under the Plan, his
"eligibility computation period" shall begin on the "employment
commencement date" for such Employee; thereafter, the eligibility
computation period shall be the "Plan Year", beginning with the Plan Year
which includes the first anniversary of a Participant's employment
commencement date. For determining a member's vested and nonforfeitable
interest in his Employer Contribution Account, the "vesting computation
period" shall be the Plan Year. For purposes of determining vesting,
eligibility to participate and Employer Matching Contributions under the
Plan, Years of Service with a "Controlled Group Member" (as defined above)
and Years of Service with Holly Farms Corporation or any of its
subsidiaries or affiliates that at any time were included in the
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"controlled group of corporations" (as defined in Code 414(b)) with such
corporation shall be included. Otherwise, there shall not be counted any
Hours of Service or Days of Service for an employee of an employer which is
a party to a merger, acquisition or other business combination under which
the Company or any of its subsidiaries is the acquiring party, prior to the
date of such merger, acquisition or other business combination unless
specifically provided otherwise in the contracts governing such merger,
acquisition or combination or required by 414(a) of the Code and any
Regulations promulgated thereunder. For purposes of determining Years of
Service for any Employee who may be both a Maritime Employee and a Non-
Maritime Employee in any computation period, such determination shall be
made as if the Employee were a Non-Maritime Employee and in determining the
Employee's Hours of Service for such period, the Employee's Days of Service
shall be multiplied by eight (8) and then added to the Employee's Hours of
Service credited while a Non-Maritime Employee.
(38) "Day of Service" means:
(a) Each day for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These days shall
be credited to the Employee for the computation period in which the duties
are performed; and
(b) Each day for which an Employee is paid, or entitled to
payment, by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. Days
under this subparagraph (b) shall be calculated and credited pursuant to
2530.200(b)-7 of the Department of Labor Regulations which are incorporated
herein by this reference; and
(c) Each day for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same days of
service shall not be credited both under subparagraph (a) or (b), as the
case may be, and under this subparagraph (c). These days shall be credited
to the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.
(B) The terms "herein," "hereof," "hereunder" and similar terms refer
to this document, including the Trust Agreement of which this document is a
part, unless otherwise qualified by the context.
(C) The pronouns "he," "him" and "his" used in the Plan shall also
refer to similar pronouns of the feminine gender unles s otherwise
qualified by the context.
SECTION 2
PARTICIPATION
2.1 ELIGIBILITY FOR INITIAL PARTICIPATION
Each Employee shall become a Participant in the Plan on the first
Entry Date (as defined above) following the date the Employee becomes an
"Eligible Employee," as defined hereafter. For purposes of this Plan, an
"Eligible Employee" shall mean an Employee who has completed a Year of
Service (as defined above); provided, however, that there shall be excluded
from the definition of Eligible Employee (i) any Employee who is a member
of a collective bargaining unit and who is covered by a collective
bargaining agreement which does not provide for coverage of such Employee
under this Plan, (ii) any Highly Compensated Employee who, as of April 1 of
any Plan Year, is determined by the Company to be eligible to participate
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in the Company's Executive Savings Plan, and (iii) any leased employee
within the meaning of 414(n) and (o) of the Code.
2.2 ACTIVE PARTICIPATION
Each Eligible Employee in the service of the Employer on or after the
Effective Date of the Plan may elect to become an Active Participant in the
Plan as of the date on which he first becomes a Participant by completing
and filing a written application for Active Participation in the Plan with
the Committee in which he agrees to make the Salary Deferral Contributions
as described in Section 3.1(A) hereof. Each Eligible Employee who
completes and files such application with the Committee on or prior to the
date as of which he first becomes a Participant in the Plan (or as of such
later date as is administratively practicable with respect to any such
Eligible Employee on the Effective Date of the Plan) shall become an Active
Participant in the Plan as of the date on which he first becomes a
Participant. Each Eligible Employee who does not become an Active
Participant in the Plan as of the date on which he first becomes a
Participant may become an Active Participant in the Plan as of the first
day of any subsequent payroll period by completing and filing such
application for participation in the Plan with the Committee at least 30
days prior to such applicable date.
2.3 LEAVE OF ABSENCE AND TERMINATION OF SERVICE
(A) Any absence from the active service of the Employer by reason of
an approved absence granted by the Employer because of accident, illness,
layoff with the right of recall or military service, or for any other
reason on the basis of a uniform policy applied by the Employer without
discrimination, will be considered a leave of absence for the purposes of
the Plan and will not terminate an Employee's service provided he returns
to the active service of the Employer at or prior to the expiration of his
leave or, if not specified therein, within the period of time which accords
with the Employer's policy with respect to permitted absences.
Absence from the active service of the Employer because of compulsory
engagement in military service will be considered a leave of absence
granted by the Employer and will not terminate the service of an Employee
if he returns to the active service of the Employer within the period of
time during which he has reemployment rights under any applicable Federal
law or within 90 days from and after discharge or separation from such
compulsory engagement if no Federal law is applicable. No provision of
this section or in the Plan shall require reemployment of any employee
whose active service with the Employer was terminated by reason of military
service.
If the Employee does not return to the active service of the Employer
at or prior to the expiration of his leave of absence as above defined, his
service will be considered terminated as of the earliest of (i) the date on
which his leave expired, (ii) the first anniversary of the date on which
the leave began or (iii) the date of his retirement, quit, discharge,
resignation or death.
In the event that an Employee's service with the Employer is
interrupted because of any absence from the active service of the Employer
which is not deemed a leave of absence as defined above, his service will
be considered terminated as of the date of his retirement, quit, discharge,
resignation or death or, if his service is interrupted for any other
reason, as of the first anniversary of the date on which he was first
absent from the active service of the Employer.
Transfers of an Employee's service among the Employer and Designated
Nonparticipating Employers shall not be deemed interruptions of his service
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and shall not constitute a termination of service for the purposes of the
Plan.
(B) For any Employee who is absent from work by reason of (i) the
pregnancy of the Employee; (ii) the birth of a child of the Employee; (iii)
the placement of a child with the Employee in connection with the adoption
of such child by the Employee; or (iv) for purposes of caring for a child
for a period beginning immediately following the birth or placement of such
child, the Plan shall treat as Hours of Service, for determining a Break in
Service for purposes of eligibility and vesting, the Hours of Service which
otherwise would have been normally credited to the Employee, but for such
absence or, in the event the Plan is unable to determine the Hours of
Service normally to be credited, eight (8) Hours of Service per day of such
absence.
(C) Except as otherwise required by applicable federal and state
law, the total number of hours treated as Hours of Service under this
section shall not exceed 501 hours and the total number of days treated as
Days of Service shall not exceed 63 days. The Hours of Service or Days of
Service attributable to an Employee shall be credited to the Employee in
the Plan Year in which begins the absence from work if the Employee would
be prevented from incurring a Break in Service. In any other case, such
Hours of Service or Days of Service shall be credited in the immediately
following year.
In the discretion of the Trustee, an Employee may be required to
furnish information that the absence from work qualifies under this section
and/or the number of days or weeks of such absence.
2.4 PARTICIPATION FOLLOWING REEMPLOYMENT
(A) Each Employee whose service is terminated and who is subsequently
reemployed by the Employer shall be treated under the Plan upon such
reemployment as though he then first entered the employment of the
Employer; except that:
(1) if he was previously a Participant in the Plan or if he had
met the service requirements for participation in the Plan as of his
previous date of termination of service, he shall be deemed for the
purposes of Section 2.1 hereof to have met the service requirements for
participation in the Plan as of his date of reemployment if he is
reemployed prior to April 1, 1993; and
(2) effective April 1, 1993, if an Employee who has incurred a
Break in Service subsequently is reemployed on or after April 1, 1993, his
Years of Service before such break shall not be required to be taken into
account for eligibility purposes until the Employee has completed a new
Year of Service following such break; provided, that if such Employee was a
Participant at the time of such Break in Service, then upon completion of
the new Year of Service, he will be treated as a Participant retroactively
from his date of reemployment, but not for purposes of making deferrals or
sharing in any Employer contributions for any payroll period ending prior
to the date he completes such new Year of Service.
(B) Except as provided in Section 8.10 hereof with respect to
certain permissible in-service withdrawals, respectively, no further
distributions shall be made from the individual accounts on and after the
date of reemployment and prior to the next following Initial Distribution
Date of any Participant described in Section 2.4(A) above who is reemployed
prior to having received his total distribution. Any such previously
undistributed individual account (or accounts) shall be maintained on
behalf of the Participant on and after his date of reemployment and shall
be subject to adjustment on each following Valuation Date as specified in
Section 7.1 hereof.
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(C) Any such Participant to whom the provisions of this Section 2.4
apply who was not entitled, for any reason, to an allocation under the
provisions of Section 7.4 hereof on the Accounting Dates, if applicable,
which occurred between the date of his termination of service and his date
of reemployment, shall not be entitled to a retroactive allocation under
such section solely because of the provisions of this Section 2.4.
(D) The rights of any terminated employee of a Designated
Nonparticipating Employer who is reemployed by an Employer as an Employee
shall be determined in accordance with the provisions of the Plan in the
same manner as though he had been an Employee of the Employer on the date
of termination of his service; and the rights of any terminated Employee of
an Employer who is reemployed by a Designated Nonparticipating Employer
shall be determined in accordance with the provisions of the Plan in the
same manner as though such Employee had been reemployed by the Employer and
had immediately thereafter been transferred to such Designated
Nonparticipating Employer.
2.5 RIGHTS OF OTHER EMPLOYERS TO PARTICIPATE IN THE PLAN
(A) Any other corporation, association, joint venture,
proprietorship, or partnership may, in the future, adopt the Plan by
written action on its part in the manner described in Section 11.7 hereof
provided that the board of directors of the Company and the Committee both
approve such participation.
(B) The administrative powers and control of the board of directors
of the Company, as provided in the Plan, shall not be deemed diminished
under the Plan by reason of participation of any other Employers in the
Plan, and such administrative powers and control specifically granted
herein to the board of directors of the Company with respect to the
appointment of the Committee, amendment of the Plan and other matters shall
apply only with respect to the board of directors of the Company.
(C) The Plan is a single plan with respect to all Employers unless
the board of directors of the Company specifically provides that the Plan
shall be a separate plan with respect to any Employer or group of
Employers.
(D) Any Employer may withdraw at any time without affecting the
other Employers in the Plan by furnishing written notice to the Committee
and the Trustee of its determination to withdraw. The board of directors
of the Company may in its absolute discretion terminate any Employer's
participation at any time.
2.6 PARTICIPATION AND BENEFITS FOR PARTICIPANTS TRANSFERRED TO OR FROM
STATUS AS AN EMPLOYEE
It is contemplated that a Participant in the Plan may be transferred
to a Designated Nonparticipating Employer so that he will no longer qualify
as an Employee as defined herein, and, conversely, that a person in the
employment of a Designated Nonparticipating Employer may be transferred to
the status of an Employee as defined herein. The service of such a person
described above shall not be considered to be interrupted or terminated by
reason of any such transfer and a termination of service with the
Designated Nonparticipating Employer while not qualified as an Employee
shall be treated in the same manner as a termination of service with an
Employer while qualified as an Employee. In determining eligibility for
participation in the Plan of such an Employee with respect to whom the
provisions of this Section 2.6 are applicable, any period of employment,
which otherwise would be included in accordance with the provisions of
Section 2.1 hereof, which he accrued with the Designated Nonparticipating
Employers while not qualified as an Employee as defined herein shall be
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included; provided, however, that any such person transferred to the status
of an Employee shall not be eligible to become a Participant in the Plan
prior to the date on which he becomes an Employee as defined herein. The
accounts of any such Participant who has been transferred from the status
of an Employee shall be maintained on his behalf during the period that he
is in the employment of the Employer or Designated Nonparticipating
Employer while not qualified as an Employee in the same manner as though
the Participant were on an unpaid leave of absence granted by the Employer
during such period, but he shall not be eligible to make Salary Deferral
Contributions for any period subsequent to his date of change in status and
while he is not an Employee as defined herein.
SECTION 3
SALARY DEFERRAL CONTRIBUTIONS
AND ROLLOVER CONTRIBUTIONS
3.1 SALARY DEFERRAL CONTRIBUTIONS
(A) Amount of Salary Deferral Contributions: Subject to Section
3.1(E) below and to such rules of uniform application as the Committee may
adopt, each Eligible Employee, in order to become and remain an Active
Participant in the Plan, must elect to have the Employer make Salary
Deferral Contributions through payroll deduction on his behalf pursuant to
a Salary Reduction Agreement of any amount that is an integral percentage
of not less than 2% nor more than 15% of his Compensation for the
applicable payroll period; provided, however, any such Participant's Salary
Deferral Contributions shall not exceed (i) an amount which would cause his
annual addition to exceed the maximum amount of annual addition which may
be made for the Limitation Year under Section 7.2 hereof, or (ii) $7,000
(as adjusted from time to time by the Secretary of the Treasury at the same
time and in the same manner as under 415(d) of the Code) for any calendar
year. Salary Deferral Contributions that are not in excess of 2% of the
Participant's Compensation for the Plan Year are referred to herein as
"Matched Salary Deferral Contributions" and are matched by the Employer's
Contribution to the extent specified in Section 4.1 hereof. Salary
Deferral Contributions that are in excess of 2% of the Participant's
Compensation for the Plan Year are referred to herein as "Unmatched Salary
Deferral Contributions" and are not matched by the Employer's Contribution.
(B) Initial Authorization for Salary Deferral Contributions: All
Salary Reduction Agreements shall be in writing and Salary Deferral
Contributions made pursuant to such agreement shall be authorized in
writing by the Participant and shall be filed with the Committee. Any such
Salary Reduction Agreement shall continue in effect for as long as the
Participant remains an Employee or until he elects to suspend or change his
rate of Salary Deferral Contributions to the Plan as provided in Section
3.1(C) below.
(C) Right of Participant to Suspend or Change His Rate of Salary
Deferral Contributions: Except as set forth below, a Participant may
suspend or change his rate of his Salary Deferral Contributions effective
as soon as administratively practicable as of the end of any subsequent
payroll period; however, a Participant may change his deferral rate only
twice in any calendar year without the consent of the Committee, and except
as provided in Section 3.1(E) below with respect to certain required
suspensions, a Participant who suspends his Salary Deferral Contributions
may not resume such contributions for a period of six months following the
effective date of such suspension. Any such change of rate, suspension or
resumption of Salary Deferral Contributions must be made by the Participant
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in writing filed with the Committee at least 30 days prior to the effective
date of the change, suspension or resumption. A Participant whose Salary
Deferral Contributions are suspended during a period of leave of absence or
who is reemployed following a termination of service may elect, upon his
return to active employment with the Employer, to have the Employer resume
Salary Deferral Contributions on his behalf to the Plan. Any such election
shall be in writing filed with the Committee and shall specify the
percentage of Salary Deferral Contributions to be deducted from his
Compensation.
(D) Crediting and Depositing Salary Deferral Contributions: The
Salary Deferral Contributions to the Plan shall be paid by the Employer to
the Trustee as promptly as practicable after they are deducted from the
Participant's Compensation (but in any event not later than 30 days after
the close of the Plan Year for which the contributions are deemed to be
made) and shall be credited to the Participant's Salary Deferral
Contribution Account as of the Accounting Date next following the date the
contributions were deducted in accordance with Section 7.3 hereof. The
Participant's Salary Deferral Contribution Account shall at all times be
100% vested and, except as provided in Section 8.10 hereof with respect to
certain permissible in-service withdrawals, Section 14 with respect to Plan
Loans and Section 11.4 with respect to termination or partial termination
of the Plan, distribution of such account shall be made upon termination of
his service in accordance with the provisions of Section 8 hereof.
(E) Salary Deferral Contributions Subject to Nondiscrimination
Requirements of 401(k) of the Code: For any given Plan Year the "average
deferral percentage" (as defined herein) for all Eligible Employees who are
Highly Compensated Employees for such Plan Year may not exceed the greater
of:
(a) One and one-quarter (1.25) times the "average deferral
percentage" for all Eligible Employees who are Non-highly Compensated
Employees for such Plan Year; or
(b) Two (2.0) times the "average deferral percentage" for all
Eligible Employees who are Non-highly Compensated Employees for such Plan
Year, but not more than the sum of (i) 2% and (ii) the "average deferral
percentage" for all Eligible Employees who are Non-highly Compensated
Employees.
An individual "deferral percentage" is calculated for each Eligible
Employee each Plan Year by dividing his Salary Deferral Contributions, if
any, to the Plan during the Plan Year by his Compensation for the Plan for
the Plan Year. Effective April 1, 1993, an Eligible Employee's
Compensation for the purposes of calculating his deferral percentage will
include only such Compensation earned after becoming a Participant in the
Plan. The "average deferral percentage" for the Highly Compensated
Employees and the "average deferral percentage" for the Non-highly
Compensated Employees are then determined by adding up the individual
deferral percentages for the applicable group and dividing by the number of
Eligible Employees in such is Section 3.1(E), Eligible Employee includes
any Employee eligible to elect to have Salary Deferral Contributions
withheld from his compensation pursuant to Section 3.1(A) above, whether or
not such election is exercised.
If the Committee determines that a Participant's Salary Deferral
Contributions under Section 3.1(A) hereof for any Plan Year would cause the
Plan to fail to meet the nondiscrimination requirements of this subsection
(E) or 401(k) of the Code and the regulations thereunder, then the
Committee shall take any or all of the following preventive measures as, in
its sole discretion, it deems necessary to avoid such discrimination:
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(1) From time to time during such Plan Year, reduce (or
suspend, if necessary) the rate of Salary Deferral Contributions for the
remainder of the Plan Year of those Active Participants who are Highly
Compensated Employees (such reduction first to apply to the highest rate on
a uniform basis to all such Active Participants who are contributing the
highest rate, and so on, in descending order from the highest rate); or
(2) Distribute any Excess Deferrals (defined herein) plus any
income allocable thereto, no later than the last day of the Plan Year
immediately following the Plan Year in which such Excess Deferrals were
made, to those Highly Compensated Employees to whose accounts Salary
Deferral Contributions were allocated for such Plan Year in which the
excess occurred, on the basis of their respective portions of the Excess
Deferrals attributable to each of such Employees. Such distribution must
be designated by the Employer as a distribution of Excess Deferrals and
allocable income. "Excess Deferrals" shall mean, with respect to any Plan
Year, the aggregate amount of Salary Deferral Contributions actually paid
over to the Trust on behalf of Highly Compensated Employees for such Plan
Year, over the maximum amount of such contributions permitted under this
subsection (E), determined by reducing deferrals made on behalf of Highly
Compensated Employees in order of the actual deferral percentages beginning
with the highest of such percentages. ANY EMPLOYER CONTRIBUTIONS
DETERMINED UNDER SECTION 4.1(B) BELOW MADE OR ALLOCATED ON ACCOUNT OF AN
EXCESS DEFERRAL SHALL BE FORFEITED AND APPLIED TO REDUCE FUTURE EMPLOYER
CONTRIBUTIONS UNDER SECTION 4.1(B); SUCH FORFEITURE SHALL BE EFFECTED PRIOR
TO THE APPLICATION OF SECTION 4.1(D) BELOW. Excess Deferrals shall be
treated as Annual Additions under Section 7.2 of the Plan; or
(3) Take such other action as may be permissible under
regulations published under 401(k) of the Code to avoid such
discrimination.
The Committee shall establish such rules and give such directions to
the Trustee as shall be appropriate to carry out the above provisions of
this section. In any event, the following special rules shall be
applicable in administering the provisions of this subsection (E):
(w) The deferral percentage for any Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible to have
Salary Deferral Contributions allocated to his account under two or more
arrangements described in 401(k) of the Code that are maintained by the
Employer, shall be determined as if such Contributions were made under a
single arrangement.
(x) If two or more plans which include arrangements described
in Code 401(k) are aggregated for purposes of 401(a)(4) or 410(b), such
arrangements shall be treated as one such arrangement.
(y) For purposes of determining the deferral percentage of a
Participant who is a 5% Owner (as defined in Code 416(i)(1)) or one of the
ten most highly paid Highly Compensated Employees, the Salary Deferral
Contributions and Compensation of such Participant shall include the Salary
Deferral Contributions and Compensation of Family Members (as defined in
Code 414(q)(6)(B)), and such Family Members shall be disregarded as
separate Employees in determining the deferral percentage for such
Participants. In the case of a Highly Compensated Employee whose deferral
percentage is determined under this family aggregation rule, the
determination and correction of Excess Deferrals shall be according to
Regulation 1.401(k)-1(f)(5)(ii).
(z) The income allocable to Excess Deferrals is equal to the
sum of the allocable gain or loss (i) for the Plan Year and (ii) for the
period between the end of the Plan Year and the date of distribution (the
"gap period") and shall include unrealized appreciation in assets held in
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the Trust Fund. The income allocable to Excess Deferrals for the Plan Year
shall be determined by multiplying the income allocable to the
Participant's Salary Deferral Contributions for the Plan Year by a
fraction, the numerator of which is the Excess Deferrals on behalf of the
Participant for the preceding Plan Year and the denominator of which is the
Participant's total account balance attributable to Salary Deferral
Contributions on the last day of the preceding Plan Year, reduced by the
gain allocable to such total amount for the Plan Year and increased by the
loss allocable to such total amount for the Plan Year. The income
allocable to Excess Deferrals for the gap period shall be determined in
accordance with the Safe Harbor Method referred to in the Treasury
regulations under 401(k) of the Code.
3.2 ROLLOVER CONTRIBUTIONS
(A) Type of Rollovers Permitted Under Plan: The Committee shall
direct the Trustee to accept a Rollover Contribution from or on behalf of
an Employee eligible to receive an "eligible rollover distribution" (within
the meaning of 402(c)(4), 403(a)(4) and 408(d)(3) of the Code). The
Rollover Contribution shall be accepted whether received from the Employee
or transferred directly from another "eligible retirement plan" as defined
in 402(c)(8) of the Code. The rollover of all or any part of an eligible
rollover distribution shall be in accordance with the provisions of 402(c)
of the Code, and other applicable laws and regulations, including
Regulation 1-411(d)-4, Q&A-3(b)(1), and the Committee may require whatever
evidence or information from the Employee as it may deem necessary to
comply with said laws and regulations. However, the Committee shall not
accept any part of an eligible rollover distribution which consists of
assets which are other than (i) cash or equivalents or (ii) assets which
are identical to those which Participants may direct the Trustee to
purchase under the terms of the Plan, if applicable. An Employee need not
be an Active Participant in order to make a Rollover Contribution and in
the event that a Rollover Contribution is accepted on behalf of an Employee
prior to the date that he becomes an Active Participant in the Plan, he
shall be treated as a Participant as of the date of acceptance by the
Committee of such Rollover Contribution, but his benefits under the Plan
prior to the date he actually becomes an Active Participant in accordance
with Section 2.2 hereof shall be limited to the balance credited to his
Rollover Contribution Account. Any such Rollover Contribution Account
maintained on behalf of a Participant prior to the date he actually becomes
an Active Participant shall be included with the other Rollover
Contribution Accounts for the purposes of Section 7.1 hereof.
(B) Application to Committee: The Employee shall make application
for the rollover in writing to the Committee on forms approved and
designated by the Committee.
(C) Acceptance by Committee: Contributions under Section 3.2(A)
above so accepted as a rollover to the Plan shall be commingled with the
assets of the Trust Fund and shall be managed according to the terms of the
Trust Agreement; provided, however, that, unless the date of acceptance of
the Rollover Contribution coincides with a Valuation Date, the Trustee may
hold any such Rollover Contribution in a separate interest bearing account
in the Trust Fund until the next following Valuation Date. Prior to the
commingling of any such Rollover Contribution with the other assets of the
Trust Fund, the Trustee, in its sole discretion, may hold the Rollover
Contribution in cash separately in the Trust Fund without liability for
interest for a limited period pending investment if it is deemed necessary
or desirable.
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(D) Separate Account: The Committee shall establish and maintain
(or cause to be maintained) a separate account, called the "Rollover
Contribution Account," for each Employee for whom a Rollover Contribution
is accepted, and the Participant shall be credited immediately with a fully
(100%) vested interest in the amount represented by the Rollover
Contribution so accepted. The Rollover Contribution Account will reflect
the Participant's interest in the funds credited on his behalf under the
Plan as a result of his Rollover Contribution.
SECTION 4
EMPLOYER'S CONTRIBUTIONS
4.1 AMOUNT OF EMPLOYER'S CONTRIBUTIONS
(A) Subject to the right reserved by the Employer to modify, amend
or terminate the Plan, as provided in Sections 11.3 and 11.4 hereof, and
subject to the limitations set forth in Section 4.1(D) below, each Employer
(or, with respect to a group of Employers, if any, with respect to which
the Plan represents a single plan who file a consolidated tax return, the
group of such Employers) shall make a contribution (or combined
contribution) each Plan Year to the Trustee in an amount determined in (B)
below.
(B) The Employer's Contributions for the Plan Year shall include a
monthly "Regular Matching Contribution" which shall apply to those Active
Participants in the Plan during the current Plan Year who made Salary
Deferral Contributions to the Plan during such Plan Year. The amount of
such contribution to any Participant shall be dependent upon the
Participant's number of Years of Service (determined on the same basis used
to determine eligibility), except that for Plan Years beginning April 1,
1991 and thereafter, a Participant's Years of Service for purposes of
determining the amount of his Regular Matching Contribution shall not
include his Years of Service prior to his incurring a Break in Service on
or after April 1, 1991. For Participants with less than five (5) Years of
Service, the Employer's Regular Matching Contribution shall be an amount
equal to 50% of the Participant's Matched Salary Deferral Contributions
made during the Plan Year. For Participants with five (5) or more Years or
Service, the Employer's Regular Matching Contribution shall be an amount
equal to 100% of the Participant's Matched Salary Deferral Contributions
made during the Plan Year. In any event,however, any Participant whose
Salary Deferral Contributions for any calendar year equal the dollar
limitation set forth in Section 3.1(A) (initially $7,000) and who either
(i) is employed on December 31 of such calendar year or (ii) terminated
employment during such calendar year due to death, disability or retirement
shall receive a Regular Matching Contribution (determined in accordance
with the matching percentages set forth in the preceding sentence based on
Years of Service) based on 2% of the Participant's Compensation for such
calendar year. Additionally, at the sole discretion of such Employer (or
group of Employers), the Employer's Contributions for the Plan Year may
include an annual "Additional Matching Contribution" which shall apply to
those Active Participants in the Plan during the current Plan Year who made
Salary Deferral Contributions to the Plan during the current Plan Year and
who are entitled to share in the Employer's Contributions for the Plan Year
as provided in Section 7.4 hereof, and shall be an amount which the
Employer (or with respect to such a group of Employers, the board of
directors of the parent corporation) authorizes and announces in writing
before the due date for filing its Federal income tax return (including any
extension thereof) for the applicable fiscal years; provided, however, that
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the Employer's Contributions on behalf of any Participant for any Plan Year
may be reduced if required and to the extent necessary to lower his annual
addition for the Limitation Year to such amount as is permissible under
Section 7.2 hereof; and provided further, however, that the Employer's
Contributions for any Plan Year shall not exceed the maximum amount of
contribution permitted by law as a tax deductible expense for the
applicable fiscal year as provided in 404 of the Code, or any other
applicable provisions of said Code.
(C) The Regular Matching Contributions shall be paid by the
Employer to the Trustee as promptly as practicable after the corresponding
Matched Salary Deferral Contributions are paid to the Trustee pursuant to
Section 3.1 (D) above (but in any event not later than thirty (30) days
after the close of the Plan Year for which the contributions are deemed to
be made. Any Additional Matching Contribution made by the Employer for the
Plan Year shall be deemed to have been made on the last Accounting Date of
the Plan Year irrespective of when such contributions are actually turned
over to the Trust Fund for such Plan Year.
(D) Employer Matching Contributions Subject to Nondiscrimination
Requirements of 401(m) of the Code. For any given Plan Year, the "average
contribution percentage" (as defined herein) for all Eligible Employees who
are Highly Compensated Employees for such Plan Year may not exceed the
greater of:
(a) One and one-quarter (1.25) times the "average contribution
percentage" for all Eligible Employees who are Non-highly Compensated
Employees for such Plan Year; or
(b) Two (2.0) times the "average contribution percentage" for
all eligible Employees who are Non-highly Compensated Employees for such
Plan Year, but not more than the sum of (i) 2% and (ii) the "average
contribution percentage" for all Eligible Employees who are Non-highly
Compensated Employees.
An individual "contribution percentage" is calculated for each Eligible
Employee each Plan Year by dividing the total of his Employer Contributions
determined under Section 4.1(B) and allocated to him under Section 7.4, if
any, during the Plan Year by his Compensation for the Plan Year. Effective
April 1, 1993, an Eligible Employee's Compensation for purposes of
calculating his contribution percentage will include only such Compensation
earned after becoming a Participant in the Plan. The "average contribution
percentage" for the Non-highly Compensated Employees are then determined by
adding up the individual contribution percentages for the applicable group
and dividing the number of Eligible Employees in such group. For purposes
of this Section 4.1(D), Eligible Employee includes any Employee eligible to
elect to have Salary Deferral Contributions withheld from his compensation
pursuant to Section 3.1(A) above, whether or not such election is
exercised.
If the Committee determines that a Participant's Employer
Contributions under Section 4.1(B) hereof for any Plan Year would cause the
Plan to fail to meet the nondiscrimination requirements of this subsection
(D) or 401(m) of the Code and the regulations thereunder (including
Regulation 1-401(m)-2(b)), then the Committee (subject to the order of
priority specified below in subparagraph (2)) shall take any or all of the
following preventive measures as, in its sole discretion, it deems
necessary to avoid such discrimination:
(1) From time to time reduce (or suspend, if necessary) the
rate of discretionary Employer Contributions under Section 4.1(B) hereof
for the remainder of the Plan Year of those Active Participants who are
Highly Compensated Employees (such reduction first to apply to the highest
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rate on a uniform basis to all such Active Participants who are receiving
the highest percentage of Employer Contributions under Section 4.1(B), and
so on, in descending order from the highest percentage); or
(2) Excess Contributions (as defined herein) plus any income
allocable thereto, first shall be forfeited, if forfeitable, or if not
forfeitable, distributed no later than the last day of the Plan Year
immediately following the Plan Year in which such Excess Contributions were
made, to those Highly Compensated Employees to whose accounts Employer
Contributions were allocated for such Plan Year in which the excess
occurred, on the basis of their respective portions of the Excess
Contributions attributable to each of such Employees. Such distributions
must be designated by the Employer as a distribution of Excess
Contributions and allocable income. "Excess Contributions" shall mean,
with respect to any Plan Year, the aggregate amount of Employer
Contributions actually paid over to the Trust on behalf of Highly
Compensated Employees for such Plan Year, over the maximum amount of such
contributions permitted under this subsection (D), determined by reducing
Employer Contributions made on behalf of Highly Compensated Employees in
order of the actual contribution percentages beginning with the highest of
such percentages. Excess Contributions shall be treated as Annual
Additions under Section 7.2 of the Plan. The extent to which a
Participant's Excess Contribution shall be forfeitable under this
subparagraph (2) shall be determined by multiplying the total amount of
such Excess Contribution by the Participant's non-vested percentage
determined in accordance with Section 4.3 of the Plan. Forfeitures of
Excess Contributions shall be applied to reduce future Employer
Contributions under Section 4.1; or
(3) Take such other action as may be permissible under
regulations published under 401(m) of the Code to avoid such
discrimination. The Committee shall establish such rules and give such
directions to the Trustee as shall be appropriate to carry out the above
provisions of this section. In any event, the following special rules
shall be applicable in administering the provisions of this subsection (D):
(a) The contribution percentage for any Participant who is a
Highly Compensated Employee and who is eligible to participate in two or
more plans that are maintained by the Employer to which employee
contributions, matching contributions, or both, are made, shall be
determined as if such contributions were made under a single plan.
(b) In the event that the Plan satisfies the requirements of
410(b) of the Code only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of 410(b) of the Code only
if aggregated with this Plan, then this section shall be applied by
determining the contribution percentages of Participants as if all such
plans were a single plan.
(c) For purposes of determining the contribution percentage of
a Participant who is a 5% owner (as defined in Code 416(i)(1)) or one of
the ten (10) most highly-paid Highly Compensated Employees, the Employer
Matching Contributions and Compensation of such Participant shall include
the Employer Matching Contributions and the Compensation of Family Members
(as defined in Code 414(q)(6)(B)), and such Family Members shall be
disregarded as separate Employees in determining the contribution
percentage for such Participants. In the case of a Highly Compensated
Employee whose contribution percentage is determined under this family
aggregation rule, the determination andcorrection of Excess Contributions
shall be according to Regulation 1-401(m)-1(e)(2)(iii).
(d) The income allocable to Excess Contributions is equal to
the sum of the allocable gains or loss (i) for the Plan Year and (ii) for
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the period between the end of the Plan Year and the date of distribution
(the "gap period") and shall include unrealized appreciation in assets held
in the Trust Fund. The income allocable to Excess Contributions shall be
determined by multiplying the income or loss allocable to the Participant's
Employer Contributions for the Plan Year by a fraction, the numerator of
which is the Excess Contributions on behalf of the Participant for the
preceding Plan Year and the denominator of which is the Participant's total
account balance attributable to Employer Contributions on the last day of
the preceding Plan Year, reduced by gain allocable to such total amount for
the Plan Year and increased by the loss allocable to such total amount for
the Plan Year. The income allocable to Excess Contributions for the gap
period shall be determined in accordance with the Safe Harbor Method
referred to in the Treasury regulations under 401(m) of the Code.
(e) The determination of Excess Contributions under this
Section 4.1(D) shall be made only after first determining the amount, if
any, of Excess Deferrals under Section 3.1(E) above.
4.2 LIMITATION ON USE OF "TWO TIMES" TEST.
(A) Limitation Described. In no event may the sum of: (i) the average
deferral percentages of Highly Compensated Employees, as determined under
Section 3.1(E), and (ii) the average contribution percentages of Highly
Compensated Employees, as determined under Section 4.1(D), exceed the
"Aggregate Limit".
(B) Aggregate Limit Defined. The "Aggregate Limit" is the greater of:
(1) The sum of:
(a) 1.25 times the greater of: (i) the average
deferral percentage of Employees who are Non-highly Compensated Employees
as determined under Section 3.1(E), or (ii) the Average Contribution
Percentage of Employees who are Non-highly Compensated Employees as
determined under Section 4.1(D), plus
(b) Two percentage points plus the lesser of the
amounts described in clause (1)(a)(i) and (1)(a)(ii) above, but not to
exceed 200 percent of the lesser of the amounts described in clause
(1)(a)(i) and (1)(a)(ii) above; or
(2) The sum of:
(a) 1.25 times the lesser of: (i) the average
deferral percentage of Employees who are Non-highly Compensated Employees
as determined under Section 3.1(E), or (ii) the Average Contribution
Percentage of Employees who are Non-highly Compensated Employees as
determined under Section 4.1(D), plus
(b) Two percentage points plus the greater of the
amounts described in clause (2)(a)(i) and (2)(a)(ii) above, but not to
exceed 200 percent of the greater of the amounts described in clause
(2)(a)(i) and (2)(a)(ii) above.
4.3 VESTING OF EMPLOYER CONTRIBUTION ACCOUNT
Except as hereinafter provided, the amount credited to the Employer
Contribution Account of each Participant shall become vested and
nonforfeitable based upon his number of Years of Service (as defined above)
in the percentage indicated as follows:
Years of Service Percentage Vested
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 years 100%.
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Provided, however, that any amounts credited to the Employer
Contribution Account of any Participant which is attributable to his
employer contribution account transferred as a result of the merger of the
Henry House, Inc. Employees Savings Plan with this Plan shall become vested
and nonforfeitable based on his number of Years of Service (as defined
above) in the percentage indicated as follows:
Years of Service Percentage Vested
Less than 1 year 0%
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years 100%.
If any Participant previously shall have made a withdrawal from his
Employer Contribution Account in accordance with Section 8.9, his current
vested interest in his Employer Contribution Account shall be equal to:
(a) The current value of his Employer Contribution Account,
plus
(b) The sum of any amounts previously withdrawn by or
distributed to the Participant from his Employer Contribution Account,
multiplied by
(c) The percentage then applicable to the Participant in
accordance with the schedule of percentages stated in this Section 4.2
minus
(d) The sum of all amounts previously withdrawn by or
distributed to the Participant from his Employer Contribution Account.
4.4 VESTING ON DEATH, DISABILITY OR NORMAL RETIREMENT
Upon a Participant's death, severance of employment due to Total and
Permanent Disability (defined above), or attainment of his Normal
Retirement Date (as defined in Section 8.3 below), the full amount of his
Employer Contribution Account shall become vested and nonforfeitable.
4.5 VESTING IF PLAN TERMINATED OR EMPLOYER CONTRIBUTIONS DISCONTINUED
Notwithstanding any other provisions of this Section 4, if the Plan
is terminated or Employer contributions to the Trust Fund are permanently
discontinued, the full amount of each Participant's Employer Contribution
Account shall become fully vested and nonforfeitable. If the Plan is
partially terminated, then the accounts of those Participants as to whom
partial termination occurred shall be fully vested and nonforfeitable.
4.6 EFFECT OF BREAK IN SERVICE ON VESTING
A former Participant who had a nonforfeitable right to all or a
portion of his Employer Contribution Account at the time of a Break in
Service shall receive credit for all Years of Service prior to his Break in
Service upon completing a Year of Service after such break. A former
Participant who did not have a nonforfeitable right to any portion of his
Employer Contribution Account at the time of a Break in Service shall
receive credit for all Years of Service before such break if (i) he
completes a Year of Service after such break, and (ii) the number of
consecutive one-year Breaks in Service is less than the greater of five (5)
years or the aggregate number of the Participant's Years of Service before
such break. All Years of Service occurring after five (5) consecutive one-
year Breaks in Service shall be disregarded for purposes of determining the
Participant's vested percentage in contributions that occurred before such
five-year break. Separate accounts shall be maintained for the pre-break
and post-break contributions.
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4.7 DISPOSITION OF FORFEITED AMOUNTS
If a Participant incurs five consecutive one-year Breaks in Service
or if a Participant receives a Cash-Out Distribution pursuant to Section
8.6, then, in either event that part, if any, of his Employer Contribution
Account which is not vested in accordance with the foregoing provisions of
Section 4.3 shall be forfeited and shall be used to offset future Employer
Contributions under the Plan. Any former Participant receiving a Cash-Out
Distribution as defined in Section 8.6 who returns to the employ of the
Employer prior to incurring five consecutive one-year Breaks in Service and
repays the amount of his previous distribution pursuant to Section 8.6
shall have restored to his Employer Contribution Account any amount
previously forfeited. Such forfeiture shall be restored first from any
forfeitures during the Plan Year of his return to employment and next from
the Employer Contribution next occurring after his return. Disposition of
forfeitures pursuant to this Section 4.7 shall occur only after application
of the forfeiture provisions of Section 4.1(D)(2) above (regarding
forfeitures of Excess Contributions as defined therein).
4.8 CHANGE IN VESTING SCHEDULE
As to each Employee who had no less than 3 Years of Service on the
date any Plan amendment which directly or indirectly changes the vesting
schedule becomes effective, such Employee may elect to have his vesting
percentage computed without regard to such amendment. Such election will
be irrevocable and must be made in writing to Employer not later than the
latest of the following dates:
(1) 60 days after the amendment is adopted;
(2) 60 days after the effective date of the amendment;
(3) 60 days after the date the Employee is given written
notice of the amendment by the Employer.
SECTION 5
INVESTMENT OF CONTRIBUTIONS
5.1 INVESTMENT FUNDS
Initially the Trust Fund will consist of only one "Investment Fund"
which shall be designated as the "fixed rate fund". The fixed rate fund
shall consist of assets that reasonably can be expected to have a fixed
rate of return or that have a guaranteed rate of return with a low risk of
loss of principal. At a future date to be determined by the Committee (the
"fund separation date"), the Trust Fund may be separated into as many as
four "Investment Funds" for the investment of the contributions made
hereunder. Such separate funds shall include the aforementioned fixed rate
fund and one or more of the following: (i) an equity fund, consisting of
investments primarily in common and preferred stocks and convertible
securities (excluding Employer securities), (ii) a balanced fund,
consisting of investments in bonds, stocks and money market instruments and
(iii) an Employer stock fund consisting entirely of Class A common stock of
Tyson Foods, Inc. The value of the assets held in the Trust Fund in each
of the Investment Funds as of each Valuation Date shall be determined on
the basis of the fair market value of the assets of such fund as of such
date as appraised by the Trustee. After the fund separation date, each of
the Investment Funds shall be segregated from and completely independent of
the other Investment Funds and the accounting procedures described in
Section 7.1 hereof shall apply separately with respect to each such fund.
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5.2 DESIGNATION BY PARTICIPANT OF INVESTMENT FUNDS
(A) If applicable, each Participant in the Plan shall elect
(separately with respect to each applicable type of contribution) as of his
date of initial participation in the Plan or as of the fund separation
date, if later, to have his future Salary Deferral Contributions and the
Employer's Contributions, if any, which are allocated on his behalf to the
Plan invested among the Investment Funds in any multiples of 10% or such
other multiples as the Committee may establish and announce in writing to
the Participants. A Participant who makes a Rollover Contribution to the
Plan shall make a separate election with respect to the Investment Fund or
Funds for investment of his Rollover Contribution.
(B) In the event that a Participant fails to make an election under
(A) above with respect to one or more applicable type of contribution, he
shall be deemed to have elected 100% of the fixed rate fund Investment Fund
with respect to each such type of contribution for which no election was
made.
5.3 CHANGE OF INVESTMENT DESIGNATION
A Participant may change his designation of the manner of investment
with respect to future Salary Deferral Contributions and the Employer's
Contributions which are allocated on his behalf to any other manner
permitted under Section 5.2(A) above as of any Valuation Date by filing a
written application for the change (on a form provided by the Committee for
this purpose) at least 30 days prior to such date.
5.4 TRANSFERS AMONG INVESTMENT FUNDS
A Participant may direct funds credited to any of his Investment
Fund subaccounts in his Salary Deferral Contribution Account, Employer
Contribution Account and, if applicable, his Rollover Contribution Account,
which are held on his behalf in the applicable Investment Fund transferred,
in multiples of 10% or such other multiples as the Committee may establish
and announce in writing to the Participants, and credited to one of the
other Investment Fund subaccounts in such account as of the day following
any Valuation Date by filing a written application directing the transfer
(on a form provided by the Committee for this purpose) at least 30 days
prior to such date.
5.5 SPECIAL ONE TIME ELECTION
Notwithstanding anything stated to the contrary in this Section 5,
Participants in this Plan who previously were participants in the Victor F.
Weaver, Inc. Retirement/Savings Plan (the "Weaver Plan") and who had
elected to invest part or all of their accounts thereunder in the equity
fund and/or the balanced fund available under the Weaver Plan shall be
entitled to make a one time election to direct that such funds invested in
the Weaver equity fund and/or Weaver balanced fund be credited, in any
increments of 10%, to either the Tyson fixed rate fund, the Weaver equity
fund or the Weaver balanced fund. After September 1, 1991, to the extent
such funds are invested in the Weaver equity fund and/or the Weaver
balanced fund, such Participant shall not be entitled to direct any
transfers of amounts of such funds between such funds; provided, however,
that after September 1, 1991 such Participant nevertheless will be
entitled, pursuant to the provisions set forth in Section 5.4, to direct
that all of his funds invested in either the Weaver equity fund and/or the
Weaver balanced fund shall be transferred to the Tyson fixed rate fund.
Once funds from the Weaver equity fund and/or Weaver balanced fund are
transferred to the Tyson fixed rate fund, those funds may not again be
transferred back to either of the Weaver funds. Similarly, Participants
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who previously were participants in the Henry House, Inc. Employees Savings
Plan (the "Henry House Plan") and who had elected to invest part or all of
their accounts thereunder in the variable account available under the Henry
House plan shall be entitled to make a one time election to direct that
such funds invested in the Henry House variable account be credited, in any
increments of 10%, to either the Henry House variable account or the Tyson
fixed rate fund. Provided, however, that after February 1, 1992 such
Participant shall be entitled, pursuant to the provisions set forth above
in Section 5.4, to direct that all of his funds invested in the Henry House
variable account shall be transferred to the Tyson fixed rate fund. Once
funds from the Henry House variable account are transferred to the Tyson
fixed rate fund, those funds may not again be transferred back to the Henry
House variable account.
SECTION 6
INDIVIDUAL ACCOUNTS
6.1 ESTABLISHING AND MAINTAINING PARTICIPANT'S ACCOUNTS
(A) The Committee shall cause to be established and maintained for
each Participant until his Initial Distribution Date, or until such later
date as of which distribution of the value in such accounts is made, with
respect to each Employer (or group of Employers with respect to which the
Plan represents a single plan) by which the Participant is or has been
employed, two separate accounts, called the "Salary Deferral Contribution
Account," and the "Employer Contribution Account," respectively. The
Participant's Salary Deferral Contribution Account will reflect his
interest in the funds credited on his behalf under the Plan as a result of
the Salary Deferral Contributions made on his behalf under this Plan or any
of the Merged Plans plus, if applicable, any Employer contributions which
the Employer may have elected to treat as Salary Deferral Contributions.
The Participant's Employer Contribution Account will reflect his interest
in the funds, if any, credited on his behalf under the Plan as a result of
the Employer's Contributions on his behalf under this Plan or any of the
Merged Plans. In addition, the Participant's Salary Deferral Contribution
Account and Employer Contribution Account shall consist of such subaccounts
as are required to reflect his interest in the various Investment Funds in
accordance with his directions as specified in Section 5 hereof or to
reflect faster vesting requirements attributable to any employer
contribution accounts from any of the Merged Plans or any other variances
in the source or treatment of accounts from any of the Merged Plans.
(B) In addition to the separate accounts described in Section
6.1(A) above, the Committee shall cause to be established and maintained
for each applicable Participant until his Initial Distribution date or
until such later date as of which distribution of the value in such
account is made: (1) the Rollover Contribution Account described in
Section 3.2 hereof which may include rollover accounts from any of the
Merged Plans and (2) separate After-Tax Contribution Accounts for any
after-tax contribution accounts from any of the Merged Plans. The
additional Accounts created pursuant to this Section 6.1(B) at all times
shall be 100% vested and shall consist of such subaccounts as are required
to reflect his interest in the various Investment Funds in accordance with
his directions as specified in Section 5 hereof.
(C) Each such account and subaccount maintained on behalf of each
Participant shall be credited or debited to the extent required by the
provisions of the Plan. All entries on such individual accounts shall be
conclusive and binding upon all parties unless patently erroneous. Monies
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derived from these accounts shall be held, administered, invested and
disbursed in accordance with the Plan and Trust Agreement.
SECTION 7
ACCOUNTING
7.1 VALUATION OF ACCOUNTS
(A) As of each Valuation Date and as of such other interim date or
dates as may be established by the Committee, in its sole discretion, for
making the adjustments to the accounts, the sum of the balances credited to
each of the Investments Fund subaccounts in the accounts of all
Participants, [that is, the sum of such subaccounts in (1) the Salary
Deferral Contribution Accounts, (2) the Employer Contribution Accounts, (3)
the After-Tax Contribution Accounts, after debiting such subaccounts with
the amounts of any distributions or withdrawals with regard to such
subaccounts since the last preceding Valuation Date and after crediting the
amounts of the Participants' Salary Deferral Contributions and Regular
Matching Contributions since the preceding Valuation Date but prior to
crediting the Employer's Additional Matching Contributions, if any, under
Section 7.4 hereof on such Valuation Date and (4) the Rollover Contribution
Accounts, after debiting such subaccounts in the Rollover Contribution
Accounts with the amounts of any distributions or withdrawals with regard
to such subaccounts since the last preceding Valuation Date, but excluding
any Rollover Contribution Accounts that were established after the last
preceding Valuation Date] shall be compared with the then value of the
applicable Investment Fund as reported by the Trustee to the Committee,
after debiting all distributions and withdrawals paid out of such
Investment Fund since the last preceding Valuation Date, excluding from
such value any amount which represents the Employer's Additional Matching
Contributions since the last preceding Plan Year. On the basis of such
comparison, the sum of the balances credited to such of the Participants'
Investment Fund subaccounts will be adjusted to equal the value of the
applicable Investment Funds in the manner described in Section 7.1(B)
below.
(B) The difference between (1) the value of the applicable
Investment Fund [after adjustment of the Investment Fund as described in
Section 7.1(A)] and (2) the sum of the balances credited to such of the
Participants' Investment Fund subaccounts [after adjustments have been made
to such subaccounts pursuant to Section 7.1(A)], will be apportioned to the
Participants' Investment Fund subaccounts in proportion to the balances
credited to the respective Investment Fund subaccounts (as modified below)
before such apportionment. On the basis of the comparison described in
Section 7.1(A) above, the sum of such balances credited to the subaccounts
will be further adjusted to equal the value of the applicable Investment
Fund by apportioning to such of the Participants' subaccounts the
difference between the sum of such balances credited to the subaccounts and
such value of the applicable Investment Fund, in proportion to the balances
credited to the respective subaccounts before such apportionment; provided,
however, that for purposes of such apportionment, Participants' subaccounts
shall be determined as set forth in Section 7.1(A) above, except for the
following modifications:
(i) only one-half of a Participant's Salary Deferral
Contributions and corresponding Regular Matching Contributions shall be
included; and
(ii) if the Trustee has elected to commingle a Participant's
Rollover Contribution with the assets of the Trust Fund pursuant to Section
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3.2(c) since the preceding Valuation Date, then the Participant's Rollover
Contribution Account only shall be credited with that fraction of the
Rollover Contribution equal to the number of complete months from the date
the Trust received such Rollover Contribution to the current Valuation Date
over the number of complete months since the preceding Valuation Date.
The amounts of such differences which are so apportioned to each
Participant shall be credited or debited, as the case may be, to the
subaccounts of such Participants before such apportionment to determine the
adjustment to the individual subaccounts of each Participant and the
subaccounts so adjusted, increased by the additional amount, if any,
credited in accordance with the provisions of Section 7.4 hereof, shall be
the balances credited to such subaccounts of the Participants until the
next following Valuation Date or until being adjusted for any debits or
credits pursuant to Sections 7 and 8 hereof.
(C) Notwithstanding the language of Section 7.1(A), the value of a
Participant's fixed rate fund subaccounts which are invested in a group
annuity fund shall be determined in accordance with the group annuity
contract or contracts on each Valuation Date.
(D) The value of each Investment Fund as of each Valuation Date
will be determined on the basis of the fair market value of the assets of
such Investment Fund as appraised by the Trustee.
(E) For purposes of this Section 7.1, the term "Investment Fund"
shall include, where applicable, the Weaver Plan equity and balanced funds
and the Henry House variable account referred to in Section 5.5 above.
7.2 MAXIMUM ANNUAL ADDITION ON BEHALF OF ANY PARTICIPANT DURING
ANY LIMITATION YEAR
(A) The term "annual addition" as used herein means the sum for any
Limitation Year of:
(1) The amount of the Participant's Salary Deferral
Contributions for the Limitation Year and the Employer's contributions, if
any, allocated on his behalf for the Limitation Year under Section 7.4
below;
(2) Any salary deferral contributions, employer contributions
and forfeitures allocated on his behalf under all other Defined
Contribution Plans of the Controlled Group Members; and
(3) Any "after-tax" participant contributions by the
Participant for such Limitation Year under the Plan and all other Defined
Contributions Plans of the Controlled Group Members.
(B) Any provisions herein to the contrary notwithstanding, in no
event shall the annual addition of a Participant during any Limitation Year
exceed the maximum limitation for Defined Contribution Plans as specified
in 415(c) of the Code. In determining the maximum annual addition that may
be allocated on behalf of any Participant during any Limitation Year, all
Defined Contribution Plans, whether or not terminated, of all Controlled
Members are to be treated as one Defined Contribution Plan. The proportion
of the maximum annual addition applicable to all such Defined Contribution
Plans of such Controlled Group Members during any Limitation Year shall be
determined on a pro rata basis depending upon the amount of the annual
addition that would have otherwise been allocated on his behalf under each
such Defined Contribution Plan during such Limitation Year if the
restriction of this Section 7.2 did not apply. The term "IRC 415
Compensation" shall have the meaning assigned in 415 of the Code and
regulations issued with respect thereto. Such compensation shall include
(i) earned income (including earned income from sources outside the United
States, as defined in 911(b) of said Code, whether or not excludable from
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gross income under 911 or deductible under 913 of said Code), wages,
salaries, fees for professional services, and other amounts received for
personal services actually rendered in the course of employment with the
employer (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses), (ii) amounts
described in 104(a)(3), 105(a) and 105(h) of the Code, but only to the
extent that these amounts are includable in the gross income of the
Participant, (iii) amounts described in 105(d) of the Code, whether or not
these amounts are excludable from the gross income of the Participant under
that section of said Code, (iv) amounts paid or reimbursed by the employer
for moving expenses incurred by the Participant, but only to the extent
that these amounts are not deductible by the Participant under 217 of the
Code, (v) the value of a nonqualified stock option granted to the
Participant by the employer, but only to the extent that the value of the
stock option is includable in the gross income of the Participant for the
taxable year in which granted, (vi) the amount includable in the gross
income of the Participant upon making the election described in 83(b) of
the Code and (vii) any amounts received by the Participant pursuant to an
unfunded non-qualified plan in the year such amounts are includable in the
gross income of the Participant. Such compensation shall exclude (i)
contributions by the employer to a plan of deferred compensation which are
not included in the Participant's gross income for the taxable year in
which contributed, (ii) contributions by the employer under a simplified
employee pension plan to the extent such contributions are deductible by
the Participant, (iii) any distribution from a plan of deferred
compensation that is qualified pursuant to 401(a) of the Code, (iv) amounts
realized from the exercise of a nonqualified stock option, (v) amounts
realized when restricted stock (or property) held by the employee either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture, (vi) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option, (vii) other
amounts which received special tax benefits and (viii) contributions made
by the employer (whether or not under a salary reduction agreement) towards
the purchase of an annuity described in 403(b) of the Code (whether or not
the amounts are actually excludable from the gross income of the
Participant). Notwithstanding the foregoing, the annual Compensation of
each Participant under this Section 7.2 shall not exceed $200,000 or such
other amount as may be specified by the Secretary of the Treasury pursuant
to his duties under 401(a)(17) of the Code.
(1) Maximum Annual Addition Due to Restrictions of 415(c) of the
Code: The total annual addition (the total applicable to all such Defined
Contribution Plans of the Controlled Group Members) which may be allocated
on behalf of a Participant during any Limitation Year shall not exceed an
amount equal to the lesser of:
(a) $30,000 or, if greater, one-fourth (1/4) of the defined
benefit dollar limitation set forth in 415(b)(1)(A) of the Code as in
effect as of the last day of such Limitation Year; or
(b) An amount equal to 25% of the IRC 415 Compensation which
the Participant received from the Controlled Group Members during such
Limitation Year.
(C) The above limitations are intended to comply with the
provisions of 415 of the Code so that the maximum benefits provided by
plans of the Controlled Group Members shall be exactly equal to the maximum
amounts allowed under 415 of the Code and the regulations issued thereunder
which are hereby incorporated by reference. If there is any discrepancy
between the provisions of this Section 7.2 and the provisions of 415 of the
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Code and the regulations issued thereunder, such discrepancy shall be
resolved so as to give full effect to the provisions of 415 of said Code.
(D) Defined Benefit and Defined Contribution Plans. Where the
Participant is or was also a Participant in one or more defined benefit
plans of the Employer, the sum of such Participant's defined benefit plan
fraction and defined contribution plan fraction, as determined pursuant to
Code 415(e) (as modified by 416(h) of the Code to the extent applicable),
for any Plan Year may not exceed one (1). The Employer may, in calculating
the defined contribution plan fraction, elect to apply the transitional
rule provided in 415(e)(6) of the Code. In the event that the sum of
Participant's defined contribution plan and defined benefit plan fractions
would otherwise exceed one (1) for any Plan Year, then the Annual Addition
which would otherwise be made under all applicable defined contribution
plans for such Participant shall be adjusted pursuant to Section 7.2(E) to
the extent necessary, so that the sum of such fraction does not exceed one
(1). If, after all such adjustments, the sum of the fractions would still
exceed one (1), then the benefit which would otherwise be accrued with
respect to such Participant under any applicable defined benefit plan shall
be considered not to have been accrued and will be limited to the extent
necessary so that the sum does not exceed one (1).
(E) In the event that the Participant's annual addition under the
Defined Contribution Plans for any Limitation Year is restricted as a
result of the above provisions of this section, that portion or all of the
annual addition allocable to the Participant under the Plan for such
Limitation Year which is required to reduce the amount of the annual
addition to the amount permitted under Section 7.2(B) above shall be
eliminated by holding unallocated in a special account, called the
"Unallocated Limitation Account" to the extent necessary, that portion or
all of the Participant's allocable share of the Employer's Contributions
for the Plan Year, for subsequent allocation with the Employer's
Contributions for the next succeeding Plan year (or, if necessary, Plan
Years). The Unallocated Limitation Account shall not be adjusted for gains
or losses as of any Accounting Date. Provided, however, that the
provisions of this subparagraph (E) shall apply only to the extent such
annual addition has not been reduced to the amount permitted under Section
7.2(B) above by first applying any similar provisions for reducing such
excess annual additions under any other Defined Contribution Plans of the
Controlled Group Members in which the Participant also is an active
participant.
7.3 CREDITING OF SALARY DEFERRAL CONTRIBUTIONS
The Salary Deferral Contributions made on behalf of each Participant
shall be credited to his applicable Investment Fund subaccounts in his
Salary Deferral Contribution Account as soon as practicable after they are
deducted from his Compensation and turned over to the Trustee, but in no
event later than the next following Accounting Date.
7.4 ALLOCATION AND CREDITING OF EMPLOYER'S CONTRIBUTIONS
(A) The Regular Matching Contributions made on behalf of each
Participant shall be credited to his applicable Investment Fund sub-
accounts in his Employer Contribution Account as soon as practicable after
his corresponding Matched Salary Deferral Contributions are paid to the
Trustee pursuant to Section 7.3 above, but in no event later than the next
following Accounting Date. As of the last Accounting Date of each Plan
Year, after making the debits or credits to the Participants' accounts
required by Section 7.1 above, the sum of the Employer's Additional
Matching Contribution," if any, (as defined in Section 4.1(B) hereof) for
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the current Plan Year shall, subject to the maximum limitations on
contributions described in Section 7.2 and the limitations of Section
4.1(D) above, be allocated and credited to the Employer Contribution
Accounts of those Active Participants in the Plan at any time during the
current Plan Year who are entitled to share in the allocation in accordance
with Section 7.4(B) below, in the proportion which the Matched Salary
Deferral Contributions made on behalf of such Participant during the
current Plan Year bears to the aggregate of such Matched Salary Deferral
Contributions made during the current Plan Year on behalf of all such
Participants who are sharing in the allocation of the Employer's
Contributions for such Plan Year.
(B) Those Active Participants in the Plan at any time during the
current Plan Year who either (1) are in the active service of the Employer
on the last Accounting Date of the Plan Year (i.e., whose service has not
terminated prior to the last business day of the Plan Year just ended) or
(2) are not in active service because of termination of service during the
current Plan Year due to death or Total and Permanent Disability, shall be
entitled to share in the Employer's Additional Matching Contributions, if
any, for such Plan Year.
7.5 EFFECTIVE DATE OF ENTRIES
Each adjustment provided for by Sections 7.1 to 7.4, inclusive,
shall be considered as having been made on the dates specified in such
sections, regardless of the dates of actual entries or receipt by the
Trustee of contributions for such year.
SECTION 8
DISTRIBUTIONS
8.1 INITIAL DISTRIBUTION DATE
The Initial Distribution Date of a Participant shall be the earlier
of:
(a) The date of termination of his employment; or
(b) The end of his Plan Year in which he attains age 70 1/2.
8.2 ESTABLISHMENT OF DISTRIBUTION ACCOUNT
On a Participant's Initial Distribution Date, the Trustee shall
determine the amount of each separate account of the Participant to which
such Participant may be entitled on such date in accordance with the
vesting provisions of Section 4, and shall credit such amount or amounts to
a new account for the former Participant to be called the "Distribution
Account." The balance of the Participant's Employer Contribution Account
(representing his forfeitable amount) shall continue to be held therein,
until forfeited in accordance with Section 4.7. The net credit balance in
each Distribution Account shall be subject on each Accounting Date to the
adjustments specified in Section 7.1.
8.3 DATE OF DISTRIBUTION.
(A) Less than $3,500. Disbursement of a Participant's Distribution
Account shall be made in one cash lump sum without his consent within sixty
(60) days of the Valuation Date coincident with or immediately following
his termination of employment if the vested amount of such account does not
exceed $3,500.
(B) Greater than $3,500. If the vested amount of a Participant's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution 2Account shall be made, or begun if in
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periodic payments, subject to the provisions of Section 8.11 below, if
applicable, as follows:
(1) With the written consent of the Participant, within sixty
(60) days of the Valuation Date coincident with or immediately following
the date such consent is received by Employer; or
(2) If the Participant does not consent to a distribution
under (1) above, within sixty (60) days of the Valuation Date coincident
with or immediately following the date:
(a) the Participant dies;
(b) the Participant incurs a Total and Permanent
Disability (as defined in Section 1.1(A)(31));
(c) the Participant reaches age 55, has at least ten (10)
Years of Service with Employer and elects to begin receiving distributions
on or after such date; or
(d) the Participant reaches his Normal Retirement
Date or Age (as defined below).
Provided, however, that such Participant thereafter may elect to
withdraw as of any Accounting Date, all of his Salary Deferral Contribution
Account by filing a written application with the Committee at least 30 days
prior to the date the withdrawal is to be made.
For purposes of the Plan, "Normal Retirement Date" or "Normal
Retirement Age" shall mean a Participant's 65th birthday. Notwithstanding
the foregoing, the disbursement of the Distribution Account shall in any
event be made or begun by April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2.
8.4 METHODS OF DISTRIBUTION
(A) Except as may be required under Section 8.4(B) and under
Sections 8.3(A), 8.10 and 8.11, all distributions made to a Participant or
his beneficiaries shall be made by the Trustee in one of the three
following methods:
(1) Lump Sum. By payment in a lump sum.
(2) Installments. By payment in equal installments over a
period certain which does not extend beyond the lesser of twenty (20) years
or the life expectancy of the Participant or the joint life expectancies of
such Participant and the Participant's beneficiary determined as of the
date that payment of benefits commences, subject to the following
requirements:
(a) Fifty Percent (50%) Present Value Test. The
present value of payments to be made to the Participant must be more than
fifty percent (50%) of the present value of the total payments to be made
to the Participant and the Participant's beneficiaries, all as determined
as of the later of such Participant's normal retirement date or the
Participant's termination of employment; and
(b) Equal Installments. Payments must be in the
form of annual or more frequent installments provided the present value of
all such periodic payments payable to the Participant or his or her
beneficiary must be equal to the immediate lump sum otherwise distributable
to the Participant had a lump sum settlement been made.
(3) Combination. By a combination of (1) and (2). The method
of distribution to the Participant or his beneficiaries shall be
implemented by the Committee, in accordance with the directions of the
Participant in effect at the time the Participant's employment is
terminated.
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(B) Notwithstanding subsection (A) above, all distributions of any
amounts from a Participant's After-Tax Contribution Account and Employer
Contribution Account attributable to such accounts transferred from the
merged Tyson Thrift Plan shall be subject to the following additional
provisions:
(1) Annuity Option. Such Participant who retires and begins to
receive payments under the Plan shall have, in addition to the distribution
options available under Section 8.4(A) above, the right to elect to receive
payment from such account in the form of a life annuity (or, if married, in
the form of a Qualified Joint and Survivor Annuity). The Participant (and,
if married, with the consent of his spouse) also may elect during the
election period (which shall be the 90-day period ending on the Annuity
Starting Date) to receive payments from such account in the form of a
straight life annuity or a straight life annuity with a ten-year guarantee.
Any election shall be in writing and may be changed at any time.
(2) Preretirement Survivor Annuity. If a Participant who is
married dies before the date upon which his retirement benefits were to
commence, such Participant's surviving spouse shall have, in addition to
the distribution options available under Section 8.4(A) above, the right to
elect to receive payment from such account in the form of a Preretirement
Survivor Annuity. The spouse also may elect during the election period,
which shall begin on the first day of the Plan Year in which the
Participant attains age 35 (or for a Participant who is separated from
service the date of such separation with respect to benefits accrued before
separation) and end, on the date benefits commence, to receive payments
from such account in the form of a straight life annuity or a straight life
annuity with a ten-year guarantee. Any election shall be in writing and
may be changed at any time. The surviving spouse may elect to have such
annuity distributed immediately or at a later date not later than the date
the Participant would have attained the Normal Retirement Date.
For purposes of this Section 8.4(B) and elsewhere in this Plan, the
following terms shall have the following meanings:
(1) "Annuity Starting Date" means the first day of the month
following the date the Insurer receives from the Plan Administrator such
written notice of a distribution as shall be required by the Insurer, or,
if later, the first day of the month specified by Participant or
Beneficiary for the commencement of benefit payment(s) in accordance with
Section 8 hereof.
(2) "Qualified Joint and Survivor Annuity" means an annuity
for the life of the Participant with a Survivor Annuity for the life of
his/her spouse which is one-half of the amount of the annuity payable
during the joint lives of the Participant and his/her spouse and which is
the actuarial equivalent of a single life annuity for the life of the
Participant.
(3) "Preretirement Survivor Annuity" means an annuity for the
life of the surviving spouse of a deceased Participant that has an
actuarial present value that is equal to 100% of the balance in the
Participant's account as of the date of the Participant's death.
(C) Notwithstanding any other Plan provision to the contrary, all
Plan distributions shall comply with the requirements of 401(a)(9) of the
Code and the regulations thereunder, including 1.401(a)(9)-2.
8.5 DEFERRED RETIREMENT
If such Participant elects to continue in the employment of the
Employer beyond his Normal Retirement Date, he shall continue to be treated
in all respects as a Participant under the Plan until his actual
retirement.
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8.6 CASH-OUT DISTRIBUTIONS
If a Participant terminates service with the Employer and receives
an immediate distribution of the vested portion of his accounts under the
Plan pursuant to Section 8.3 (a "Cash-Out Distribution"), the nonvested
portion of the Participant's accounts under the Plan immediately will be
forfeited and applied in accordance with Section 4.7. If a Participant
separates from service and does not have a vested benefit, the Participant
shall be treated for purposes of this Plan as receiving a cashout of such
zero vested benefit immediately and his accounts under the Plan immediately
will be forfeited and applied in accordance with Section 4.7. If the
Participant resumes or continues employment covered under the Plan and
repays during the employment with the Employer the amount distributed
pursuant to this Section within the time limit stated below, then the
Trustee shall credit to his accounts under the Plan the amount standing to
his credit in each account immediately prior to the distribution,
unadjusted by any subsequent gains or losses of the Trust Fund. Such
repayment must occur before the Participant incurs five (5) consecutive
one-year Breaks in Service.
8.7 PAYMENT OF BENEFITS UPON DEATH OF PARTICIPANT
Upon the death of a Participant the portion of the Participant's
account balance, if any, not yet paid to the Participant shall be paid to
the Participant's surviving spouse; provided, however, that if the
Participant is not survived by a spouse or if such spouse consents to an
election out of such payment as set forth in paragraph 8.8, such benefits
shall be paid to the Participant's designated beneficiary.
8.8 SPOUSAL CONSENT
Any election by a Participant to pay benefits upon the Participant's
Death to a beneficiary other than the Participant's spouse under paragraph
8.7 above shall not be effective unless (i) the spouse of the Participant
consents in writing to such election and the spouse's consent acknowledges
the effect of such election and is witnessed by the Employer or a notary
public, or (ii) it is established to the satisfaction of the Employer that
the consent required from the spouse may not be obtained because there is
no spouse, because a spouse cannot be located or because of such other
circumstances as may be established by the Secretary of Treasury under
prescribed regulations.
8.9 DEATH BEFORE COMMENCEMENT OF BENEFITS
If a Participant dies before the distribution of his interest has
commenced, the Participant's entire interest shall be distributed within
five (5) years after his death to his designated beneficiary; provided,
however, that such benefits may be paid to the designated beneficiary over
the life of the beneficiary or over a period not exceeding the life
expectancy of the beneficiary if such benefits commence within one year of
the Participant's death. If distributions have commenced prior to the
Participant's death, the remaining portion of the Participant's account
shall be distributed to such Participant's beneficiary at least as rapidly
as under the method of distribution being used at the time of the
Participant's death. Notwithstanding the foregoing, if the Participant's
designated beneficiary is his or her spouse, such payments need not begin
earlier than the date on which the Participant would have attained age 70
1/2 years. If the spouse dies before distribution to such spouse begins,
this section shall be applied as if the surviving spouse was the
Participant.
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8.10 WITHDRAWALS WHILE STILL EMPLOYED
A Participant may, while still employed by the Employer, make a
withdrawal of all or any part of those accounts described below, subject to
the following restrictions:
(1) Withdrawals may be made only as of an Accounting Date
after all adjustments have been made to the accounts as described in
Section 7.1 hereof.
(2) All withdrawals are subject to the Participant having
filed a written application with the Committee at least 30 days prior to
the date on which the withdrawal is to be made.
(3) All withdrawals shall be in the form of a lump-sum cash
payment and the amounts withdrawn shall be debited from the Participant's
accounts as of the date the payment is made.
(4) Except as provided below, a Participant may withdraw all
or any portion of (i) his Salary Deferral Contribution Account, (ii) the
vested portion of that part, if any, of his Employer Contribution Account
from the Company's former Thrift Plan and (iii) that part of his Rollover
Account from the Company's former Thrift Plan, only in the event that he
furnishes satisfactory evidence to the Committee that the withdrawal is on
account of "hardship". For this purpose, a distribution shall be on
account of hardship only if it both (i) is made on account of an immediate
and heavy financial need of the Participant and (ii) is necessary to
satisfy such financial need. For the determination of hardship, the
Committee shall adhere to the following rules:
(a) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the Participant if the
distribution is on account of:
(i) Medical expenses described in
213(d) of the Code incurred by the Participant, the Participant's spouse or
any dependents of the Participant (as defined in 152 of the Code) or
necessary for such persons to obtain medical care described in 213(d) of
the Code;
(ii) Purchase (excluding mortgage
payments) of a principal residence for the Participant;
(iii) Payment of tuition and
related educational fees for the next 12 months of post-secondary education
for the Participant, his or her spouse, children or dependents; or
(iv) The need to prevent the eviction
of the Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
(b) A distribution will be deemed to be necessary to
satisfy an immediate and heavy financial need of a Participant if all of
the following requirements are satisfied:
(i) The distribution is not in excess
of the amount of the immediate and heavy financial need of the Participant
which may include any amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to result from the
distribution;
(ii) The Participant has obtained all
distributions, other than hardship distributions, and all non-taxable loans
currently available under all plans maintained by the Employer;
(iii) The Participant's Salary
Deferral Contributions under Section 3.1 of the Plan shall be suspended for
twelve (12) months after the Participant's receipt of the hardship
distribution; and
(iv) The Participant's maximum annual
deferral determined under 402(g) of the Code and Section 3.1(A) of the Plan
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for the Participant's calendar year immediately following the taxable year
of the hardship distribution shall be reduced by the amount of such
Participant's Salary Deferral Contributions for the taxable
year of the hardship distribution.
Provided, however, that the provisions of (b)(ii) - (iv) shall not
apply if the Participant's withdrawal under this Section 8.10(4) does not
include any portion of his Salary Deferral Contribution Account.
Notwithstanding the above language of this paragraph (4) of this Section
8.10, the following additional rules shall apply regarding the ability to
make hardship withdrawals from a Participant's Salary Deferral Contribution
Account:
(a) income allocable to a Participant's Salary Deferral
Contribution Account but credited after December 31, 1988 may not be
withdrawn;
(b) a Participant may not withdraw any non-elective Employer
contributions which were credited to a Participant's Salary Deferral
Contribution Account after December 31, 1988 because they were treated as
Salary Deferral Contributions for purposes of Section 3.1(E) of the Plan; and
(c) effective April 1, 1993, no income, regardless of when
allocated, may be withdrawn from a Participant's Salary Deferral
Contribution Account.
(5) At such time as a Participant attains the age of 59 1/2 years,
the Participant may direct the Trustee to distribute up to the entire
amount of his Salary Deferral Contribution Account as of any Accounting
Date. Such distributions must equal at least $500 each and are limited to
two (2) distributions per Plan Year. In the event a Participant elects to
take such a distribution, he shall continue to be eligible to participate
in the Plan on the same basis as any other Participant.
(6) A Participant may elect to withdraw, as of any Accounting Date,
part or all of his After-Tax Contribution Account.
(7) Notwithstanding Sections 8.1, 8.2 and 8.3 above, if a
Participant elects under Section 8.5 to defer retirement beyond his Normal
Retirement Date, the Participant may direct the Trustee to begin
distributions of part or all of any of his accounts under the Plan in any
manner provided in Section 8.4 of the Plan following his Normal Retirement
Date.
(8) The amount that a Participant may withdraw from his Employer
Contribution Account under either paragraph (4) or (7) of this Section 8.10
shall not exceed the excess of (a) the net credit balance in such account
as of the effective date of the withdrawal over (b) the Employer's
Contributions allocated on behalf of the Participant as of the last
Accounting Date of each of the preceding two Plan Years.
(9) The Committee shall establish such rules and give such
directions to the Trustee as shall be appropriate to effectuate the
withdrawal in accordance with the terms hereof.
8.11 ELIGIBLE ROLLOVER DISTRIBUTIONS
This section 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 section, 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.
(a) Eligible Rollover Distribution. An eligible rollover
distribution is any distribution of all or any portion of the balance to
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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 401(a)(9) of
the Code; and the portion 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 408(a) of the Code, an
individual retirement annuity described in 408(b) of the Code, an annuity
plan described in 403(a) of the Code, or a qualified trust described in
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(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 414(p) of the Code, are distributees with regard to the interest
of the spouse or former spouse.
(d) Direct Rollover. A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the distributee.
SECTION 9
SPECIAL PROVISIONS APPLICABLE IF PLAN IS TOP-HEAVY
9.1 APPLICABILITY OF TOP-HEAVY PLAN PROVISIONS
The provisions of this Section 9 shall apply if the Plan becomes a
"top-heavy plan" within the meaning of 416(g) of the Code with respect to
any Plan Year that ends after the Effective Date of the Plan.
9.2 DETERMINATION OF PLAN YEARS IN WHICH PLAN IS TOP-HEAVY
(A) The Plan shall be "top-heavy" with respect to an applicable
Plan Year if:
(1) either (a) any Participant, former Participant or
Beneficiary is a "Key Employee" (as defined in Section 9.2(B) herein), or
(b) the Plan enables any other plan which is included in the Aggregation
Group (as defined below) and which has a Participant who is a Key Employee,
to meet the requirements of 401(a)(4) or 410 of said Code; and
(2) the ratio (determined in accordance with 416 of said Code)
as of the last day of the preceding Plan Year or, in the case of the first
Plan Year, the last day of such first Plan Year (such day, whether
applicable to the first Plan Year or to subsequent Plan Years, is
hereinafter referred to in this Section 9 as the "Determination Date") of:
(a) the aggregate of the individual accounts of all
Key Employees under all Defined Contribution Plans included in such
Aggregation Group; to
(b) a similar sum determined for all Participants,
former Participants and Beneficiaries - excluding any Participants and
former Participants (or their Beneficiaries) who have not at any time
during the five-year period ending on the Determination Date performed
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services for any employer maintaining a plan included in the Aggregation
Group, under all Defined Contribution Plans included in such Aggregation
Group; is greater than 60%.
(B) For the purposes of this Section 9, the following terms shall
have the following meanings:
(1) "Aggregation Group". Aggregation Group means:
(a) "Required Aggregation":
(i) each plan of the Employer in which a
Key Employee is a participant (in the Plan Year containing the
Determination Date or any of the four preceding Plan Years), and
(ii) each other plan of the Employer which
enables any plan described in subclause (i) to meet the requirements of
401(a)(4) or 410 of the Code; or
(b) "Permissive Aggregation": any other plan not
required to be aggregated may be included by the Employer if such group
would continue to meet the requirements of 401(a)(4) and 410 with such plan
being taken into account.
(c) In determining the Aggregation Group, plans
terminated within the five-year period ending on the Determination Date
also shall be taken into consideration.
(2) "Key Employee" means an Employee, former Employee or the
beneficiary of either who, at any time during the Plan Year or any of the
four preceding Plan Years, is:
(a) an officer of the Employer having an annual
compensation greater than 50% of the amount in effect under 415(b)(1)(A)
for any Plan Year;
(b) one of the 10 Employees having annual
compensation from the Employer of more than the limitation in effect under
415(c)(1)(A) of the Code and owning (or considered as owning within the
meaning of 318) the largest interests in the Employer;
(c) a 5-percent owner of the Employer;
(d) a 1-percent owner of the Employer having an
annual compensation from the Employer of more than $150,000. For purposes
of clause (a), no more than 50 Employees (or, if lesser, the greater of 3
or 10 percent of the Employees) shall be treated as officers. For purposes
of clause (b), if 2 Employees have the same interest in the Employer, the
Employee having greater annual compensation from the Employer shall be
treated as having a larger interest.
(3) "Percentage Owners":
(a) 5-Percent Owner. - For purposes of this
paragraph, the term "5-percent owner" means -
(i) If the Employer is a corporation, any
person who owns (or is considered as owning within the meaning of 318 of
the Code) more than 5 percent of the outstanding stock of the corporation
or stock possessing more than 5 percent of the total combined voting power
of all stock of the corporation, or
(ii) If the Employer is not a corporation,
any person who owns more than 5 percent of the capital or profits interest
in the Employer.
(b) 1-Percent Owner. - For purposes of this
paragraph, the term "1-percent owner" means any person who would be
described in clause (a) if "1 percent" were substituted for "5 percent"
each place it appears in clause (a).
(c) Constructive Ownership Rules. - For purposes of
subparagraphs (3)(a) and (b)
(i) subparagraph (C) of 318(a)(2) of
the Code shall be applied by substituting "5 percent" for "50 percent," and
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(ii) in the case of any Employer which
not a corporation, ownership in such employer shall be determined in
accordance with regulations prescribed by the Secretary which shall be
based on principles similar to the principles of 318 of the Code (as
modified by subclause (I)).
(d) Aggregation Rules for Determining Ownership in
Employer. - For purposes of this paragraph (3), the rules of subsections
(b), (c) and (m) of 414 of the Code shall not apply for purposes of
determining ownership in the Employer.
(e) Compensation. - For purposes of this
subsection, the term "compensation" has the meaning given such term by
414(q)(7) of the Code.
(4) "Non-Key Employee" means any Employee or former Employee
who is not a Key Employee.
(C) Unless required otherwise under 416 of the Code and regulations
issued thereunder, the value of a Participant's (or Beneficiary')
individual account under the Plan as of the Determination Date shall be
equal to the sum of:
(a) the net credit balance in his individual accounts
(exclusive of any amounts credited to his Rollover Contribution Account
unless such amounts are required to be included for purposes of 416(g)(4)
of the Code) as of the last Accounting Date; plus
(b) any contributions (other than unrelated Rollover
Contributions) actually made after such Accounting Date but on or prior to
the Determination Date or, in the case of the Determination Date applicable
to the first Plan Year, any contributions made after the Determination Date
that are allocated as of a date within such first Plan Year; plus
(c) the aggregate distributions (exclusive of any
distributions from his Rollover Contribution Account unless such amounts
are required to be included for purposes of 416(g)(4) of the Code) made on
his behalf during the five-year period ending on the Determination Date.
Provided, however, that if any individual is a "Non-Key Employee" with
respect to the Plan for any Plan Year, but such individual was a Key
Employee with respect the Plan for any prior Plan Year, such employee's
accounts under the Plan' shall not be taken into account. Furthermore, for
purposes of determining the value of a Participant's (or beneficiary's)
account under the Plan, such amount shall be increased by the aggregate
distributions made with respect to such Employee under the Plan during the
five-year period ending on the Determination Date, including distributions
under a terminated plan which if it had not been terminated would have been
required to be included in an aggregation group.
(D) The aggregate of the individual accounts under the other
Defined Contribution Plans included in such Aggregation Group shall be
determined separately for each such plan in accordance with 416 of the Code
and regulations issued with respect thereto as of the "determination date"
that is applicable to each such separate plan and that falls within the
same calendar year that the Determination Date applicable to the Plan
falls.
9.3 MINIMUM VESTING FOR TOP-HEAVY PLAN YEAR
During any Plan Year in which the Plan is top-heavy, the vesting
schedule applicable to Employer Contribution Accounts shall be:
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Years of Service Percentage Vested
Less than 2 Years 0%
2 Years 20%
3 Years 40%
4 Years 60%
5 Years 80%
6 Years 100%
9.4 MINIMUM CONTRIBUTIONS FOR TOP-HEAVY PLAN YEAR
(A) The Employer's Contributions during any Plan Year in which the
Plan is top-heavy on behalf of an Eligible Employee to whom the provisions
of this Section 9.4 are applicable, shall not be less than an amount equal
to the excess, if any, of (1) the lesser of (i) 3% of his IRC 415
Compensation (as defined in Section 7.2(B) above) from the Employer during
the Plan Year and (ii) the highest percentage of IRC 415 Compensation (as
defined in Section 7.2(B) above) which is allocated under Sections 7.3 and
7.4 hereof to a Key Employee for such Plan Year; over (2) any employer
contributions allocated on his behalf under Section 7.4 hereof for such
Plan Year plus any allocations of employer contributions and forfeitures
allocated on his behalf under all other Defined Contribution Plans included
in the Aggregation Group for such Plan Year.
(B) The provisions of this Section 9.4 shall apply to all Eligible
Employees who are in the active service of the Employer on the last
Accounting Date of the Plan Year and who are not Key Employees.
SECTION 10
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
10.1 PARTICIPANTS TO FURNISH REQUIRED INFORMATION
(A) Each Participant and his Beneficiary will furnish to the
Committee such information as the Committee considers necessary or
desirable for purposes of administering the Plan, and the provisions of the
Plan respecting any payments thereunder are conditional upon the
Participant's or Beneficiary's furnishing promptly such true, full and
complete information as the Committee may request.
(B) Each Participant will submit proof of his age and proof of the
age of each Beneficiary designated or selected by him to the Committee at
such time as is required by the Committee. The Committee will, if such
proof of age is not submitted as required, use as conclusive evidence
thereof, such information as is deemed by him to be reliable, regardless of
the source of such &information. Any adjustment required by reason of lack
of proof or the misstatement of the age of persons entitled to benefits
hereunder, by the Participant or otherwise, will be in such manner as the
Committee deems equitable.
(C) Any notice or information which, according to the terms of the
Plan or the rules of the Committee, must be filed with the Committee, shall
be deemed so filed at the time that it is actually received by the
Committee.
(D) The Employer, the Committee, and any person or persons involved
in the administration of the Plan shall be entitled to rely upon any
certification, statement, or representation made or evidence furnished by
an Employee, Participant or Beneficiary with respect to this age or other
facts required to be determined under any of the provisions of the Plan,
and shall not be liable on account of the payment of any monies or the
doing of any act or failure to act in reliance thereon. Any such
certification, statement, representation, or evidence, upon being duly made
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or furnished, shall be conclusively binding upon the person furnishing
same; but it shall not be binding upon the Employer, the Committee, or any
other person or persons involved in the administration of the Plan, and
nothing herein contained shall be construed to prevent any of such (parties
from contesting any such certification, statement, representation, or
evidence or to relieve the Employee, Participant, Beneficiary from the duty
of submitting satisfactory proof of any such fact.
10.2 BENEFICIARIES
Each Participant may, on a form provided for that purpose, signed
and filed with the Committee, designate a Beneficiary to receive the
benefit, if any, which may be payable under the Plan in the event of his
death, and each designation may be revoked by such Participant by signing
and filing with the Committee a new designation of Beneficiary form. If a
deceased Participant who had a spouse at the date of his death either
failed to designate a Beneficiary in the manner above prescribed or if his
designated Beneficiary predeceases him, he shall be deemed to have
designated his spouse as his Beneficiary. If a deceased Participant is
survived by a spouse and he had designated a person other than his spouse
as his Beneficiary and such spouse has not consented, in writing witnessed
by a Plan representative or a notary public, to such other person being
designated as the Beneficiary, the Participant shall be deemed to have
revoked his prior designation and to have designated his spouse as his
Beneficiary to receive the death benefit. If a deceased Participant who
did not have a spouse at the date of his death either failed to name a
Beneficiary in the manner above prescribed or if his Beneficiary
predeceases him, the death benefit, if any, which may be payable under the
Plan with respect to such deceased Participant shall be paid to the estate
of the deceased Participant.
10.3 CONTINGENT BENEFICIARIES
In the event of the death of a Beneficiary who survives the
Participant and in the event that, at the Beneficiary's death, there is a
balance credited to the individual account (or accounts) of the
Participant, the amount represented by such credit balance shall be payable
to a person (or persons) designated by the Participant (in the manner
provided in Section 10.2 above) to receive the remaining funds payable in
the event of such contingency or, if no person was so named, then to a
person designated by the Beneficiary (in the manner provided in Section
10.2 above) of the deceased Participant to receive the remaining death
benefits, if any, payable in the event of such contingency; provided,
however, that if no person so designated be living upon the occurrence of
such contingency, then the remaining funds shall be payable to the estate
of such deceased Beneficiary.
10.4 PARTICIPANTS' RIGHTS IN TRUST FUND
No Participant or other person shall have any interest in or any
right in, to or under the Trust Fund, or any part of the assets thereof,
except as and to the extent expressly provided in the Plan.
10.5 BENEFITS NOT ASSIGNABLE
(A) Subject to the provisions of Section 10.5(B) below, no
benefits, rights or accounts shall exist under the Plan which are subject
in any manner to voluntary or involuntary anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge the same shall be null
and void; nor shall any such benefit, right or account under the Plan be in
any manner liable for or subject to the debts, contracts, liabilities,
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engagements, torts or other obligations of the person entitled to such
benefit, right or account; nor shall any benefit, right or account under
the Plan constitute an asset in case of the bankruptcy, receivership or
divorce of any person entitled under the Plan; and any such benefit, right
or account under the Plan shall be payable only directly to the Participant
or Beneficiary, as the case may be.
(B) Where a "qualified domestic relations order" as defined in
414(p) of the Code has been received by the Committee, the terms and
benefits of the Plan will be considered to have been modified with respect
to the affected Participant to the extent such order requires benefits to
be paid to specified individuals other than the Participant.
10.6 BENEFITS PAYABLE TO MINORS AND INCOMPETENTS
(A) Whenever any person entitled to payments under the Plan shall
be a minor or under other legal disability or in the sole judgment of the
Committee shall otherwise be unable to apply such payments to his own best
interest and advantage (as in the case of illness, whether mental or
physical or where the person not under legal disability is unable to
preserve his estate for his own best interest), the Committee may in the
exercise of its discretion direct all or any portion of such payments to be
made in any one or more of the following ways unless claim shall have been
made therefore by an existing and duly appointed guardian, tutor,
conservator, committee or other duly appointed legal representative, in
which event payment shall be made to such representative:
(1) directly to such person unless such person shall be an
infant or shall have been legally adjudicated incompetent at the time of
the payment;
(2) to the spouse, child, parent or other blood relative to be
expended on behalf of the person entitled or on behalf of those dependents
as to whom the person entitled has the duty of support; or
(3) to a recognized charity or governmental institution to be
expended for the benefit of the person entitled or for the benefit of those
dependents as to whom the person entitled has the duty of support.
(B) The decision of the Committee will, in each case, be final and
binding upon all persons and the Committee shall not be obliged to see to
the proper application or expenditure of any payments so made. Any payment
made pursuant to the power herein conferred upon the Committee shall
operate as a complete discharge of the obligation of the Trustee and of the
Committee.
10.7 CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the Plan will not be construed as
conferring any legal rights upon any Participant to the continuation of his
employment with the Employer, nor will the Plan interfere with the right of
the Employer to discipline, lay off or discharge any Participant. The
adoption and maintenance of the plan shall not be deemed to constitute a
contract between the Employer and any Employee or to be consideration for,
inducement to, or condition of employment of any person.
10.8 NOTIFICATION OF MAILING ADDRESS
(A) Each Participant and other person entitled to benefits
hereunder shall file with the Committee from time to time, in writing, his
post office address and each change of post office address, and any check
representing payment hereunder and any communication addressed to a
Participant or a Beneficiary hereunder at his last address filed with the
Committee (or, if no such address has been filed, then at his last address
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as indicated on the records of the Employer) shall be binding on such
person for all purposes of the Plan, and neither the Committee nor the
Trustee shall be obliged to search for or ascertain the location of any
such person.
(B) If the Committee, for any reason, is in doubt as to whether
payments are being received by the person entitled thereto, it may by
registered mail addressed to the person concerned at his address last known
to the Committee, notify such person that all unmailed and future payments
shall be henceforth withheld until he provides the Committee with evidence
of his continued life and his proper mailing address or his Beneficiary
provides the Committee with evidence of his death. In the event that (i)
such notification is mailed to such person and his designated Beneficiary,
(ii) the Committee is not furnished with evidence of such person's
continued life and proper mailing address or with evidence of his death,
all payments shall be withheld until a claim is subsequently made by any
such person to whom payment is due under the provisions of the Plan.
10.9 LOST PAYEE
In the event the Administrator is unable, within five years after
payment of a benefit is due to a Participant or Beneficiary to make such
payment because it cannot ascertain the whereabouts of the Participant or
the identity and whereabouts of his Beneficiary of personal representative
by mailing to the last known address shown on the Administrator's records,
and neither the Participant, his Beneficiary or personal representative has
made written claim therefor before the expiration of such five years, then,
and in such case, the Administrator shall direct that such amount shall be
forfeited and applied towards future Employer Contributions to the Plan;
provided, however, that such amount shall be reinstated if and in the event
the said Participant or his Beneficiary or personal representative shall
make a valid claim therefor upon presentation of proper identification.
10.10 WRITTEN COMMUNICATIONS REQUIRED
Any notice, request, instruction, or other communication to be
given or made hereunder shall be in writing and either personally delivered
to the addressee or deposited in the United State mail fully postpaid and
properly addressed to such addressee at the last address for notice shown
on the Committee's records.
10.11 BENEFITS PAYABLE AT OFFICE OF TRUSTEE
All benefits hereunder, and installments thereof, shall be payable
at the office of the Trustee.
10.12 APPEAL TO COMMITTEE
(A) A Participant or Beneficiary who feels he is being denied any
benefit or right provided under the Plan must file a written claim with the
Committee. All such claims shall be submitted on a form provided by the
committee which shall be signed by the claimant and shall be considered
filed on the date the claim is received by the Committee.
(B) Upon the receipt of such a claim and in the event claim is
denied, the Committee shall, within a reasonable period of time (generally
90 days), provide such claimant a written statement which shall be
delivered or mailed to the claimant by certified or registered mail to his
last known address, which statement shall contain the following:
(1) the specific reason or reasons for the denial of benefits;
(2) a specific reference to the pertinent provisions of the
Plan upon which the denial is based;
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(3) a description of any additional material or information
which is necessary; and
(4) an explanation of the review procedure provided below;
provided, however, in the event that special circumstances require an
extension of time for processing the claim, the Committee shall provide
such claimant with such written statement described above not later than
180 days after receipt of the claimant's claim, but, in such event, the
Committee shall furnish the claimant, within 90 days after its receipt of
such claim, written notification of the extension explaining the
circumstances requiring such extension and the date that it is anticipated
that such written statement will be furnished.
(C) Within 90 days after receipt of a notice of a denial of
benefits as provided above, the claimant or his authorized representative
may request, in writing, to appear before the Committee for a review of his
claim. In conducting its review, the Committee shall consider any written
statement or other evidence presented by the claimant or his authorized
representative in support of his claim. The Committee shall give the
claimant and his authorized representative reasonable access to all
pertinent documents necessary for the preparation of his claim.
(D) Within 60 days after receipt by the Committee of a written
application for review of his claim, the Committee shall notify the
claimant of its decision by delivery or by certified or registered mail to
his last known address; provided, however, in the event of special
circumstances which require an extension of time for processing such
application, the Committee shall notify the claimant of its decision not
later than 120 days after receipt of such application, but in such event,
the Committee shall furnish the claimant, within 60 days after its receipt
of such application, written notification of the extension explaining the
circumstances requiring such extension and the date that it is anticipated
that its decision will be furnished. The decision of the Committee shall
be in writing and shall include the specific reasons for the decision
presented in a manner calculated to be understood by the claimant and shall
contain references to all relevant Plan provisions on which the decision
was based. The decision of the Committee shall be final and conclusive.
SECTION 11
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
11.1 EMPLOYER'S CONTRIBUTION IRREVOCABLE
The Employer shall have no right, title or interest in the Trust
Fund or in any part thereof, and no contributions made thereto shall revert
to the Employer, except as provided in Paragraph 2 of Article III of the
Trust Agreement.
11.2 ABSENCE OF RESPONSIBILITY
Subject to any applicable provisions of law, neither the Employer
nor any of the officers, employees, agents nor any members of its board of
directors or other governing board nor any partner or sole proprietor,
guarantees in any manner the payment of benefits hereunder.
11.3 AMENDMENT OF PLAN
(A) The Plan may be amended from time to time in any respect
whatever by resolution of the board of directors of the Company specifying
such amendment, subject only to the following limitations:
(1) Under no condition shall such amendment result in or permit
the return or repayment to any Employer of any property held or acquired by
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the Trustee hereunder or the proceeds thereof or result in or permit the
distribution of any such property for the benefit of anyone other than the
Participants and their Beneficiaries, except to the extend provided by
Section 11.6 hereof with respect to expenses of administration.
(2) Under no condition shall such amendment change the duties
or responsibilities of the Trustee hereunder without its written consent.
(B) Subject to the foregoing limitations, any amendment may be made
retroactively which, in the judgment of the Committee, is necessary or
advisable provided that such retroactive amendment does not deprive a
Participant, without his consent, of a right to receive benefits hereunder
which have already vested and matured in such Participant, except such
modification or amendment as shall be necessary to comply with any laws or
regulations of the United States or of any state to qualify this as a tax-
exempt plan and trust.
(C) The participation in the Plan of Employers other than the
Company shall not limit the power of the Company under the foregoing
provisions; provided, however, that the Company shall deliver a copy of
each amendment to the Plan to each other Employer within 30 days of such
amendment. The provisions of the Plan and any amendments to the Plan by
the Company shall be binding upon all other Employers unless such other
Employer modifies the provisions of the Plan as it pertains only to its own
employees by the adoption, by formal action on its part in the manner
described in Section 11.7 hereof, of a Supplement to the Plan specifying
such modifications which shall pertain only to its employees; and each
Employer shall have the right to withdraw from the Plan by formal action on
its part, in the manner described in Section 11.7 hereof, specifying its
determination to withdraw. Any such withdrawing Employer shall furnish the
Committee and the Trustee with evidence of the formal action of its
determination to withdraw.
(D) Any such withdrawal may be accompanied by such modifications to
the Plan as such Employer shall deem proper to continue a Defined
Contribution Plan for its employees separate and distinct from the Defined
Contribution Plan herein set forth. A withdrawal by any Employer without
any provision for the continuation of a plan for its employees shall
constitute a termination of the Plan with respect to that Employer.
Withdrawal from the Plan by any Employer shall not affect the continued
operation of the Plan with respect to the other Employers; provided,
however, in the event of the withdrawal of an Employer which is in a group
of Employers with respect to which the Plan constitutes a single plan and
in the event that provision is made for the continuation of a Defined
Contribution Plan for its Employees separate and distinct from the Defined
Contribution Plan herein set forth, the share of the assets of the Trust
Fund allocable to such group of Employers which is transferred to such
other Defined Contribution Plan shall be determined by the Committee but
shall be subject to the provisions of Section 11.5 hereof.
(E) Any Supplement to the Plan adopted by an Employer or Employers
shall apply only to the employees of the Employer or Employers adopting
such Supplement and shall not affect the continued operation of the Plan
with respect to any other Employers.
11.4 TERMINATION OF PLAN
(A) The Plan may be terminated by the Employers at any time by (1)
formal action in the manner described in Section 11.7 hereof, on the part
of each Employer then a party to the Plan specifying (a) that the Plan is
being terminated and (b) the date as of which the termination is to be
effective and (2) notifying the Committee and the Trustee of such
termination. Any successor business to an Employer may provide for
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continuation of the Plan by formal action on its part in the manner
described in Section 11.7 hereof. The Plan may be terminated in the manner
described above with respect to one, but less than all, of the Employers
theretofore parties hereto and the Plan continued for the remaining
Employer or Employers. The Plan shall automatically terminate as to a
particular Employer only upon adjudication by a court of competent
jurisdiction that such Employer is bankrupt or insolvent (whether such
proceedings be voluntary or involuntary), upon dissolution of such Employer
or upon its liquidation, merger or consolidation without provisions being
made by its successor, if any, for the continuation of the Plan.
(B) Upon termination of the Plan in accordance with the provisions
of Section 11.4(A) above, the Committee shall determine the share of the
value of the assets of the Trust Funds which is attributable to each
Employer (or group of Employers) with respect to which the Plan represents
a single plan as described in Section 2.5 hereof. The Committee shall then
determine whether distribution on behalf of the Participants and
Beneficiaries entitled to benefits under the Plan shall be by payment in
cash, by transfer to Individual Retirement Accounts established under 408
of the Code, by maintenance of another or substituted trust fund, by the
purchase of insured annuities, or shall be in kind based on the then market
value. As soon as practicable after receipt by the Employer of
notification from the Internal Revenue Service evidencing its approval of
the proposed distribution of assets upon termination of the Plan and after
payment of all expenses and costs, the Committee shall direct the Trustee
to distribute, in the manner of distribution determined by the Committee,
the amount then standing to the credit of the account of each applicable
Participant or Beneficiary.
11.5 MERGER OF PLAN
In the case of the merger of consolidation of the Plan with, or the
transfer of assets of liabilities to, another qualified plan, each
Participant must be entitled to receive a benefit, upon termination of such
other qualified plan after such merger, consolidation or transfer, which is
at least equal to the benefit which he would have been entitled to receive
immediately before the merger, consolidation or transfer if the Plan had
been terminated at that time.
11.6 EXPENSES OF ADMINISTRATION
The Employer may pay all expenses incurred in the establishment and
administration of the Plan, including expenses and fees of the Trustee, but
it shall not be obligated to do so, and any such expenses not so paid by
the Employer shall be paid from the Trust Fund.
11.7 FORMAL ACTION BY EMPLOYER
Any formal action herein permitted or required to be taken by an
Employer shall be:
(a) if and when a partnership, by written instrument executed
by one or more of its general partners or by written instrument executed by
a person or group of persons who has been authorized by written instrument
executed by one or more general partners as having authority to take such
action;
(b) if and when a proprietorship, by written instrument
executed by the proprietor or by written instrument executed by a person or
group of persons who has been authorized by written instrument executed by
the proprietor as having authority to take such action;
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(c) if and when a corporation, by resolution of its board of
directors or other governing board, or by written instrument executed by a
person or group of persons who has been authorized by resolution of its
board of directors or other governing board as having authority to take
such action; or
(d) if and when a joint venture, by formal action on the part
of the joint ventures in the manner described above.
SECTION 12
ADMINISTRATION
12.1 ADMINISTRATION BY COMMITTEE
The Plan will be administered by an administration committee (herein
referred to as the "Committee"), consisting of a chairman and at least two
additional members, each of whom will be appointed by the board of
directors of the Company. Any member of the Committee may resign by
delivering his written resignation to the board of directors of the Company
and to the other members, if any, of the Committee. The board of directors
of the Company may remove any member of the Committee by so notifying the
member and other Committee members, if any, in writing. Vacancies on the
Committee shall be filled by action of the board of directors of the
Company. The Committee shall be the administrator of the Plan.
12.2 OFFICERS AND EMPLOYEES OF THE COMMITTEE
The Committee may appoint a secretary who may, but need not, be a
member of the Committee and may employ such agents, clerical and other
services, legal counsel, accountants and actuaries as may be required for
the purpose of administering the Plan. Any person or firm so employed may
be a person or firm then, therefore or thereafter serving the Employer in
any capacity. The Committee and any individual member of the Committee and
any agent thereof shall be fully protected when acting in a prudent manner
and relying in good faith upon the advice of the following professional
consultants or advisors employed by the Employer or the Committee: any
attorney insofar as legal matters are concerned, any certified public
accountant insofar as accounting matters are concerned, and any enrolled
actuary insofar as actuarial matters are concerned.
12.3 ACTION BY COMMITTEE
(A) A majority of the members of the Committee shall constitute a
quorum for the transaction of business and shall have full power to act
hereunder. The Committee may act either at a meeting at which a quorum is
present or by a writing subscribed by at least a majority of the members of
the Committee then serving. Any written memorandum signed by the secretary
or any member of the Committee who has been authorized to act on behalf of
the Committee shall have the same force and effect as a formal resolution
adopted in open meeting. Minutes of all meetings of the Committee and a
record of any action taken by the Committee shall be kept in written form
by the secretary appointed by the Committee or, if no secretary has been
appointed by the Committee, by an individual member of the Committee. The
Committee shall give to the Trustee any order, direction, consent or advice
required under the terms of the Trust Agreement, and the Trustee shall be
entitled to rely on any instrument delivered to it and signed by the
secretary or any authorized member of the Committee as evidencing the
action of the Committee.
(B) A member of the Committee may not vote or decide upon any
matter relating solely to himself or vote in any case in which his
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individual right or claim to any benefit under the Plan is particularly
involved. If, in any case in which any Committee member is so disqualified
to act, the remaining members cannot agree or if there is only one
individual member of the Committee, the board of directors of the Company
will appoint a temporary substitute member to exercise all of the powers of
a qualified member concerning the matter in which the disqualified member
is not qualified to act.
12.4 RULES AND REGULATIONS OF COMMITTEE
The Committee shall have the authority to make such rules and
regulations and to take such action as may be necessary to carry out the
provisions of the Plan and will, subject to the provisions of the Plan,
decide any questions arising in the administration, interpretation and
application of the Plan, which decisions shall be conclusive and binding on
all parties. The Committee may allocate or delegate any part of its
authority and duties as it deems expedient.
12.5 POWERS OF COMMITTEE
(A) In order to effectuate the purposes of the Plan, the Committee
shall have the following powers:
(1) to make all determinations and computations concerning the
benefits, credits and debits to which any Participant, or other
Beneficiary, is entitled under the Plan;
(2) to determine all questions relating to the eligibility of
employees to become Participants and to determine the amount of
Compensation of each Participant;
(3) to determine all questions relating to acceptance of any
Rollover Contributions to the Plan;
(4) to make rules and regulations for the administration of
the Plan which are not inconsistent with the terms and provisions hereof
and to fix the taxable year of the Trust as required for tax return
purposes and advise the Trustee thereof in writing;
(5) to construe the Plan and to make equitable adjustments for
any mistakes or errors made in the administration of the Plan;
(6) to determine and resolve in its sole discretion all
questions relating to the administration of the Plan and Trust (a) when
differences of opinion arise between the Employer, the Trustee, a
Participant, or any of them and (b) whenever it is deemed advisable to
determine such questions in order to promote the uniform and
nondiscriminatory administration of the Plan for the greatest benefit of
all parties concerned;
(7) to authorize and direct the Trustee to pay from the Trust
Fund all costs and expenses incurred by the Committee in the administration
of the Plan;
(8) to determine whether a Participant is Totally and
Permanently Disabled for the purposes of Section 8 hereof, and for this
purpose it shall require proof in such form as it may desire, including the
certificate of a duly licensed physician; and
(9) to appoint, in its discretion, in accordance with the
provisions of the Trust Agreement, one or more Investment Managers to
manage, including the power to acquire or dispose of, all or any portion of
the assets of the Plan and Trust Fund.
(B) The foregoing list of express powers is not intended to be
either complete or conclusive, and the Committee shall, in addition, have
such powers as it may reasonably determine to be necessary or appropriate
in the performance of its powers and duties under the Plan.
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12.6 DUTIES OF COMMITTEE
(A) The Committee shall, as part of its general duty to supervise
and administer the Plan:
(1) establish and maintain, or cause to be maintained, the
individual accounts described in Section 6.1 hereof and direct the
maintenance of such other records and the preparation of such forms as are
required for the efficient administration of the Plan;
(2) give the Trustee specific directions in writing with
respect to:
(a) the Investment Fund elections of the
Participants;
(b) the making of distribution payments, giving the
names of the payees, the amounts to be paid and the time or times when
payments shall be made; and
(c) the making of any other payments which the
Trustee is not by the terms of the Trust Agreement authorized to make
without a direction in writing by the Committee.
(3) prepare an annual report for the Employer, as of the last
day of each Plan Year, in such form as may be required by the Employer;
(4) maintain records of the age and amount of Compensation of
each Employee;
(5) comply with all applicable lawful reporting and disclosure
requirements of the Employee Retirement Income Security Act of 1974; and
(6) comply (or transfer responsibility for compliance to the
Trustee) with all applicable Federal income tax withholding requirements
for distribution payments imposed by the Tax Equity and Fiscal
Responsibility Act of 1982.
(B) The foregoing list of express duties is not intended to be
either complete or conclusive, and the Committee shall, in addition,
exercise such other powers and perform such other duties as it may deem
necessary, desirable, advisable or proper for the supervision and
administration of the Plan.
12.7 INDEMNIFICATION OF MEMBERS OF COMMITTEE
To the extent not covered by insurance or if there is a failure to
provide full insurance coverage for any reason and to the extent
permissible under corporate by-laws and other applicable laws and
regulations, the Company agrees to hold harmless and indemnify the members
of the Committee and all employees, agents and other fiduciaries rendering
services to the Committee, the Plan or Trust against any and all claims and
causes of action by or on behalf of any and all parties whomsoever, and all
losses therefrom, including, without limitation, costs of defense and
attorneys' fees, based upon or arising out of any act or mission relating
to or in connection with the Plan and Trust Agreement other than losses
resulting from any such person's fraud or willful misconduct.
12.8 PLAN FIDUCIARIES
(A) The Trustee is the named fiduciary hereunder with respect to
the powers, duties and responsibilities of investment of the Trust Fund and
the Committee is the named fiduciary hereunder with respect to the other
powers, duties and responsibilities of the administration of the Plan.
Certain powers, duties and responsibilities of each of said fiduciaries are
specifically delegated to others under the provisions of the Plan and Trust
Agreement and other powers, duties and responsibilities of any fiduciaries
may be delegated by written agreement to others to the extent permitted
under the provisions of the Plan and Trust Agreement.
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(B) The powers and duties of each fiduciary hereunder, whether or
not a named fiduciary, shall be limited to those specifically delegated to
each of them under the terms of the Plan and Trust Agreement. It is
intended that the provisions of the Plan and Trust Agreement allocate to
each fiduciary the individual responsibilities for the prudent execution of
the functions assigned to each fiduciary. None of the allocated
responsibilities or any other responsibilities shall be shared by two or
more fiduciaries unless such sharing shall be provided by a specific
provision in the Plan or the Trust Agreement. Whenever one fiduciary is
required by the Plan or the Trust Agreement to follow the directions of
other fiduciary, the two fiduciaries shall not be deemed to have been
assigned a share of any responsibility, but the responsibility of the
fiduciary giving the directions shall be deemed to be his sole
responsibility and the responsibility of the fiduciary receiving those
directions shall be to follow some insofar as such instructions on their
face are proper under applicable law. Any fiduciary may employ one or more
persons to render advice with respect to any responsibility such fiduciary
has under the Plan or Trust Agreement.
(C) Each fiduciary may, but need not, be an employee, partner,
director or officer of the Employer. Nothing in the Plan shall be
construed to prohibit any fiduciary from:
(1) serving in more than one fiduciary capacity with respect
to the Plan and Trust Agreement;
(2) receiving any benefit to which he may be entitled as a
Participant or Beneficiary in the Plan, so long as the benefit is computed
and paid on a basis which is consistent with the terms of the Plan as
applied to all other Participants and Beneficiaries; or
(3) receiving any reasonable compensation for services
rendered, or for the reimbursement of expenses properly and actually
incurred in the performance of his duties with respect to the Plan, except
that no person so serving who already receives full-time pay from the
employer shall receive compensation from the Plan, except for reimbursement
of expenses properly and actually incurred.
(D) Each fiduciary shall be bonded as required by applicable law or
statute of the United States, or of any state having appropriate
jurisdiction, unless such bond may under such law or statute be waived by
the parties to the Trust Agreement. The Employer shall pay the cost of
bonding any fiduciary who is an employee or partner of the Employer.
12.9 APPLICABLE LAW
The Plan will, unless superseded by federal law, be construed and
enforced according to the laws of the State of Arkansas, and all provisions
of the Plan will, unless superseded by federal law, be administered
according to the laws of the said state.
SECTION 13
TRUST FUND
13.1 PURPOSE OF TRUST FUND
A Trust Fund has been created and will be maintained for the
purposes of the Plan, and the monies thereof will be invested in accordance
with the terms of the agreement and declaration of trust which forms a part
of the Plan. All contributions will be paid into the Trust Fund, and all
benefits under the Plan will be paid from the Trust Fund.
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13.2 BENEFITS SUPPORTED ONLY BY TRUST FUND
Any person having any claim under the Plan will look solely to the
assets of the Trust Fund for satisfaction.
13.3 TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS
The Trust Fund will be used and applied only in accordance with the
provisions of the Plan, to provide the benefits thereof, and no part of the
corpus or income of the Trust Fund will be used for, or diverted to,
purposes other than the exclusive benefit of Participants and other persons
thereunder entitled to benefits, except to the extent provided in Section
11.6 hereof with respect to expenses of administration.
SECTION 14
LOANS TO PARTICIPANTS
14.1 GENERAL PROCEDURE
Subject to such rules and regulations of uniform application as the
Employer may from time to time promulgate with respect to the amount of
loans, maturity dates, interest rates and security, if any, the Employer,
upon written application of a Participant upon a form prepared by the
Employer, may, in its absolute discretion, direct the Trustee to make a
loan to such Participant upon such terms as the Employer deems appropriate.
The loan program shall be administered by the Committee or such sub-
committee or person as it may appoint ("Loan Administrator"). The Loan
Administrator shall adopt written policies and procedures for the Plan's
loan program and such written policies and procedures are hereby
incorporated by reference. A Participant wishing to obtain a loan from the
Plan shall apply to the Loan Administrator by submitting a written loan
application which can be obtained from the Loan Administrator upon request.
All loans shall be made available to Participants who are "Parties in
Interest" as defined in 3(14) of ERISA without regard to such Participant's
race, color, religion, age, sex or national origin.
14.2 AMOUNT OF LOANS
The Loan Administrator may authorize loans in an amount not less
than $1,000 and not more than an amount equal to 50% of the present value
of a Participant's vested accounts under the Plan; provided that such loan
amount shall in no event exceed the lesser of (a) $50,000 reduced by the
excess (if any) of the highest outstanding balance of loans from the Plan
to the Participant during the preceding one year period over the
outstanding balance of loans from the Plan to the Participant as of the
date the loan is made, or (b) the greater of (i) one-half of the present
value of the Participant's nonforfeitable accrued benefit under the Plan,
or (ii) $10,000.
14.3 LOAN CONDITIONS
If approved, each loan to a Participant pursuant to this Section 14
shall comply with the following conditions:
(a) Written Instrument. It shall be evidenced by a negotiable
promissory note.
(b) Interest Rate. The loan shall bear a reasonable rate of
interest which shall be commensurate with the prevailing interest rate
charged by persons in the business of lending money for loans made under
similar circumstances. Subject to this requirement, the Loan Administrator
shall develop rules for determining the interest to be charged on Plan
loans.
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(c) Term. The loan, by its terms, must require level
amortization of repayments (to be made not less frequently than quarterly)
over a period not extending beyond five (5) years; provided, however, in
the case of a home loan as described in 72(p) of the Code, such loan may be
for a term in excess of five (5) years.
(d) Adequate Security. The loan shall be secured by up to 50%
of the Participant's entire right, title and interest in his accounts under
the Plan. However, a loan only may be made from a Participant's Salary
Deferral Contribution Account, Employer Contribution Account and Rollover
Account (excluding any such accounts transferred from the Thrift Plan), and
only such accounts may be used as collateral to secure the loan. In
addition, the Loan Administrator may require additional security (and shall
require such additional security when the loan amount exceeds 50% of the
Participant's nonforfeitable account balance under the Plan as determined
on the date the loan proceeds are distributed to the Participant) to be
pledged to the Plan by the Participant which may be sold, foreclosed upon
or otherwise disposed of upon default of repayment of the loan in such a
manner that the Plan is protected against loss of principal and interest as
a result of the default. Any Participant who pledges any portion of his
vested account balances under the Plan also shall be required to execute an
Automatic Payroll Deduction Agreement under which loan payments will be
deducted from the Participant's Compensation on a payroll date basis until
the amount of the loan plus interest accrued thereon is paid in full.
(e) Default. In addition to any other conditions or events
the Loan Administrator may specify, a loan shall be considered in default
if the Participant fails to pay any installment when due and such failure
is not cured within sixty (60) days. Any default by the Participant shall,
at the election of the Loan Administrator, cause the remaining outstanding
balance of the loan to be due and payable at once. In addition, the Loan
Administrator shall proceed against the security pledged by the Participant
in connection with the loan at such time and in such manner as it
determines to be in the best interest of the Plan. The Loan Administrator
is expressly authorized to delay enforcement of any security interest in
the Participant's Accounts under the Plan until such time as the
Participant is entitled to a distribution under the terms of the Plan and
the Code provided such delay results in no loss of income or principal to
the Plan. At such time as the Participant is entitled to a distribution
under the terms of the Plan, the Loan Administrator may offset the vested
portion of the Participant's account balances under the Plan against the
remaining unpaid balance of the loan plus interest accrued thereon.
(f) Liquidation on Maturity. Each loan shall be due and
payable in full by the Participant not later than the earliest of (1) the
maturity date set forth in the promissory note, (2) the Participant's
termination of employment with Employer, or (3) the termination of the
Plan. In any event, all loans will mature at the time provided for any
distribution to the Participant from the Plan, and no distribution shall be
made to any Participant, beneficiary or beneficiaries or to the estate of a
Participant unless and until all loans to such Participant, together with
interest accrued thereon, have been paid in full.
(g) Investment Gain or Loss. To the extent a Participant's
loan is secured by his/her Accounts, the investment gain or loss
attributable to the loan shall not be included in the calculation or
allocation of the increase or decrease in fair market value of the general
assets of the Plan. The entire gain or loss (including any gain or loss
attributable to interest payments or default) shall be allocated to the
Accounts of the Participant.
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IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this instrument
to be executed by its duly authorized officers effective as of
January 1, 1993.
TYSON FOODS, INC.
By: __________________________
President
ATTEST:
______________________________
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AMENDMENT TO THE
RETIREMENT SAVINGS PLAN OF
TYSON FOODS, INC.
The beginning clause of subsection 8.4(B) is hereby amended as
follows:
"(B) Notwithstanding subsection (A) above, all distributions of
any amounts from a Participant's After-Tax Contribution Account and
Employer Contribution Account attributable to such accounts transferred
from the merged Tyson Thrift Plan shall be subject to the following
additional provisions:"
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AMENDMENTS TO THE
RETIREMENT SAVINGS PLAN OF
TYSON FOODS, INC.
The introduction to the Plan set forth on pages 1 and 2 is amended
as follows:
(a) The comma and words "to-wit," at the end of the last
sentence are deleted and a period is inserted following the word "Plan".
(b) A new paragraph is then added at the end of page 2 as
follows:
"The Plan, as restated herein, also reflects
amendments associated with the merger into this Plan, effective December
30, 1994, of the Arctic Alaska Fisheries Corporation Profit Sharing/Savings
Plan (the "Arctic Plan"). Employer acknowledges receipt of all of the
assets of the Arctic Plan effective December 30, 1994. Accordingly, the
assets transferred from the Arctic Plan shall be held, administered and
distributed for the purposes and in the manner set out in the following
restated Plan. Following the merger of the Arctic Plan into this Plan, the
accounts previously referred to as "Elective Contribution Accounts" shall
be administered under this Plan as part of the Participant's "Salary
Deferral Contribution Account", the accounts previously referred to as
"Matching Contribution Accounts" shall be administered under this Plan as
part of the Participant's "Employer Contribution Account" and the accounts
previously referred to as "Rollover Contribution Accounts" shall be
administered under this Plan as part of the Participant's "Rollover
Contribution Account"; provided, however, that the amounts transferred from
the Arctic Plan and administered as accounts under this Plan shall continue
to be accounted for separately, as permitted under Section 6.1 of this
Plan."
Section 8.4 is hereby amended as follows:
"8.4 Methods of Distribution
(A) Except as may be required under Sections 8.4(B), 8.4(C),
8.3(A), 8.10 and 8.11, all distributions made to a Participant or his
beneficiaries shall be made by the Trustee in one of the three following
methods:
(1) Lump Sum. By payment in a lump sum.
(2) Installments. By payment in equal installments
over a period certain which does not extend beyond the lesser of twenty
(20) years or the life expectancy of the Participant or the joint life
expectancies of such Participant and the Participant's beneficiary
determined as of the date that payment of benefits commences, subject to
the following requirements:
(a) Fifty Percent (50%) Present Value
Test. The present value of payments to be made to the Participant must be
more than fifty percent (50%) of the present value of the total payments to
be made to the Participant and the Participant's beneficiaries, all as
determined as of the later of such Participant's normal retirement date or
the Participant's termination of employment; and
(b) Equal Installments. Payments must
be in the form of annual or more frequent installments provided the present
value of all such periodic payments payable to the Participant or his or
her beneficiary must be equal to the immediate lump sum otherwise
distributable to the Participant had a lump sum settlement been made.
(3) Combination. By a combination of (1) and (2).
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The method of distribution to the Participant or his beneficiaries
shall be implemented by the Committee, in accordance with the directions of
the Participant in effect at the time the Participant's employment is
terminated.
(B) Except as may be required under Sections 8.3(A), 8.10 and
8.11, all distributions made to a Participant or his beneficiaries
ttributable to amounts transferred to this Plan from the Arctic Plan shall
be made by the Trustee in one of the three following methods:
(1) Automatic Qualified Joint and Survivor
Annuity (or Life Annuity). A Participant who is married and begins to
receive payments under the Plan shall receive payments in the form of a
Qualified Joint and Survivor Annuity, unless the Participant, with the
consent of his spouse, has elected otherwise during the election period
which shall be the 90-day period ending on the date benefit payments would
commence). An unmarried Participant shall receive his benefits in the form
of a life annuity, with monthly payments payable for 120 months certain and
thereafter during his lifetime, unless the Participant elects otherwise
during such election period. Any election shall be in writing and may be
changed at any time.
(2) Automatic Preretirement Survivor
Annuity. If a Participant who is married and at least partially vested
dies before the date upon which his retirement benefits were to commence,
such Participant's surviving spouse shall receive payments under this Plan
in the form of a Preretirement Survivor Annuity, unless the Participant
with the consent of his spouse has elected otherwise during the election
period, which shall begin on the first day of the Plan Year in which the
Participant attains age 35 (or for a Participant who is separated from
service the date of such separation with respect to benefits accrued before
separation) and end on the date of the Participant's death. Any election
shall be in writing and may be changed at any time. The surviving spouse
may elect to have such annuity distributed immediately or at a later date
not later than the date the Participant would have attained his Normal
Retirement Date. Also, the surviving spouse may elect to receive, in lieu
of such annuity, any form of payment permitted under 8.4(B)(3) below.
(3) In the event a Participant (or
surviving spouse) elects pursuant to 8.4(B)(1) or (2) not to receive
retirement or death benefits in the forms described therein, such
distributions shall be made by the Trustee in one of the methods described
in 8.4(A). Additionally, the following distribution methods shall be
available:
An immediate or deferred nontransferable
annuity providing fixed or variable income (i) for the life of the
Participant, with or without a specified period certain, or (ii) over the
lives of the Participant and his designated beneficiary, with or without a
specified period certain.
(C) Notwithstanding subsection (A) above, all distributions of
any amounts from a Participant's After-Tax Contribution Account and
Employer Contribution Account attributable to such accounts transferred
from the merged Tyson Thrift Plan shall be subject to the following
additional provisions:
(1) Annuity Option. Such Participant who retires
and begins to receive payments under the Plan shall have, in addition to
the distribution options available under Section 8.4(A) above, the right to
elect to receive payment from such account in the form of a life annuity
(or, if married, in the form of a Qualified Joint and Survivor Annuity).
The Participant (and, if married, with the consent of his spouse) also may
elect during the election period (which shall be the 90-day period ending
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on the Annuity Starting Date) to receive payments from such account in the
form of a straight life annuity or a straight life annuity with a ten-year
guarantee. Any election shall be in writing and may be changed at any
time.
(2) Preretirement Survivor Annuity. If a
Participant who is married dies before the date upon which his retirement
benefits were to commence, such Participant's surviving spouse shall have,
in addition to the distribution options available under Section 8.4(A)
above, the right to elect to receive payment from such account in the form
of a Preretirement Survivor Annuity. The spouse also may elect during the
election period, which shall begin on the first day of the Plan Year in
which the Participant attains age 35 (or for a Participant who is separated
from service the date of such separation with respect to benefits accrued
before separation) and end, on the date benefits commence, to receive
payments from such account in the form of a straight life annuity or a
straight life annuity with a ten-year guarantee. Any election shall be in
writing and may be changed at any time. The surviving spouse may elect to
have such annuity distributed immediately or at a later date not later than
the date the Participant would have attained the Normal Retirement Date.
For purposes of this Section 8.4 and elsewhere in this Plan, the following
terms shall have the following meanings:
(1) 'Annuity Starting Date' means the first day
of the month following the date the Insurer receives from the Plan
Administrator such written notice of a distribution as shall be required by
the Insurer, or, if later, the first day of the month specified by
Participant or Beneficiary for the commencement of benefit payment(s) in
accordance with Section 8 hereof.
(2) 'Qualified Joint and Survivor Annuity' means an
annuity for the life of the Participant with a Survivor Annuity for the
life of his/her spouse which is one-half of the amount of the annuity
payable during the joint lives of the Participant and his/her spouse and
which is the actuarial equivalent of a single life annuity for the life of
the Participant.
(3) 'Preretirement Survivor Annuity' means an
annuity for the life of the surviving spouse of a deceased Participant
that has an actuarial present value that is equal to 100% of the
balance in the Participant's account as of the date of the
Participant's death.
(D) Notwithstanding any other Plan provision to the contrary,
all Plan distributions shall comply with the requirements of 401(a)(9) of
the Code and the regulations thereunder, including 1.401(a)(9)-2."
The first sentence of subsection 8.10(4) is hereby amended as follows:
"Except as provided below, a Participant may withdraw all or any
portion of (i) his Salary Deferral Contribution Account, (ii) the vested
portion of that part, if any, of his Employer Contribution Account from the
Company's former Thrift Plan, (iii) that part of his Rollover Account from
the Company's former Thrift Plan, and (iv) with the Participant's spouse's
consent, the vested amounts attributable to his elective and matching
contributions transferred to this Plan from the Arctic Plan, only in the
event that he furnishes satisfactory evidence to the Committee that the
withdrawal is on account of 'hardship'."
The second and third paragraphs of subsection 8.10(4)(b) are hereby
amended as follows:
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"Provided, however, that the provisions of (b)(ii) - (iv) shall
not apply if the Participant's withdrawal under this Section 8.10(4) does
not include any portion of amounts attributable to his elective deferrals
under Code 402(g).
Notwithstanding the above language of this paragraph (4) of
this Section 8.10, the following additional rules shall apply regarding the
ability to make hardship withdrawals from amounts attributable to a
Participant's elective deferrals:
(a) income allocable to a Participant's Salary
Deferral Contribution Account but credited after December 31, 1988 may not
be withdrawn;
(b) a Participant may not withdraw any non-elective
Employer contributions which were credited to a Participant's Salary
Deferral Contribution Account after December 31, 1988 because they were
treated as Salary Deferral Contributions for purposes of Section 3.1(E) of
the Plan;
(c) effective April 1, 1993, no income, regardless
of when allocated, may be withdrawn from a Participant's Salary Deferral
Contribution Account; and
(d) no income allocable to elective deferrals
transferred to this Plan from the Arctic Plan may be withdrawn."
Subsection 8.10(6) is hereby amended as follows:
"A Participant may elect to withdraw, as of any Accounting Date,
part or all of his After-Tax Contribution Account and/or, with the
Participant's spouse's consent, amounts attributable to his rollover
contributions transferred to this Plan from the Arctic Plan."
Subsection 11.4(B) is hereby amended as follows:
"(B) Upon termination of the Plan in accordance with the provisions
of Section 11.4(A) above, the Committee shall determine the share of the
value of the assets of the Trust Funds which is attributable to each
Employer (or group of Employers) with respect to which the Plan represents
a single plan as described in Section 2.5 hereof. As soon as practicable
after receipt by the Employer of notification from the Internal Revenue
Service evidencing its approval of the proposed distribution of assets upon
termination of the Plan and after payment of all expenses and costs, the
Committee shall direct the Trustee to distribute, in accordance with
Section 8 hereof, the amount then standing to the credit of the account of
each applicable Participant or Beneficiary.
Additionally, withdrawals of elective deferrals will be permitted under the
following circumstances, subject to Code 401(k)(10):
(a) the sale or other disposition by a corporation
of at least 85% of all of the assets of the trade or business of the
Employer, but only with respect to a Participant who continues employment
with the corporation acquiring the assets, as provided in Reg. 1.401(k)-
1(d)(1)(ii)(3).
(b) the sale or other disposition by a corporation
of its interests in a subsidiary to an unrelated entity, but only with
respect to a Participant who continues in the employ of the subsidiary, as
provided in Reg. 1.401(k)-1(d)(1)(ii)(4).
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(c) the termination of the Plan without the
establishment or maintenance of a successor defined contribution plan other
than an employee stock ownership plan, as defined in Code 4975(e)(7) within
one year of the date of termination of this Plan, as provided in Reg.
1.401(k)-1(d)(1)(ii) and (iii).
Withdrawals under this paragraph will be in accordance with Section 8
hereof, including spousal consent requirements, if applicable."
The last sentence of Section 14.1 is hereby amended as follows:
"Except as limited by such rules, regulations and procedures as the
Employer may from time to time promulgate, all loans shall be made
available to Participants who are 'Parties in Interest' as defined in 3(14)
of ERISA without regard to such Participant's race, color, religion, age,
sex or national original."
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RESOLUTION REGARDING AMENDMENT NO. 3
TO RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
RESOLVED, that effective April 1, 1995, Section 8.10 of the
Retirement Savings Plan of Tyson Foods, Inc. is hereby amended deleting
paragraph (5) thereof in its entirety and substituting therefor the
following language:
"(5) At such time as a Participant attains the age of 59-1/2
years, the Participant may direct the Trustee to distribute up to the
entire amount of his Salary Deferral Contribution Account as of any
Accounting Date, including, with the Participant's spouse's consent,
amounts transferred to this Plan from the Arctic Plan. Distributions must
equal at least $500 each and are limited to two (2) distributions per Plan
Year. In the event a Participant elects to take such a distribution, he
shall continue to be eligible to participate in the Plan on the same basis
as any other Participant."
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AMENDMENT NO. 4
TO THE
RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
(As Restated Effective January 1, 1993)
(1) Effective April 1, 1995, Section 1.1(A)(36) is amended by
deleting that section in its entirety and substituting the following
language therefor:
"(36) 'Valuation Date' shall mean each day of a Plan Year."
(2) Effective April 1, 1995, Section 3.1(C) is amended by deleting
the first paragraph of that subsection and substituting therefor the
following language:
"(C) Right of Participant to Suspend or Change His Rate of Salary
Deferral Contributions: Except as set forth below, a Participant may
suspend or change his rate of Salary Deferral Contributions effective as
soon as administratively practicable as of the end of any subsequent
payroll period; however, except as provided in Section 3.1(E) below with
respect to certain required suspensions, a Participant who suspends his
Salary Deferral Contributions may not resume such contributions for a
period of six months following the effective date of such suspension. Any
resumption of Salary Deferral Contributions must be made by the Participant
in writing filed with the Committee prior to the effective date of the
resumption."
(3) Effective April 1, 1995, Section 8.3 is amended by deleting
subsection (A) and the first paragraph of subsection (B) and substituting
therefor the following language:
"(A) Less than $3,500. Disbursement of a Participant's Distribution
Account shall be made in one cash lump sum without his consent within
ninety (90) days of the Accounting Date coincident with or immediately
following his termination of employment if the vested amount of such
account does not exceed $3,500.
(B) Greater than $3,500. If the vested amount of a Participant's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution Account shall be made, or begun if in
periodic payments, subject to the provisions of Section 8.11 below, if
applicable, as follows:
(1) With the written consent of the
Participant, within ninety (90) days of the Accounting Date coincident with
or immediately following the date such consent is received by Employer; or
(2) If the Participant does not consent to a
distribution under (1) above, within ninety (90) days of the Accounting
Date coincident with or immediately following the date:
(a) The Participant dies;
(b) The Participant incurs a Total and
Permanent Disability (as defined in Section 1.1(A)(31);
(c) The Participant reaches age 55, has at
least ten (10) years of service with Employer and elects to begin receiving
distributions on or after such date; or
(d) The Participant reaches his Normal
Retirement Date or Age (as defined below)."
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(4) Effective April 1, 1996, Section 1.1(A)(24) is deleted in its
entirety and the following new language substituted therefor:
"(24) 'Plan Year' shall mean the fiscal year on which the
records of the Plan are kept as reported from time to time by the Plan
Administrator to the Internal Revenue Service. The Plan Year, unless
subsequently changed in accordance with the rules or regulations issued by
the Internal Revenue Service or the Department of Labor, shall be the same
as the calendar year."
(5) Effective April 1, 1996, Section 3.1 is amended by adding the
following new subsection (F):
"(F) Stock Match Account: Additionally, for Plan Years beginning on
or after April 1, 1996, the Employer will contribute to the Stock Match
Accounts for those Participants who are entitled to matching contributions
pursuant to the terms of Section 4.1(d) of the 'Tyson Foods, Inc. Employee
Stock Purchase Plan' cash in the amounts and at such times as required by
Section 4.1(d) of such plan. As soon as administratively feasible
following receipt of such cash matching contributions, the Trustees of this
Plan periodically shall purchase in the open market, through a fiduciary
delegated such responsibilities by the Administrative Committee of this
Plan, shares of Class A Common Stock of Tyson Foods,Inc. All assets held in
the Stock Match Account shall be subject to the same vesting and
distribution provisions that apply to Salary Deferral Contributions, as
more specifically set forth in Section 3.1(B) above. For purposes of
determining an individual's 'deferral percentage' under Section 3.1(E) for
any Plan Year beginning on or after April 1, 1996, contributions
allocated to his 'Stock Match Account' for such Plan Year shall be treated
as additional Salary Deferral Contributions. All cash dividends received
with respect to the shares of Class A Common Stock of Tyson Foods, Inc.
held in a Participant's Stock Match Account shall be used by the Trustee to
purchase additional shares of such stock as soon as administratively
feasible."
(6) Effective April 1, 1996, Section 6.1(B) is amended by
deleting that subsection in its entirety and substituting therefor the
following new language:
"(B) In addition to the separate accounts described in Section
6.1(A) above, the Committee shall cause to be established and maintained
for each applicable Participant until his Initial Distribution Date or
until such later date as of which distribution of the value in such account
is made:
(1) The Rollover Account described in Section 3.2
hereof which may include rollover accounts from any of the Merged Plans;
(2) Separate After-Tax Contribution Accounts for
any after-tax contribution accounts from any of the Merged Plans; and
(3) A Stock Match Account described in Section
3.1(F) above (and such account shall be established and maintained
separately notwithstanding the language in Section 6.1(A) above which
provides that Salary Deferral Contribution Accounts shall include other
Employer contributions which the Employer may have elected to treat as
Salary Deferral Contributions). The additional Accounts created pursuant
to this Section 6.1(B) at all times shall be 100% vested and shall consist
of such subaccounts as are required to reflect a Participant's interest
in the various Investment Funds in accordance with the Participant's
directions as specified in Section 5 hereof."
(7) Effective April 1, 1996, Section 7.1 is amended by adding the
following new sentence at the end of subsection (C) thereof, to-wit:
"Also, to the extent that a Participant's Stock Match Account
includes shares of Class A Common Stock of Tyson Foods, Inc. on any
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Valuation Date, the value of such shares shall be determined based on the
fair market value of that stock as of such Valuation Date."
(8) Effective April 1, 1996, Section 8.4 is amended by changing
the designation for existing subsection (D) to (E) and by adding a new
subsection (D) to provide as follows:
"(D) Notwithstanding anything in this Section 8.4 to the contrary,
all distributions of assets allocated to a Participant's Stock Match
Account shall be paid in one cash lump sum, unless the Participant elects,
in the manner and at such times as provided by the Committee for this
purpose, to receive any of the shares of Class A Common Stock of Tyson
Foods, Inc. in kind."
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AMENDMENT NO. 5
TO THE
RETIREMENT SAVINGS PLAN OF TYSON FOODS, INC.
(1) Effective April 1, 1996, Section 1.1(37) is amended by adding
the following sentence immediately after the fourth sentence of that
subsection, to-wit:
"For purposes of the immediately preceding sentence, Culinary
Foods, Inc. shall include its corporate predecessor, also known as Culinary
Foods, Inc."
(2) Effective April 1, 1996, Section 8.4(D) of the Plan [as added
by Amendment No. 4] is amended by deleting the language of that subsection
in its entirety and substituting therefor the following new language:
"D. Notwithstanding anything in this Section 8.4 to the contrary,
all distributions of assets allocated to a Participant's Stock Match
Account shall be made in one lump sum and, to the extent that the assets in
such account consist of shares of Class A Common Stock of Tyson Foods,
Inc., such shares shall be distributed in kind."
(3) Effective April 1, 1996, Section 8 of the Plan is amended by
adding new Section 8.12, as follows:
"8.12 LIMITATIONS ON BENEFITS AND DISTRIBUTIONS
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
'alternate payee' under a 'qualified domestic relations order' ('QDRO') as
those terms are defined in Code 414(p). Notwithstanding the provisions of
Sections 8.2, 8.3 and 8.4 above, if a QDRO provides for payment from the
Trust of part or all of Participant's Accounts to such 'alternate payee'
prior to a time when such benefits otherwise would be distributable under
the Plan and prior to the Participant's 'earliest retirement age' as
defined in Code 414(p)(4)(B), the payment shall be made s directed by the
QDRO if the amount does not exceed $3,500; if the payment amount exceeds
$3,500, then it shall be made as directed by the QDRO only with the prior
written consent of the 'alternate payee'."
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PROFIT SHARING PLAN AND TRUST
OF
TYSON FOODS, INC.
(Restated Effective April 1, 1993)
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1 Basic Compensation ....................... 2
1.2 Beneficiary .............................. 4
1.3 Break in Service ......................... 5
1.4 Code ..................................... 5
1.5 Disability ............................... 5
1.6 Early Retirement Date .................... 5
1.7 Effective Date ........................... 5
1.8 Employee ................................. 5
1.9 Employer.................................. 5
1.10 Employment Commencement Date ............. 6
1.11 Entry Date ............................... 6
1.12 Highly Compensated Employee............... 6
1.13 Hour of Service .......................... 7
1.14 Leave of Absence and Termination of
Service ................................ 8
1.15 Maternity or Paternity Absences .......... 9
1.16 Member ................................... 10
1.17 Name of Plan ............................. 10
1.18 Normal Retirement Age .................... 10
1.19 Plan ..................................... 10
1.20 Rollover Contribution .................... 10
1.21 Taxable Year, Fiscal Year, Plan Year
and Limitation Year .................... 11
1.22 Trust .................................... 11
1.23 Trust Fund ............................... 11
1.24 Years of Service ......................... 11
ARTICLE II ELIGIBILITY FOR MEMBERSHIP
2.1 Requirements for Participation............ 13
2.2 Effect of Break in Service on Eligibility. 13
2.3 Designation of Beneficiary................ 14
ARTICLE III CONTRIBUTIONS BY EMPLOYER
3.1 Discretionary Contribution of Employer.... 15
3.2 Time of Payment of Contribution
by Employer............................... 15
3.3 Adjustment of Erroneous Contribution....... 15
ARTICLE IV ALLOCATION OF TRUST FUND AMONG MEMBERS
4.1 Accounts of Members........................ 16
4.2 Valuation of Fund and Allocation of
Profits or Losses of Trust Fund.......... 16
4.3 Allocation of Forfeitures from
Employer Contribution Accounts........... 17
4.4 Allocation of Employer Contribution........ 17
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4.5 Special Accounting Date..................... 17
4.6 Basis of Valuation.......................... 18
4.7 Limit on Contributions...................... 18
4.8 Limited Allocation of Forfeitures........... 20
ARTICLE V VESTING
5.1 Vesting of Employer Contribution
Account .................................. 21
5.2 Vesting on Death, Disability or Normal
Retirement................................ 21
5.3 Vesting if Plan Terminated or Employer
Contributions Discontinued................ 21
5.4 Rollover Contribution Account .............. 21
5.5 Effect of Break in Service on Vesting....... 22
5.6 Disposition of Forfeited Amounts............ 22
5.7 Change in Vesting Schedule.................. 23
ARTICLE VI DISTRIBUTIONS
6.1 Initial Distribution Date................... 24
6.2 Establishment of Distribution Account....... 24
6.3 Date of Distribution ....................... 24
6.4 Methods of Distribution..................... 25
6.5 Deferred Retirement......................... 26
6.6 Cash-Out Distributions...................... 26
6.7 Payment of Benefits Upon Death
of Member................................. 27
6.8 Spousal Consent............................. 27
6.9 Death Before Commencement of
Benefits.................................. 27
6.10 Benefits Payable to Minors and
Incompetents.............................. 28
6.11 Eligible Rollover Distributions............. 29
6.12 Notification of Mailing Address ............ 30
6.13 Lost Payee ................................. 31
ARTICLE VII TRUSTEE
7.1 Title to Trust Assets....................... 32
7.2 Investment of Trust Funds .................. 32
7.3 Investment Manager.......................... 32
7.4 Records of Trustee.......................... 33
7.5 Powers of Trustee........................... 33
7.6 Liability of Trustee........................ 33
7.7 Reports by Trustee.......................... 34
7.8 Replacement of Trustee...................... 34
7.9 Limitation on Investment in Employee
Securities and Real Property ............. 34
ARTICLE VIII ADMINISTRATION
8.1 Fiduciary................................... 35
8.2 Powers and Duties......................... 35
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8.3 Records and Reports........................ 36
8.4 Claims Procedure........................... 36
8.5 Indemnification............................ 36
ARTICLE IX AMENDMENT AND TERMINATION OF PLAN
9.1 Amendment of Plan........................... 38
9.2 Suspension of Contributions by
Employer................................. 38
9.3 Termination of Plan......................... 39
9.4 Termination of Trust........................ 39
9.5 Merger, Consolidation or Transfer
of Assets................................. 39
ARTICLE X MISCELLANEOUS PROVISIONS
10.1 Rights of or to Employment.................. 40
10.2 Benefits Payable Solely from Trust
Fund...................................... 40
10.3 Affiliated Companies........................ 40
10.4 Restrictions on Transfer and Claims
of Creditors.............................. 40
10.5 No Interference by Members in
Administration of Trust................... 41
10.6 Applicable Law.............................. 41
10.7 Titles to Articles and Paragraphs........... 41
10.8 Gender....................................... 41
ARTICLE XI TOP HEAVY PROVISIONS
11.1 Determination Date.......................... 42
11.2 Key Employee................................ 42
11.3 Non-Key Employee............................ 43
11.4 Top Heavy Plan.............................. 43
11.5 Aggregated Plans............................ 44
11.6 Aggregation Group........................... 44
11.7 Top Heavy Group............................. 44
11.8 Distributions During Previous
Five Years................................ 45
11.9 Rollover Contributions...................... 45
11.10 Change of Status............................ 45
11.11 Vesting..................................... 45
11.12 Minimum Benefits........................... 46
11.13 Change in Vesting Schedules................ 46
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PROFIT SHARING PLAN AND TRUST
OF
TYSON FOODS, INC.
TYSON FOODS, INC., ("Employer"), a Delaware corporation, entered into
an indenture as of October 1, 1976, to establish the Profit Sharing Plan
and Trust of Tyson Foods, Inc. The Plan so established was continued and
amended on April 1, 1993, and restated in its entirety, as set forth
below, to incorporate all amendments made through April 1, 1993.
ARTICLE I
Definitions
The following definitions shall be used in this Plan and Trust unless
the context of the Plan and Trust clearly indicates another meaning:
1.1 Basic Compensation. "Basic Compensation" means an employee's
wages, salaries, fees for professional services, and other amounts
received (without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Employer maintaining the plan to the extent that the amounts are
includable in gross income (including, but not limited to, commissions
paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan). Any amounts that would have been includable in the
employee's Basic Compensation as described above if they had not received
special tax treatment because they were deferred by the employee through
a salary reduction contribution shall be added to the amount described
above and included in the employee's Basic Compensation for purposes of
the Plan. However, Basic Compensation shall not include the following:
(a) Other Employer contributions to a plan of deferred compensation
which are not includable in the employee's gross income for a taxable
year in which contributed; or any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(d) Other amounts which receive special tax benefits, such as
premiums for group-term life insurance (but only to the extent that the
premiums are not includable in gross income).
The annual Compensation of each Employee taken into account under the
Plan shall not exceed $200,000 or such other amount as may be specified
annually by the Secretary of the Treasury pursuant to his duties under
401(a)(17) of the Code. In addition to other applicable limitations set
forth in the Plan, and notwithstanding any other provision of the Plan to
the contrary, for plan years beginning on or after January 1, 1994, the
annual compensation of each Employee taken into account under the Plan
shall not exceed the OBRA '93 annual compensation limit. The OBRA '93
annual compensation limit is $150,000, as adjusted by the Commissioner
for increases in the cost of living in accordance with section
401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not
exceeding 12 months, over which Compensation is determined (determination
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period) beginning in such calendar year. If a determination period
consists of fewer than 12 months, the OBRA '93 annual compensation limit
will be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference
in this Plan to the limitations under section 401(a)(17) of the Code
shall mean the OBRA '93 annual compensation limit set forth in this
provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current
plan year, the Compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination periods
beginning before the first day of the first plan year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
For purposes of applying the above limit to Highly Compensated
Employees who are 5% owners or one of the ten highest paid Highly
Compensated Employees, such Highly Compensated Employee's family shall be
treated as a single employee with one Compensation and the limit shall be
allocated among the family members in proportion to each member's
Compensation. For purposes of this paragraph, a Highly Compensated
Employee's family shall include his or her spouse and his or her lineal
descendants who have not reached the age of 19 before the end of the
year.
1.2 Beneficiary. "Beneficiary" means such person or persons or
legal entity as may be designated by a Member to receive benefits
hereunder after his death, or the personal or legal representative of the
Member as hereinafter provided in Section 2.3.
1.3 Break In Service. A "Break in Service" shall mean the failure
of an employee to complete more than 500 hours of service during a Plan
Year.
1.4 Code. "Code" means the Internal Revenue Code of 1986 as amended
from time to time.
1.5 Disability. "Disability" means the total incapacity of a Member
when so declared by the Employer in its judgment and discretion,
supported by the written opinion of at least two disinterested
physicians, after the expiration of at least thirty (30) days from the
date of the inception of such incapacity.
1.6 Early Retirement Date. "Early retirement date" shall mean the
date on which a Member or former Member has completed fifteen (15) years
of service and has attained the age of fifty-five (55).
1.7 Effective Date. The original effective date of the Plan was
October 1, 1976. The Plan has been restated effective April 1, 1993, to
reflect all amendments thereto, which, except as provided below, were
effective as of April 1, 1993. However, Section 1.8 was amended
effective April 1, 1988; and Sections 1.1, 1.12, 2.1, 4.4, 5.1, 5.7, 6.1,
6.3, 6.4, 11.2(A) [last paragraph only] and 11.12 were amended effective
April 1, 1989.
1.8 Employee. "Employee" means any person employed by Employer but
does not include leased employees within the meaning of 414(n) and 414(o)
of the Code.
1.9 Employer. "Employer" means Tyson Foods, Inc., or any
corporation
into which it may be merged or consolidated, or any corporation that may
hereafter accept and adopt the terms of this Indenture with approval of
the Board of Directors of Tyson Foods, Inc. For determining an
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employee's length of service for purposes of determining eligibility,
vesting and contributions, Employer also includes any corporation which
is a member of a controlled group of corporations (as defined in 414(b)
of the Code) and all trades or businesses (whether or not incorporated)
which are under common control (as defined in 414(c) of the Code).
Provided, however, that service with an incorporated or unincorporated
employer which has not expressly adopted this Plan shall not give
employees of such employers the right to share in any contributions made
by employers which expressly have adopted this Plan.
1.10 Employment Commencement Date. "Employment Commencement Date"
means the first date on which an employee completes an "hour of service",
provided that in the case of a "break in service" an employee's
employment commencement date shall be the first day thereafter on which
he completes an "hour of service."
1.11 Entry Date. "Entry Date" shall mean April 1 and October 1 of
each year.
1.12 Highly Compensated Employee. "Highly Compensated Employee"
means any employee who, during the Determination Year or the Look-Back
Year --
(A) was at any time a 5-percent owner,
(B) received compensation in excess of $75,000,
(C) received compensation in excess of $50,000 and was in the
Top-Paid Group of employees for such year, or
(D) was at any time an officer and received compensation
greater than 50 percent of the amount in effect under Code section
415(b)(1)(A) for such year.
The Secretary shall adjust the $75,000 and $50,000 amounts under this
Section at the same time and in the same manner as under Code 415(d). An
employee not described in (B), (C) or (D) above for the Look-Back Year
(without regard to this paragraph) shall not be treated as described in
(B), (C) or (D) for the Determination Year unless such employee is a
member of the group consisting of the 100 employees paid the greatest
compensation during the Determination Year.
Determination Year means the Plan Year for which the determination of
Highly Compensated Employee is being made.
Look-Back Year means the twelve (12) month period immediately
preceding the Determination Year.
An employee is in the Top-Paid Group of employees for any year if
such employee is in the group consisting of the top 20 percent of the
employees when ranked on the basis of compensation paid during such year.
For purposes of (D), no more than 50 employees (or, if lesser, the
greater of 3 employees or 10 percent of the employees) shall be treated
as officers. If for any year no officer of the Employer is described in
(D), the highest paid officer of the Employer for such year shall be
treated as described in (D).
"Non-Highly Compensated Employee" means an employee who is not a
Highly Compensated Employee.
1.13 Hour of Service. An "Hour of Service" means:
(a) Each hour for which an employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be
credited to the employee for the computation period in which the duties
are performed; and
(b) Each hour for which an employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
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<PAGE>
disability), layoff, jury duty, military duty or leave of absence. Hours
under this subparagraph (b) shall be calculated and credited pursuant to
2530.200(b)-2 of the Department of Labor Regulations which are
incorporated herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same hours
of service shall not be credited both under subparagraph (a) or (b), as
the case may be, and under this subparagraph (c). These hours shall be
credited to the employee for the computation period or periods to which
the award or agreement pertains rather than the computation period in
which the award, agreement or payment is made; and
(d) Hours of service credited to employees whose compensation is not
determined on the basis of certain amounts for each hour worked during a
given period and whose hours are not required to be counted and recorded
by a separate federal statute such as the Fair Labor Standards Act shall
be at the rate of 45 hours of service for each week that the employee is
entitled to be credited with at least one "hour of service" under the
provisions of this section.
1.14 Leave of Absence and Termination of Service. The Employer,
under a uniform policy applied without discrimination, may grant a Leave
of Absence without pay to any employee because of (a) service in any of
the Armed Forces of the United States or other Government service, (b)
temporary incapacity, or (c) a temporary lay-off by the Employer. To
determine vested percentages and whether a break in service has occurred
(but not to determine entitlement to share in contributions and
forfeitures for the year), an employee will be credited with hours of
service during a Leave of Absence as if he had been actively employed and
had performed his customary duties, provided he returns to work at or
before the end of the Leave of Absence or when so requested by the
Employer after being temporarily laid off by the Employer; otherwise his
service will be considered terminated as of the date on which his leave
began. Any other absence from active employment not deemed a Leave of
Absence shall terminate an Employee's service as of the date the Employer
considers the Employee to have been dropped from its employment rolls.
1.15 Maternity or Paternity Absences. For any employee who is
absent from work by reason of (i) the pregnancy of the employee; (ii) the
birth of a child of the employee; (iii) the placement of a child with the
employee in connection with the adoption of such child by the employee;
or (iv) for purposes of caring for a child for a period beginning
immediately following the birth or placement of such child, the Plan
shall treat as Hours of Service for determining a Break in Service for
purposes of eligibility and vesting the Hours of Service which otherwise
would have been normally credited to the employee but for such absence
or, in the event the Plan is unable to determine the Hours of Service
normally to be credited, eight (8) Hours of Service per day of such
absence.
The total number of hours treated as Hours of Service under this
section shall not exceed 501 hours. The Hours of Service attributable to
an employee shall be credited to the employee in the Plan Year in which
begins the absence from work if the employee would be prevented from
incurring a Break in Service. In any other case, such Hours of Service
shall be credited in the immediately following year.
In the discretion of the Trustee, an employee may be required to
furnish information that the absence from work qualifies under this
section and/or the number of days of such absence.
1.16 Member. "Member" means any employee who has qualified for
participation as provided in Article II of the Plan.
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1.17 Name of Plan. The name of the Plan shall be the "Profit
Sharing Plan of Tyson Foods, Inc."
1.18 Normal Retirement Age. "Normal retirement age" shall mean the
65th birthday of a Member.
1.19 Plan. "Plan" means the profit sharing plan set forth in this
document and all subsequent amendments thereto which in the aggregate are
intended by the Employer to constitute a profit sharing plan for purposes
of the Code.
1.20 Rollover Contribution. "Rollover Contribution" means an amount
transferred to the Trust by or on behalf of an employee that qualifies as
an "Eligible Rollover Distribution" as described in 402(c)(4), 403(a)(4)
and 408(d)(3) of the Code. The Trustee shall accept such Rollover
Contributions from the employee or directly from another Eligible
Retirement Plan as defined in Code 402(c)(8). The rollover of all or any
part of an Eligible Rollover Distribution shall be in accordance with the
provisions of Code 402(c) and the regulations thereunder, and the
Employer may require the employee to furnish such evidence or information
it deems necessary to comply with said laws and regulations. However,
the Trustee shall not accept any part of an Eligible Rollover
Distribution which consists of assets which are other than (i) cash or
equivalents, or (ii) assets which are identical to those which Members
may direct the Trustee to purchase under the terms of the Plan, if
applicable. In the event a Rollover Contribution is accepted on behalf
of a Member, an account called the "Rollover Account" shall be
established for such Member and administered pursuant to the terms of the
Plan as if such account (except for the provisions of Section 5.4 below)
were an Employer Contribution Account of the Member.
1.21 Taxable Year, Fiscal Year, Plan Year and Limitation Year.
"Taxable Year," "Fiscal Year," "Plan Year," or "Limitation Year" means
the annual accounting period ending on the last day of March of each
year, which Tyson Foods, Inc. has adopted for federal income tax
purposes.
1.22 Trust. "Trust" means the legal entity resulting from this
Agreement between the Employer and the Trustee by which the Trust Funds
shall be received, held, invested and distributed to or for the benefit
of Members or Beneficiaries hereunder.
1.23 Trust Fund. "Trust Fund" means all funds received hereunder by
the Trustee, together with all income, profits and increments thereon.
1.24 Years of Service. A "year of service" means each twelve
consecutive month period during which an employee has at least one
thousand (1,000) "hours of service". For determining an employee's
eligibility under the Plan, the "eligibility computation period" shall
begin on the "employment commencement date" (as defined in Section 1.10
above) for such employee. Thereafter, the eligibility computation period
shall be the "Plan Year" beginning with the Plan Year which includes the
first anniversary of a Member's employment commencement date. For
purposes of determining a Member's vested and nonforfeitable interest in
his Employer Contribution Account, the "vesting computation period" shall
be the Plan Year.
ARTICLE II
Eligibility for Membership
2.1 Requirements for Participation. Each employee shall become a
Member in the Plan on the first Entry Date (as defined above) following
the date the employee becomes an "Eligible Employee," as defined
hereafter. For purposes of this Plan, an "Eligible Employee" shall mean
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an employee who (i) has attained the age of 21; (ii) for Plan Years
ending prior to April 1, 1993, is classified as an Executive,
professional, supervisory, technical or office clerical employee; (iii)
for Plan Years following March 1, 1993, is classified as a salaried
employee; (iv) has completed a Year of Service (as defined above);
provided, however, that any employee who is a Highly Compensated
Employee, or who is a member of a collective bargaining unit and who is
covered by a collective bargaining agreement which does not provide for
coverage of such employee under this Plan, shall be excluded.
2.2 Effect of Break in Service on Eligibility. In the event an
employee has a Break in Service (as defined above), the employee's Years
of Service before such break shall not be required to be taken into
account for eligibility purposes until the employee has completed a new
Year of Service following such break; provided, that if such employee was
a Member at the time of such Break in Service, then upon completion of
the new Year of Service, he will be treated as a Member retroactively
from his date of re-employment, but not for purposes of sharing in any
Employer contributions or forfeitures for any plan year ending prior to
the date he completes such new Year of Service.
2.3 Designation of Beneficiary. The provisions of this Plan shall
apply to all Members uniformly. Each employee on becoming a Member
shall:
(a) Agree in writing to be bound by the terms and conditions of this
Plan.
(b) Designate in writing one or more beneficiaries to receive his
benefits in the event of his death. If no such designation be made, or
if such beneficiary be deceased without a successor beneficiary being
designated in writing, then the death benefits shall be paid in a lump
sum to the surviving spouse of said Member, if any, otherwise to the
Member's personal representative or estate of the deceased Member.
Should a beneficiary of a deceased Member die after he has started
receiving payment under the Plan and if there is no living successor
beneficiary named by the deceased Member, then the remaining benefits
shall be paid in a lump sum to the surviving spouse of said beneficiary,
if any, otherwise to the personal representative or estate of the
beneficiary receiving payment at the time of his death. Each Member
shall be entitled to change his designated beneficiaries from time to
time by filing with the Trustee a new Designation of Beneficiary Form,
and each change so made shall revoke all prior designations by the
Member.
ARTICLE III
Contributions by Employer
3.1 Discretionary Contribution of Employer. For the first taxable
year ending after the effective date, and for each succeeding taxable
year, the Employer (in its sole discretion) shall contribute to the
Trustee such definite amount as the Board of Directors shall determine;
provided that the Employer's total contribution to the Trust Fund for
such year shall not exceed fifteen percent (15%) of the total Basic
Compensation for the taxable year of all employees who are entitled to
share in the Employer's contribution for such taxable year and shall be
subject to the limitations in Section 4.7.
3.2 Time of Payment of Contribution by Employer. The full amount of
the Employer's contribution for any taxable year shall be paid not later
than the time prescribed by law for filing the Federal income tax return
of Employer for such taxable year.
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3.3 Adjustment of Erroneous Contribution. If for a taxable year
there is an underpayment or overpayment of the contribution of the
Employer, the following acts shall be performed, to-wit:
(a) If an underpayment is made, the deficiency shall be paid in the
taxable year in which it is disclosed, and for the purpose of
allocation shall be added to the contribution made in such taxable year
of disclosure and allocated in the same manner and among the same Members
as though it were part of the contribution for such taxable year of
disclosure.
(b) If an overpayment is made, the Employer shall not be entitled to
recoup any part of such excess, and the same shall remain to the credit
of the accounts of the Members to whom it was allocated for the taxable
year of contribution, but the contribution of the Employer for the year
during which the overpayment is disclosed may, at the election of the
Board of Directors of the Employer, be reduced by the amount of the
overpayment for the prior year.
ARTICLE IV
Allocation of Trust Fund Among Members
4.1 Accounts of Members. The Trustee shall establish and maintain
for each Member until his "initial distribution date" (defined in Section
6.1) separate accounts, to be called the "Employer Contribution Account"
and one or more "Rollover Contribution Accounts", and each such account
shall be credited or debited to the extent required by the following
sections. As of the Member's initial distribution date, an account
called the "Distribution Account" shall be set up for the Member until
his benefits have been fully paid.
4.2 Valuation of Fund and Allocation of Profits or
Losses of Trust Fund. As of the last day of each taxable year, the total
sum of all accounts (Employer Contribution Accounts, Rollover
Contribution Accounts and Distribution Accounts) shall be compared with
the fair market value of the Trust Fund as determined by the Trustee,
excluding from such appraised value an amount equal to the sum of (a) the
aggregate amounts forfeited during the taxable year in question and (b)
the Employer's contribution for such year. The difference between the
total of all accounts and the adjudged fair market value of the Trust
Fund shall be allocated and credited to the Employer Contribution
Account, Rollover Contribution Account, or Distribution Account of each
Member, in the same proportion that the total of each separate account of
each Member prior to the apportionment bears to the total of all accounts
of all Members or former Members prior to the apportionment. (The term
"amount forfeited" means that portion of a terminated Member's account to
which he is not entitled by reason of the provisions of Article V.)
4.3 Allocation of Forfeitures from Employer Contribution Accounts.
After making the adjustment of Members' accounts required by Section 4.2,
the aggregate amount forfeited during the taxable year in question from
Employer Contribution Accounts shall be combined with the Employer's
Contribution for such taxable year and shall be allocated and credited in
the manner provided under Section 4.4.
4.4 Allocation of Employer Contribution. The Employer's
contribution for each taxable year shall be allocated and credited to the
Employer Contribution Account (or Distribution Account) of each Active
Member who both (i) is employed by Employer at the end of the Plan Year,
and (ii) has completed one thousand (1,000) hours of service in the Plan
Year, in the same proportion that such Member's Basic Compensation for
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the taxable year while a Member under the Plan bears to the total Basic
Compensation of all such Members for such year while Members under the
Plan. Active Member means a Member who meets the definition of "Eligible
Employee" in Section 2.1 as of the end of the Plan Year in question.
4.5 Special Accounting Date. If the Trustee is of the opinion that a
substantial change in the value of the Trust Fund has occurred since the
last prior accounting date, the Trustee, if it deems it advisable and
prior to the next regular accounting date, may establish a special
accounting date and adjust the Members' accounts in accordance with the
method described in Section 4.2 to make the total net credit balance in
the accounts of all Members equal to the then market value of the assets
of the Trust Fund (excluding from such market value an amount equal to
the sum of the aggregate amounts forfeited and any Employer contributions
since the last prior accounting date). All distributions which are to be
made as of or after such special accounting date but prior to the next
accounting date shall be made as if the net credit balance in all
Distribution Accounts had actually been credited or debited to reflect
the required adjustment described in Section 4.2.
4.6 Basis of Valuation. The value of the Trust Fund as of the last
day of each taxable year or any other special accounting date established
by the Trustee shall be determined on the basis of the fair market value
of the assets of the Trust Fund as appraised by the Trustee, less any
accrued expenses to be paid from the Trust Fund.
4.7 Limit on Contributions. Notwithstanding any other provisions of
this or any other qualified defined contribution plan of Employer with
respect to any Member, no Employer or Employee contributions or
allocations with respect to a Member's Account shall be made to the
extent it would cause the annual addition to a Member's account to exceed
the lesser of:
(a) Twenty-five percent (25%) of the Member's compensation; or (b)
$30,000 or, if greater, 1/4 of the dollar limitation in effect under
415(b)(1)(A) of the Code as adjusted by the Secretary of the Treasury
pursuant to his duties under 415(d) of the Code. "Annual addition" means
the sum for any taxable year of the following amounts under this and any
other defined contribution plan maintained by Employer and qualified
under 401 of the Internal Revenue Code, as amended:
(a) Employer contributions;
(b) Employee contributions; and
(c) Forfeitures.
For purposes of this Section 4.7, "compensation" shall have the same
meaning as "Basic Compensation" defined above in Section 1.1 except that
there shall be excluded any amounts that would have been includable in
the employee's gross income if they had not received special tax
treatment because they were deferred by the employee through salary
reduction contributions. Employee contributions, for purposes of the
preceding sentence, do not include "rollover contributions" defined in
Section 1.20.
The Thirty Thousand Dollars ($30,000) limitation referred to in this
section shall be increased automatically pursuant to any regulation,
ruling or announcement promulgated by the Secretary of the Treasury under
Code 415(d)(1) to reflect increases in the cost of living. Any such
increase shall be effective for the limitation year which ends with or
within the calendar year for which such increase is effective.
If a Member's "annual addition" would exceed the limits stated in
this Section notwithstanding these provisions, then:
(a) First, his nondeductible voluntary employee contributions, to
the extent that the return would reduce the amount by which the annual
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addition exceeds such limits, shall be returned to the Member;
(b) Any remaining part of a Member's annual addition which would
exceed such limits shall be reallocated among the accounts of other
Members in the same proportion as each Member's compensation bears to the
total compensation of all other Members whose annual additions, including
such reallocations, do not exceed such limits; and
(c) To the extent that such excess annual additions cannot be
allocated further under subparagraph (b) above due to such limitations,
then such excess amounts shall be allocated to a suspense account and
held therein until the next succeeding date on which allocations are made
under this Plan at which time they shall be allocated and reallocated in
accordance with subsection (b) before any contributions which would
constitute annual additions may be made. In the event of termination of
the Plan, the suspense account shall revert to the Employer to the extent
it may not then be allocated to any Member's account. (If a suspense
account is in existence at any time during the Limitation Year pursuant
to this section, it will not participate in the allocation of the Trust's
investment gains and losses for such year.)
4.8 Limited Allocation of Forfeitures. In allocating forfeitures as
set forth in Section 4.3 of this Article, amounts forfeited by a Member
shall be allocated only to the account of the remaining Members of the
Plan employed by the employer of the forfeiting Member.
ARTICLE V
Vesting
5.1 Vesting of Employer Contribution Account. Except as hereinafter
provided, the amount credited to the Employer Contribution Account of a
Member shall become vested and nonforfeitable based upon his number of
Years of Service (as defined in Section 1.24 above) in the percentage
indicated as follows:
Years of Service Percentage Vested
Less than 3 years 0%
3 years 20%
4 years 40%
5 years 60%
6 years 80%
7 years 100%
5.2 Vesting on Death, Disability or Normal Retirement.
Upon a Member's death, severance of employment due to disability (defined
in Section 1.5 above), or attainment of his Normal Retirement Age, the
full amount of his Employer Contribution Account shall become vested and
nonforfeitable.
5.3 Vesting if Plan Terminated or Employer Contributions
Discontinued. Notwithstanding any other provisions of this Article V, if
the Plan is terminated, or Employer contributions to the Trust Fund are
permanently discontinued, the full amount of each Member's Employer
Contribution Account shall become fully vested and nonforfeitable. If
the Plan is partially terminated, then the accounts of those Members as
to whom partial termination occurred shall be fully vested and
nonforfeitable.
5.4 Rollover Contribution Account. Amounts credited to a Rollover
Contribution Account shall always be 100% vested and nonforfeitable.
5.5 Effect of Break in Service on Vesting. A former Member who had a
nonforfeitable right to all or a portion of his Employer Contribution
Account at the time of a Break in Service shall receive credit for all
Years of Service prior to his Break in Service upon completing a Year of
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Service after such break. A former Member who did not have a
nonforfeitable right to any portion of his Employer Contribution Account
at the time of a Break in Service shall receive credit for all Years of
Service before such break if (i) he completes a Year of Service after
such break, and (ii) the number of consecutive one-year Breaks in Service
is less than the greater of five (5) years or the aggregate number of the
Member's Years of Service before such break. All Years of Service
occurring after five (5) consecutive one-year Breaks in Service shall be
disregarded for purposes of determining the Member's vested percentage in
contributions that occurred before such five-year break. Separate
accounts shall be maintained for the pre-break and post-break
contributions.
5.6 Disposition of Forfeited Amounts. If a Member incurs five
consecutive one-year Breaks in Service or if a Member receives a Cash-Out
Distribution pursuant to Section 6.3, then, in either event, that part,
if any, of his Employer Contribution Account which is not vested in
accordance with the foregoing provisions of this Article V shall be
forfeited and shall be reapportioned as provided in Sections 4.3. Any
former Member receiving a Cash-Out Distribution as defined in Section 6.3
who returns to the employ of the Employer prior to incurring five
consecutive one-year Breaks in Service and repays the amount of his
previous distribution pursuant to Section 6.3 shall have restored to his
Employer Contribution Account any amount previously forfeited. Such
forfeiture shall be restored first from any forfeitures during the Plan
Year of his return to employment and next from the Employer Contribution
next occurring after his return. 5.7 Change in Vesting Schedule. As to
each employee who had no less than 3 Years of Service on the date a Plan
amendment which directly or indirectly changes the vesting schedule
becomes effective, such employee may elect to have his vesting percentage
computed without regard to such amendment. Such election will be
irrevocable and must be made in writing to Employer not later than the
latest of the following dates:
(1) 60 days after the amendment is adopted;
(2) 60 days after the effective date of the amendment;
(3) 60 days after the date the employee is given written notice
of the amendment by the Employer.
ARTICLE VI
Distributions
6.1 Initial Distribution Date. The initial distribution date of a
Member shall be the earlier of:
(a) The date of termination of his employment; or
(b) The end of his taxable year in which he attains age 70.
6.2 Establishment of Distribution Account. On a Member's initial
distribution date, the Trustee shall determine the amount of each
separate account of the Member to which such Member may be entitled on
such date in accordance with the vesting provisions of Article V, and
shall credit such amount or amounts to a new account for the former
Member to be called the "Distribution Account." The balance of the
Member's Employer Contribution Account (representing his forfeitable
amount) shall continue to be held herein, until forfeited in accordance
with Section 5.6. The net credit balance in each Distribution Account
shall be subject on each accounting date to the adjustments specified in
Section 4.2.
6.3 Date of Distribution.
(A) Not Greater than $3,500. Disbursement of a Member's
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Distribution Account shall be made without his consent within the sixty
(60) day period following the close of the Plan Year in which the Member
terminates employment if the vested amount of his account does not exceed
$3,500.
(B) Greater than $3,500. If the vested amount of a Member's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution Account shall be made, or begun if in
periodic payments, subject to the provisions of Section 6.11 below, if
applicable, as follows:
(1) If the Member consents by the end of the Plan Year in which
termination occurs, within the sixty (60) day period following the close
of such Plan Year; or
(2) If the Member does not consent within the period described
in (1) above, within the sixty (60) day period following the close of the
earliest Plan Year in which:
(a) the Member dies;
(b) the Member incurs a Disability (as defined in
Section 1.5 above);
(c) the Member reaches his Early Retirement Date and
elects to begin receiving distributions on or after such date; or
(d) the Member reaches his Normal Retirement Age (as
defined in Section 1.18 above).
(C) Pre-Retirement Distributions. A Member may elect to begin
distributions of any amount of his account once the Member attains his
Normal Retirement Age, even though the Member does not terminate his
employment with the Employer.
Notwithstanding the foregoing, the disbursement of the Distribution
Account shall in any event be made or begun by April 1 of the calendar
year following the calendar year in which the Member attains age 70r.
6.4 Methods of Distribution. All distributions made to a Member or
his or her beneficiaries shall be made by the Trustee in one of the three
following methods:
(a) Lump Sum. By payment in a lump sum.
(b) Installments. By payment equal in installments over a
period certain which does not extend beyond the lesser of twenty (20)
years or the life expectancy of the Member or the joint life expectancies
of such Member and the Member's beneficiaries determined as of the date
that payment of benefits commences, subject to the following
requirements:
1. Fifty Percent (50%) Present Value Test. The
present value of payments to be made to the Member must be more than
fifty percent (50%) of the present value of the total payments to be made
to the Member and the Member's beneficiaries, all as determined as of the
later of such Member's Normal Retirement Age or the Member's termination
of employment; and
2. Equal Installments. Payments must be in the form
of annual or more frequent installments provided the present value of all
such periodic payments payable to the Member or his or her beneficiaries
must be equal to the immediate lump sum
otherwise distributable to the Member had a lump sum settlement been
made.
(c) Combination. By any combination of (a) and (b).
The choice of the method of distribution to the Member or his
beneficiaries shall be made by the Member.
Notwithstanding any other Plan provision to the contrary, all Plan
distributions shall comply with the requirements of 401(a)(9) of the Code
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and the regulations thereunder, including 1.401(a)(9)-2.
6.5 Deferred Retirement. If such Member elects to continue in the
employment of the Employer beyond his Early Retirement Date or Normal
Retirement Age, he shall continue to be treated in all respects as a
Member under the Plan until his actual retirement.
6.6 Cash-Out Distributions. If a Member terminates service with the
Employer and receives an immediate distribution of the vested portion of
his accounts under the Plan pursuant to Section 6.3 (a "Cash-Out
distribution), the nonvested portion of the Member's accounts under the
Plan immediately will be forfeited and reallocated to other Members'
accounts in accordance with Section 4.3. If the Member resumes or
continues employment covered under the Plan and repays during the
employment with the Employer the amount distributed pursuant to this
Section within the time limit stated below, then the Trustee shall credit
to his accounts under the Plan the amount standing to his credit in each
account immediately prior to the distribution, unadjusted by any
subsequent gains or losses of the Trust Fund. Such repayment must occur
before the Member incurs five (5) consecutive one-year Breaks in Service.
6.7 Payment of Benefits Upon Death of Member. Upon the death of a
Member the portion of the Member's account balance, if any, not yet paid
to the Member shall be paid to the Member's surviving spouse; provided,
however, that if the Member is not survived by a spouse or if such spouse
consents to an election out of such payment as set forth in paragraph
6.8, such benefits shall be paid to the Member's designated beneficiary.
6.8 Spousal Consent. Any election by a Member to pay benefits upon
the Member's death to a beneficiary other than the Member's spouse under
paragraph 6.7 shall not be effective unless (i) the spouse of the Member
consents in writing to such election and the spouse's consent
acknowledges the effect of such election and is witnessed by the Employer
or a notary public, or (ii) it is established to the satisfaction of the
Employer that the consent required from the spouse may not be obtained
because there is no spouse, because a spouse cannot be located or because
of such other circumstances as may be established by the Secretary of
Treasury under prescribed regulations.
6.9 Death Before Commencement of Benefits. If a Member dies before
the distribution of his interest has commenced, the Member's entire
interest shall be distributed within five (5) years after his death to
his designated beneficiary; provided, however, that such benefits may be
paid to the designated beneficiary over the life of the beneficiary or
over a period not exceeding the life expectancy of the beneficiary if
such benefits commence within one year of the Member's death.
Notwithstanding the foregoing, if the Member's designated beneficiary is
his or her spouse, such payments need not begin earlier than the date on
which the Member would have attained age 70r years. If the spouse dies
before distributions to such spouse begin, this section shall be applied
as if the surviving spouse was the Member. If distributions have
commenced prior to the Member's death, the remaining portion of the
Member's account shall be distributed to such Member's beneficiary at
least as rapidly as under the method of distribution being used at the
time of the Member's death.
6.10 Benefits Payable to Minors and Incompetents.
(A) Whenever any person entitled to payments under the Plan shall be
a minor or under other legal disability or in the sole judgment of the
Employer shall otherwise be unable to apply such payments to his own best
interest and advantage (as in the case of illness, whether mental or
physical or where the person not under legal disability is unable to
preserve his estate for his own best interest), the Employer may in the
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exercise of its discretion direct all or any portion of such payments to
be made in any one or more of the following ways unless claim shall have
been made therefore by an existing and duly appointed guardian, tutor,
conservator, committee or other duly appointed legal representative, in
which event payment shall be made to such representative:
(1) directly to such person unless such person shall be an infant or
shall have been legally adjudicated incompetent at the time of the
payment;
(2) to the spouse, child, parent or other blood relative to be
expended on behalf of the person entitled or on behalf of those
dependents as to whom the person entitled has the duty of support; or
(3) to a recognized charity or governmental institution to be
expended for the benefit of the person entitled or for the benefit of
those dependents as to whom the person entitled has the duty of support.
(B) The decision of the Employer will, in each case, be final and
binding upon all persons and the Employer shall not be obliged to see to
the proper application or expenditure of any payments so made. Any
payment made pursuant to the power herein conferred upon the Employer
shall operate as a complete discharge of the obligation of the Trustee
and of the Employer.
6.11 Eligible Rollover Distributions. This section 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 section, 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.
(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 401(a)(9) of the Code; and the portion 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 408(a) of the code, an
individual retirement annuity described in 408(b) of the Code, an annuity
plan described in 403(a) of the Code, or a qualified trust described in
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(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 414(p) of the Code, are distributees with regard to the interest
of the spouse or former spouse.
(d) Direct Rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
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6.12 Notification of Mailing Address. (A) Each Member and other
person entitled to benefits hereunder shall file with the Committee
(described in Section 8.1) from time to time, in writing, his post office
address and each change of post office address, and any check
representing payment hereunder and any communication addressed to a
Member or a beneficiary hereunder at his last address filed with the
Committee (or, if no such address has been filed, then at his last
address as indicated on the records of the Employer) shall be binding on
such person for all purposes of the Plan, and neither the Committee nor
the Trustee shall be obliged to search for or ascertain the location of
any such person.
(B) If the Committee, for any reason, is in doubt as to whether
payments are being received by the person entitled thereto, it may by
registered mail addressed to the person concerned at his address last
known to the Committee, notify such person that all unmailed and future
payments shall be henceforth withheld until he provides the Committee
with evidence of his continued life and his proper mailing address or his
beneficiary provides the Committee with evidence of his death. In the
event that (i) such notification is mailed to such person and his
designated beneficiary, (ii) the Committee is not furnished with evidence
of such person's continued life and proper mailing address or with
evidence of his death, all payments shall be withheld until a claim is
subsequently made by any such person to whom payment is due under the
provisions of the Plan.
6.13 Lost Payee. In the event the Administrator is unable, within
five years after payment of a benefit is due to a Member or beneficiary,
to make such payment because it cannot ascertain the whereabouts of the
Member or the identity and whereabouts of his beneficiary or personal
representative by mailing to the last known address shown on the
Administrator's records, and neither the Member, his beneficiary or
personal representative has made written claim therefore before the
expiration of such five years, then, and in such case, the Administrator
shall direct that such amount shall be forfeited and reapportioned as
provided in Section 4.3; provided, however, that such amount shall be
reinstated if and in the event the said Member or his beneficiary or
personal representative shall make a valid claim therefore upon
presentation of proper identification.
ARTICLE VII
Trustee
7.1 Title to Trust Assets. The Trustee is charged with the
custody, management and protection of the Trust Fund. Title to all of
the assets of the Trust shall vest in the Trustee (or its nominee) who
shall hold the same as a special Trust Fund to be administered and
distributed as provided in the Plan.
7.2 Investment of Trust Funds. The Trustee is authorized to invest
and reinvest the assets of the Trust in such real or personal property as
it may deem proper, including but not limited to (i) common stocks and
any common trust fund operated by the Trustee, and (ii) qualifying
employer securities and qualifying employer real property (as defined in
407 of the Employee Retirement Income Security Act of 1974 and as
permitted in 408(e) of such Act) so long as such investments are not
prohibited by and are in conformity with any applicable law or
regulations issued by the Internal Revenue Service in order continuously
to qualify the Trust Fund as a tax-free employee profit sharing trust and
so long as making of such investments does not constitute a prohibited
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transaction as defined in 4975 of the Code. If a bank is appointed as
Trustee or co-Trustee of this Trust, such bank is authorized to invest
all or part of the assets of the Trust in deposits of such bank bearing a
reasonable rate of interest.
7.3 Investment Manager. The Plan Administrator or the Trustee shall
each have the right, but shall be under no obligation, to appoint an
Investment Manager or Managers to direct the investment of all or any
portion of the assets of the Trust Fund. The Investment Manager or
Managers shall be (a) registered as an investment advisor under the
Investment Advisors Act of 1940, (b) a bank as defined in that Act, or
(c) an insurance company qualified to manage, acquire or dispose of
assets of the Plan under the laws of more than one state. Upon
appointment, the Investment Manager shall certify and acknowledge to the
Trustee receipt of a copy of the Plan and Trust, that the Investment
Manager is a fiduciary with respect to such Plan and Trust, and that the
Investment Manager has assumed the duties and responsibilities conferred
by the Trustee or Plan Administrator.
7.4 Records of Trustee. The Trustee shall keep such records and
books as are necessary and appropriate to the administration of the Trust
Fund created by the Plan. The Trustee is authorized to incur any
expenses it deems appropriate and necessary in the preservation of assets
of the Trust or the collection of income, which expenses shall be paid
out of the Trust assets unless the Employer elects to pay any portion or
all or said expenses.
7.5 Powers of Trustee. The Trustee shall have such powers,
authority and discretion as it may need to administer the Trust Fund and
as are authorized by the laws of Arkansas, expressly including all of the
powers applicable to a trustee which are set forth in Section 3 of Act 153
of the 1961 Acts of the General Assembly of Arkansas, which section is
incorporated herein by reference.
7.6 Liability of Trustee. The Trustee shall be under no duty to
determine whether the contributions made by the Employer or any rules or
instructions issued by the Employer comply with the terms of the Plan,
and the Trustee shall be fully protected in acting in good faith on any
information or instructions received from the Employer. The Trustee
shall obtain such bond as may be required and cannot be waived by the
parties to this Agreement under federal or state laws and the premium for
the bond may be borne by the Employer if it so elects.
7.7 Reports by Trustee. The Trustee shall furnish to the Employer
annual financial statements of the operation of the Trust Fund. The
Trustee shall also furnish to each Member of the Plan an annual statement
of the amounts credited to such Member's accounts.
7.8 Replacement of Trustee. Any Trustee may resign or may be
removed as Trustee by action of the Board of Directors of the Employer.
Any Successor Trustee or Trustees shall be appointed by the Board of
Directors of the Employer and shall have all of the powers provided
herein for the original Trustee.
7.9 Limitation on Investment in Employer Securities and Real
Property. Notwithstanding Section 7.2 above, in no case shall the
Trustee invest more than 85% of the Trust assets in such qualifying
Employer securities and qualifying Employer real property (defined in
Section 7.2).
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ARTICLE VIII
Administration
8.1 Fiduciary. The Board of Directors of Tyson Foods, Inc. shall
appoint a committee to be known as the "Administrative Committee" (the
"Committee") to administer the Plan. The Committee will serve as the
named fiduciary of the Plan. The Committee shall consist of officers or
employees of the Employer or other individuals or entities, all of whom
shall serve at the pleasure of the Board and without compensation. A
member of the Committee may resign at any time upon delivery of a written
resignation of the Board. Vacancies created by resignations, death or
other cause may be filled by the Board or the assigned responsibilities
may be reabsorbed or redelegated by the Board. Any person or entity may
serve in more than one fiduciary capacity as respects the Plan.
8.2 Powers and Duties. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry
out its terms. The Committee shall act for and on behalf of the Employer
in taking any action or furnishing any information required of the
Employer with respect to the Plan. All interpretations of the Plan, and
questions concerning its administration and application, shall be
determined by the Committee, and such determinations shall be binding on
all persons except as otherwise expressly provided herein. The Committee
may employ one or more persons to render advice with regard to any
responsibility under the Plan. In the event the members of the Committee
are unable to act for any reason, any actions required of the Committee
shall be performed by the Board. A Committee member who is a Member
under the Plan will not vote or act on any matter relating only to
himself. The Committee shall have the power to delegate specific
fiduciary responsibilities (other than those of the Trustee with respect
to controlling assets of the Plan) by written action. Such delegations
may be officers or employees of the Employer or to other individuals or
entities, all of whom shall serve at the pleasure of the Employer and, if
full-time employees of the Employer, without compensation. Any person or
entity may serve in more than one fiduciary capacity as respects the
Plan.
8.3 Records and Reports. The Committee shall keep a record of all
their proceedings and actions, and other data as shall be necessary for
the proper administration of the Plan and meet the disclosure and
reporting requirements of the law.
8.4 Claims Procedure. If a claim for benefit made by a Member or
his beneficiary is denied, the Committee will give to the Member or
beneficiary written notice of the denial and the specific reasons
therefor. The notice shall be written in a manner calculated to be
understood by the Member or beneficiary. The Member and beneficiary
shall be given sixty (60) days after such notice to obtain by request to
the Committee member designated in the notice a full and fair review by
the Committee of the decision denying the claim.
8.5 Indemnification. The Employer shall indemnify each member of
the Committee and any officer, director, or employee of the Employer
against any and all claims and causes of action by or on behalf of any
and all parties whomsoever, and all losses therefrom, including without
limitation, cost of defense and attorneys fees, based upon or arising out
of any act or omission relating to or in connection with the Plan and
Trust Agreement, other than losses resulting from any such person's fraud
or willful misconduct. The indemnity provided herein will not be
available to the extent that it would deprive the person indemnified of
the benefit of any insurance payment otherwise available.
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ARTICLE IX
Amendment and Termination of Plan
9.1 Amendment of Plan. This Plan may be amended at any time and
from time to time by the Board of Directors of Employer. However, no
change may be made in the Plan which will vest in Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds set aside for Members pursuant to the Plan. No part of
the funds shall, by reason of any amendment or under any other
circumstances, be used for or diverted to purposes other than for the
exclusive benefit of Members and their beneficiaries or for
administration expenses of the Plan. Nor shall any amendment reduce any
then vested interest of a Member.
9.2 Suspension of Contributions by Employer. Employer has
established the Plan with the bona fide intention and expectation that
from year to year it will be able to and will deem it advisable to make
its contributions as herein provided. However, Employer realizes that
circumstances not now foreseen or circumstances beyond its control may
make it either impossible or inadvisable to continue to make its
contributions as herein provided. If Employer decides it is impossible
or inadvisable to make its contributions as herein provided, the Board of
Directors of Employer shall have the power to suspend Employer's
liability for contributions for a fixed or indeterminate period.
However, all other provisions of the Plan shall remain in force, other
than the provisions for contributions by the Employer during the period
its contributions are suspended.
9.3 Termination of Plan. Employer may at any time terminate this
Plan. In such event, after payment of all expenses and after
proportionate adjustment of Members' accounts to reflect such expenses,
fund profits or losses and reallocations to the date of termination, each
Member shall be entitled to receive all amounts then credited to his
separate accounts in the Trust Fund, said amounts to be paid by the
Trustee in accordance with Section 6.3.
9.4 Termination of Trust. When all assets of the Trust have been
distributed as herein provided, the Trust shall terminate and the Trustee
shall be discharged. Unless sooner terminated under the provisions of
this Indenture, the Trust shall terminate upon the expiration of such
period as may be provided by any applicable Rule Against Perpetuities
under Arkansas law.
9.5 Merger, Consolidation, or Transfer of Assets. This Plan and
Trust shall not be merged or consolidated with, nor shall any assets or
liabilities be transferred to, any other plan, unless the benefits
payable to each Member if the Plan was terminated immediately after such
action would be equal to or greater than the benefits to which such
Member would have been entitled if this Plan had been terminated
immediately before such action.
ARTICLE X
Miscellaneous Provisions
10.1 Rights of or to Employment. The adoption and maintenance of
the Plan shall not be deemed to constitute a contract between Employer and
any Employee, and shall not be deemed to be a consideration for, or an
inducement or condition of, the employment of any person. Nothing herein
contained shall be deemed to give to any employee the right to be
retained in the employ of Employer or to interfere with the right of
Employer to discharge any Employee at any time. Nor shall any provision
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of the Plan be deemed to give to Employer the right to require any
employee to remain in its employ; nor shall it interfere with any
Employee's right to terminate his employment at any time.
10.2 Benefits Payable Solely from Trust Fund. All benefits payable
under the Plan shall be paid or provided for solely from the Trust Fund,
and Employer assumes no liability or responsibility therefor.
10.3 Affiliated Companies. Any affiliated, associated or subsidiary
company of Employer may become a party to this Plan for the purpose of
including hereunder as Members the Employees of such affiliated,
associated or subsidiary company, but only at the time and in the manner
and upon the terms and conditions specified by the Board of Directors of
Employer.
10.4 Restrictions on Transfer and Claims of Creditors.
Subject to the exceptions set forth in 401(a)(13) and 414(p) of the Code,
the right to any Member or his beneficiary to any benefit or to any
payment hereunder or to any separate account, prior to actual
distribution to such Member, shall not be subject to alienation or
assignment by any Member, and shall not be subject to attachment,
execution, garnishment, sequestration or other legal, equitable or other
process.
10.5 No Interference by Members in Administration of Trust. Nothing
contained herein shall grant to any Member the right to question the
types of investments made by the Trustee of Trust Funds nor to interfere
in any manner with the Trustee's administration of the Trust. Neither
the Trustee nor the Employer shall be obligated to disclose to any Member
the compensation being paid to any other Member or to provide any Member
with financial statements or operational data of the Employer.
10.6 Applicable Law. All legal questions pertaining to the Plan
shall be determined in accordance with the laws of the State of Arkansas,
and all contributions made hereunder shall be deemed to have been made in
that State.
10.7 Titles to Articles and Paragraphs. The titles to articles and
paragraphs are included solely for convenience of reference, and if there
is any conflict between the titles and the text of this Plan the text
shall control.
10.8 Gender. The masculine gender shall include the feminine where
applicable, and the singular shall include the plural unless
thecontexclearly indicates otherwise.
ARTICLE XI - TOP HEAVY PROVISIONS
Definitions
For purposes of this Article, the following definitions shall apply: 11.1
Determination Date. "Determination Date" means, with respect to
any Plan Year -
(i) the last day of the preceding Plan Year, or
(ii) in the case of the first Plan Year of any plan, the last day
of such Plan Year.
11.2 (A) Key Employee. A Key Employee means an Employee, former
Employee or the beneficiary of either who, at any time during the Plan
Year or any of the 4 preceding Plan Years, is -
(i) an officer of Employer having an annual compensation greater
than 50% of the amount in effect under Code 415(b)(1)(A) for any Plan
Year,
(ii) one of the 10 Employees having annual compensation from
Employer of more than the limitation in effect under Code 415(c)(1)(A)
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and owning (or considered as owning within the meaning of Code 318) the
largest interests in Employer,
(iii) a 5-percent owner of Employer, or
(iv) a 1-percent owner of Employer having an annual compensation
from Employer of more than $150,000.
For purposes of clause (i), no more than 50 Employees (or, if lesser, the
greater of 3 or 10 percent of the Employees) shall be treated as
officers. For purposes of clause (ii), if 2 Employees have the same
interest in Employer, the Employee having greater annual compensation
from Employer shall be treated as having a larger interest.
For purposes of this subparagraph (A), the term "compensation" has
the meaning given such term by 414(q)(7) of the Code.
(B) PERCENTAGE OWNERS.--
(i) 5-PERCENT OWNER.--For purposes of this paragraph, the term
"5-percent owner" means--
(I) if Employer is a corporation, any person who owns (or is
considered as owning within the meaning of Code 318) more than 5 percent
of the outstanding stock of the corporation or stock possessing more than
5 percent of the total combined voting power of all stock of the
corporation, or
(II) If Employer is not a corporation, any person who owns more
than 5 percent of the capital or profits interest in Employer.
(ii) 1-PERCENT OWNER.--For purposes of this paragraph, the term
"1-percent owner" means any person who would be described in clause (i)
if "1 percent" were substituted for "5 percent" each place it appears in
clause (i).
(iii) CONSTRUCTIVE OWNERSHIP RULES--For purposes of
subparagraphs (B)(i) and B(ii)--
(I) subparagraph (C) of Code 318(a)(2) shall be applied by
substituting "5 percent" for "50 percent," and
(II) in the case of any employer which is not a corporation,
ownership in such employer shall be determined in accordance with
regulations prescribed by the Secretary which shall be based on
principles similar to the principles of Code 318 (as modified by
subclause (I)).
(C) AGGREGATION RULES DO NOT APPLY FOR PURPOSES OF DETERMINING
OWNERSHIP IN THE EMPLOYER.--The rules of subsections (b), (c) and (m) of
414 of the Code shall not apply for purposes of determining ownership in
the employer.
11.3 Non-Key Employee. The term "Non-Key Employee" means any
Employee who is not a Key Employee.
11.4 Top Heavy Plan. A plan shall be a top heavy plan if, as of the
Determination Date, the aggregate of the accounts of Key Employees under
the plan, exceeds 60% of the aggregate of the accounts of all Employees
under the plan. Notwithstanding the foregoing, a plan shall not be a top
heavy plan if it is part of an Aggregation Group and such Aggregation
Group is not a Top Heavy Group. For purposes of this section and Section
11.7, the account balance of an Employee as of the Determination Date
shall be the sum of (i) the account balance as of the most recent
valuation date occurring within a 12-month period ending on the
Determination Date, and (ii) the amount of any contributions actually
made after the valuation date but on or before the Determination Date.
11.5 Aggregated Plans. Each plan of an Employer required to be
included in an Aggregation Group shall be treated as a top heavy plan if
such group is a top heavy group.
11.6 AGGREGATION GROUP.
A. REQUIRED AGGREGATION GROUP means --
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(i) each plan of the Employer in which a Key Employee is a
participant, and
(ii) each other plans of Employer which enables any plan
described in subclause (i) to meet the requirements of 401(a)(4) or 410
of the Code, or
(iii) any other plan included by Employer if such group would
continue to meet the requirements of 401(a)(4) and 410 of the Code with
such plan being taken into account.
B. PERMISSIVE AGGREGATION GROUP means --
(i) each plan of the Employer that is required to be
aggregated, and
(ii) each other plan of the Employer that is not part of a
Required Aggregation Group but that satisfies the requirements of
401(a)(4) and 410 of the Code when considered together with the Required
Aggregation Group.
11.7 Top Heavy Group. The term "Top Heavy Group" means any
aggregation group if, as of the determination date, the sum of
(i) the present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such group, and
(ii) the aggregate of the accounts of Key Employees under all
defined contribution plans included in such group exceeds 60% of a
similar sum determined for all Employees.
11.8 Distributions During Previous Five Years. For purposes of
paragraph 11.4, the amount of the account of any Employee shall include
the aggregate distributions made with respect to such employee under the
Plan during the five year period ending on the Determination Date.
11.9 Rollover Contributions. Any rollover contribution, or similar
transfer, initiated by an Employee, shall not be taken into account with
respect to the Plan for purposes of determining whether such plan is a
top heavy plan or whether any aggregation group which includes such plan
is a top heavy group.
11.10 Change of Status. If any Employee changes status thereby
becoming classified as a Non-Key Employee with respect to any Plan Year,
the balance in the accounts of such Employee shall not be considered in
determining whether the Plan is a Top Heavy Plan for such Plan Year. In
addition, the account balance of any Employee who has not performed
services for Employer during the 5 year period ending on the Determination
Date shall also be disregarded.
PROVISIONS APPLICABLE DURING TOP HEAVY YEARS
For any year in which the Plan of Employer is considered a Top Heavy Plan,
the following shall apply.
11.11 Vesting. The vesting schedule applicable to employer
contributions during top heavy years shall be:
Years of Service Percentage Vested
2 20%
3 40%
4 60%
5 80%
6 or more 100%.
11.12 Minimum Benefits. During any year Employer's Plan is a Top
Heavy Plan, th minimum contribution made by Employer to the account of
each Active Member in the Plan who is a Non-Key Employee shall not be
less than the lesser of:
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(a) 3% of such Non-Key Employee's compensation, or
(b) the highest percentage of compensation contributed to the
account for any Key Employee for the year. "Compensation" for purposes of
this Section shall be as defined in Section 4.7 above. "Active Member"
shall be as defined in Section 4.4 above.
Notwithstanding the above, any Employer who maintains this Plan plus one
or more additional qualified employee benefit plans may choose to fund
any required minimum benefit through such other plan(s) but must notify
the Trustee of this Plan of such election.
To provide for the minimum allocation, the Employer contribution
shall be allocated as follows:
(a) An amount of the Employer Contribution equal to 3% of total
compensation (or the total Employer Contribution if less than 3%) shall
be allocated to the Employer Contribution Accounts of the Active Members
in proportion to each Active Member's compensation; and
(b) The balance, if any, of the Employer's Contribution shall be
allocated as set forth in Section 4.4 of the Plan.
A minimum allocation shall be provided to any Active Member who is
employed as of the last day of the Plan Year regardless of such member's
Hours of Service.
11.13 Change in Vesting Schedules. Any change in the vesting
schedule applicable to the Plan due to the Plan becoming a top heavy plan
or a non-top heavy plan shall be subject to the same restriction as set
forth in Section 5.7 of the Plan governing amendments in the vesting
schedule.
IN WITNESS WHEREOF, Tyson Foods, Inc. has caused this Indenture to be
executed by its duly authorized officer, and the Trustee, to indicate
acceptance of this Trust, has executed this Indenture, on this first day
of April, 1993.
TYSON FOODS, INC.
By:________________________________
EMPLOYER
ATTEST:
______________________________
TRUSTEES:
______________________________
______________________________
______________________________
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AMENDMENT NO. 1
TO THE
PROFIT SHARING PLAN AND TRUST OF TYSON FOODS, INC.
(As Restated Effective April 1, 1993)
Effective April 1, 1995, the Plan is amended as follows:
(1) Section 9.3 is amended by deleting the reference to Section
6.3 at the end of Section 9.3 to read "Section 6.4";
(2) Section 9.3 is further amended by adding the following
new language at the end thereof:
"Notwithstanding Section 6.4, to the extent that shares of Class
A Common Stock of Tyson Foods, Inc. are owned by the Trust at the time of
such Plan termination distribution, such shares shall be allocated and
credited to the Distribution Accounts of all Participants in the
proportion which their respective account balances bear to the
aggregate fair market value of all assets owned by the Trust at
such time, and such stock will be distributed in kind if the
Participant is entitled to an immediate distribution, or in cash if a
deferred distribution is elected by the Participant."
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RESOLUTION REGARDING TERMINATION OF
PROFIT SHARING PLAN
OF TYSON FOODS, INC.
RESOLVED, that effective March 31, 1996, the Profit Sharing Plan is
terminated; the Company agrees to purchase from the trust for said plan
all employer real property currently owned by that trust and leased by
the Company, such purchases to be for the properties' fair market
values, as determined by updated independent appraisals, and with such
purchases to be consummated in time to permit distributions of cash from
the plan on or before March 31, 1997; such distributions from the
plan shall be made pursuant to the plan's terms and shall be made on
or before March 31, 1997.
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TYSON FOODS, INC. EMPLOYEE STOCK OWNERSHIP PLAN
(Restated Effective April 1, 1993)
TABLE OF CONTENTS Page
ARTICLE I DEFINITIONS
1.1 Basic Compensation. . . . . . . . . . 2
1.2 Beneficiary.. . . . . . . . . . . . . 4
1.3 Break in Service. . . . . . . . . . . 4
1.4 Disability. . . . . . . . . . . . . . 4
1.5 Early Retirement Date . . . . . . . . 5
1.6 Effective Date . . . . . . . . . . . 5
1.7 Employee. . . . . . . . . . . . . . . 5
1.8 Employer. . . . . . . . . . . . . . . 5
1.9 Employer Stock . . . . . . . . . . . 6
1.10 Employment Commencement Date. . . . . 6
1.11 Entry Date. . . . . . . . . . . . . . 6
1.12 Highly Compensated Employee . . . . . 6
1.13 Hour of Service . . . . . . . . . . . 8
1.14 Leave of Absence and Termination
of Service . . . . . . . . . . . . 9
1.15 Maternity or Paternity Absences . . . 9
1.16 Member . . . . . . . . . . . . . . . 10
1.17 Name of Plan . . . . . . . . . . . . 10
1.18 Normal Retirement Date or Age . . . . 10
1.19 Plan . . . . . . . . . . . . . . . 10
1.20 Rollover Contribution . . . . . . . . 10
1.21 Taxable Year, Fiscal Year, Plan
Year and Limitation . . . . . . . . 11
1.22 Trust . . . . . . . . . . . . . . . . 11
1.23 Trust Fund . . . . . . . . . . . . . 11
1.24 Years of Service. . . . . . . . . . . 12
ARTICLE II ELIGIBILITY FOR MEMBERSHIP
2.1 Requirements for Participation. . . . 13
2.2 Effect of Break in Service
on Eligibility. . . . . . . . . . . 13
2.3 Designation of Beneficiary. . . . . . 14
ARTICLE III CONTRIBUTIONS BY EMPLOYER
3.1 Annual Contribution of Employer . . . 15
3.2 Time of Payment of Contributing
Employer. . . . . . . . . . . . . . 15
3.3 Adjustment of Erroneous Contribution. 15
ARTICLE IV PAYSOP ACCOUNTS
4.1 Establishment of Accounts .. . . . . . 17
4.2 PAYSOP Accounts . . . . . . .. . . . . 17
ARTICLE V ALLOCATION OF TRUST FUND AMONG MEMBERS
5.1 Account of Members. . . . . . .. 19
5.2 Valuation of Fund and Allocation of
Profits or Losses of Trust Fund .. . 19
5.3 Allocation of Forfeitures . . . . . . 20
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5.4 Allocation of Employer Contribution 20
5.5 Special Accounting Date . . . . . 21
5.6 Basis of Valuation. . . . . . . . . 22
5.7 Limit on Contributions. . . . . . .. 22
5.8 Reporting for Employer Contribution
Account . . . . . . . . . . . . . . 24
5.9 Suspense Account. . . . . . . . . .. 25
5.10 Withdrawal from Suspense Account. .. 25
5.11 Exempt Loan . . . . . . . . . . . .. 26
5.12 Dividends . . . . . . . . . . . . .. 26
5.13 Other Limitations . . . . . . . . .. 26
ARTICLE VI VESTING
6.1 Vesting of Employer Contribution
Account . . . . . . . . . . . . . . 27
6.2 Vesting on Death, Disability or
Normal Retirement . . . . . . . . . 27
6.3 Vesting if Plan Terminated or
Employer Contributions Discontinued.27
6.4 Rollover Account . . . . . . . . .. 28
6.5 Effect of Break in Service on
Vesting . . . . . . . . . . . . . . 28
6.6 Disposition of Forfeited Amounts. .. 28
6.7 Change in Vesting Schedule. . . . .. 29
ARTICLE VII DISTRIBUTIONS
7.1 Initial Distribution Date . . . . .. 30
7.2 Establishment of Distribution Account 30
7.3 Date of Distribution. . . . . . . . .30
7.4 Methods of Distribution . . . . . .. 32
7.5 Deferred Retirement . . . . . . . . . 33
7.6 Cash-Out Distribution . . . . . . . . 33
7.7 Payments of Benefits Upon Death
of Member . . . . . . . . . . . . . 34
7.8 Spousal Consent . . . . . . . . . .. 34
7.9 Death Before Commencement of
Benefits. . . . . . . . . . . . . . 34
7.10 Distributions to be Made in
Employer Stock. . . . . . . . . . . 35
7.11 Benefits Payable to Minors and
Incompetents . . . . . . . . . . . 37
7.12 Notification of Mailing Address . .. 38
7.13 Lost Payee . . . . . . . . . . . . . 39
7.14 Eligible Rollover Distributions . . . 39
ARTICLE VIII AMENDMENT AND TERMINATION OF PLAN
8.1 Amendment of Plan . . . . . . . . . . 41
8.2 Suspension of Contributions
by Employer . . . . . . . . . . . . 41
8.3 Termination of Plan . . . . . . . . . 42
8.4 Distribution on Termination . . . . . 42
8.5 Termination of Trust. . . . . . . . . 42
8.6 Merger, Consolidation or
Transfer of Assets. . . . . . . . . 43
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ARTICLE IX TRUST FUND AND TRUSTEE
9.1 Trustee . . . . . . . . . . . . . . . 44
9.2 Purpose of the Trust Fund . . . . . . 44
9.3 Benefits Supported only by the Trust 44
9.4 Trust Fund Applicable Only to
Payment of Benefits . . . . . . . . 44
9.5 Diversification of Investments. . . . 45
ARTICLE X ADMINISTRATION
10.1 Fiduciary . . . . . . . . . . . . . . 47
10.2 Powers and Duties . . . . . . . . . . 47
10.3 Records and Reports . . . . . . . . . 48
10.4 Claims Procedure. . . . . . . . . . . 48
10.5 Indemnification . . . . . . . . . . . 49
10.6 Administrative Procedures . . . . . . 49
ARTICLE XI MISCELLANEOUS PROVISIONS
11.1 Rights of or to Employment. . . . . . 51
11.2 Benefits Payable Solely from
Trust Fund. . . . . . . . . . . 51
11.3 Restrictions on Transfer and Claim
of Creditors. . . . . . . . . . 51
11.4 No Interference by Members in
Administration of Trust . . . . 52
11.5 Members to Furnish Required
Information . . . . . . . . . . 53
11.6 Employer's Contributions Irrevocable 53
11.7 Applicable Law. . . . . . . . . . .. 53
11.8 Titles to Articles and Paragraphs . . 53
11.9 Gender. . . . . . . . . . . . . . . . 53
11.10 Nonterminable Provisions. . . . . . . 54
11.11 Valuation . . . . . . . . . . . . . . 54
ARTICLE XII TOP HEAVY PROVISIONS
12.1 Definitions . . . . . . . . . . . . . 56
12.2 Provisions Applicable During
Top Heavy Years . . . . . . . . . . 59
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TYSON FOODS, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
TYSON FOODS, INC., a corporation organized and existing under the laws
of the State of Delaware (hereinafter called "Employer") hereby restates
the "Tyson Foods, Inc. Employee Stock Ownership Plan" effective April 1,
1993 to reflect all amendments made through such date, with the intention
that the Plan (and the related Tyson Foods, Inc. Employee Stock Ownership
Trust) should continue to qualify as a stock bonus plan and an "employee
stock ownership plan" ("ESOP") pursuant to 401, 409 and 4975(e)(7) of the
Internal Revenue Code of 1986 (the "Code"). The Plan is designed to invest
primarily in qualifying employer securities.
Prior to 1987, the Plan had been administered so as to permit certain
Employer contributions pursuant to the Plan to qualify for the ("PAYSOP")
Employee Stock Ownership Credit permitted by 41 of the Internal Revenue
Code of 1954. Section 41 was repealed by the Tax Reform Act of 1986
effective for compensation paid after December 31, 1986. All benefits
accrued hereunder prior to January 1, 1987, shall continue to be maintained
in separate accounts pursuant to Article IV hereof, which accounts shall be
administered like Employer Contribution Accounts under the Plan except
where specifically set forth to the contrary in Article IV or elsewhere in
the Plan.
ARTICLE I
Definitions
The following definitions shall be used in this Plan unless the
context of the Plan clearly indicates another meaning:
1.1 Basic Compensation. "Basic Compensation" means an employee's
wages, salaries, fees for professional services, and other amounts received
(without regard to whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment with the Employer
maintaining the plan to the extent that the amounts are includable in gross
income (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a nonaccountable plan).
Any amounts that would have been includable in the employee's Basic
Compensation as described above if they had not received special tax
treatment because they were deferred by the employee through a salary
reduction contribution shall be added to the amount described above and
included in the employee's Basic Compensation for purposes of the Plan.
However, Basic Compensation shall not include the following:
(a) Other Employer contributions to a plan of deferred compensation
which are not includable in the employee's gross income for a taxable year
in which contributed; or any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the employee either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture;
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(d) Other amounts which receive special tax benefits, such as premiums
for group-term life insurance (but only to the extent that the premiums are
not includable in gross income).
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The annual Compensation of each Employee taken into account under the
Plan shall not exceed $200,000 or such other amount as may be specified
annually by the Secretary of the Treasury pursuant to his duties under
401(a)(17) of the Code. In addition to other applicable limitations set
forth in the Plan, and notwithstanding any other provision of the Plan to
the contrary, for plan years beginning on or after January 1, 1994, the
annual compensation of each Employee taken into account under the Plan
shall not exceed the OBRA '93 annual compensation limit. The OBRA '93
annual compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with section 401(a)(17)(B) of
the Internal Revenue Code. The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months,
the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period,
and the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in
this Plan to the limitations under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision. If
Compensation for any prior determination period is taken into account in
determining an Employee's benefits accruing in the current plan year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period.
For this purpose, for determination periods beginning before the first day
of the first plan year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
For purposes of applying the above limit to Highly Compensated
Employees who are 5% owners or one of the ten highest paid Highly
Compensated Employees, such Highly Compensated Employee's family shall be
treated as a single employee with one Compensation and the limit shall be
allocated among the family members in proportion to each member's
Compensation. For purposes of this paragraph, a Highly Compensated
Employee's family shall include his or her spouse and his or her lineal
descendants who have not reached the age of 19 before the end of the year.
1.2 Beneficiary. "Beneficiary" means such person or persons or legal
entity as may be designated by a Member to receive benefits hereunder after
his death, or the personal or legal representative of the Member as
hereinafter provided in Section 2.3.
1.3 Break In Service. A "Break in Service" shall mean the failure of
an Employee to complete more than 500 hours of service during a Plan Year.
1.4 Disability. "Disability" means the total incapacity of a Member
when so declared by the Employer in its judgment and discretion, supported
by the written opinion of at least two disinterested physicians, after the
expiration of at least thirty (30) days from the date of the inception of
such incapacity.
1.5 Early Retirement Date. "Early retirement date" shall mean the date
on which a Member or former Member has completed fifteen (15) years of
service and has attained the age of fifty-five (55).
1.6 Effective Date. The original effective date of the Plan was April
1, 1977. The Plan has been restated effective April 1, 1993, to reflect all
amendments thereto, which, except as provided below, were effective as of
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April 1, 1993. However, Section 1.7 was amended effective April 1, 1988;
and Sections 1.1, 1.12, 2.1, 5.4, 6.1, 6.7, 7.1, 7.3, 7.4, 12.1(b)(v) and
12.2 were amended effective April 1, 1989.
1.7 Employee. "Employee" means any person employed by Employer but
does not include leased employees within the meaning of 414(n) and 414(o)
of the Code.
1.8 Employer. "Employer" means TYSON FOODS, INC. and any corporation
that may hereafter accept and adopt the terms of this Indenture with the
approval of the Board of Directors of Tyson Foods, Inc. Such other adopting
corporations, together with Tyson Foods, Inc., hereafter occasionally may
be referred to as Participating Employers. For determining an Employee's
length of service for purposes of determiningeligibility, vesting and
contributions, "Employer" also includes any corporation which is a member
of a controlled group of corporations (as defined in 414(b) of the Code)
and all trades or businesses (whether or not incorporated) which are under
common control (as defined in 414(c) of the Code). Provided, however, that
service with an incorporated or unincorporated employer which has not
expressly adopted this Plan shall not give employees of such employer the
right to share in any contributions made by Employers which expressly have
adopted this Plan.
1.9 Employer Stock. "Employer stock" initially shall mean the Class A
common stock of Tyson Foods, Inc. However, at all times "Employer stock"
shall have that meaning set forth in 409(l) of the Code.
1.10 Employment Commencement Date. "Employment Commencement Date"
means the first date on which an Employee completes an "hour of service",
provided that in the case of a "break in service", an Employee's employment
commencement date shall be the first day thereafter on which he completes
an "hour of service."
1.11 Entry Date. "Entry Date" shall mean April 1 and October 1 of each
year.
1.12 Highly Compensated Employee. "Highly Compensated Employee" shall
mean any Employee who, during the Determination Year or the Look Back Year
(A) was at any time a "5-percent owner" (as defined in 416(q)(3) of the
Code,
(B) received compensation in excess of $75,000.
(C) received compensation in excess of $50,000 and was in the Top-
Paid Group of employees for such year, or
(D) was at any time an officer and received compensation greater than
50 percent of the amount in effect under 415(b)(1)(A) of the Code for such
year.
The Secretary shall adjust the $75,000 and $50,000 amounts under this
Section at the same time and in the same manner as under 415(d) of the
Code. For purposes of this Section 1.12, the term "compensation" shall have
the meaning given such term by 414(q)(7) of the Code. An Employee not
described in (B), (C) or (D) above for the Look-Back Year (without regard
to this paragraph) shall not be treated as described in (B), (C) or (D) for
the Determination Year unless such Employee is a member of the group
consisting of the 100 employees paid the greatest compensation during the
Determination Year. Determination Year means the Plan Year for which the
determination of Highly Compensation Employee is being made. Look Back Year
means the twelve (12) month period immediately preceding the Determination
Year.
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An Employee is in the Top-Paid Group of employees for any year if such
Employee is in the group consisting of the top 20 percent of the employees
when ranked on the basis of compensation paid during such year. For
purposes of (D), no more than 50 employees (or, if lesser, the greater of 3
employees or 10 percent of the employees) shall be treated as officers. If
for any year no officer of the Employer is described in (D), the highest
paid officer of the Employer for such year shall be treated as described in
(D).
If an Employee is a Family Member of a 5-percent owner (as described
in subsection (A)) or of a Highly Compensated Employee in the group
consisting of the 10 most highly compensated Employees who are Members in
this Plan for the Plan Year, then such Employee will not be considered to
be a separate Employee, and any compensation paid to such Employee and any
contributions made to such Employee's Accounts shall be treated as if made
to or on behalf of such Employee's Family Member who is a 5-percent owner
or is one of the 10 most highly compensated Employees. For purposes of this
section, the term 'Family Member' shall mean with respect to an Employee,
(1) the Employee's spouse; (2) the Employee's lineal ascendants and
descendants; and (3) the spouses of such lineal ascendants and descendants.
"Non-Highly Compensated Employee" shall mean an Employee who is neither a
Highly Compensated Employee nor a Family Member (as defined above) of a
Highly Compensated Employee.
1.13 Hour of Service. An "hour of service" means:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the duties are
performed;
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. Except
as otherwise required by applicable federal or state law, no more than 501
hours of service shall be credited under this paragraph for any single
continuous period (whether or not such period occurs in a single
computation period). Hours under this paragraph shall be calculated and
credited pursuant to 2530.200(b)-2 of the Department of Labor Regulations
which are incorporated herein by this reference;
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same hours of
service shall not be credited both under paragraph (a) or (b), as the case
may be, and under this paragraph (c). These hours shall be credited to the
Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made; and
(d) Hours of service credited to Employees whose compensation is not
determined on the basis of certain amounts for each hour worked during a
given period and whose hours are not required to be counted and recorded by
a separate federal statute such as the Fair Labor Standards Act shall be at
the rate of 45 hours of service for each week that the Employee is entitled
to be credited with at least one "hour of service" under the provisions of
this Section.
1.14 Leave of Absence and Termination of Service. The Employer, under
a uniform policy applied without discrimination, may grant a Leave of
Absence without pay to any Employee because of (a) service in any of the
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Armed Forces of the United States or other governmental service, (b)
temporary incapacity, or (c) a temporary lay-off by the Employer. To
determine vested percentages and whether a Break in Service has occurred
(but not to determine entitlement to share in contributions and forfeitures
for the year), an Employee will be credited with Hours of Service during a
Leave of Absence as if he had been actively employed and had performed his
customary duties, provided he returns to work at or before the end of the
Leave of Absence or when so requested by the Employer after being
temporarily laid off by the Employer; otherwise his service will be
considered terminated as of the date on which his leave began. Any other
absence from active employment not deemed a Leave of Absence shall
terminate an Employee's service as of the date the Employer considers the
Employee to have been dropped from its employment rolls.
1.15 Maternity or Paternity Absences. For any Employee who is absent
from work by reason of (i) the pregnancy of the Employee; (ii) the birth of
a child of the Employee; (iii) the placement of a child with the Employee
in connection with the adoption of such child by the Employee; or (iv) for
purposes of caring for a child for a period beginning immediately following
the birth or placement of such child, the Plan shall treat as Hours of
Service for determining a Break in Service for purposes of eligibility and
vesting, the Hours of Service which otherwise would have been normally
credited to the Employee but for such absence or, in the event the Plan is
unable to determine the Hours of Service normally to be credited, eight (8)
Hours of Service per day of such absence.
Except as otherwise required by applicable federal and state law, the
total number of hours treated as Hours of Service under this Section shall
not exceed 501 hours. The Hours of Service attributable to an Employee
shall be credited to the Employee in the Plan Year in which begins the
absence from work if the Employee would be prevented from incurring a Break
in Service. In any other case, such Hours of Service shall be credited in
the immediately following year.
In the discretion of the Trustee, an Employee may be required to furnish
information that the absence from work qualifies under this Section and/or
the number of days of such absence.
1.16 Member. "Member" means any Employee who has qualified for
participation as provided in Article II of the Plan.
1.17 Name of Plan. The name of the Plan shall be the "Tyson Foods,
Inc. Employee Stock Ownership Plan".
1.18 Normal Retirement Age. "Normal retirement age" shall mean the
65th birthday of a Member.
1.19 Plan. "Plan" means the stock bonus employee stock ownership plan
set forth in this document and all subsequent amendments thereof.
1.20 Rollover Contribution. "Rollover Contribution" means anamount
transferred to the Trust by or on behalf of an Employee that qualifies as
an "Eligible Rollover Distribution" as described in 402(c)(4), 403(a)(4)
and 408(d)(3) of the Code. The Trustee shall accept such Rollover
Contributions from the Employee or directly from another Eligible
Retirement Plan as defined in Code Sec. 402(c)(8). The rollover of all or
any part of an Eligible Rollover Distribution shall be in accordance with
the provisions of Code Sec. 402(c) and the regulations thereunder, and the
Employer may require the Employee to furnish such evidence or information
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it deems necessary to comply with said laws and regulations. However, the
Trustee shall not accept any part of an Eligible Rollover Distribution
which consists of assets which are other than (i) cash or equivalents, or
(ii) assets which are identical to those which Members may direct the
Trustee to purchase under the terms of the Plan, if applicable. In the
event a Rollover Contribution is accepted on behalf of a Member, an account
called the "Rollover Account" shall be established for such Member and
administered pursuant to the terms of the Plan as if such account (except
for the provisions of Section 6.4 below) were an Employer Contribution
Account of the Member.
1.21 Taxable Year, Fiscal Year, Plan Year and Limitation Year.
"Taxable Year", "Fiscal Year", "Plan Year", or "Limitation Year" means the
annual accounting period ending March 31, which Tyson Foods, Inc. has
adopted for federal income tax purposes.
1.22 Trust. "Trust" refers to the "Trust Agreement" between Tyson
Foods, Inc. and the Trustee or Trustees who have executed the Trust
Agreement ("Trustee") through which the Trust Funds shall be received,
held, invested and distributed to or for the benefit of Members or
beneficiaries hereunder.
1.23 Trust Fund. "Trust Fund" means all funds received hereunder by
the Trustee and any and all securities and other property purchased or
otherwise acquired out of such funds, together with all income, profits and
increments thereon.
1.24 Years of Service. A "year of service" means each twelve
consecutive month period during which an Employee has at least one thousand
(1,000) "hours of service". For determining an Employee's eligibility under
the Plan, his "eligibility computation period" shall begin on the
"employment commencement date" (as defined in Section 1.10 above) for such
Employee. Thereafter, the eligibility computation period shall be the "Plan
Year" beginning with the Plan Year which includes the first anniversary of
a Member's Employment Commencement Date. For determining a Member's vested
and nonforfeitable interest in his Employer Contribution Account, the
"vesting computation period" shall be the Plan Year.
ARTICLE II
Eligibility for Membership
2.1 Requirements for Participation. Each Employee shall become a
Member in the Plan on the first Entry Date (as defined above) following the
date the Employee becomes an "Eligible Employee," as defined hereafter. For
purposes of this Plan, an "Eligible Employee" shall mean an Employee who
(i) has attained the age of 21; (ii) for Plan Years ending prior to April
1, 1993, is classified as an Executive, professional, supervisory,
technical or office clerical employee; (iii) for Plan Years following March
31, 1993, is classified as a salaried employee; and (iv) has completed a
Year of Service (as defined above); provided, however, that any Employee
who is a Highly Compensated Employee, or who is a member of a collective
bargaining unit and is covered by a collective bargaining agreement which
does not provide for coverage of such Employee under this Plan, shall be
excluded.
2.2 Effect of Break in Service on Eligibility. In the event an
Employee has a Break in Service (as defined above), the Employee's Years of
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Service before such break shall not be required to be taken into account
for eligibility purposes until the Employee has completed a new Year of
Service following such break; provided, that if such Employee was a Member
at the time of such Break in Service, then upon completion of the new Year
of Service he will be treated as a Member retroactively from his date of
re-employment, but not for purposes of sharing in any Employer contributions
or forfeitures for any Plan Year ending prior to the date he completes such
new Year of Service.
2.3 Designation of Beneficiary. The provisions of this Plan shall
apply to all Members uniformly. Each Employee on becoming a Member shall:
(a) Agree in writing to be bound by the terms and conditions of this
Plan.
(b) Designate in writing one or more beneficiaries to receive his
benefits in the event of his death. If no such designation be made, or if
such beneficiary be deceased without a successor beneficiary being
designated in writing, then the death benefits shall be paid in a lump sum
to the surviving spouse of said Member, if any, otherwise to the personal
representative or estate of the deceased Member. Should a beneficiary of a
deceased Member die after he has started receiving payment under the Plan
and if there is no living successor beneficiary named by the deceased
Member, then the remainingbenefits shall be paid in a lump sum to the
surviving spouse of said beneficiary, if any, otherwise to the personal
representative or estate of the beneficiary receiving payment at the time
of his death.
Each Member shall be entitled to change his designated beneficiaries
from time to time by filing with the Trustee a new Designation of
Beneficiary Form, and each change so made shall revoke all prior
designations by the Member.
ARTICLE III
Contributions by Employer
3.1 Annual Contribution of Employer.
Formula for Contribution. Subject to the limitations of Section 5.7
below, the Participating Employers shall contribute as a whole with respect
to each Plan Year a total amount determined by the Board of Directors of
Tyson Foods, Inc. and authorized by written resolution. Contributions under
the Plan may be in cash or in the form of Employer stock. Total
contributions made by any Participating Employers to the Trust Fund for any
fiscal year shall not exceed fifteen percent (15%) of the aggregate Basic
Compensation of all Members who are entitled to share in that Participating
Employer's contribution for such year; provided, however, that to the
extent that Employer contributions are applied to the payment of principal
and/or interest on an "exempt loan" (defined in 5.11 below), such
contributions may exceed the limitations set forth above in this Section
3.1 to the extent permitted in 404(a)(9) and 404(k) of the Code.
3.2 Time of Payment of Contribution by Employer. The full amount of an
Employer's contribution for any taxable year shall be paid not later than
the time prescribed by law for filing the Federal income tax return of the
Employer for such taxable year.
3.3 Adjustment of Erroneous Contribution. If for a taxable year there
is an underpayment or overpayment of the contribution of an Employer, the
following acts shall be performed, to-wit:
(a) If an underpayment is made, the deficiency shall be paid in the
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taxable year in which it is disclosed, and for the purpose of allocation
shall be added to the contribution made in such taxable year of disclosure
and allocated in the same manner and among the same Members as though it
were part of the contribution for such taxable year of disclosure.
(b) If an overpayment is made, the Employer shall not be entitled to
recoup any part of such excess, and the same shall remain to the credit of
the accounts of the Members to whom it was allocated for the taxable year
of contribution, but the contribution of the Employer for the year during
which the overpayment is disclosed may, at the election of the Board of
Directors of the Employer, be reduced by the amount of the overpayment for
the prior year.
ARTICLE IV
PAYSOP Accounts
4.1 Establishment of Accounts. Prior to April 1, 1987, the accounts of
all Members in the Plan were administered so as to permit certain Employer
contributions to the Plan to qualify for the ("PAYSOP") Employee Stock
Ownership Credit permitted by 41 of the Code, which section was repealed by
the Tax Reform Act of 1986 effective for compensation paid after December
31, 1986. All of these accounts existing on March 31, 1987, are now
referred to as the "PAYSOP Accounts." As reflected in Article V hereof,
said PAYSOP Accounts shall continue under the Plan, and in all respects
shall be considered as accounts under the Plan and administered pursuant to
the terms and conditions of the Plan, except as specifically provided
otherwise below in Section 4.2.
4.2 PAYSOP Accounts. Notwithstanding any other provisions of this
Plan, all PAYSOP Accounts shall be subject to the following additional
requirement:
Employer stock allocated to a Member's PAYSOP Account shall not be
distributed from that account before the end of the 84th month beginning
after the month in which the Employer stock actually was allocated to such
Account, except when the Member separates from service with Employer, dies,
becomes disabled, is transferred to the employment of an acquiring employer
in the case of a sale to the acquiring corporation of substantially all of
the assets used by the selling corporation in a trade or business conducted
by the selling corporation, or, with respect to the stock of a selling
corporation, when there is a disposition of such selling corporation's
interest in the subsidiary when the Member continues employment with such
subsidiary. Furthermore, the 84 month distribution restriction shall not
apply to any distribution required under 401(a)(9) of the Code, to any
distribution or reinvestment required under 401(a)(28) of the Code, or in
the case of termination of the Plan.
ARTICLE V
Allocation of Trust Fund Among Members
5.1 Accounts of Members. The Committee shall establish and maintain
for each Member until his initial distribution date (defined in Section
7.1) separate accounts, to be called the "Employer Contribution Account",
and a "Rollover Account" (if applicable) and, pursuant to Article IV (if
applicable) a "PAYSOP Account." Each such account shall be credited or
debited to the extent required by the following Sections. As of the
Member's initial distribution date, an account called the "Distribution
Account" shall be set up for the Member until his benefits have been fully
paid.
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5.2 Valuation of Fund and Allocation of Profits or Losses of Trust
Fund. As of the last day of each taxable year, the total sum of all
accounts (Employer Contribution Accounts, Rollover Accounts, PAYSOP
Accounts and Distribution Accounts) shall be compared with the fair market
value of the Trust Fund as determined by the Trustee, excluding from such
appraised value an amount equal to the sum of (a) the aggregate amounts
forfeited during the taxable year in question and (b) the Employer's
contribution for such year. The difference between the total of all
accounts and the adjudged fair market value of the Trust Fund shall be
allocated and credited to the Employer Contribution Account, Rollover
Account, PAYSOP Account or Distribution Account of each Member, in the same
proportion that the total of each separate account of each Member prior to
the apportionment bears to the total sum of all accounts of all Members or
former Members prior to the apportionment. (The term "amount forfeited"
means that portion of a terminated Member's account to which he is not
entitled by reason of the provisions of Article VI.)
5.3 Allocation of Forfeitures.
After making the adjustment of Members' accounts required by Section 5.2,
the aggregate amount forfeited during the taxable year in question from
Employer Contribution Accounts shall be allocated and credited to the
Employer Contribution Accounts of only those Members (as of the close of
business on the last day of the taxable year in question) of the
Participating Employer with whom the terminated Member was last employed
who are entitled to share in the Employer contribution for that year, in
the same proportions in which the Employer contributions are allocated, in
accordance with Section 5.4 below.
5.4 Allocation of Employer Contribution. The Employer contributions of
all Participating Employers for each taxable year shall be allocated and
credited to the Employer Contribution Accounts (or Distribution Accounts)
of each of their Active Members entitled to share in such contributions for
such year in the same proportion that each such Member's Basic Compensation
for the taxable year while a Member under the Plan bears to the Basic
Compensation of all such Members for such year while Members under the
Plan. Each Active Member who both (i) is employed by the Participating
Employer at the end of the Plan Year, and (ii) has completed one thousand
(1,000) hours of service in such Plan Year shall be entitled to share in
the Employer's contribution for such year. Active Member means a Member who
meets the definition of "Eligible Employee" in Section 2.1 as of the end of
the Plan Year in question. If an Employer contribution is made with
Employer stock, fractional shares of such stock may be allocated to the
accounts of Members, but no allocation shall be made in fractions of less
than one-tenth (1/10) of a share. Unallocated shares in the hands of the
Trustee shall be carried over to and shall be allocated with the next
contribution of such stock.
5.5 Special Accounting Date. If the Trustee is of the opinion that a
substantial change in the value of the Trust Fund has occurred since the
last prior accounting date, the Trustee, if it deems it advisable and prior
to the next regular accounting date, may establish a special accounting
date and adjust the Members' accounts in accordance with the method
described in Section 5.2 to make the total net credit balance in the
accounts of all Members equal to the then market value of the assets of the
Trust Fund (excluding from such market value an amount equal to the sum of
the aggregate amounts forfeited and any Employer contributions since the
last prior accounting date). All distributions which are to be made as of
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or after such special accounting date but prior to the next accounting date
shall be made as if the net credit balance in all Distribution Accounts had
actually been credited or debited to reflect the required adjustment
described in Section 5.2.
5.6 Basis of Valuation. The value of the Trust Fund as of the last day
of each taxable year or any other special accounting date established by
the Trustee shall be determined on the basis of the fair market value of
the assets of the Trust Fund as appraised by the Trustee, less any accrued
expense to be paid from the Trust Fund.
5.7 Limit on Contributions. Except as provided below, notwithstanding
any other provisions of this Plan or any other qualified defined
contribution plan of Employer, no Employer contributions or allocations
with respect to a Member's Account in a Limitation Year shall be made to
the extent it would cause the Annual Addition to a Member's account to
exceed the lesser of:
(a) Twenty-five percent (25%) of the Member's compensation for the
Limitation Year; or
(b) $30,000 or, if greater, one-fourth (1/4) of the defined
benefit dollar limitation in effect under 415(b)(1)(A) of the Code.
For purposes of this Section 5.7, "compensation" shall have the same
meaning as "Basic Compensation" defined in Section 1.1 above except that
there shall be excluded any amounts that would have been includable in the
Employee's gross income if they had not received special tax treatment
because they were deferred by the Employee through salary reduction
contributions.
"Annual Addition" means the sum for any Limitation Year of the
following amounts allocated on behalf of a Member under this Plan and any
other qualified defined contribution plan of Employer:
(a) Employer contributions;
(b) Employee contributions; and
(c) all forfeitures.
Employee contributions, for purposes of the preceding sentence, do not
include "rollover contributions" (as defined in Section 1.20 above) and
without regard to Employee contributions to a simplified employee pension
which are excludable from gross income under 408(k)(6) of the Code.
Provided, however, that in the event no more than one-third (1/3) of
Employer contributions for the fiscal year are allocated to Highly
Compensated Employees, then the following special limitation rules shall
apply, notwithstanding any other provision in this Section 5.7:
(i) In the event that the Trust remains liable for any part of an
"Exempt Loan" (defined in Section 5.11 below), Employer contributions, to
the extent such amounts are applied to the payment of interest on such
Exempt Loan and are charged against the Member's account, shall not be
included in the definition of "annual addition" set forth above; and
(ii) Forfeitures of Employer stock which was acquired with the proceeds
of any Exempt Loan shall not be included in the definition of "annual
additions" set forth above.
Also, dividends from Employer stock (whether or not allocated under
Sections 5.4 and 5.10) which are used to repay principal or interest on an
Exempt Loan pursuant to Section 5.9 below shall not constitute annual
additions.
If a Member's "Annual Addition" would exceed the limit stated in this
Section notwithstanding these provisions, then:
(a) First, his Employee contributions, to the extent that the return would
reduce the amount by which the Annual Addition exceeds the limit stated in
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this Section, shall be returned to the Member; (b) Any remaining part of a
Member's Annual Addition which would exceed the limit stated in this
Section shall be reallocated among the accounts of other Members in the
same proportion as each Member's compensation bears to the total
compensation of all other Members whose Annual Additions, including such
reallocations, do not exceed the limit stated herein; and (c) To the extent
that such excess Annual Additions cannot be allocated further under
subparagraph (b) above due to the limitations contained in this Section
5.7, then such excess amounts shall be allocated to a suspense account and
held therein until the next succeeding date on which allocations are made
under this Plan at which time they shall be allocated and reallocated in
accordance with subsection (b) before any contributions which would
constitute Annual Additions may be made. In the event of termination of the
Plan, the suspense account shall revert to the Employer to the extent it
may not then be allocated to any Member's account. (If a suspense account
is in existence at any time during the Limitation Year pursuant to this
Section, it will not participate in the allocation of the Trust's
investment gains and losses for such year.)
5.8 Reporting for Employer Contribution Account.
Notwithstanding Section 5.1, for purposes of reporting to Members and
beneficiaries the value of their Employer Contribution Account and PAYSOP
Account (or Distribution Account), the Committee shall establish a separate
Cash Account and Stock Account for each Member or beneficiary. Cash
Accounts shall be kept in dollars and cents and shall reflect the value of
the Member's or beneficiary's interest in all assets of the Trust other
than Employer stock. The Stock Account shall be kept in number of shares of
Employer stock to the nearest onetenth (1/10) of a share. At any time the
value of a Member's or a beneficiary's "Stock Account" is reported for a
Plan Year, the Trustee also shall set forth the latest price publicly
quoted (if applicable) for Employer stock during such Plan Year.
5.9 Suspense Account. All shares of Employer stock acquired by the
Trustee with the proceeds of an Exempt Loan shall be held by the Trustee in
a separate "Suspense Account" until withdrawn and allocated to Members'
accounts as provided in Section 5.10 below. Any dividends received by the
Trustee attributable to shares held in the Suspense Account shall first be
applied towards the reduction of any such Exempt Loan, and any excess
dividends shall be allocated as income of the Plan pursuant to Section 5.2
above.
5.10 Withdrawal from Suspense Account. All shares held in the Suspense
Account shall be withdrawn at the same rate that such shares are released
as collateral for the Exempt Loan (or, as if such shares were encumbered to
secure the Exempt Loan), the proceeds of which were used to acquire such
shares. In any event, such shares shall be withdrawn in accordance with
regulation 54.497511(c). On the last day of each Plan Year, the Trustee
shall allocate all shares withdrawn during such year to the Members'
Employer Contribution Accounts in the same proportions in which Employer
contributions are allocated in accordance with Section 5.4 above,
accounting for such allocated shares at their "cost" basis to the Trust.
Such allocations of withdrawn shares shall be made in number of shares to
the nearest one-tenth (1/10) of a share. For purposes of determining the
amount of the Employer's contribution to be allocated (under Section 5.4)
in assets other than shares of stock withdrawn from the suspense account,
the Employer's contribution shall first be reduced by the amount of the
Employer's contribution applied towards the reduction of the Exempt Loan
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(rather than the current fair market value of such withdrawn shares). For
purposes of Section 5.7 above, "Annual Additions" shall be calculated with
respect to Employer contributions used to repay the Exempt Loan rather than
with respect to the value of shares allocated to Members' accounts.
5.11 Exempt Loan. For purposes of this Article V, "Exempt Loan" shall
mean a loan exempt under 4975(d)(3) of the Code and conforming with the
requirements of regulation 54.4975-7, and all future amendments thereto.
5.12 Dividends. All dividends paid on Employer stock allocated to
Members' accounts and received by the Trustee in a taxable year shall be
distributed to such Members on or before the 90th day following the end of
such year.
5.13 Other Limitations. Subject to the special rules and definitions
of 409(n) of the Code, no portion of the assets of the Plan attributable to
(or allocable in lieu of) Employer stock acquired by the Plan in a sale to
which 1042 or 2057 of the Code applies may be allocated (directly or
indirectly) to the account of:
(a) any person who makes an election under 1042 with respect to
Employer stock, any decedent if the executor of the estate of such decedent
makes a "qualified sale" to which 2057 applies, or any individual who is
related to such person or decedent (within the meaning of 267(b)) of the
Code; or
(b) any other person who owns (after application of 318(a)) more
than 25 percent of the outstanding Employer stock.
ARTICLE VI
Vesting
6.1 Vesting of Employer Contribution Account. Except as hereinafter
provided, the amount credited to the Employer Contribution Account of a
Member shall become vested and nonforfeitable based upon his number of
Years of Service (as defined in Section 1.24 above) in the percentage
indicated as follows:
Years of Service Percentage Vested
Less than 3 years 0%
3 years 20%
4 years 40%
5 years 60%
6 years 80%
7 years 100%
6.2 Vesting on Death, Disability or Normal Retirement. Upon a
Member's death, severance of employment due to Disability (defined in
Section 1.4 above) or attainment of his Normal Retirement Age, the full
amount of his Employer Contribution Account shall become vested and
nonforfeitable.
6.3 Vesting if Plan Terminated or Employer Contributions Discontinued.
Notwithstanding any other provisions of this Article VI, if the Plan is
terminated, or Employer contributions to the Trust Fund are permanently
discontinued, the full amount of each Member's Employer Contribution
Account shall become fully vested and nonforfeitable. If the Plan is
partially terminated, then the accounts of those Members as to whom partial
termination occurred shall be fully vested and nonforfeitable.
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6.4 Rollover Account and PAYSOP Account. Amounts credited to a
Member's Rollover Account and PAYSOP Account always shall be 100% vested
and nonforfeitable.
6.5 Effect of Break in Service on Vesting. A former Member who had a
nonforfeitable right to all or a portion of his Employer Contribution
Account at the time of a Break in Service shall receive credit for all
Years of Service prior to his Break in Service upon completing a Year of
Service after such break. A former Member who did not have a nonforfeitable
right to any portion of his Employer Contribution Account at the time of a
Break in Service shall receive credit for all Years of Service before such
break if (i) he completes a Year of Service after such break, and (ii) the
number of consecutive one-year Breaks in Service is less than the greater
of five (5) years or the aggregate number of the Member's Years of Service
before such break. All Years of Service occurring after five (5)
consecutive one-year Breaks in Service shall be disregarded for purposes of
determining the Member's vested percentage in contributions that occurred
before such five-year break. Separate accounts shall be maintained for the
pre-break and post-break contributions.
6.6 Disposition of Forfeited Amounts. If a Member incurs five
consecutive one-year Breaks in Service or if a Member receives a Cash-Out
Distribution pursuant to Sections 7.3 and 7.6, then, in either event, that
part, if any, of his Employer Contribution Account which is not vested in
accordance with the foregoing provisions of this Article VI shall be
forfeited and shall be reallocated as provided in Sections 5.3. Provided,
however, that if a portion of a Member's account is so forfeited, any
interest in any shares of Employer stock that have been allocated to such
Member's account may be forfeited and reallocated only after other assets
of the Member's account. Any former Member receiving a Cash-Out
Distribution as defined in Section 7.6 who returns to the employ of the
Employer prior to incurring five consecutive one-year Breaks in Service and
repays the amount of his previous distribution pursuant to Section 7.6
shall have restored to his Employer Contribution Account any amount
previously forfeited. Such forfeiture shall be restored first from any
forfeitures during the Plan Year of his return to employment and next from
the Employer Contribution next occurring after his return.
6.7 Change in Vesting Schedule. As to each Employee who had no less
than 3 Years of Service on the date a Plan amendment which directly or
indirectly changes the vesting schedule becomes effective, such Employee
may elect to have his vesting percentage computed without regard to such
amendment. Such election will be irrevocable and must be made in writing to
Employer not later than the latest of the following dates:
(1) 60 days after the amendment is adopted;
(2) 60 days after the effective date of the amendment;
(3) 60 days after the date the Employee is given written notice of the
amendment by the Employer.
ARTICLE VII
Distributions
7.1 Initial Distribution Date. The initial distribution date of a
Member shall be the earlier of:
(a) The date of termination of his employment; or
(b) The end of the taxable year in which he attains age 70.
7.2 Establishment of Distribution Account. On a Member's initial
distribution date, the Trustee shall determine the amount of each separate
account of the Member to which such Member may be entitled on such date in
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accordance with the vesting provisions of Article VI, and shall credit such
amount or amounts to a new account for the former Member to be called the
"Distribution Account." The balance of the Member's Employer Contribution
Account (representing his forfeitable amount) shall continue to be held
therein, until forfeited in accordance with Section 6.6. The net credit
balance in each Distribution Account shall be subject on each accounting
date to the adjustments specified in Section 5.2.
7.3 Date of Distribution.
(A) Not Greater than $3,500. Disbursement of a Member's
Distribution Account shall be made without his consent within the sixty
(60) day period following the close of the Plan Year in which the Member
terminates employment if the vested amount of his account does not exceed
$3,500.
(B) Greater than $3,500. If the vested amount of a Member's
Distribution Account exceeds $3,500 upon termination of employment,
disbursement of the Distribution Account shall be made, or begun if in
periodic payments, subject to the provisions of Section 7.14 below, if
applicable, as follows:
(1) If the Member consents by the end of the Plan Year in which
termination occurs, within the sixty (60) day period following the close of
such Plan Year; or
(2) If the Member does not consent within the period described
in (1) above, within the sixty (60) day period following the close of the
earliest Plan Year in which:
(a) the Member dies;
(b) the Member incurs a Disability (as defined in Section 1.4
above);
(c) the Member reaches his Early Retirement Date and elects to
begin receiving distributions on or after such date; or
(d) the Member reaches his Normal Retirement Age (as defined in Section
1.18 above).
(C) Pre-Retirement Distributions. A Member may elect to begin
distributions of any amount of his account once the Member attains his
Normal Retirement Age, even though the Member does not terminate his
employment with the Employer.
The distribution provisions of this Section 7.3 shall be subject to
the following additional restrictions, requirements and exceptions:
(i) The disbursement of the Distribution Account of a Member shall
in any event be made or begun by April 1 of the calendar year following the
calendar year in which the Member turns age 70 years.
(ii) No portion of a Member or former Member's Distribution Account
which consists of Employer stock acquired with the proceeds of an Exempt
Loan is required to be distributed until the last day of the Plan Year in
which such Exempt Loan is repaid in full.
(iii) Distributions from PAYSOP Accounts shall be subject to the
limitations specified in Article IV above.
7.4 Methods of Distribution. All distributions made to a Member or his
or her beneficiaries shall be made by the Trustee in one of the four
following methods:
(a) Mandatory Installments. Unless the Member affirmatively elects
in writing not to receive payments under this subparagraph (a),
distribution shall be in equal annual installments over a period of not
exceeding the greater of (i) five (5) years or (ii) in the case of a Member
with an account balance in excess of $500,000, five (5) years plus one (1)
additional year (but not more than five (5) additional years) for each
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$100,000 or fraction thereof by which such balance exceeds $500,000.
(b) Lump Sum. By payment in a lump sum.
(c) Elective Installments. By payment in equal annual installments
over a period certain which does not extend beyond the lesser of twenty
(20) years or the life expectancy of the Member or the joint life
expectancies of such Member and the Member's beneficiary determined as of
the date that payment of benefits commences, subject to the following
requirements:
1. Fifty Percent (50%) Present Value Test. The present value of
payments to be made to the Member must be more than fifty percent (50%) of
the present value of the total payments to be made to the Member and the
Member's beneficiaries, all as determined as of the later of such Member's
normal retirement age or the Member's termination of employment; and
2. Equal Installments. Payments must be in the form of annual or
more frequent installments provided the present value of all such periodic
payments payable to the Member or his or her beneficiary must be equal to
the immediate lump sum otherwise distributable to the Member had a lump sum
settlement been made.
(d) Combination. By any combination of (b) and (c). The method of
distribution to the Member or his beneficiaries shall be implemented by the
Committee, in accordance with the directions of the Member in effect at the
time the Member's employment is terminated. Notwithstanding any other Plan
provision to the contrary, all Plan distributions shall comply with the
requirements of 401(a)(9) of the Code and the regulations thereunder,
including 1.401(a)(9)-2.
7.5 Deferred Retirement. If such Member elects to continue in the
employment of the Employer beyond his Early or Normal Retirement Date, he
shall continue to be treated in all respects as a Member under the Plan
until his actual retirement.
7.6 Cash-Out Distributions.
If a Member terminates service with the Employer and receives an immediate
distribution of the vested portion of his accounts under the Plan pursuant
to Section 7.3 (a "Cash-Out Distribution"), the nonvested portion of the
Member's accounts under the Plan immediately will be forfeited and
reallocated to other Members' accounts in accordance with Section 5.3. If
the Member resumes or continues employment covered under the Plan and
repays during the employment with the Employer the amount distributed
pursuant to this Section within the time limit stated below, then the
Trustee shall credit to his accounts under the Plan the amount standing to
his credit in each account immediately prior to the distribution,
unadjusted by any subsequent gains or losses of the Trust Fund. Such
repayment must occur before the Member incurs five (5) consecutive one-year
Breaks in Service.
7.7 Payment of Benefits Upon Death of Member. Upon the death of a
Member the portion of the Member's account balance, if any, not yet paid to
the Member shall be paid to the Member's surviving spouse; provided,
however, that if the Member is not survived by a spouse or if such spouse
consents to an election out of such payment as set forth in paragraph 7.8,
such benefits shall be paid to the Member's designated beneficiary.
7.8 Spousal Consent. Any election by a Member to pay benefits upon the
Member's death to a beneficiary other than the Member's spouse under
paragraph 7.7 shall not be effective unless (i) the spouse of the Member
consents in writing to such election and the spouse's consent acknowledges
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the effect of such election and is witnessed by the Employer or a notary
public, or (ii) it is established to the satisfaction of the Employer that
the consent required from the spouse may not be obtained because there is
no spouse, because a spouse cannot be located or because of such other
circumstances as may be established by the Secretary of Treasury under
prescribed regulations.
7.9 Death Before Commencement of Benefits. If a Member dies before the
distribution of his interest has commenced, the Member's entire interest
shall be distributed within five (5) years after his death to his
designated beneficiary; provided, however, that such benefits may be paid
to the designated beneficiary over the life of the beneficiary or over a
period not exceeding the life expectancy of the beneficiary if such
benefits commence within one year of the Member's death. Notwithstanding
the foregoing, if the Member's designated beneficiary is his or her spouse,
such payments need not begin earlier than the date on which the Member
would have attained age 70r years. If the spouse dies before distributions
to such spouse begin, this Section shall be applied as if the surviving
spouse was the Member. If distributions have commenced prior to the
Member's death, the remaining portion of the Member's account shall be
distributed to such Member's beneficiary at least as rapidly as under the
method of distribution being used at the time of the Member's death.
7.10 Distributions to be Made in Employer Stock. Except as set forth
below in this Section, Employer shall have the option of making all
distributions to a Member or his beneficiary either in cash or in the form
of shares of Employer stock. Provided, however, the following additional
restrictions shall apply:
(a) The distributee shall have the right to demand that his
benefits be distributed in the form of Employer stock. Employer must advise
the distributee in writing of this right at least 30 days before making any
election to distribute cash;
(b) If the distributee elects to receive any shares of Employer
stock and at the time of distribution such shares are not "readily tradable
on an established market" (as defined in regulation 54.4975-7(b)(l)(iv) and
54.4975-7(b)(10), then, only as to those shares, the distributee shall have
the right to require Employer to repurchase such shares under the following
terms:
(i) Upon receipt of such restricted shares, the distributed
shall have up to 60 days to give Employer written notice requiring Employer
to repurchase all or any part of the shares at "fair market value" (as
defined in Section 11.11). If such notice is not timely made, the
distributee's put option will lapse temporarily;
(ii) After the close of Employer's taxable year in which the
temporary lapse occurs, and following a determination of the fair market
value of the restricted shares as of that same year, Employer shall notify
each distributee whose put option lapsed temporarily of such value
determination. Following receipt of this notice of the value of the
restricted shares, the distributee shall have an additional 60 days to give
Employer written notice requiring Employer to purchase all or part of such
shares, or else the option shall permanently expire;
(iii) In the event Employer repurchases restricted shares pursuant
to this Section 7.10 (or if the Trust elects to repurchase such shares,
which it may do but is not required to do), such repurchasing party shall
have the option to pay for such shares on an equal annual installment basis
beginning not later than 30 days after the exercise of the put option
described in (ii) above and not exceeding a five year period. If an
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installment repurchase is elected, the distributee must give the
repurchasing party a promissory note, the full payment of which may be
required by the seller if the repurchaser defaults on the scheduled
payments of the note. In addition, such promissory note must be adequately
secured and bear a reasonable interest rate; and
(iv) If the Member has elected an installment distribution under
Section 7.4 above, the provisions of subparagraph (b) of this Section shall
be satisfied if the amount to be paid for the stock is paid not later than
30 days after the exercise of the put option described in subparagraph (b)
of this Section. (c) Except as provided in this Section 7.10 and except as
permitted by subparagraphs (b)(9) and (10) of Regulation 54.4975- 7(b), no
Employer stock acquired with the proceeds of an Exempt Loan (defined in
Section 5.11) may be subject to a put, call, or other option or buy-sell or
similar arrangement while held by and when distributed from the Plan. (d)
If securities to be distributed were acquired with the proceeds of an
Exempt Loan (defined in Section 5.11) and such securities consist of more
than one class, the distributee must receive substantially the same
proportion of each such class. 7.11 Benefits Payable to Minors and
Incompetents.
(A) Whenever any person entitled to payments under this Plan
shall be a minor or under other legal disability or in the sole judgment of
the Committee shall otherwise be unable to apply such payments to his own
best interest and advantage (as in the case of mental or physical illness
or where the person not under legal disability is unable to preserve his
estate for his own best interest), the Committee may in the exercise of its
discretion direct all or any portion of such payments to be made in any one
or more of the following ways, unless claim shall have been made therefore
by an existing and duly appointed guardian or other legal representative in
which event payment shall be made to such representative:
(1) Directly to such person unless such person shall be a minor or
shall have been legally adjudicated incompetent at the time of the payment.
(2) To the spouse, child, parent or other blood relative to be
expended on behalf of the person entitled or on behalf of those dependents
as to whom the person entitled has the duty to support.
(3) To a recognized charity to be expended for the benefit of the
person entitled or for the benefit of those dependents as to whom the
person has the duty to support. (4) By the Committee itself receiving and
expending or directing the expenditures of the same for the benefit of
those dependents as to whom the person has the duty of support.
(B) The decision of the Committee will, in each case, be final and
binding upon all persons and, except in the case of Section 7.11(A)(4)
above, the Committee will not be obligated to see to the proper allocation
or expenditure of any payments so made. Any payment made pursuant to the
power herein conferred upon the Committee shall operate as a complete
discharge of the obligations of the Trustee and of the Committee.
7.12 Notification of Mailing Address. (A) Each Member and other person
entitled to benefits hereunder shall file with the Committee, from time to
time, in writing, his post office address and each change of post office
address, and any check representing payment hereunder and any communication
addressed to a Member or a beneficiary hereunder at his last address filed
with the Committee (or, if no such address has been filed, then at his last
address as indicated on the records of the Employer) shall be binding on
such person for all purposes of the Plan, and neither the Committee nor the
Trustee shall be obliged to search for or ascertain the location of any
such person. (B) If the Committee, for any reason, is in doubt as to
whether payments are being received by the person entitled thereto, it may
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by registered mail addressed to the person concerned at his address last
known to the Committee, notify such person that all unmailed and future
payments shall be henceforth withheld until he provides the Committee with
evidence of his continued life and his proper mailing address or his
beneficiary provides the Committee with evidence of his death. In the event
that (I) such notification is mailed to such person and his designated
beneficiary, (ii) the Committee is not furnished with evidence of such
person's continued life and proper mailing address or with evidence of his
death, all payments shall be withheld until a claim is subsequently made by
any such person to whom payment is due under the provisions of the Plan.
7.13 Lost Payee. In the event the Administrator is unable, within five
years after payment of a benefit is due to a Member or beneficiary, to make
such payment because it cannot ascertain the whereabouts of the Member or
the identity and whereabouts of his beneficiary or personal representative
by mailing to the last known address shown on the Administrator's records,
and neither the Member, his beneficiary or personal representative has made
written claim therefore before the expiration of such five years, then, and
in such case, the Administrator shall direct that such amount shall be
forfeited to the Plan; provided, however, that such amount shall be
reinstated if and in the event the said Member or his beneficiary or
personal representative shall make a valid claim therefore upon
presentation of proper identification.
7.14 Eligible Rollover Distributions. This section 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 section, 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.
(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 401(a)(9) of
the Code; and the portion 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 408(a) of the code, an
individual retirement annuity described in 408(b) of the Code, an annuity
plan described in 403(a) of the Code, or a qualified trust described in
401(a) of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(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
414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
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(d) Direct Rollover. A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
ARTICLE VIII
Amendment and Termination of Plan
8.1 Amendment of Plan. This Plan may be amended at any time and from
time to time by the Board of Directors of Tyson Foods, Inc. However, no
change may be made in the Plan which will vest in any Participating
Employer, directly or indirectly, any interest, ownership or control in any
of the present or subsequent funds set aside for Members pursuant to the
Plan. No part of the funds shall, by reason of any amendment or under any
other circumstances, be used for or diverted to purposes other than for the
exclusive benefit of Members and their beneficiaries or for administration
expenses of the Plan. Nor shall any amendment reduce any then vested
interest of a Member or eliminate an optional form of benefits under the
Plan.
8.2 Suspension of Contributions by Employer. Tyson Foods, Inc. has
established the Plan with the bona fide intention and expectation that from
year to year the Participating Employers will be able to and will deem it
advisable to make contributions as herein provided. However, Tyson Foods,
Inc. realizes that circumstances not now foreseen or circumstances beyond
its control may make it either impossible or inadvisable for all
Participating Employers to continue to make such contributions. If Tyson
Foods, Inc. or any of the Participating Employers decides it is impossible
or inadvisable to make its contributions as herein provided, the Board of
Directors of Tyson Foods, Inc. shall have the power to suspend any
Participating Employer's liability for contributions for a fixed or
indeterminate period. However, all other provisions of the Plan shall
remain in force, other than the provisions for contributions by the
Participating Employer during the period its contributions are suspended.
8.3 Termination of Plan. The Plan may be terminated at any time by
delivering to the Trustee in writing a resolution of the Board of Directors
of Tyson Foods, Inc. duly certified by one of its officers specifying that
the Plan is being terminated. Such termination may be so made without any
consent being obtained from the Trustee, the Participating Employers,
Members, or their beneficiaries or any interested or other persons.
8.4 Distribution on Termination. Upon termination as provided in
Section 8.3 above, the Committee shall direct the Trustee, as soon as
practicable, to pay the expenses of distribution and other expenses and
liquidation costs of the Plan and trust and upon completion of such
liquidation and the payment of all expenses and costs, the Trustee shall
proportionately adjust the Members' accounts to reflect such expenses and
the fund profits or losses and reallocations to the date of termination,
and thereafter disburse to each Member the amount then standing to his
credit in his account, in accordance with Article VII above.
8.5 Termination of Trust. When all assets of the Trust have been
distributed as herein provided, the Trust shall terminate and the Trustee
shall be discharged. Unless sooner terminated under the provisions of this
Indenture, the Trust shall terminate upon the expiration of such period as
may be provided by any applicable Rule Against Perpetuities under Arkansas
law.
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8.6 Merger, Consolidation, or Transfer of Assets. This Plan and Trust
shall not be merged or consolidated with, nor shall any assets or
liabilities be transferred to, any other plan, unless the benefits payable
to each Member if the Plan was terminated immediately after such action
would be equal to or greater than the benefits to which such Member would
have been entitled if this Plan had been terminated immediately before such
action.
ARTICLE IX
Trust Fund and Trustee
9.1 Trustee. The term "Trustee" shall mean the Trustee or Trustees
appointed by Employer under the terms of the stock ownership trust executed
in connection with the Plan to administer the trust fund created for the
purpose of the Plan, or such other Trustee or Trustees as may be designated
from time to time under the terms of said trust. The Trustee's obligations,
duties and responsibilities are governed solely by the terms of such trust
instrument, reference to which is here made for all purposes.
9.2 Purpose of the Trust Fund. A trust fund will be created and
maintained for the purposes of the Plan, and the money thereof will be
invested in accordance with the terms of the agreement and declaration of
trust which forms a part of the Plan. All contributions will be paid into
the trust fund, and, except as permitted by Section 9.5 below, all benefits
under the Plan will be paid from the trust fund. To the fullest extent
practicable, assets of the trust fund shall be invested in Employer stock.
9.3 Benefits Supported Only by the Trust. Except as provided in
Section 9.5 below, any person having any claim under the Plan will look
solely to the assets of the trust fund for satisfaction.
9.4 Trust Fund Applicable Only to Payment of Benefits. The trust fund
will be used and applied only in accordance with the provisions of the
Plan, to provide the benefits thereof, and no part of the principal or
income of the trust fund will be used for, or diverted to, purposes other
than for the exclusive benefit of Members and other persons thereunder
entitled to benefits.
9.5 Diversification of Investments. Notwithstanding the provisions of
Sections 9.2 and 9.3 above, any Member who has completed at least ten (10)
years of participation in the Plan and has attained age 55 may elect within
90 days after the close of each Plan Year in the "qualified election
period" (defined below) to direct the Plan as to the investment of at least
25 percent of the cumulative total of his accounts (to the extent such
portion exceeds the amount to which a prior election under this Section 9.5
applies). In the sixth year of such "qualified election period," the Member
may direct the investment of at least 50 percent of his accounts. Provided,
this diversification election shall not apply to a Member's PAYSOP Account,
except to the extent of dividends paid with respect to Employer stock in
such Account as of December 31, 1986, if such dividends are either paid in
the form of Employer stock or paid in cash or other property that later is
used to acquire Employer stock. The "qualified election period" is the six
Plan Year period beginning with the Plan Year in which the Member attains
age 55 (or, if later, beginning with the first Plan Year in which the
Member completes his tenth year of participation in the Plan). If such a
diversification election is made, the Committee, in its sole discretion,
may satisfy the election in either of the following methods:
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(a) distribute to the Member within 90 days after the relevant
election period that portion of his accounts covered by the election either
(i) in Employer stock, or
(ii) in cash in lieu of Employer stock; or
(b) transfer that portion of his accounts covered by the election
to another qualified plan of Employer which provides for Employee-directed
investments in at least three investment options other than in Employer
stock.
ARTICLE X
Administration
10.1 Fiduciary. The Board of Directors of Tyson Foods, Inc. shall
appoint a committee to be known as the "Administrative Committee" (the
"Committee") to administer the Plan. The Committee will serve as the named
fiduciary of the Plan. The Committee shall consist of officers and
Employees of the Tyson Foods, Inc. or other individuals or entities, all of
whom shall serve at the pleasure of the Board and without compensation, and
whose number shall not be less than three (3) nor more than seven (7). A
member of the Committee may resign at any time upon delivery of a written
resignation of the Board. Vacancies created by resignation, death, or other
cause may be filled by the Board or the assigned responsibilities may be
reabsorbed or redelegated by the Board. Any person or entity may serve in
more than one fiduciary capacity as respects the Plan.
10.2 Powers and Duties. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry out
its terms. The Committee shall act for and on behalf of the Participating
Employers in taking any action or furnishing any information required of
the Participating Employers with respect to the Plan. All interpretations
of the Plan, and questions concerning its administration and application,
shall be determined by the Committee, and such determinations shall be
binding on all persons except as otherwise expressly provided herein. The
Committee may employ one or more persons to render advice with regard to
any responsibility under the Plan. In the event the members of the
Committee are unable to act for any reason, any actions required of the
Committee shall be by the Board. A Committee member who is a Member under
the Plan will not vote or act on any matter relating only to himself. The
Committee shall have the power to delegate specific fiduciary
responsibilities (other than those of the Trustee with respect to
controlling assets of the Plan) by written action. Such delegations may be
officers or Employees of the Participating Employers or to other
individuals or entities, all of whom shall serve at the pleasure of the
Committee, and, if full-time Employees of a Participating Employer, without
compensation. Any responsibility allocated or delegated shall be the sole
and several responsibility of the person or entity to whom allocated or
delegated. Any person or entity may serve in more than one fiduciary
capacity as respects the Plan.
10.3 Records and Reports. The Committee shall keep a record of all
their proceedings and actions, and other data as shall be necessary for the
proper administration of the Plan and meet the disclosure and reporting
requirements of the law.
10.4 Claims Procedure. If a claim for benefit made by a Member or his
beneficiary is denied, the Committee will give to the Member or beneficiary
written notice of the denial and the specific reasons therefore. The notice
shall be written in a manner calculated to be understood by the Member or
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beneficiary. The Member and beneficiary shall be given sixty (60) days
after such notice to obtain by request to the Committee member designated
in the notice a full and fair review by Committee of the decision denying
the claim.
10.5 Indemnification. The Participating Employers shall indemnify each
member of the Committee and any officer, director, or Employee of the
Participating Employers against any and all claims and causes of action by
or on behalf of any and all parties whomsoever, and all losses therefrom,
including without limitation costs of defense and attorney's fees, based
upon or arising out of any act or omission relating to or in connection
with the Plan and Trust Agreement, other than losses resulting from any
such person's fraud or willful misconduct. The indemnity provided herein
shall not be available to the extent that it would deprive the person
indemnified of the benefit of any insurance payment otherwise available.
10.6 Administrative Procedures.
(a) The Committee shall establish a set of accounting records
(including a general ledger) separate from the accounting records of the
Trustee. The Committee shall designate one person to be responsible for the
recording of transactions pertaining to the Plan and to prepare financial
statements each calendar quarter for
presentation to the Committee.
(b) On the last day of March and September of each year a physical
count of all securities owned by the Trust Fund shall be performed, with
the results being reconciled to the assets per the accounting records.
(c) A complete and organized file of all correspondence regarding
the Plan shall be maintained in one location.
(d) A separate accounting shall be maintained for all securities and
other assets that are to be distributed to terminated Employees.
(e) All matters concerning the Plan shall be transacted separately
and distinctly from any other plan administered by a Participating
Employer. In no event shall any assets of this Plan be distributed to
members or beneficiaries of any other plan administered by a Participating
Employer.
(f) All distributions of benefits shall be checked and verified by
the Committee prior to the actual distribution.
(g) All buy and sell transactions of the shares of Employer stock
shall be coordinated between the Committee and the Trustee.
(h) All shares of Employer stock owned by the Trust Fund shall be
issued in the name of the Trustee under the Plan and Trust, and such shares
shall not be commingled with other accounts held by the Trustee.
(i) The Committee shall meet at least once each Plan Year and at
such meeting the following matters shall be discussed:
(i) Investment policies and decisions;
(ii) The determination of the market value of investments for
financial statement presentation; and
(iii) Approval of transactions with parties- ininterest. The
Committee shall designate one member of the Committee to be responsible
for recording minutes of each Committee meeting.
ARTICLE XI
Miscellaneous Provisions
11.1 Rights of or to Employment. The adoption and maintenance of
the Plan shall not be deemed to constitute a contract between the
Participating Employers and any Employee, and shall not be deemed to be a
consideration for, or an inducement or condition of, the employment of any
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person. Nothing herein contained shall be deemed to give to any Employee
the right to be retained in the employ of a Participating Employer or to
interfere with the right of a Participating Employer to discharge its
Employee at any time. Nor shall any provision of the Plan be deemed to give
to a Participating Employer the right to require any Employee to remain in
its employ; nor shall it interfere with any Employee's right to terminate
his employment at any time.
11.2 Benefits Payable Solely from Trust Fund. All benefits payable
under the Plan shall be paid or provided for solely from the Trust Fund,
and the Participating Employers assume no liability or responsibility
therefore.
11.3 Restrictions on Transfer and Claims of Creditors.
(A) Subject to the exceptions set forth in 401(a)(13) and 414(p)
of the Code, no benefits, rights or accounts shall exist under the Plan
which are subject in any manner to voluntary or involuntary anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge, and
any attempt so to anticipate, alienate, transfer, assign, pledge, encumber
or charge the same shall be void. Nor shall any such benefit, right or
account be in any manner liable for or subject to the debts, contracts,
liabilities, engagements, torts or other obligations of the person entitled
to such benefit, right or account except as specifically provided in the
Plan. Nor shall any benefit, right or account under the Plan constitute an
asset in case of the bankruptcy, receivership or divorce of any person
entitled under the Plan.
(B) If a Member or any other person entitled under the Plan becomes
bankrupt or makes an assignment for the benefit of creditors or in any way
suffers a lien or judgment against his personal assets or in any way
attempts to anticipate, alienate, sell, assign, pledge, encumber or charge
a benefit, right or account, except as specifically provided in the Plan,
then such benefit, right or account in the discretion of the Committee may
cease and terminate and in that event the Trustee shall at the direction of
the Committee hold or apply funds equal in value to such terminated account
to the best interest of such Member or his dependents as the Committee
shall determine.
11.4 No Interference by Members in Administration of Trust. Nothing
contained herein shall grant to any Member the right to question the types
of investments made by the Trustee of Trust Funds nor to interfere in any
manner with the Trustee's administration of the Trust. Neither the Trustee
nor the Employee shall be obligated to disclose to any Member the
compensation being paid to any other Member or to provide any Member with
financial statements or operational data of the Employer.
11.5 Members to Furnish Required Information. Each Member will furnish
to the Committee such information in writing as the Committee considers
necessary or desirable for purposes of administering the Plan, and the
provisions of the Plan respecting any payments thereunder are conditional
upon the Member's furnishing promptly such true, full and complete
information as the Committee may request. Any notice or information which,
according to the terms of the Plan or the rules of the Committee, must be
filed with the Committee, shall be deemed so filed at the time that it is
actually received by the Committee.
11.6 Employer's Contributions Irrevocable. No Participating Employer
shall have any right, title or interest in the Trust fund or in any part
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thereof, and no contributions made thereto shall revert to a Participating
Employer.
11.7 Applicable Law. All legal questions pertaining to the Plan shall
be determined in accordance with the laws of the State of Arkansas, and all
contributions made hereunder shall be deemed to have been made in that
State.
11.8 Titles to Articles and Paragraphs. The titles to articles and
paragraphs are included solely for convenience of reference, and if there
is any conflict between the titles and the text of this Plan the text shall
control.
11.9 Gender. The masculine gender shall include the feminine where
applicable, and the singular shall include the plural unless the context
clearly indicates otherwise.
11.10 Nonterminable Provisions. Any shares of Employer stock acquired
with proceeds of an Exempt Loan (as defined in Section 5.11 above) will
continue, after the loan is paid, and in the event that the Plan ever fails
to qualify as an Employee stock ownership plan for failure to meet the
requirements of 4975(e)(7) of the Code and regulation 54.4975-11, to be
subject to regulation 54.4975-7(b)(4), (10), (11) and (12), relating to
put, call or other options and to buy- sell or similar arrangements.
11.11 Valuation. For purposes of making valuations under the Plan,
valuations of such securities shall be made in good faith, and based on all
relevant factors for determining the fair market value of securities.
However, at any time the Employer stock is not readily tradeable on an
established securities market, all valuations of Employer stock with
respect to activities carried on by the Plan shall be made by an
independent appraiser (as defined in 401(a)(28)(C) of the Code). In the
case of a transaction between the Plan and a disqualified person, value
must be determined as of the date of the transaction. For all other
purposes, value must be determined as of the most recent valuation date
under the Plan. An independent appraisal will not in itself be a good faith
determination of value in the case of a transaction between the Plan and a
disqualified person. However, in all other cases, a determination of fair
market value based on at least an annual appraisal independently arrived at
by a person who customarily makes such appraisals and who is independent of
any party to the transaction will be deemed to be a good faith
determination of value. For purposes of this Section and all other Sections
of the Plan, "readily tradeable on an established securities market" shall
have the meanings set forth in regulation 54.4975-7(b)(1)(iv) and 54.4975-
7(b)(10).
ARTICLE XII
Top Heavy Provisions
12.1 Definitions. For purposes of this Article XII, the following
definitions shall apply:
(a) "Determination Date". "Determination Date" means, with
respect to any Plan Year -
(i) the last day of the preceding Plan Year, or
(ii) in the case of the first Plan Year of any plan,
the last day of such Plan Year.
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(b) "Key Employee". A "Key Employee" means an Employee, a former
Employee (or the beneficiary of either), who, at any time during the Plan
Year or any of the four preceding Plan Years, is -
(i) an officer of the Employer having an annual compensation
greater than 50% of the amount in effect under 415(b)(1)(A) of the Code for
any Plan Year,
(ii) one of the 10 Employees having annual compensation from
the Employer of more than the limitation in effect under 415(c)(1)(A) of
the Code and owning (or considered as owning within the meaning of 318) the
largest interests in the Employer,
(iii) a 5-percent owner of the Employer, or
(iv) a 1-percent owner of the Employer having an annual
compensation from the Employer of more than $150,000.
For purposes of clause (i), no more than 50 Employees (or, if lesser, the
greater of 3 or 10 percent of the Employees) shall be treated as officers.
For purposes of clause (ii), if 2 Employees have the same interest in the
Employer, the Employee having greater annual compensation from the Employer
shall be treated as having a larger interest. Percentage Owners:
(i) 5-Percent Owner. For purposes of this paragraph, the term "5-
percent owner" means:
(A) If the Employer is a corporation, any person who owns
(or is considered as owning within the meaning of 318) more than 5 percent
of the outstanding stock of the corporation or stock possessing more than 5
percent of the total combined voting power of all stock of the corporation;
or
(B) If the Employer is not a corporation, any person who owns more
than 5 percent of the capital or profits interest in the Employer.
(ii) 1-Percent Owner. For purposes of this paragraph, the term "1-percent
owner" means any person who would be described in clause (i) if "1-percent"
were substituted for "5 percent" each place it appears in clause (i).
(iii) Constructive Ownership Rules. For purposes
of this Article XII:
(A) Subparagraph (C) of 318(a)(2) shall be applied by
substituting "5 percent" for "50 percent," and
(B) In the case of any Employer which is not a corporation, ownership
in such Employer shall be determined in accordance with regulations
prescribed by the Secretary which shall be based on principles similar to
the principles of 318 (as modified by subclause (A)).
(iv) Aggregation rules do not apply for purposes of determining
ownership in the Employer. The rules of subsections (b), (c) and (m) of
414 shall not apply for purposes of determining ownership in the Employer.
(v) Compensation. For purposes of this Section, the term "compensation"
has the meaning given such term by 414(q)(7) of the Code.
(c) "Non-Key Employee". The term "Non-Key Employee" means any Employee who
is not a Key Employee.
(d) "Top Heavy Plan". An Employer's plan shall be a Top Heavy Plan if, as
of the Determination Date, the aggregate of the accounts of Key Employees
under the Plan exceeds 60% of the aggregate of the accounts of all
Employees under the Plan.
(e) "Aggregated Plans". Each plan of an Employer required to be included
in an Aggregation Group shall be treated as a Top Heavy Plan if such group
is a Top Heavy Group.
(f) "Aggregation Group". Aggregation Group means:
(i) "Required Aggregation":
(A) each plan of the Employer in which a Key Employee is a participant (in
the Plan Year containing the Determination Date or any of the four
preceding Plan Years), and
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(B) each other plan of the Employer which enables any plan described in
subclause (A) to meet the requirements of 401(a)(4) or 410 of the Code, or
(ii) "Permissive Aggregation": any other plan not required to be
aggregated may be included by the Employer if such group would continue to
meet the requirements of 401(a)(4) and 410 with such plan being taken into
account.
(iii) In determining the Aggregation Group, plans terminated within the
five-year period ending on the Determination Date also shall be taken into
consideration.
(g) "Top Heavy Group". The term "Top Heavy Group" means any Aggregation
Group if, as of the Determination Date, the sum of
(i) the present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such group, and
(ii) the aggregate of the accounts of Key Employees under all defined
contribution plans included in such group exceeds 60% of a similar sum
determined for all Employees.
(h) "Rollover Contributions". Any rollover
contribution, or similar transfer, initiated by an
Employee and made after December 31, 1983, shall not be taken into
account with respect to the Plan for purposes of determining whether such
Plan is a Top Heavy Plan or whether any Aggregation Group which includes
such Plan is a Top Heavy Group.
(i) For purposes of this Article XII, the amount of the
account of any Employee shall include the aggregate distributions made with
respect to such Employee under the Plan during the five year period ending
on the Determination Date, including distributions under a terminated plan
which if it had not been terminated would have been required to be included
in an aggregation group. If any participant is a NonKey Employee with
respect to any Plan Year, the balance in the accounts of such Employee
shall be considered the account balance of a Non-Key Employee for such Plan
Year. In addition, the account balance of any Member who has not performed
services for Employer during the five year period ending on the
Determination Date also shall be disregarded.
(j) "Valuation Date". The "Valuation Date" shall be the most recent
valuation date described in either Section 5.2 or Section 5.5 above within
the twelve-month period ending on the Determination Date.
12.2 Provisions Applicable During Top Heavy Years. For any year in
which the Plan is considered a Top Heavy Plan, the following provisions
shall apply notwithstanding any other provision of this Plan to the
contrary:
(a) "Vesting". The vesting schedule applicable to Employer
contributions which shall apply during Top Heavy Years shall be as follows:
Years of Service Percentage Vested
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 years 100%
(b) "Minimum Benefits". Notwithstanding the language of Section 5.4
above or any other provision in this Plan to the contrary, during any year
the Employer's Plan is a Top Heavy Plan, the minimum contribution made by
the Employer to the account of each Active Member (as defined in Section
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5.4 above) of the Plan who is a NonKey Employee shall not be less than the
lesser of:
(i) 3% of such Non-Key Employee's compensation (as defined in Section 5.7
above), or
(ii) the highest percentage of compensation contributed to the account for
any Key Employee for the year.
Notwithstanding the above, any Employer who maintains this Plan plus
one or more additional qualified employee benefit plans may choose to fund
any required minimum benefit through such other plan(s) but must notify the
Trustee of this Plan of such election.
To provide for the minimum allocation, the Employer contribution shall
be allocated as follows:
(a) An amount of the Employer contribution equal to theminimum
benefit determined above (or the total Employer contribution if less than
the minimum benefit determined above) shall be allocated to the Employer
Contribution Accounts of each Active Member of the Plan who is a Non-Key
Employee; and
(b) The balance, if any, of Employer's Contribution shall be
allocated as set forth in Article V of the Plan.
A minimum benefit allocation shall be provided to any Active Member
who is a Non-Key Employee who is employed as of the last day of the Plan
Year regardless of such Member's Hours of Service.
IN WITNESS WHEREOF, TYSON FOODS, INC. has caused this Indenture to be
executed by its duly authorized officers as of the 1st day of April, 1993.
TYSON FOODS, INC.
By:__________________________
President
ATTEST:
_________________________
Secretary
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RESOLUTION REGARDING TERMINATION OF TYSON FOODS, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
RESOLVED, that effective March 31, 1996, the ESOP will be terminated
and its assets shall be distributed pursuant to the plan's terms on or
before March 31, 1997, and as required by Section 8.3 of said plan, the
administrator of the plan shall deliver to the plan's trustees a certified
copy of this resolution informing them of such termination.
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TYSON FOODS, INC.
EMPLOYEE STOCK PURCHASE PLAN
PURPOSE OF THE PLAN
The purpose of the Tyson Foods, Inc. Employee Stock Purchase Plan (the
"Plan") is to provide the employees of Tyson Foods, Inc. ("Tyson") and its
Participating Affiliates a convenient way to acquire shares of Tyson's
Class A Common Stock through periodic investment and thus maintain and
stimulate employee interest in the growth and profitability of Tyson by
means of an opportunity to share in a proprietary interest in Tyson.
ARTICLE I
Definitions
1.1 Affiliate. "Affiliate" shall include all wholly owned
subsidiaries of Tyson and any other entity which may be designated from
time to time as such by the Board of Directors of Tyson.
1.2 Base Earnings. "Base Earnings" means the amount of regular
salary or wages, including overtime payments, and commission payments, but
does not include discretionary and non-discretionary bonuses, or other
irregular payments made by an employer to an employee.
1.3 Committee. "Committee" shall mean the Administrative Committee
appointed by the Board of Directors of Tyson to carry out the purposes of
the Plan as set forth in Section 5.1 below.
1.4 Effective Date. The "Effective Date" of the Plan as it relates
to its extended term is October 1, 1989; however the Plan has been restated
effective December 7, 1990 to reflect amendments made which were effective
as of that date.
1.5 Employer. "Employer" means Tyson and all Participating
Affiliates.
1.6 Full-Time Employee. "Full-time Employee" means any person
(including a corporate officer) who is employed on a full-time basis in the
regular service of Tyson or one of its Affiliates; provided, however, such
term shall not include persons employed for temporary periods or for
temporary jobs. For purposes of this Plan, full time basis shall mean
regular employment of not less than 1,000 hours per calendar year.
1.7 Leave of Absence. "Leave of Absence" means absence from the
active service with Tyson or an Affiliate, with the permission of the
Employer, by reason of illness, military service, or for any other reason
as approved or allowed by the Employer's personnel policies. Such Leave of
Absence will not terminate an employee's Service, provided he returns to
active employment at the expiration of his leave in accordance with his
Employer's policy with respect to permitted absences. An employee whose
Service is terminated and who is subsequently re-employed by Tyson or an
Affiliate will, for all purposes of the Plan, be considered a new employee
as of the effective date of his re-employment.
1.8 Pay Period, Payday. "Pay Period" means the interval of a time
for which an employee regularly receives his compensation and "Payday"
means the day on which the employee regularly receives his compensation for
the Pay Period.
1.9 Participating Affiliate. "Participating Affiliate" means an
Affiliate which has adopted the Plan with the consent of the Board of
Directors of Tyson. If an organization which is or has become an Affiliate
ceases to be an Affiliate, such organization shall be deemed to have
withdrawn from participation in the Plan.
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1.10 Payroll Deduction Agreement. The "Payroll Deduction Agreement"
shall be in a form specified by the Committee, shall direct the employee's
Employer to withhold from his paycheck a specified dollar amount or a
specified percentage of his Base Earnings to be used for the purchase of
Stock under this Plan, and shall list the participating employee's mailing
address and social security number.
1.11 Prevailing Market Price. The term "Prevailing Market Price"
shall mean:
(a) the actual purchase price if purchased in the open market;
or
(b) if treasury shares are purchased:
(i) if the Stock is not at the time listed or admitted to
trading on a stock exchange or in the over-the-counter market under the
National Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ"), the Prevailing Market Price shall be the mean
between the lowest reported bid price and highest reported asked price
of the Stock on the date in question in the over-the-counter market,
as such prices are reported in a publication of general circulation
selected by Tyson and regularly reporting the market price of the
Stock in such market; or
(ii) If the Stock is at the time listed or admitted to
trading in the over-the-counter market under NASDAQ or on any stock
exchange, then the Prevailing Market Price shall be the reported closing
sale price of the Stock on the date in question on NASDAQ or on the
principal exchange on which the Stock is then listed or admitted
to trading, as the case may be. If no reported sale of Stock takes place
on the date in question, then the reported closing asked price of the Stock
on such date shall be determinative of Prevailing Market Price.
1.12 Service. "Service" means that period of continuous
uninterrupted employment with Tyson or any one or more of its Affiliates,
from the employee's first day of employment until his date of termination
of employment with all Affiliates. However, in the case of an Affiliate
which has been acquired by Tyson through the acquisition of substantially
all of the assets or all of the stock of the Affiliate, Service only shall
include employment subsequent to the later of (i) Tyson's consummation of
the acquisition the Affiliate or (ii) the date on which such Affiliate is
designated as a Participating Affiliate. Service with two or more
Affiliates during consecutive periods shall be considered continuous
service with one Affiliate.
1.13 Stock. All references herein to "Stock" shall mean shares of
Class A Common Stock of Tyson.
1.14 Termination of Service. "Termination of Service" means any
absence from the employment of Tyson or any Affiliate (including, but not
limited to, absences by reason of discharge or resignation) which is not
deemed a Leave of Absence as defined herein.
ARTICLE II
Eligibility to Participate
2.1 Eligibility. Except as provided below, each Full-Time Employee
of Tyson or of a Participating Affiliate who has completed sixty (60) days
of Service shall be eligible to participate in the Plan commencing on the
first Payday thereafter. However, any employee who is a member of a
collective bargaining unit and who is covered by a collective bargaining
agreement which does not provide for coverage of such employee under this
Plan shall not be eligible to participate in this Plan.
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ARTICLE III
Employee Participation and Contributions
3.1 Voluntary, Non-Discriminatory Plan. Participation in this Plan
shall be voluntary and all employees who participate in the Plan shall have
the same rights and privileges under the Plan.
3.2 How an Employee Elects to Participate. Except as provided in
Sections 3.8 and 4.2 below, an eligible employee may elect to participate
in the Plan by executing a "Payroll Deduction Agreement" (within the time
period prescribed by the Committee) prior to the Payday on which the
employee will begin participation. By signing a Payroll Deduction
Agreement an employee will indicate his acceptance of the terms of this
Plan.
3.3 Limits on Contribution. The minimum payroll deduction shall be
one dollar ($1.00) per week and the maximum shall be twenty-five dollars
($25.00) per week, as the employee shall elect, or, in the alternative, the
minimum payroll deduction shall be 1% of Base Earnings and the maximum
shall be 10% of Base Earnings. At such times as permitted by the
Committee, an employee may increase or decrease his contribution under the
Plan by any multiple of one dollar or one percent; however, no employee may
contribute, in any one year, more than 10% of his Base Earnings or, if he
elects a payroll deduction of a specific dollar amount, $25.00 per week.
3.4 Voluntary Withdrawal from the Plan. An employee who remains
employed by an Employer may withdraw from the Plan by submitting a signed
written notice of cancellation of his Payroll Deduction Agreement to his
personnel department (within the time period prescribed by the Committee)
prior to the Payday for which cancellation is to be effective. Any
employee who so withdraws from the Plan shall be ineligible to renew his
participation for a period of six months from the date of cancellation of
his payroll deduction and will be entitled to withdraw his Stock from the
Plan only in accordance with Section 6.2.
3.5 Termination of Service Means Withdrawal from Plan. Upon an
employee's Termination of Service (as defined above), the employee will be
deemed to have withdrawn from the Plan as of the date of his Termination of
Service.
3.6 Effect of Employee's Withdrawal from Plan. On and after the
effective date of an employee's withdrawal from the Plan, no further
contribution under the Plan shall be permitted by or made for the employee,
except as may be provided pursuant to Sections 3.8 and 4.2 below.
3.7 Distributions from Plan Upon Termination of Service. Upon a
participating employee's Termination of Service for any reason, the
Committee shall obtain a share certificate representing the number of
shares of Stock to which the employee is entitled and shall send the share
certificate and a check for the sum of uninvested funds held to the credit
of such employee, by ordinary mail, to the address indicated on the
employee's Payroll Deduction Agreement, or otherwise to the employee's
mailing address last known to his Employer. Upon the death of a
participating employee and upon receipt by the Employer of proof of
identity and existence at the participating employee's death of a
beneficiary validly designated by him under the Plan, the Committee shall
obtain and forward the share certificate and check for uninvested funds in
the manner provided above to such beneficiary. In the event of the death
of a participating employee and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participating
employee's death, the committee shall obtain and forward such share
certificate and check for uninvested funds to the executor or administrator
of the estate of the participating employee, or if no such executor or
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administrator has been appointed (to the knowledge of the Committee) the
Committee, in its discretion, may deliver such share certificate and check
to the spouse, if any, or otherwise equally to the surviving children of
the participating employee. No beneficiary shall, prior to the death of
the participating employee by whom he has been designated, acquire any
interest in the Tyson Stock or cash credited the participating employee
under the Plan.
3.8 Optional Employee Stock Contribution. Whether or not an eligible
employee elects to participate in the Plan in the manner provided in
Section 3.2 above, any eligible employee who received shares of Stock on or
after December 1, 1989 as a stock bonus from Tyson may contribute all (but
not less than all) of such shares to the Plan on or before December 31,
1991 and thereafter participate in the Plan. Also, the Committee shall
have the authority to permit from time to time contributions by eligible
employees of other shares of Stock, regardless of when and how acquired by
such employees. Such contributions shall be made in the manner prescribed
by the Committee. Contributed shares shall be held for the account of the
contributing participant (or combined with any existing account of the
participant) and administered pursuant to all provisions of the Plan. All
of such contributed shares at all times shall remain the property of the
contributing employee and shall remain subject to any legal or contractual
restrictions to which the shares may have been subject at the time of the
contribution.
ARTICLE IV
Employer Contributions
4.1 Employer Matching Contributions. Participants in the Plan who
have completed at least one year of Service (as defined above) with Tyson
or a Participating Affiliate shall be entitled to Employer matching
contributions, determined as follows: (i) if shares are purchased in the
open market pursuant to the Plan, Tyson shall contribute a cash amount
equal to one-third (1/3) of the purchase price; and (ii) if treasury shares
are purchased, then the participating employees' purchase price for such
shares shall be two-thirds (2/3) of the Prevailing Market Price for such
shares on the date of purchase. Contributions made pursuant to this
Section 4.1 shall match only the employee contributions made pursuant to
Section 3.2 above.
4.2 Employer Discretionary Non-matching Contributions. In addition
to Employer matching contributions made pursuant to Section 4.1, Tyson, in
the sole discretion of its Board of Directors, may from time to time make
non-matching contributions of cash or shares of Tyson Stock to the Plan for
allocation to certain participants in the Plan or to certain other eligible
employees who are not enrolled in the Plan. Such contributed shares shall
be held for the account of the participant (or combined with any existing
account of the participant) and administered pursuant to all provisions of
the Plan. If directed by the Board of Directors of Tyson, the Committee
shall cause shares of Stock purchased with such discretionary contributions
to bear appropriate legends referring to the terms, conditions and
restrictions, if any, applicable to such contributions or necessary to
permit Tyson to comply with all applicable state and federal securities
laws. All of such contributed shares at all times shall remain the
property of the contributing employee and shall remain subject to any legal
or contractual restrictions to which the shares may have been subject at
the time of the contribution.
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ARTICLE V
Administration of the Plan
5.1 Administrative Committee. To carry out the purposes of the Plan,
the Board of Directors shall appoint an Administrative Committee (the
"Committee") consisting of not less than three members who may be officers
and/or directors of Tyson. The Board may remove members from or add
members to the Committee at any time, within its discretion, and may fill
vacancies on the Committee. An individual member of the Committee may not
participate in any decision exclusively affecting his own participation in
the Plan. The Committee shall select one of its members as Chairman, and
shall holdmeetings at such times and places as it may determine. Acts of a
majority of the Committee at which a quorum is present, or acts reduced to
or approved in writing by a majority of the members of the Committee, shall
be valid acts of the Committee. The Committee shall have the sole
authority, in its absolute discretion, to adopt, amend and rescind such
rules and regulations as, in its opinion, may be advisable in the
administration of the Plan; to construe and interpret the Plan, the rules
and regulations; and to make all other determinations deemed necessary or
advisable for the administration of the Plan. All decisions,
determinations, and interpretations of the Committee shall be binding on
all participants. The Committee may employ such legal counsel, consultants
and agents as it may deem desirable for the administration of the Plan and
may rely upon any opinion received form any such counsel or consultant and
any computation received for any such consultant or agent. Expenses
incurred by the Board of Directors or the Committee in the engagement of
such counsel, consultant or agent shall be paid by the Company. No member
or former member of the Committee or of the Board of Directors shall be
liable for any action or determination made in good faith with respect to
the Plan or any awards granted hereunder. The Committee, in its sole
discretion, may delegate all or any portion of its duties hereunder to
other individuals or entities.
5.2 Employer Contributions of Cash and Dividends. Each Employer
shall remit the funds deducted from payrolls under this Plan, plus any
Employer contributions of cash and dividends received on Stock held by the
Plan, to the brokerage firm or firms designated by the Committee.
5.3 Investment in Tyson Stock. As soon as practicable after receipt
of funds remitted under the Plan, the Committee orits designated
representative shall purchase on behalf of the Plan participants shares of
the Class A Common Stock of Tyson either directly from Tyson or in the open
market at Prevailing Market Prices. The Committee shall purchase the
maximum number of shares purchasable with such funds. Such shares shall be
purchased on an aggregate basis rather than on a per employee basis. The
number of shares to be purchased is to be determined by the aggregate
amount of funds available to buy a whole share or multiple thereof. While
no fractional shares will be acquired or distributed, a participating
employee's interest in the Plan will be accounted for to include, and will
reflect, the fractional share, if any, which could have been acquired with
the funds allocable to him if fractional shares were purchased.
5.4 No Interest to be Paid. During the interim between receipt of
the funds and purchase of the shares, no interest will be paid to
participating employees.
5.5 Dividends to be Used to Purchase Additional Shares. All cash
dividends received with respect to shares registered in the name of the
brokerage firm shall be used by it to purchase additional shares for
participating employees in proportion to their specified interest in the
shares upon which the dividends were paid. Stock dividends, warrants and
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rights of any kind received with respect to such shares shall be held and
distributed in the manner provided in Sections 3.7 or 6.2, herein, as
applicable. Provided, however, that the Committee, in its sole discretion,
may elect to pay dividends received which are attributable to stock
allocable to employees who have withdrawn from the Plan (pursuant to
Section 3.4 above) directly to such employees on an annual basis.
5.6 Shares Held in Broker's Name Not Transferable. An employee's
undivided interest in the shares registered in the name of the broker may
not be assigned, sold, pledged or alienated except by testate or intestate
succession. In addition, such undivided interest may not be encumbered by
lien or security interest of any kind and shall not be liable for the debts
of the employee or subject to attachment, or to any judgment rendered
against the employee or to the process of any court in aid or execution of
any judgment so rendered.
5.7 Voting Rights. The Committee shall have the power to vote all
shares held in the name of the broker in any and all matters which shall be
the subject of the vote for the shareholders. In connection with any such
vote, the proxies' beneficial owners of such shares shall be solicited and
the Committee shall cast its votes in accordance with such proxies.
5.8 Costs of the Plan. The costs of maintaining records and
executing transfers under the Plan shall be paid by Tyson or allocated to
and paid by Participating Affiliates, as the Board of Directors of Tyson
may direct.
5.9 Brokerage Costs. Brokerage expenses incurred in the purchase of
shares shall be included as part of the cost of shares to participating
employees.
5.10 Indemnification. Neither Tyson, the Committee and its delegates,
nor any broker through whom purchase orders are executed pursuant to this
Plan shall have any responsibility or liability for any action or
determination in good faith including, without limiting the generality of
the foregoing, any action with respect to price, time, quantity or other
conditions and circumstances of the purchase of shares under the terms of
the Plan. Tyson shall indemnify and hold harmless any officer, employee,
agent, delegee or representative who incurs damage or loss, including the
expense of defense thereof, in connection with the performance of the
duties specified herein.
ARTICLE VI
Monthly Reports and Delivery of Share Certificates
6.1 Monthly Reports. The Committee shall make monthly reports to
each participating employee, specifying the status of his interest in the
Plan.
6.2 Delivery of Share Certificates. Shares purchased from
contributions made by participating employees and shares purchased from
contributions made by Tyson will be issued to participating employees (I)
only in increments of ten (10) shares from either of such accounts, and
(ii) only upon receipt by the Committee of a written request from the
participating employee, setting forth the amount of shares requested to be
issued and indicating from which of the employee's accounts the shares are
to be issued. Requests for distributions of Stock purchased from
contributions made by participating employees will be limited to four times
per calendar year, and except as restricted above, the employee may request
an amount to be issued up to the appropriate amount set forth on the
employee's last quarterly statement from the Plan. Requests for
distributions of Stock purchased from Employer contributions and dividends
will be limited to four times per calendar year, and except as restricted
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above, a participating employee may request in any one calendar year an
amount not to exceed the shares purchased from the Employer's contributions
and dividends as of the December 31 report from the immediately preceding
calendar year.
ARTICLE VII
Amendment and Termination of the Plan
The Tyson Board of Directors or its delegate may, at any time and in its
discretion, alter, amend, suspend or terminate the Plan or any part
thereof; provided, however, that (i) the Board shall be required to obtain
stockholder approval for any amendment to the Plan where such approval is
necessary to maintain qualification of the Plan under Rule 16b-3 of the
Securities Exchange Act of 1934, as amended, or to comply with the rules
and regulations of any applicable stock exchange or self-regulatory
organization, (ii) the Board shall not amend the provisions of Sections 3.3
and 4.1 of the Plan more than once in any six-month period and (iii) the
Plan shall terminate automatically on March 31, 2000. Notice of any
amendment, suspension or termination of the Plan, in whole or in part,
shall be given to each participating employee as soon as practicable after
such action is taken.
ARTICLE VIII
Adjustments Upon Changes in Stock
If any change is made in the stock subject to the Plan (through
merger, consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure or
otherwise), the maximum number of shares subject to the Plan and the number
of shares and price per share of Stock subject to outstanding rights under
the Plan shall be adjusted automatically to reflect such change.
In the event of (1) a dissolution or liquidation of Tyson, (2) a
merger or a consolidation in which Tyson is not the surviving corporation,
or a reverse merger in which Tyson is the surviving corporation but the
shares of Tyson's Common Stock by virtue of the merger are converted into
other property, whether in the form of securities, cash or otherwise; or
(3) any other capital reorganization in which more than 50% of the Shares
of Tyson entitled to vote are exchanged, the Plan shall terminate, unless
determines in its discretion that the Plan shall nevertheless continue in
full force and effect. If the Committee elects to terminate the Plan, the
Committee shall send to each participating employee a stock certificate
representing the number of whole shares to which the employee is entitled.
In addition, the Committee shall send checks drawn on the Plan's account to
each participating employee in an amount equal to the sum of the uninvested
funds held to the credit of each employee under the Plan, in the manner
provided in Section 3.7 above.
The grant of any right to an employee pursuant to the Plan shall not
affect in any way the right or power of Tyson to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell,
or transfer all or any part of its business or assets.
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ARTICLE IX
Miscellaneous Provisions
9.1 No Contract of Employment Intended. The granting of any right to
an employee, pursuant to this Plan, shall not constitute an agreement or
understanding, express or implied, on the part of Tyson or any Affiliate,
to employ such employee for any specified period.
9.2 Financial Information Available. If required by law, the offered
shares of Tyson shall be registered under the Securities Act of 1933 on
Form S-8, or such other form as shall be specified by the Securities and
Exchange Commission, and Tyson shall deliver to each employee participating
in the Plan a copy of the prospectus or such other information as may be
required from time to time as required.
9.3 Governing Law. The construction, validity, and operation of this
Plan shall be governed by the laws of the State of Arkansas.
9.4 Rules of Construction. Throughout this Plan, the masculine
includes the feminine, and the singular and the plural, and vice versa,
where applicable.
9.5 Plan Year. The Plan's plan year and fiscal year shall end on
March 31 of each year.
9.6 Designation of Beneficiary. A participating employee may file a
written designation of a beneficiary who is to receive any Stock and/or
cash. Such designation of a beneficiary may be changed by the
participating employee at any time in writing delivered to his Employer.
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TYSON FOODS, INC.
By:
TYSON FOODS, INC.
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
PURPOSE OF THE PLAN 1
ARTICLE I
DEFINITIONS
1.1 Affiliate 1
1.2 Base Earnings 1
1.3 Committee 1
1.4 Effective Date 2
1.5 Employer 2
1.6 Full-Time Employee 2
1.7 Leave of Absence 2
1.8 Pay Period, Payday 2
1.9 Participating Affiliate 2
1.10 Payroll Deduction Agreement 3
1.11 Prevailing Market Price 3
1.12 Service 3
1.13 Stock 4
1.14 Termination of Service 4
ARTICLE II
ELIGIBILITY TO PARTICIPATE
2.1 Eligibility 4
ARTICLE III
EMPLOYEE PARTICIPATION AND CONTRIBUTION
3.1 Voluntary, Non-Discriminatory Plan 5
3.2 How an Employee Elects to Participate 5
3.3 Limits on Contribution 5
3.4 Voluntary Withdrawal from the Plan 5
3.5 Termination of Service Means Withdrawal from Plan 6
3.6 Effect of Employee's Withdrawal from Plan 6
3.7 Distributions from Plan Upon Termination of Service 6
3.8 Optional Employee Stock Contribution 7
ARTICLE IV
EMPLOYER CONTRIBUTIONS
4.1 Employer Matching Contributions 8
4.2 Employer Discretionary Non-Matching Contributions 8
ARTICLE V
ADMINISTRATION OF THE PLAN
5.1 Administrative Committee 9
5.2 Employer Contributions of Cash and Dividends 10
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5.3 Investment in Tyson Stock 10
5.4 No Interest to be Paid 11
5.5 Dividends to be Used to Purchase Additional Shares 11
5.6 Shares Held in Broker's Name Not Transferable 11
5.7 Voting Rights 11
5.8 Costs of the Plan 12
5.9 Brokerage Costs 12
5.10 Indemnification 12
ARTICLE VI
MONTHLY REPORTS AND DELIVERY OF SHARE CERTIFICATE
6.1 Monthly Reports 12
6.2 Delivery of Share Certificates 12
ARTICLE VII
AMENDMENT AND TERMINATION OF THE PLAN 13
ARTICLE VIII
ADJUSTMENTS UPON CHANGES IN STOCK 14
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 No Contract of Employment Intended 15
9.2 Financial Information Available 15
9.3 Governing Law 15
9.4 Rules of Construction 15
9.5 Plan Year 16
9.6 Designation of Beneficiary 16
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AMENDMENT NO. 1
TO THE
TYSON FOODS, INC. EMPLOYEE STOCK PURCHASE PLAN
Effective April 1, 1996, the Plan is amended as follows:
(1) Section 4.1 of the Plan is amended by deleting that section in
its entirety and substituting therefor the following new language:
"4.1 Employer Matching Contributions.
(a) Participants in the Plan who have completed at least one
year of Service (as defined above) with Tyson or a Participating
Affiliate shall be entitled to Employer matching contributions as
determined in subsections (c) and (d) of this section;
(b) Contributions made pursuant to this Section 4.1 shall match
only the employee contributions made pursuant to Section 3.2 above;
(c) Participants determined to be (x) 'Highly Compensated
Employees' on April 1, 1996 and thereafter on January 1 of each
subsequent calendar year under the provisions of the 'Retirement Savings
Plan of Tyson Foods, Inc.' or (y) 'executive officers' as defined by Rule
16a of the Securities Exchange Act of 1934, as amended, and who otherwise
are entitled to matching contributions under this Plan shall have
such contributions determined as follows:
(i) If shares are purchased in the open market pursuant to
the Plan, Tyson shall contribute a cash amount equal to one-third (1/3) of
the purchase price; and
(ii) If treasury shares are purchased, then the participating
employees' purchase price for such shares shall be two-thirds (2/3) of the
Prevailing Marketing Price for such shares on the date of purchase;
(d) All other Participants hereunder who are entitled to Employer
Matching Contributions shall have them determined as follows:
(i) Such matching contributions shall be equal to 50% of
all amounts deferred by such Participants under Section 3.2 of the Plan
on and after April 1, 1996;
and
(ii) Within ten days after the end of each month in which such
deferrals are made, Tyson shall make such matching contributions
directly to the 'Stock Match Accounts' established for such
Participants under the 'Retirement Savings Plan of Tyson Foods, Inc.',
with such amounts to be administered and distributed pursuant to the
related terms of such plan."
(2) Section 6.1 is amended by deleting that section in its entirety
and substituting therefor the following new language:
"6.1 Quarterly Reports. The Committee shall make quarterly reports
to each participating employee, specifying the status of his interest in
the Plan through the last day of each calendar quarter."
(3) Section 6.2 is amended by deleting that section in its entirety
and substituting therefor the following new language:
"6.2 Delivery of Share Certificates.
(a) On or after April 1, 1996, participating employees may request
that any or all of the shares of Stock purchased in their accounts
through March 31, 1996, whether such Shares were purchased from
contributions made by such Participant, from contributions made by
Tyson or from dividends received by the Plan, be issued and distributed
to such participating employees;
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(b) All shares of Stock purchased on or after April 1, 1996 from
contributions made by participating employees, contributions made by Tyson
or dividends received by the Plan, will be issued to participating
employees pursuant to the following rules:
(i) Only in increments of ten (10) shares from either of such
accounts;
(ii) Only upon receipt by the Committee of a written request
from the participating employee setting forth the amount of shares
requested to be issued;
(iii) Distributions of Stock will be limited to four
times per calendar year, and will be made as soon as administratively
feasible following the last day of the calendar quarter in which the
request was made;
(iv) Distributions of Stock purchased from contributions made
by participating employees may not exceed the amount of such Stock set
forth on their last quarterly statement;
(v) Distributions of Stock purchased from Employer
contributions and dividends may not exceed the amount of such Stock
set forth on their last quarterly report from the immediately preceding
calendar year;
(vi) The order in which shares of Stock are withdrawn from an
employee's separate accounts shall be determined pursuant to rules and
regulations to be adopted by the Committee."
(4) Section 9.5 is amended by deleting that section in its entirety
and substituting therefor the following new language:
"9.5 Plan Year. The Plan's Plan Year and Fiscal Year shall end on
December 31 of each year."
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AMENDMENT NO. 2
TO THE
TYSON FOODS, INC. EMPLOYEE STOCK PURCHASE PLAN
(1) Effective April 1, 1996, Section 1.12 of the Plan is amended by
adding the following sentence at the end thereof, to-wit:
"Notwithstanding the above, Service also shall include employment with
Culinary Foods, Inc. prior to its becoming a Participating Affiliate."
(2) Effective April 1, 1996, Section 4.1 of the Plan [as added by
Amendment No. 1] is amended by deleting the language of subsection (c) in
its entirety and substituting therefor the following new language:
"(c) Participants determined to be (x) 'eligible employees' on April 1,
1996 and thereafter on January 1 of each subsequent calendar year under
the provisions of the 'Executive Savings Plan of Tyson Foods, Inc.' or (y)
'executive officers' as defined by Rule 16a-1 of the Securities Exchange
Act of 1934, as amended, and who otherwise are entitled to matching
contributions under this Plan shall have such contributions determined as
follows:
(i) If shares are purchased in the open market pursuant to
the Plan, Tyson shall contribute a cash amount equal to one-third (1/3) of
the purchase price; and
(ii) If treasury shares are purchased, then the participating
employees' purchase price for such shares shall be two-thirds (2/3) of
the Prevailing Marketing Price for such shares on the date of purchase."
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EXECUTIVE SAVINGS
PLAN OF
TYSON FOODS, INC.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS PAGE
1.1 Beneficiary.................................2
1.2 Break in Service............................2
1.3 Code...................................... .2
1.4 Compensation................................2
1.5 Disability..................................3
1.6 Effective Date..............................3
1.7 Elective Deferrals or Deferrals ............3
1.8 Eligible Employee...........................4
1.9 Employee....................................4
1.10 Employer....................................4
1.11 Employer Match..............................5
1.12 Employment Commencement Date................5
1.13 Enrollment Period ..........................5
1.14 Entry Date..................................5
1.15 Highly Compensated Employee ................5
1.16 Hour of Service.............................6
1.17 Leave of Absence and
Termination of Service....................6
1.18 Maternity or Paternity Absences.............7
1.19 Member......................................8
1.20 Normal Retirement Date or Age...............8
1.21 Plan........................................8
1.22 Profit Sharing Plan ........................8
1.23 Restricted Stock Bonus Plan ................8
1.24 Return on Equity ...........................8
1.25 Salary Reduction Agreement .................9
1.26 Subsidiary or Affiliate ....................9
1.27 Taxable Year and Plan Year.................10
1.28 Valuation Date.............................10
1.29 Years of Service...........................10
ARTICLE II ELIGIBILITY FOR PARTICIPATION
2.1 Requirements for Participation.............11
2.2 Participation Following Re-Employment......11
2.3 Designation of Beneficiary.................12
ARTICLE III CREDITS TO ACCOUNTS
3.1 Members' Elective Deferrals................13
3.2 Employer Match ............................14
3.3 Floor Accounts ............................15
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ARTICLE IV ACCOUNTS AND EARNINGS CREDITED
4.1 Accounts of Members ...................... 18
4.2 Earnings Credited ........................ 18
ARTICLE V VESTING
5.1 Vesting of Employer Match and
Floor Accounts............................22
5.2 Vesting on Death, Disability or
Normal Retirement .........................22
5.3 Vesting if Plan Terminated ................22
5.4 Elective Deferral Accounts ................22
5.5 Effect of Break in Service on Vesting .....23
ARTICLE VI DISTRIBUTIONS
6.1 Elective Deferral, Employer Match
and Floor Accounts ......................24
6.2 Benefits Payable to Minors and
Incompetents ............................25
6.3 Withholding Taxes .........................26
ARTICLE VII ADMINISTRATION OF THE PLAN
7.1 Administrative Committee ..................28
7.2 Accounts Not Transferrable ................29
7.3 Costs of the Plan .........................29
7.4 Indemnification ...........................29
ARTICLE VIII AMENDMENT AND TERMINATION OF THE PLAN
ARTICLE IX MISCELLANEOUS PROVISIONS
9.1 No Contract of Employment Intended.........31
9.2 Financial Information Available ...........31
9.3 Governing Law .............................31
9.4 Rules of Construction .....................31
EXECUTIVE SAVINGS PLAN
OF TYSON FOODS, INC.
This Plan, adopted effective April 1, 1991 by Tyson Foods, Inc., is
hereby established as an unfunded, non-qualified deferred compensation plan
designed to provide, solely for a select group of management and highly
compensated employees of Tyson Foods, Inc., an opportunity to provide for
eventual retirement income. All amounts credited on the books of Tyson
Foods, Inc. for the accounts of members under this Plan at all times shall
remain as unfunded, general obligations of Tyson Foods, Inc. to such
members, it being the intention that such obligations to members under the
Plan be paid, when due, solely out of the general assets of Tyson Foods,
Inc. available at such time. The Plan shall be administered in the manner
set forth in the following Plan, to-wit:
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ARTICLE I
Definitions
The following definitions shall be used in this Plan unless the
context of the Plan clearly indicates another meaning:
1.1 Beneficiary. "Beneficiary" means such person or persons or legal
entity as may be designated by a Member to receive benefits hereunder after
his death, or the personal or legal representative of the Member as
hereinafter provided in Section 2.3.
1.2 Break in Service. A "Break in Service" shall mean the failure of
an Employee to complete more than 500 Hours of Service during a Plan Year.
1.3 Code. "Code" means the Internal Revenue Code of 1986, as now in
effect or as amended from time to time. A reference to a specific
provision f the Code shall include such provision and any applicable
regulation pertaining thereto.
1.4 Compensation. "Compensation" means an Employee's earned income,
wages, salaries, and fees for professional services and other amounts
received for personal services actually rendered in the course of
employment with the Employer maintaining the Plan (including, but not
limited to, commissions paid salesmen, compensation for services on the
basis of a percentage of profits and bonuses). Any amounts that would have
been includable in the Employee's Compensation as described above if they
had not received special tax treatment because they were deferred by the
Employer through a Salary Reduction Agreement shall be added to the amount
described above and included in the Employee's Compensation for purposes of
the Plan. However, Compensation shall not include the following:
(a) Other Employer contributions to a plan of deferred compensation
which are not includable in the Employee's gross income for a taxable year
in which contributed, or Employer contributions under simplified employee
pension plans to the extent such contributions are deductible by the
Employee, or any distributions from a plan of deferred compensation;
(b) Amounts realized from the exercise of non-qualified stock
options, or when restricted stock (or property) held by the Employee either
becomes freely transferable or is no longer subject to a substantial risk
of forfeiture;
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option;
(d) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity described in Section 403(b)
of the Internal Revenue Code (whether or not the amounts are actually
excludable from the gross income of the Employee); and
(e) Amounts received as automobile and office allowances.
1.5 Disability. "Disability" means the total incapacity of a Member
when so declared by the Employer in its judgment and discretion, supported
by the written opinion of at least two disinterested physicians, after the
expiration of at least thirty (30) days from the date of the inception of
such incapacity.
1.6 Effective Date. The effective date of the Plan shall be April 1,
1991.
1.7 Elective Deferrals or Deferrals. "Elective Deferrals" or
"Deferrals" means reductions pursuant to a Member's Salary Reduction
Agreement, in the whole percentages (permitted below in Section 3.1) of the
Member's Compensation, which amounts are credited by the Employer to the
Member's Elective Deferral Account under the Plan, as provided below.
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1.8 Eligible Employee. "Eligible Employee" shall mean an Employee
who, as of the immediately preceding March 31 was a Highly Compensated
Employee, as defined below, who has been determined by the Administrative
Committee of this Plan to be a member of a select group of individuals who,
because of their position with the Employer or their compensation level,
have the most influence on the day-to-day management and future growth of
the Employer's business. The Administrative Committee shall re-determine
each March 31 during the term of this Plan which of its Employees qualify
as Eligible Employees as defined hereunder.
1.9 Employee. "Employee" means any person employed by Employer.
1.10 Employer. "Employer" means Tyson Foods, Inc., or any
corporation into which it may be merged or consolidated, or any corporation
that may hereafter accept and adopt the terms of this Indenture with
approval of the Board of Directors of Tyson Foods, Inc. For determining an
Employee's length of service for purposes of determining eligibility,
vesting and credits, Employer also includes any corporation which is a
member of a controlled group of corporations (as defined in 414(b) of the
Code) and all trades or businesses (whether or not incorporated) which are
under common control (as defined in 414(c) of the Code). Provided,
however, that service with an incorporated or unincorporated employer which
has not expressly adopted this Plan shall not give employees of such
employers the right to share in any credits made by employers which have
expressly adopted this Plan.
1.11 Employer Match. "Employer Match" shall mean the credit, if any,
made to the Member's Employer Match Account by the Employer pursuant to
Section 3.2 below.
1.12 Employment Commencement Date. "Employment Commencement Date"
means the first date on which an Employee completes an "Hour of Service",
provided that in the case of a "Break in Service" an Employee's employment
commencement date shall be the first day thereafter on which he completes
an "Hour of Service."
1.13 Enrollment Period. "Enrollment Period" means each period
designated by the Employer with respect to the Plan Year during which new
Members may establish, and current Members may amend, their rates of
Elective Deferrals under their Salary Reduction Agreements.
1.14 Entry Date. "Entry Date" shall mean April 1 and October 1 of
each year.
1.15 Highly Compensated Employee. "Highly Compensated Employee"
means an Employee defined in Section 414(q) of the Code and Regulations
issued thereunder. "Non-highly Compensated Employee" shall mean an
Employee who is neither a Highly Compensated Employee nor a Family Member
(as defined in Code 414(q)(6)(B)) of a Highly Compensated Employee.
1.16 Hour of Service. An "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the duties are
performed; and
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. Hours
under this subparagraph (b) shall be calculated and credited pursuant to
Section 2530.200(b)-2 of the Department of Labor Regulations which are
incorporated herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same hours of
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service shall not be credited both under subparagraph (a) or (b), as the
case may be, and under this subparagraph (c). These hours shall be
credited to the Employee for the computation period or periods to which the
award or agreement pertains rather than the computation period in which the
award, agreement or payment is made; and
(d) Hours of Service credited to Employees whose compensation is not
determined on the basis of certain amounts for each hour worked during a
given period and whose hours are not required to be counted and recorded by
a separate federal statute such as the Fair Labor Standards Act shall be at
the rate of 45 Hours of Service for each week that the employee is entitled
to be credited with at least one "hour of service" under the provisions of
this section.
1.17 Leave of Absence and Termination of Service. The Employer,
under a uniform policy applied without discrimination, may grant a Leave of
Absence without pay to any Employee because of (a) service in any of the
Armed Forces of the United States or other Government service, (b)
temporary incapacity, or (c) a temporary lay-off by the Employer. To
determine vested percentages and whether a Break in Service has occurred
(but not to determine entitlement to share in credits for the year), an
Employee will be credited with Hours of Service during a Leave of Absence
as if he had been actively employed and had performed his customary duties,
provided he returns to work at or before the end of the Leave of Absence or
when so requested by the Employer; otherwise his service will be considered
terminated as of the date on which his leave began. Any other absence from
active employment not deemed a Leave of Absence shall terminate an
Employee's service as of the date the Employer considers the Employee to
have been dropped from its employment rolls.
1.18 Maternity or Paternity Absences. For any Employee who is absent
from work by reason of (i) the pregnancy of the Employee; (ii) the birth of
a child of the Employee; (iii) the placement of a child with the Employee
in connection with the adoption of such child by the Employee; or (iv) for
purposes of caring for a child for a period beginning immediately following
the birth or placement of such child, the Plan shall treat as Hours of
Service for determining a Break in Service for purposes of eligibility and
vesting, the Hours of Service which otherwise normally would have been
credited to the Employee but for such absence or, in the event the Plan is
unable to determine the Hours of Service normally to be credited, eight (8)
Hours of Service per day of such absence.
The total number of hours treated as Hours of Service under this
section shall not exceed 501 hours. The Hours of Service attributable to
an Employee shall be credited to the Employee in the Plan Year in which
begins the absence from work if the Employee would be prevented from
incurring a Break in Service. In any other case, such Hours of Service
shall be credited in the immediately following year.
In the discretion of the Committee, an Employee may be required to
furnish information that the absence from work qualifies under this section
and/or the number of days of such absence.
1.19 Member. "Member" means any Employee who has qualified for
participation as provided in Article II of the Plan.
1.20 Normal Retirement Date or Age. "Normal Retirement Date or Age"
shall mean the 65th birthday of a Member.
1.21 Plan. "Plan" means the savings and profit sharing plan set
forth in this document and all subsequent amendments thereto which in the
aggregate are intended by the Employer to constitute a non-qualified
savings and profit sharing retirement plan. The name of the Plan shall be
the "Executive Savings Plan of Tyson Foods, Inc.".
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1.22 Profit Sharing Plan. "Profit Sharing Plan" shall mean the
qualified profit sharing retirement plan adopted by Employer and known as
the Profit Sharing Plan of Tyson Foods, Inc.
1.23 Restricted Stock Bonus Plan. "Restricted Stock Bonus Plan"
shall mean the Tyson Foods, Inc. Restricted Stock Bonus Plan adopted by
Employer, a copy of which is attached to this Plan as Schedule "A".
1.24 Return on Equity. "Return on Equity" for any Plan Year means a
percentage determined by dividing Employer's "Net Income" by Employer's
"Shareholders' Equity", with such terms having the following definitions:
(a) "Net Income" means the sum of Employer's net pre-tax income as
reported in its annual and quarterly reports filed with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended,
for the fiscal quarter ending on the Saturday closest to March 31 of such
Plan Year and the immediately preceding three fiscal quarters;
(b) "Shareholders' Equity" means the simple arithmetic average of
Employer's shareholders' equity as reported in its annual and quarterly
reports filed with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, for the fiscal quarter ending
on the Saturday closest to March 31 of such Plan Year and the immediately
preceding four fiscal quarters.
1.25 Salary Reduction Agreement. "Salary Reduction Agreement" means
an agreement entered between the Member and the Employer during the
Enrollment Period by which the Member agrees to accept a reduction in his
Compensation from the Employer equal to any whole percentage, per payroll
period, not to exceed the percentages permitted under Section 3.1(A) below.
The Salary Reduction Agreement shall be irrevocable by the Member until the
next Enrollment Period and shall apply to each payroll period during such
time in which the Member receives Compensation from the Employer.
1.26 Subsidiary or Affiliate. "Subsidiary" or "Affiliate" means:
(a) All corporations which are members of a controlled group of
corporations within the meaning of Section 1563(a) of the Code determined
without regard to Section 1563(a)(4) and Section 1563(e)(3)(C) of said Code
and of which Tyson Foods, Inc. is then a member, and
(b) All trades or businesses, whether or not incorporated,
which, under the Regulations prescribed by the Secretary of the Treasury
pursuant to Section 210(d) of ERISA are then under, control with Tyson
Foods, Inc.
1.27 Taxable Year and Plan Year. "Taxable Year" and "Plan Year"
means the annual accounting period ending on the last day of March each
year, which Employer has adopted for federal income tax purposes.
1.28 Valuation Date. "Valuation Date" under the plan shall mean the
last day of each calendar month.
1.29 Years of Service. A "Year of Service" means each twelve
consecutive month period during which an Employee has at least one thousand
(1,000) Hours of Service. For determining an Employee's eligibility under
the Plan, his "eligibility computation period" shall begin on the
Employment Commencement Date (as defined in Section 1.12 above) for such
Employee. For determining a Member's vested and nonforfeitable interest in
his Employer Match Account and Floor Account, the "vesting computation
period" shall be the Plan Year.
ARTICLE II
Eligibility for Participation
2.1 Requirements for Participation. Eligible Employees shall be
eligible to participate under the Plan as follows:
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(a) Eligible Employees shall be eligible to make Elective Deferrals
and receive Employer Matches as of the first Enrollment Period (as
established by the Administrative Committee) immediately following
completion of six months of service);
(b) Eligible Employees shall be eligible to receive Floor Account
Credits under Section 3.3 of the Plan as of the first Entry Date (as
defined above) following the Eligible Employee's completion of a Year of
Service.
2.2 Participation Following Re-Employment. Each Employee whose
service is terminated and who subsequently is re-employed by the Employer
shall be treated under the Plan upon such re-employment as though he then
first entered the employment of the Employer; except that, if he previously
was a Member the Plan or if he had met the service requirements for
participation in the Plan as of his previous date of termination of
service, he shall be deemed for the purposes of 2.1 hereof to have met the
service requirements for participation in the Plan as of his date of
reemployment.
Provided, however, that the application of this Section shall not
entitle such re-employed former Member to any Employer Match or Floor
contributions under Article III below attributable to the period of time
between his date of termination of service and his date of re-employment.
2.3 Designation of Beneficiary. The provisions of this Plan shall
apply to all Members uniformly. Each Employee on becoming a Member shall:
(a) Agree in writing to be bound by the terms and conditions of this
Plan.
(b) Designate in writing one or more beneficiaries to receive his
benefits in the event of his death. If no such designation be made, or if
such beneficiary be deceased without a successor beneficiary being
designated in writing, then the death benefits shall be paid in a lump sum
to the surviving spouse of said Member, if any, otherwise to the Member's
surviving children, in equal shares, per stirpes, otherwise to the personal
representative or estate of the deceased Member. Should a beneficiary of a
deceased Member die after he has started receiving payment under the Plan
and if there is no living successor beneficiary named by the deceased
Member, then the remaining benefits shall be paid in a lump sum to the
surviving spouse of said beneficiary, if any, otherwise to the personal
representative or estate of the beneficiary receiving payment at the time
of his death. Each Member shall be entitled to change his designated
beneficiaries from time to time by filing with the Administrative Committee
a new Designation of Beneficiary Form, and each change so made shall revoke
all prior designations by the Member.
ARTICLE III
Credits to Accounts
3.1 Members' Elective Deferrals.
(A) Amount of Elective Deferrals. Each Eligible Employee may elect,
pursuant to a Salary Reduction Agreement, to direct the Employer to reduce
his Compensation, and in lieu thereof, credit to the Elective Deferral
Account of such Eligible Employee an amount equal to such reduction, with
such reduction amounts to be in integral percentages determined as follows:
(i) From one percent (1%) to twenty percent (20%) of his
Compensation, excluding bonuses, if any; and
(ii) One percent (1%) to fifty percent (50%) of the amount of any
bonus included in his Compensation.
Eligible Employees may elect to have Elective Deferrals applied either to
Compensation excluding bonuses, to bonuses, or both.
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(B) Initial Authorization for Elective Deferrals. All Salary
Reduction Agreements shall be in writing and Elective Deferrals made
pursuant to such agreement shall be authorized in writing by the Member and
shall be filed with the Employer. Any such Salary Reduction Agreement
shall continue in effect for as long as the Member remains an Eligible
Employee or until he elects to suspend or change his rate of Elective
Deferrals under the Plan as provided in Section 3.1(C) below.
(C) Right of Member to Suspend or Change His Rate of Elective
Deferrals. Except as set forth below, a Member may suspend or change his
rate of Elective Deferrals effective as soon as administratively
practicable as of the end of any subsequent payroll period; however, a
Member may change his deferral rate only twice in any calendar year without
the consent of the Employer, and except as provided in Section 3.1(E) below
with respect to certain required suspensions, a Member who suspends his
Elective Deferrals may not resume such contributions for a period of six
months following the effective date of such suspension. Any such change of
rate, suspension or resumption of Elective Deferrals must be made by the
Member in writing filed with the Employer at least 30 days prior to the
effective date of the change, suspension or resumption.
A Member whose Elective Deferrals are suspended during a period of
leave of absence or who is reemployed following a termination of service
may elect, upon his return to active employment with the Employer, to have
the Employer resume Elective Deferrals on his behalf to the Plan. Any such
election shall be in writing filed with the Employer and shall specify the
percentage of Elective Deferrals to be deducted from his Compensation.
(D) Crediting Elective Deferrals. Elective Deferrals under the Plan
shall be credited by the Employer to the Member's Elective Deferral Account
as of the end of the month in which the deferral amounts were deducted from
the Member's Compensation.
3.2 Employer Match.
(A) Amount of Employer Match. The Employer shall credit to the
Employer Match Account of each Member who has elected to make an Elective
Deferral pursuant to Section 3.1 above an amount equal to the lesser of (I)
100% of such Deferrals and (ii) 2% of such Member's Compensation for that
portion of the year during which the Member was eligible to make such
Deferrals.
(B) Crediting the Employer Match. The Employer Match shall be
credited by the Employer to the Member's Employer Match Account as of the
end of the month in which the corresponding credit to the Member's Elective
Deferral Account is made pursuant to Section 3.1(D) above.
3.3 Floor Accounts.
(A) Amount of Floor Account Credit. For each Plan Year the Employer
(in its sole discretion) shall credit to the Floor Account of each Member
who both has satisfied the eligibility requirements set forth in Section
2.1(b) above and is actively employed by Employer on the last day of such
Plan Year, an amount equal to the product of the "Profit Sharing
Percentage" (defined below) and the Member's Compensation for that portion
of the Plan Year during which the Member was eligible to receive such
credits as provided in Section 2.1(b) above. The "Profit Sharing
Percentage", if any, shall be determined by the Board of Directors of Tyson
Foods, Inc. after considering Employer's profitability and overall
performance for such Plan Year.
(B) Crediting Floor Accounts. Floor Accounts shall be credited with
the amounts determined in Section 3.3(A) above as of March 31 of the Plan
Year for which such Floor Account Credits were determined.
(C) One Time Mandatory Floor Account Credit. In addition to any
amounts which may be credited to Floor Accounts for the Plan Year ending
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March 31, 1992, the Employer, effective March 31, 1992, shall make
additional Floor Account Credits attributable to the Employer's Taxable
Years ending March 31, 1990 and 1991. These additional credits shall be
made only to the accounts of those Members in the Plan who both are
actively employed by Employer on March 31, 1992 and would have been
eligible to receive a Profit Sharing Plan allocation during one or both of
those prior Taxable Years except for the fact they were excluded because
they were determined to be Highly Compensated Employees for such years.
Such Members shall receive credits equal to the product of the "Mandatory
Profit Sharing Percentage" (defined below) and the Member's "Basic
Compensation" (as defined in the Profit Sharing Plan) which would have been
taken into consideration for purposes of allocating the Employer's profit
sharing contribution to such Member had such Member not been excluded from
the Profit Sharing Plan during such prior Taxable Year or Years. The
"Mandatory Profit Sharing Percentage" shall be determined on or before
March 31, 1992 by the Board of Directors of Tyson Foods, Inc. after
considering Employer's profitability and overall performance for its
financial reporting fiscal year which ends September 30, 1991, together
with other relevant considerations. The additional Mandatory Floor Account
Credits determined pursuant to this subparagraph (C) shall be increased by
an eight percent (8%) base rate of earnings, determined from the respective
dates that Employer's contributions to the Profit Sharing Plan were made
for such prior Taxable Years.
ARTICLE IV
Accounts and Earnings Credited
4.1 Accounts of Members. The Employer shall establish and maintain
for each Member separate accounts, to be called the "Elective Deferral
Account", "Employer Match Account", and "Floor Account". Each such account
shall be further subdivided into separate sub-accounts for each Plan Year
for which credits were made to such accounts. Each such sub-account shall
be credited as required in Article III above and Section 4.2 below.
4.2 Earnings Credited. In addition to amounts credited to
subaccounts hereunder pursuant to Article III above, the following
additional amounts will be credited:
(A) Base Earnings. Each Elective Deferral, Employer Match and Floor
sub-account shall be credited on each Valuation Date with Base Earnings,
computed by multiplying the value of such sub-accounts as of the preceding
Valuation Date by a "base" earnings rate determined by Employer, in its
sole discretion, on or before the first day of each Plan Year based on the
anticipated annual borrowing rate for the Employer for that ensuing Plan
Year. Such "base" rate for the Plan Year beginning April 1, 1991 shall be
eight percent (8%).
(B) Premium Earnings. In addition to any Base Annual Interest
credited to the Floor sub-accounts pursuant to Section 4.2(A) above, such
Floor sub-accounts shall earn on an annual basis "Premium Earnings"
determined as follows.
(1) Amount of Premium Earnings. As of March 31 of 1992 and each
succeeding year thereafter during the term of this Plan, there shall be
credited to the Floor sub-accounts an amount equal to the product of the
"Premium Earnings Rate" (defined below) and the total Floor sub-account
balances as of March 31 of the immediately preceding Plan Year. (For
purposes of computing Premium Earnings only for the Plan Year ending March
31, 1992, Members will be deemed to have Floor sub-account balances on
March 31, 1991 equal to the Mandatory Floor Account Credits determined
pursuant to Section 3.3(c) above, increased only by the base rate of
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earnings described therein on the Mandatory Floor Account Credits
attributable to the Taxable Year ending March 31, 1990 and computed through
March 31, 1991.) The "Premium Earnings Rate" shall be based on the
Employer's Return On Equity for the Plan Year, to the extent such Return On
Equity exceeds twenty percent (20%), and shall be determined in accordance
with the following schedule:
Return On Equity Premium Earnings Rate
Under 20% 0%
20% - 20.9% 3%
21% - 21.9% 4%
22% - 22.9% 5%
23% - 23.9% 6%
Over 24% 7%.
The Premium Earnings Rate schedule set forth in the prior sentence shall be
effective for the Plan Year ending March 31, 1992. A Premium Earnings Rate
schedule for each succeeding Plan Year shall be determined by the Employer
prior to the first day of each such succeeding Plan Year, in the sole
discretion of the Employer. Members of the Plan eligible on April 1 of
each Plan Year shall be notified in writing of the Premium Earnings Rate
schedule for the ensuing Plan Year.
(2) Conversion to Restricted Stock. Within sixty (60) days of the end
of each Plan Year for which Premium Earnings were credited, such Premium
Earnings shall be converted into grants of restricted shares of Tyson
Foods, Inc. Class A Common Stock, with such grants to be made pursuant to
the Restricted Stock Bonus Plan and administered solely in accordance with
the terms of that Plan. The number of shares of such restricted stock
granted to any Member for any Plan Year shall be equal to the amount of
Premium Earnings credited to the Member's Floor sub-account for such year
divided by the "prevailing marketing price" for Tyson Foods, Inc. Class A
Common Stock as of the last business day of such Plan Year.
Prevailing marketing price shall be determined as follows:
(a) If the stock is not at the time listed or admitted to trading on
a stock exchange or in the over-the-counter market under the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ"), the market price shall be the mean between the lowest reported
bid price and highest reported asked price of the stock on the date in
question in the over-the-counter market, as such prices are reported in a
publication of general circulation selected by Tyson Foods, Inc. and
regularly reporting the market price of the stock in such market; or
(b) If the stock is at the time listed or admitted to trading in the
over-the-counter market under NASDAQ or on any stock exchange, then the
prevailing market price shall be the reported closing sale price of the
stock on the date in question on NASDAQ or on the principal exchange on
which the stock is then listed or admitted to trading, as the case may be.
If no reported sale of stock takes place on the date in question, then the
reported closing asked price of the stock on such date shall be
determinative of the market price. In determining Premium Earnings for any
Plan Year, Floor sub-accounts shall not include Premium Earnings amounts
converted to restricted stock grants for Plan Years prior to such Plan
Year.
All restricted shares of Tyson Foods, Inc. Class A Common Stock
granted pursuant to the Restricted Stock Bonus Plan as Premium Earnings on
Floor sub-accounts shall be subject to the restrictions that such shares
only will become vested and nonforfeitable and transferable after the
Member to whom the shares were granted completes four (4) Years of Service
with the Employer following the Plan Year for which such Premium Earnings
were credited; provided, however, that such shares shall become vested and
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<PAGE>
non-forfeitable upon the Member attaining age 55. If a Member's employment
with the Employer terminates for any reason prior to satisfying the four
(4) year service requirements of this paragraph but has attained age 55,
then such shares shall become transferable at such time as the former
Member would have completed such four (4) year service requirement had his
employment not terminated.
ARTICLE V
Vesting
5.1 Vesting of Employer Match and Floor Accounts. Except as
hereinafter provided, amounts credited to the Employer Match Account and
the Floor Account of a Member shall become vested and nonforfeitable based
upon his number of Years of Service (as defined in Section 1.29 above) in
the percentage indicated as follows:
Years of Service Percentage Vested
Less than 5 years 0%
5 years 100%
5.2 Vesting on Death, Disability or Normal Retirement. Upon a
Member's death, severance of employment due to disability (defined in
Section 1.5 above), or attainment of his Normal Retirement Age, the full
amount of his Employer Match Account and Floor Account shall become vested
and nonforfeitable.
5.3 Vesting if Plan Terminated. Notwithstanding any other provisions
of this Article V, if the Plan is terminated, the full amount of each
Member's Employer Match Account and Floor Account shall become fully vested
and nonforfeitable.
5.4 Elective Deferral Accounts. Amounts credited to Elective
Deferral Accounts at all times shall be 100% vested and nonforfeitable.
5.5 Effect of Break in Service on Vesting. A former Member who did
not have a nonforfeitable right to his Employer Match Account or his Floor
Account at the time of a Break in Service shall receive no credit for Years
of Service before such break and all balances in such accounts shall be
forfeited.
ARTICLE VI
Distributions
6.1 Elective Deferral, Employer Match and Floor Accounts. Amounts
credited to a Member's Elective Deferral Account, Employer Match Account
and Floor Account shall be distributed to the Member or his beneficiaries
in such form and at such times as set forth below:
(A) During Employment. A Member's sub-account for any Plan Year
under his Elective Deferral, Employer Match and Floor Accounts shall be
distributed in one cash lump sum not later than sixty (60) days following
the end of the tenth Plan Year immediately following the Plan Year for
which such sub-account was established. (By way of example, sub-accounts
established for the Plan Year ending March 31, 1992 for Elective Deferral,
Employer Match and Floor Account credits, together with all earnings
credited (excluding Premium Earnings) for all Plan Years in which such sub
accounts remain in effect, shall be distributed not later than sixty (60)
days following March 31, 2002.)
(B) Termination of Employment. Except as provided below in
subparagraphs (C) and (D), if a Member's employment with the Employer is
terminated, the vested portion of such Member's accounts hereunder shall be
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distributed to him in one cash lump sum not later than sixty (60) days
following the end of the Plan Year in which Members employment terminated.
(C) Termination of Employment Due to Death. If a Member dies before
all of the accounts established under this Plan have been distributed to
him, the remaining balances credited to all of his accounts hereunder shall
be distributed in one cash lump sum to his beneficiaries in accordance with
Section 2.3 above not later than sixty (60) days following the end of the
Plan Year in which the Member died.
(D) Termination of Employment on or After Attaining Age 55 or Due to
Disability. If a Member retires from employment with the Employer on or
after attaining age 55 or terminates employment due to disability, the
Member's vested portion of his accounts (or 100% of his accounts in the
event of disability) shall be distributed to the Member as follows:
(i) All amounts which, following the distribution rules set
forth above in Section 6.1(A), would have been distributed to the
Member not later than the sixty (60) day period following the end of
the fifth Plan Year following the Plan Year in which the Member
terminates employment shall continue to be distributed pursuant to the
rules set forth above in Section 6.1(A);
(ii) To the extent that the amounts credited to any sub-
accounts would not be distributed within the time period described in
subparagraph (i) of this Section 6.1(D), such sub-accounts shall be
aggregated and exactly twenty percent (20%) of such aggregate amount
shall be paid to the Member within sixty (60) days after the end of
each of the five Plan Years immediately following the Plan Year in
which the Member terminated employment, together with earnings
credited on the undistributed balance as determined under Article IV
above.
6.2 Benefits Payable to Minors and Incompetents.
(A) Whenever any person entitled to payments under the Plan shall be
a minor or under other legal disability or in the sole judgment of the
Employer otherwise shall be unable to apply such payments to his own best
interest and advantage (as in the case of illness, whether mental or
physical or where the person not under legal disability is unable to
preserve his estate for his own best interest), the Employer may in the
exercise of its discretion direct all or any portion of such payments to be
made in any one or more of the following ways unless claim shall have been
made therefor by an existing and duly appointed guardian, tutor,
conservator, committee or other duly appointed legal representative, in
which event payment shall be made to such representative:
(1) directly to such person unless such person shall be an infant or
shall have been legally adjudicated incompetent at the time of the payment;
(2) to the spouse, child, parent or other blood relative to be
expended on behalf of the person entitled or on behalf of those dependents
as to whom the person entitled has the duty of support; or
(3) to a recognized charity or governmental institution to be
expended for the benefit of a person entitled or for the benefit of those
dependents as to whom the person entitled has the duty of support.
(B) The decision of the Employer will, in each case, be final and
binding upon all persons and the Employer shall not be obliged to see to
the proper application or expenditure of any payments so made. Any payment
made pursuant to the power herein conferred upon the Employer shall operate
as a complete discharge of the obligation of the Employer.
6.3 Withholding Taxes. The Employer shall have the right to withhold
from any amounts due or to become due from the Employer pursuant to this
Plan to a Member or his beneficiary any taxes required by any government to
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be withheld or otherwise deducted and paid by the Employer in respect of
such amounts paid or to be paid.
ARTICLE VII
Administration of the Plan
7.1 Administrative Committee. To carry out the purposes of the Plan,
the Board of Directors of Tyson Foods, Inc. shall appoint a Committee (the
"Committee") consisting of not less than three members who may be officers
and/or directors of Tyson Foods, Inc.. The Board may remove members from
or add members to the Committee at any time, within its discretion, and may
fill vacancies on the Committee. An individual member of the Committee may
not participate in any decision exclusively affecting his own participation
in the Plan. The Committee shall select one of its members as Chairman,
and shall hold meetings at such times and places as it may determine. Acts
of a majority of the Committee at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the
Committee, shall be valid acts of the Committee. The Committee shall have
the sole authority, in its absolute discretion, to adopt, amend and rescind
such rules and regulations as, in its opinion, may be advisable in the
administration of the Plan; and to construe and interpret the Plan, the
rules and regulations, and to make all other determinations deemed
necessary or advisable for the administration of the Plan. All decisions,
determinations, and interpretations of the Committee shall be binding on
all Members. The Committee may employ such legal counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may
rely upon any opinion received form any such counsel or consultant and any
computation received for any such consultant or agent. Expenses incurred
by the Board of Directors or the Committee in the engagement of such
counsel, consultant or agent shall be paid by the Employer. No member or
former member of the Committee or of the Board of Directors shall be liable
for any action or determination made in good faith with respect to the Plan
or any awards granted hereunder.
7.2 Accounts Not Transferable. A Member's undivided interest in the
amounts credited to his accounts under the Plan may not be assigned, sold,
pledged or alienated except by testate or intestate succession. In
addition, such undivided interest may not be encumbered by lien or security
interest of any kind and shall not be liable for the debts of the Member or
subject to attachment, or to any judgment rendered against the Member or to
the process of any court in aid or execution of any judgment so rendered.
7.3 Costs of the Plan. The costs of maintaining records and
executing transfers under the Plan shall be paid by Tyson Foods, Inc.
7.4 Indemnification. Tyson Foods, Inc. shall indemnify and hold
harmless any officer, employee, agent, or representative who incurs damage
or loss, including the expense of defense thereof, in connection with the
performance of the duties specified herein, other than losses resulting
from any such person's fraud or willful misconduct.
ARTICLE VIII
Amendment and Termination of the Plan
The Tyson Foods, Inc. Board of Directors or its delegate may, at any
time and in its discretion, alter, amend, suspend or terminate the Plan or
any part thereof. Notice of any amendment, suspension or termination of
the Plan, in whole or in part, shall be given to each Member as soon as
practicable after such action is taken.
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ARTICLE IX
Miscellaneous Provisions
9.1 No Contract of Employment Intended. The granting of any right to
an employee, pursuant to this Plan, shall not constitute an agreement or
understanding, express or implied, on the part of Tyson Foods, Inc. or any
Affiliate, to employ such employee for any specified period.
9.2 Financial Information Available. If required by law, the offered
shares of Tyson Foods, Inc. Class A Common Stock shall be registered under
the Securities Act of 1933 on Form S-8, or such other as shall be specified
by the Securities and Exchange Commission, and Tyson shall deliver to each
Member a copy of the prospectus (or such other information as may be
required) from time to time as required.
9.3 Governing Law. The construction, validity, and operation of this
plan shall be governed by the laws of the State of Arkansas.
9.4 Rules of Construction. Throughout this Plan, the masculine
includes the feminine, and the singular and the plural, and vice versa,
where applicable.
TYSON FOODS, INC.
By:_________________________
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AMENDMENT NO. 1
TO THE
EXECUTIVE SAVINGS PLAN OF TYSON FOODS, INC.
Effective April 1, 1996, the Plan is amended as follows:
(1) Section 1.27 is deleted in its entirety and the following new
language inserted therefor:
"1.27 Taxable Year and Plan Year. 'Taxable Year' and 'Plan Year' mean
the annual accounting period ending on the last day of December of
each year."
(2) Section 6.1 of the Plan is amended by deleting subsection (D)
in its entirety and substituting therefor the following new language:
"(D) Termination of Employment on or After Early Retirement or Due to
Disability. If a Member (i) retires from employment with the Employer on
or after attaining age 55, (ii) retires from employment with the Employer
on or after attaining age 50 and his age plus Years of Service equal or
exceed 75, or (iii) terminates employment due to disability, the Member's
vested portion of his accounts (or 100% of his accounts in the event of
disability) shall be distributed to the Member as follows:
(i) All amounts which, following the distribution rules
set forth in Section 6.1(A), would have been distributed to the Member not
later than the sixty (60) day period following the end of the fifth Plan
Year following the Plan Year in which the Member terminates employment
shall continue to be distributed pursuant to the rules set forth above in
Section 6.1(A);
(ii) To the extent that the amounts credited to any sub-
accounts would not be distributed within the time period described in
subparagraph (i) of this Section 6.1(D), such sub-accounts shall be
aggregated and exactly twenty percent (20%) of such aggregate amount shall
be paid to the Member within sixty (60) days after the end of each of the
five Plan Years immediately following the Plan Year in which the Member
terminated employment, together with earnings credited on the undistributed
balance as determined under Article IV above."
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EXHIBIT 11
<TABLE>
<CAPTION>
TYSON FOODS, INC.
COMPUTATION OF EARNINGS PER SHARE
(In millions except per share data)
Quarter Ended
---------------------------
March 30, April 1,
1996 1995
---------------------------
<S> <C> <C>
Primary:
Average common shares outstanding
during the period 144.9 144.2
Net effect of dilutive stock
options based on the treasury
stock method using average
market price .4 .8
----- -----
Total common and common equivalent
shares outstanding 145.3 145.0
===== =====
Net income $14.4 $50.5
===== =====
Earnings per share $0.10 $0.35
===== =====
Fully Diluted:
Average common shares outstanding
during the period 144.9 144.2
Net effect of dilutive stock
options based on the treasury
stock method using the quarter-
end market price, if higher
than average market price .4 .9
----- -----
Total common and common equivalent
shares outstanding 145.3 145.1
===== =====
Net income $14.4 $50.5
===== =====
Earnings per share $0.10 $0.35
===== =====
</TABLE>
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EXHIBIT 11
<TABLE>
<CAPTION>
TYSON FOODS, INC.
COMPUTATION OF EARNINGS PER SHARE
(In millions except per share data)
Six Months Ended
---------------------------
March 30, April 1,
1996 1995
---------------------------
<S> <C> <C>
Primary:
Average common shares outstanding
during the period 144.9 144.2
Net effect of dilutive stock
options based on the treasury
stock method using average
market price .4 .8
----- -----
Total common and common equivalent
shares outstanding 145.3 145.0
===== ======
Net income $57.7 $102.7
===== ======
Earnings per share $0.40 $0.71
===== =====
Fully Diluted:
Average common shares outstanding
during the period 144.9 144.2
Net effect of dilutive stock
options based on the treasury
stock method using the quarter-
end market price, if higher
than average market price .6 .9
----- -----
Total common and common equivalent
shares outstanding 145.5 145.1
===== ======
Net income $57.7 $102.7
===== ======
Earnings per share $0.40 $0.71
===== =====
</TABLE>
168
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
QUARTERLY FINANCIAL STATEMENTS FOR THE PERIOD ENDED MARCH 30, 1996 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000100493
<NAME> TYSON FOODS, INC.
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-28-1996
<PERIOD-END> MAR-30-1996
<CASH> 33
<SECURITIES> 0
<RECEIVABLES> 559
<ALLOWANCES> 3
<INVENTORY> 1090
<CURRENT-ASSETS> 1715
<PP&E> 3124
<DEPRECIATION> 1113
<TOTAL-ASSETS> 4624
<CURRENT-LIABILITIES> 770
<BONDS> 1853
0
0
<COMMON> 14
<OTHER-SE> 1504
<TOTAL-LIABILITY-AND-EQUITY> 4624
<SALES> 3135
<TOTAL-REVENUES> 3135
<CGS> 2638
<TOTAL-COSTS> 2638
<OTHER-EXPENSES> 6
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 68
<INCOME-PRETAX> 86
<INCOME-TAX> 32
<INCOME-CONTINUING> 54
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 58
<EPS-PRIMARY> .40
<EPS-DILUTED> .40
</TABLE>
