<PAGE> 1
As filed with the Securities and Exchange Commission on February 1, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
CORN PRODUCTS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3514823
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6500 SOUTH ARCHER ROAD 60501
BEDFORD PARK, ILLINOIS (Zip Code)
(Address of principal executive offices)
CORN PRODUCTS INTERNATIONAL, INC. RETIREMENT SAVINGS PLAN AND
CORN PRODUCTS INTERNATIONAL, INC. RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
(Full title of the plans)
MARCIA E. DOANE
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
CORN PRODUCTS INTERNATIONAL, INC.
6500 SOUTH ARCHER ROAD
BEDFORD PARK, ILLINOIS 60501
(708) 563-2400
(Name, address, and telephone number,
including area code, of agent for service)
with a copy to:
James L. Carey
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Title of Amount Proposed Proposed
Securities to be to be maximum maximum Amount of
registered registered offering aggregate registration fee
price per share offering price
- ---------------------- ----------------------- ------------------------- ----------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 shares(1) $26.21875(2) $10,487,500 (2) $2,915.53
$.01 par value(3)
====================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) Estimated pursuant to Rule 457(h)(1) solely for the purpose of
calculating the registration fee. Estimate based on the average of the
high and low share prices reported on the New York Stock Exchange for
January 27, 1999.
(3) Includes 400,000 associated rights ("Rights") to purchase 1/100 of a
share of Series A Junior Participating Preferred Stock, par value $.01
per share. Rights initially are attached to and trade with the shares
of Common Stock being registered hereby. Value attributable to such
Rights, if any, is reflected in the market price of the Common Stock.
===============================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Corn Products International, Inc. (the
"Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998 June 30, 1998 and September 30, 1998;
(c) The Company's Current Reports on Form 8-K filed with the
Commission on May 13, 1998, September 17, 1998, October 21, 1998 and
December 16, 1998;
(d) The description of the common stock, par value $.01 per share, of
the Company which is contained in the Company's report on Form 8-A, dated
December 17, 1997;
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1997; and
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None
<PAGE> 3
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in summary, that directors and officers of Delaware
corporations such as the Company are entitled, under certain circumstances, to
be indemnified against all expenses and liabilities (including attorneys' fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that despite the
adjudication of liability but in view of all the circumstances of the case, they
are fairly and reasonably entitled to indemnity for such expenses which such
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
Article VII of the Company's Amended By-Laws entitles officers,
directors and controlling persons of the Company to indemnification to the full
extent permitted by Section 145 of DGCL, as the same may be supplemented or
amended from time to time.
Article VII of the Bylaws of Corn Products International, Inc.
provides:
"Indemnification"
Section 1. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereafter a
"proceeding"), by reason of the fact that he, or a person for whom he is
the legal representative, is or was a director, officer or employee of the
Company or is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee
benefit plans, shall be indemnified by the Company to the fullest extent
permitted by the Delaware General Corporation Law, as the same exists or
may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes, penalties
and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection with such service; provided, however,
that the Company shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by him only if such proceeding was
authorized by the Board of Directors, either generally or in the specific
instance. The right to indemnification shall include the advancement of
expenses incurred in defending any such proceeding in advance of its final
disposition in accordance with procedures established from time to time by
the Board of Directors; provided, however, that, if the Delaware General
Corporation Law so requires, the director, officer or employee shall
deliver to the Company an undertaking to repay all amounts so advanced if
it shall ultimately be determined that he is not entitled to be indemnified
under this Article or otherwise.
Section 2. The rights of indemnification provided in this Article
shall be in addition to any rights to which any person may otherwise be
entitled by law or under any By-law, agreement, vote of stockholders or
disinterested directors, or otherwise. Such rights shall continue as to any
person who has ceased to be a director, officer or employee and shall inure
to the benefit of his heirs, executors and administrators, and shall be
applicable to proceedings commenced after the adoption hereof, whether
arising from acts or omissions occurring before or after the adoption
hereof.
Section 3. The Company may purchase and maintain insurance to protect
any person against any liability or expense asserted against or incurred by
such person in connection with any proceeding, whether or not the Company
would have the power to indemnify such person against such liability or
expense by law or under this Article or otherwise. The Company may create a
trust fund, grant a security interest or use other means
II-2
<PAGE> 4
(including, without limitation, a letter of credit) to insure the payment
of such sums as may become necessary to effect indemnification as provided
herein."
The Company has entered into separate indemnification agreements with
directors and officers of the Company, pursuant to which the Company will
indemnify such directors and officers to the fullest extent permitted by
Delaware law and the Company's Amended By-laws, as the same may be amended
from time to time.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4(a) Certificate of Incorporation of the Company, as
amended (incorporated by reference to the Company's
Registration Statement on Form 10, as amended (File
No. 1-13397)).
4(b) Amended By-laws of the Company (incorporated by
reference to the Company's Registration Statement on
Form 10, as amended (File No. 1-13397)).
4(c) Rights Agreement, dated as of November 19, 1997,
between the Company and First Chicago Trust Company
of New York, as Rights Agent (incorporated by
reference to the Company's Registration Statement on
Form 8-A (File No. 1-13397)).
4(d) Corn Products International, Inc. Retirement Savings
Plan (incorporated by reference to the Company's
Registration Statement on Form S-8 filed with the
Commission on December 30, 1987 (File No. 333-43479).
* 4(e) Amendments to Corn Products International, Inc.
Retirement Savings Plan.
* 4(f) Corn Products International, Inc. Retirement Savings
Plan for Hourly Employees.
*23(a) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on signature page hereto).
- ------------------------
*Filed herewith
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
II-3
<PAGE> 5
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
Registration Statement is on Form S-3 or Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remained unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes to comply in
a timely manner with any changes to the Corn Products International, Inc.
Retirement Savings Plan and the Corn Products International, Inc. Retirement
Savings Plan for Hourly Employees required by the Internal Revenue Service (the
"IRS") in order to obtain a favorable determination letter from the IRS in a
timely manner.
II-4
<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Bedford Park, State of Illinois on
this 20th day of January, 1999.
CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ Konrad SCHLATTER
------------------------------
Konrad Schlatter
Chief Executive Officer
Each of the undersigned officers and directors of the
Registrant hereby severally constitutes and appoints Marcia E. Doane and James
W. Ripley, and each of them, their true and lawful attorneys-in-fact for the
undersigned, in any and all capacities, with full power of substitution, to sign
any and all amendments to this Registration Statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents in
connection therewith, with the Commission, granting unto each said
attorneys-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities indicated on the date indicated
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE SIGNED
--------- -------- -----------
<S> <C> <C>
/s/ Konrad Schlatter Chairman, Chief Executive Officer January 20, 1999
- ------------------------------- and Director
Konrad Schlatter
/s/ Samuel C. Scott President, Chief Operating Officer January 20, 1999
- ------------------------------- and Director
Samuel C. Scott
/s/ James W. Ripley Vice President - Finance and January 20, 1999
- ------------------------------- Chief Financial Officer
James W. Ripley (principal financial and accounting
officer)
/s/ Ignacio Aranguren-Castiello Director January 20, 1999
- -------------------------------
Ignacio Aranguren-Castiello
/s/ Alfred C. DeCrane, Jr. Director January 20, 1999
- -------------------------------
Alfred C. DeCrane, Jr.
/s/ William C. Ferguson Director January 20, 1999
- -------------------------------
William C. Ferguson
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE SIGNED
--------- -------- -----------
<S> <C> <C>
/s/ Richard G. Holder Director January 20, 1999
- -------------------------------
Richard G. Holder
/s/ Bernard H. Kastory Director January 20, 1999
- -------------------------------
Bernard H. Kastory
/s/ William S. Norman Director January 20, 1999
- -------------------------------
William S. Norman
/s/ Clifford B. Storms Director January 20, 1999
- -------------------------------
Clifford B. Storms
/s/ Guenter E. Greiner Director January 20, 1999
- -------------------------------
Guenter E. Greiner
/s/ Ronald M. Gross Director January 20, 1999
- -------------------------------
Ronald M. Gross
</TABLE>
The Corn Products International, Inc. Retirement Savings Plan. Pursuant to the
requirement of the Securities Act of 1933, as amended, the Plan administrator
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Bedford Park and the
State of Illinois, on this 29th day of January, 1999.
CORN PRODUCTS INTERNATIONAL, INC.
RETIREMENT SAVINGS PLAN
By: /s/ John Surowiec
-----------------------------------------
Name: John Surowiec
Title: Plan Administrator
The Corn Products International, Inc. Retirement Savings Plan for Hourly
Employees. Pursuant to the requirement of the Securities Act of 1933, as
amended, the Plan administrator has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Bedford Park and the State of Illinois, on this 29th day of January,
1999.
CORN PRODUCTS INTERNATIONAL, INC.
RETIREMENT SAVINGS PLAN FOR HOURLY EMPLOYEES
By: /s/ John Surowiec
-----------------------------------------
Name: John Surowiec
Title: Plan Administrator
II-6
<PAGE> 8
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
4(a) Certificate of Incorporation of the Company, as
amended (incorporated by reference to the Company's
Registration Statement on Form 10, as amended (File
No. 1-13397)).
4(b) Amended By-laws of the Company (incorporated by
reference to the Company's Registration Statement on
Form 10, as amended (File No. 1-13397)).
4(c) Rights Agreement, dated as of November 19, 1997,
between the Company and First Chicago Trust Company
of New York, as Rights Agent (incorporated by
reference to the Company's Registration Statement on
Form 8-A (File No. 1-13397)).
4(d) Corn Products International, Inc. Retirement Savings
Plan (incorporated by reference to the Company's
Registration Statement on Form S-8 filed with the
Commission on December 30, 1987 (File No. 333-43479).
* 4(e) Amendments to Corn Products International, Inc.
Retirement Savings Plan.
* 4(f) Corn Products International, Inc. Retirement Savings
Plan for Hourly Employees.
* 23(a) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on signature page hereto).
- ------------------------
*Filed herewith
II-7
<PAGE> 1
EXHIBIT 4(e)
CORN PRODUCTS INTERNATIONAL INC.
RETIREMENT SAVINGS PLAN
AMENDMENT NO. 1
WHEREAS, Corn Products International Inc. (the "Company") the Corn
Products International, Inc. Retirement Savings Plan (the "Plan");
WHEREAS, certain amendments to the Plan are required in order to obtain a
favorable determination letter from the Internal Revenue Service;
WHEREAS, the Company desires to amend the Plan in certain other respects;
and
WHEREAS, the Pension Committee appointed by the Board of Directors of the
Company is authorized under Section 14.1 of the Plan to amend the Plan.
NOW, THEREFORE, pursuant to the power of amendment contained in Section
14.1 of the Plan, the Plan is hereby amended, effective January 1, 1998, as
follows:
1. Section 8.1(e) is hereby amended by deleting that portion of Section
8.1(e) beginning with "If a Participant withdraws any amount . . " and
continuing thereafter to the end of Section 8.1(e).
2. Section 8.2(b)(5) is deleted in its entirety and the remaining
subsections of Section 8.2(b) are renumbered appropriately.
3. Section 9.1(b) is hereby amended in its entirety to read as follows:
(b) Forfeitures. If upon a Participant's termination of employment
the Participant is not vested in his Matching Contribution Account and
Profit Sharing Account as described in subsection (a) above, the balance
of such accounts shall be credited to a special forfeiture account
established on behalf of such Participant. Such credit shall occur as of
the Valuation Date as of which the adjusted balance is determined, and
such account shall not be taken into account in determining, nor
participate in, the allocations prescribed by Article 7.
The amount credited to a special forfeiture account established on behalf
of a Participant shall be forfeited as of the earlier of (i) in the case
of a Participant who takes a distribution of the vested portion of the
Participant's interest in the Trust Fund as provided in Section 9.2, as
of the end of the date of such distribution and (ii) the date as of which
the
1
<PAGE> 2
Participant incurs 5 consecutive Break in Service Years. If such
Participant is reemployed prior to taking a distribution and prior to
incurring 5 consecutive Break in Service Years such special account shall
be restored. If upon his or her termination of employment any such
Participant received a lump-sum distribution pursuant to Section 9.2(a),
then he or she shall have the right to pay an amount equal to such
distribution to the Trustee. If the Participant makes such a payment,
then such special account shall be restored. Any such payment must be
made by the fifth anniversary of the Participant's date of reemployment.
If pursuant to this paragraph the forfeited portion of a Participant's
Matching Contribution Account or Profit Sharing Account is to be restored,
the amount restored shall be obtained from the total amount that has been
forfeited pursuant to this paragraph (b) during the Plan Year in which
such Participant is reemployed or the Plan Year in which such Participant
makes the payment set forth above, as the case may be, from the Matching
Contribution Accounts or Profit Sharing Accounts of Participants employed
by the same Employer as the reemployed Participant. If the aggregate
amount to be so restored to the accounts of Participants who are employees
of a particular Employer exceeds the amount of such forfeitures, such
Employer shall make a contribution in an amount equal to such excess.
4. Section 10.5 of the Plan is hereby amended in its entirety to read as
follows:
10.5 Non-Assignability.
(a) In General. It is a condition of the Plan, and all rights of
each Participant and Beneficiary shall be subject thereto, that no
right or interest of any Participant or Beneficiary in the Plan shall
be assignable or transferable in whole or in part, either directly or
by operation of law or otherwise, including, but not by way of
limitation, execution, levy, garnishment, attachment, pledge or
bankruptcy, but excluding devolution by death or mental incompetency,
and no right or interest of any Participant or Beneficiary in the
Plan shall be liable for, or subject to, any obligation or liability
of such Participant or Beneficiary, including claims for alimony or
the support of any spouse, except as provided below.
(b) Exception for Qualified Domestic Relations Orders.
Notwithstanding any provision of the Plan to the contrary, if the
Plan Administrator shall receive any written judgment, decree or
order (including approval of a property settlement agreement)
pursuant to State domestic relations or community property law
relating to the provision of child support, alimony or marital
property rights of a spouse, former spouse, child or other dependent
of a Participant and purporting to provide for the payment of all or
a portion of the Participant's Account to or on behalf of one or more
of such persons (such judgment, decree or order being hereinafter
called a "domestic relations order"), the Plan Administrator shall
arrange to determine whether such order constitutes a "qualified
domestic relations
2
<PAGE> 3
order," as defined in section 414(p) of the Code and section
206(d)(3) of ERISA. If the order is determined to be a qualified
domestic relations order, all or a portion of the Participant's
Account, as specified in the order, shall be assigned to the person
or persons named therein, and shall be payable in accordance with the
terms of such order.
The manner in which all or any portion of a Participant's Account
under the Plan may be assigned and paid to any other person
pursuant to the terms of a domestic relations order shall be governed
by procedures adopted by the Plan Administrator for this purpose,
section 414(p) of the Code, section 206(d)(3) of ERISA and
Regulations issued thereunder. Such procedures shall provide that
payments under a domestic relations order applicable to a
Participant's Account under the Plan may commence as soon as
administratively practicable after such order is determined by the
Plan Administrator (or its delegate) to constitute a "qualified
domestic relations order" under section 414(p) of the Code and
section 206(d)(3) of ERISA, if the terms of the order so provide.
IN WITNESS WHEREOF, Corn Products International, Inc. has caused this
Amendment to be executed by the Chairman of the Pension Committee on this 9th
day of December, 1998.
CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ James J. Hirscak
------------------------------
Chairman, Pension Committee
3
<PAGE> 4
CORN PRODUCTS INTERNATIONAL INC.
RETIREMENT SAVINGS PLAN
AMENDMENT NO. 2
WHEREAS, Corn Products International Inc. (the "Company") has adopted
and maintains the Corn Products International Inc. Retirement Savings Plan (the
"Plan");
WHEREAS, the Company desires to amend the Plan in certain respects;
and
WHEREAS, the Pension Committee appointed by the Board of Directors of
the Company is authorized under Section 14.1 of the Plan to amend the Plan.
NOW, THEREFORE, pursuant to the power of amendment contained in
Section 14.1 of the Plan, the Plan is hereby amended, effective January 1,
1998, as follows:
1. Section 1.1 of the Plan is hereby amended to add the words
"Service Award Contribution Account" immediately following the words "Profit
Sharing Contribution Account" where the latter appears therein.
2. Sections 1.32 through 1.36 of the Plan are hereby renumbered
Sections 1.34 through 1.38 respectively, and the following new Sections 1.32
and 1.33 are hereby added to the Plan to read as follows:
1.32 "Service Award Contribution Account" means the account maintained
for a Participant to which are allocated the Service Award
Contributions, if any, made on behalf of such Participant pursuant to
Section 4.3 plus earnings and net of any withdrawals or losses.
1.33 "Service Award Contribution" means a contribution made by an
Employer on behalf of a Participant as provided in Section 4.3.
3. Section 1.38 of the Plan (as renumbered) is hereby amended,
effective December 15, 1998, to read as follows:
1.38 "Year of Service" means each Plan Year during which any individual
completes 1,000 or more Hours of Service. For purposes of those
Employees who, on January 1, 1998 became employees of the Company as
a result of the Spin-Off, this shall include any Years of Service
recognized under the CPC Plan.
4. The Plan is hereby amended to add the following new Section 4.3:
4.3 Service Award Contributions. For each Plan Year, each Employer shall
make a contribution, as specified below, on behalf of each of its
Participants who, in such Plan Year, has completed the number of years
of service specified below. Such
<PAGE> 5
contributions shall be made at any time during or after the end
of such Plan Year but in no event later than the due date of the
Employer's federal income tax return for the tax year in which such
Plan Year ends:
Years of Service Amount of Cash Contribution
---------------- ---------------------------
5 5 times the Employer Average Stock Trading Price
10 10 times the Employer Average Stock Trading Price
15 15 times the Employer Average Stock Trading Price
20 20 times the Employer Average Stock Trading Price
25 25 times the Employer Average Stock Trading Price
30 30 times the Employer Average Stock Trading Price
For each additional 5 Years of Service, the Participant shall receive
an additional 5 times the Employer Average Stock Trading Price.
For purposes of the foregoing, the "Employer Average Stock
Trading Price" shall mean the average of the high and low transaction
prices (as reported in the New York Stock Exchange-Composite
Transactions) in trading of Company Stock on the "Service Award
Calculation Date," or if such day is not a trading day, the trading
day next following such date. The "Service Award Calculation Date"
shall mean the first day of the month in which a Participant
completes the number of years of service required to receive a
Service Award Contribution. Notwithstanding the foregoing, for
purposes of Participants entitled to receive a Service Award
Contribution for the 1998 Plan Year, the Service Award Calculation
Date shall be December 1, 1998.
5. The third sentence of Section 7.1 of the Plan is hereby amended
to read as follows:
Each Account shall consist of (a) if a Participant is making or has
made Participant Contributions, a Participant Contribution Account,
(b) if Deferred Contributions are being made or have been made
for a Participant, a Deferred Contribution Account, (c) if Matching
Contributions are being made or have been made for a Participant,
a Matching Contribution Account, (d) if Profit Sharing Contributions
are being made or have been made, a Profit Sharing Account, (e) if
Service Award Contributions are being made or have been made, a
Service Award Contribution Account, and (f) if a Participant has
made a rollover contribution, a Rollover Account.
6. Section 7.2 of the Plan is hereby amended to redesignate
paragraphs (e) through (h) thereof as paragraphs (f) through (i) and to add the
following new paragraph (e) thereto:
2
<PAGE> 6
(e) Allocations of Service Award Contributions. The Committee
may deposit a Participant's Service Award Contribution with the
Trustee at any time during or after the end of the Plan Year for
which such contribution is awarded, but in no event later than the
due date of the Employer's federal income tax return for the tax year
in which such Plan Year ends. Such contribution shall be allocated
to the Participant's Service Award Contribution Account as soon as
practicable after such date.
7. Section 7.3(d) is hereby amended to add the words, "Service
Contribution Account" immediately following the words "Profit Sharing Account"
where the latter appear therein.
8. The first sentence of Section 8.1(c) of the Plan is hereby
amended to read as follows:
A Participant who is an Employee may, prior to attainment of age
59 1/2, withdraw a portion of the balance of the Participant's
Deferred Contribution Account and Service Award Contribution Account,
but only on account of a financial hardship.
9. Section 8.1(e) of the Plan is hereby amended to insert the
words", Service Award Contribution Account" immediately following the words
"Matching Contribution Account" where the latter appears therein.
10. The second sentence of Section 8.2(b) is hereby amended to read
as follows:
Amounts equal to any such loan (or loans, as the case may be)
shall be debited first from the Participant's Deferred Contribution
Account to the extent thereof, then from his Rollover Account, if
any, to the extent thereof, then from contributions to his
Participant Contribution Account which are attributable to
Participant Contributions made after December 31, 1986 and which have
not been matched by Matching Contributions, next from contributions
to his Participant Contribution Account which are attributable to
Participant Contributions made after December 31, 1986 and which have
been matched by Matching Contributions, next from contributions to
his Participant Contribution Account which are attributable to
Participant Contributions made prior to January 1, 1987 to the extent
thereof, then from his Matching Contribution Account to the extent
thereof, then from his Profit Sharing Account, to the extent thereof,
and then from his Service Award Contribution Account, to the extent
thereof.
11. The fourth sentence of Section 8.2(e) of the Plan is hereby
amended to read as follows:
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<PAGE> 7
The Committee shall then cause to be credited such repayments to
the Participant's Deferred Contribution Account, Rollover Account,
Profit Sharing Account, Service Award Contribution Account and
Matching Contribution Account in the same proportion as such accounts
were charged with the loan.
12. Section 9.1 of the Plan is hereby amended to read as follows:
A Participant is always fully vested in the balance of such
Participant's Participant Contribution Account, Deferred Contribution
Account, Service Award Contribution and Rollover Account (if any).
13. Option 4 of Section 9.2 of the Plan is hereby amended to read as
follows:
Option 4. Combined Lump Sum and Annuity. The aggregate balance of
a Participant's Deferred Contribution Account, Participant
Contribution Account and Rollover Account shall be paid to the
Participant (or Beneficiary) in the form of a single lump sum in cash
(or, if the Participant or Beneficiary so elects with respect to the
portion of such accounts that are invested in Company Stock or
Bestfoods Stock, in the form of whole shares of Company Stock or
Bestfoods Stock, as the case may be, with cash in lieu of fractional
shares) and the aggregate value of such Participant's Matching
Account, Service Award Contribution Account and Profit Sharing
Account shall be paid in one of the forms specified in Options 1, 2
or 3 above, as elected by the Participant (or in one of the forms
specified in Options 1 or 2 above, if elected by the Beneficiary).
IN WITNESS WHEREOF, Corn Products International Inc. has caused this
Amendment to be executed by the Chairman of the Pension Committee on this 9th
day of December, 1998.
CORN PRODUCTS INTERNATIONAL INC.
By: /s/ James J. Hirscak
-------------------------------
Chairman, Pension Committee
4
<PAGE> 1
EXHIBIT 4(f)
CORN PRODUCTS INTERNATIONAL INC.
RETIREMENT SAVINGS PLAN
FOR HOURLY EMPLOYEES
Amended and Restated effective December 1, 1998
<PAGE> 2
TABLE OF CONTENTS
INTRODUCTION....................................................... 1
ARTICLE 1......................................................... 2
DEFINITIONS........................................................ 2
1.1 "Account"............................................ 2
1.2 "Affiliate".......................................... 2
1.3 "Board of Directors"................................. 2
1.4 "Break in Service Year".............................. 2
1.5 "Code"............................................... 2
1.6 "Committee".......................................... 2
1.7 "Company"............................................ 2
1.8 "Company Stock"...................................... 2
1.9 "Compensation"....................................... 2
1.10 "Deferred Contribution".............................. 3
1.11 "Deferred Contribution Account"...................... 3
1.12 "Disabled Participant"............................... 3
1.13 "Effective Date"..................................... 3
1.14 "Eligible Employee".................................. 3
1.15 "Employee"........................................... 3
1.16 "Employer"........................................... 4
1.17 "Employer Contribution".............................. 4
1.18 "ERISA".............................................. 4
1.19 "Hour of Service".................................... 4
1.20 "Matching Contribution".............................. 5
1.21 "Matching Contribution Account"...................... 6
1.22 "Participant"........................................ 6
1.23 "Plan"............................................... 6
1.24 "Plan Administrator"................................. 6
1.25 "Plan Year".......................................... 6
1.26 "Rollover Account"................................... 6
1.27 "Service Award Contribution Account"................. 6
1.28 "Service Award Contribution"......................... 6
1.29 "Trust Agreement".................................... 6
1.30 "Trust Fund"......................................... 6
1.31 "Trustee"............................................ 6
1.32 "Valuation Date"..................................... 6
1.33 "Year of Service".................................... 6
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<PAGE> 3
ARTICLE 2............................................................... 7
ELIGIBILITY AND PARTICIPATION........................................... 7
2.1 Eligibility to Become a Participant........................ 7
2.2 Commencement of Participation.............................. 7
2.3 Cessation of Participation................................. 7
2.4 Leased Employees........................................... 7
ARTICLE 3............................................................... 8
DEFERRED CONTRIBUTIONS.................................................. 8
3.1 Deferred Contributions..................................... 8
3.2 Changes in and Terminations of Deferred Contributions...... 8
3.3 Annual Limit on Deferred Contributions..................... 9
ARTICLE 4............................................................... 10
EMPLOYER CONTRIBUTIONS.................................................. 10
4.1 Matching Contributions..................................... 10
4.2 Service Award Contributions................................ 10
ARTICLE 5............................................................... 11
STATUTORY LIMITATIONS ON BENEFITS....................................... 11
5.1 Maximum Annual Additions Under Section 415 of the Code..... 11
5.2 Limitation on Contributions................................ 13
ARTICLE 6............................................................... 14
TRUST................................................................... 14
ARTICLE 7............................................................... 14
INVESTMENT ELECTIONS AND ALLOCATIONS TO PARTICIPANTS' ACCOUNTS.......... 14
7.1 Separate Accounts and Investment Elections................. 14
7.2 Allocation of Contributions and Withdrawals to Accounts.... 16
7.3 Valuation of Participants' Accounts........................ 17
7.4 Correction of Error........................................ 17
ii
<PAGE> 4
ARTICLE 8................................................................... 18
LOANS....................................................................... 18
8.1 Loans to Participants.......................................... 18
ARTICLE 9................................................................... 22
DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT................................ 22
9.1 Entitlement to Distribution Upon Termination of Employment..... 22
9.2 Form of Distribution........................................... 23
9.3 Time of Distribution........................................... 23
9.4 Valuation of Accounts.......................................... 24
ARTICLE 10.................................................................. 24
SPECIAL PARTICIPATION AND DISTRIBUTION RULES................................ 24
10.1 Direct Rollover Option......................................... 24
10.2 Distribution of Small Account Balances......................... 24
10.3 Designation of Beneficiary..................................... 25
10.4 Distributions to Minor or Disabled Beneficiaries............... 26
10.5 Non-Assignability.............................................. 26
10.6 Reemployment of Veterans....................................... 27
ARTICLE 11.................................................................. 29
SHAREHOLDER RIGHTS WITH RESPECT TO COMPANY STOCK............................ 29
11.1 Voting Rights.................................................. 29
11.2 Shareholder Rights in the Event of a Tender Offer.............. 30
11.3 Applicability.................................................. 31
ARTICLE 12.................................................................. 32
ADMINISTRATION.............................................................. 32
12.1 The Committee.................................................. 32
12.2 Investment Committee........................................... 32
12.3 Authority and Duties of the Committee.......................... 32
12.4 Plan Administrator............................................. 33
12.5 Review of Fiduciary Responsibility Designations or Allocations. 33
12.6 Reliance on Others............................................. 34
12.7 Liability...................................................... 34
12.8 Claims Procedure............................................... 34
iii
<PAGE> 5
ARTICLE 13................................................................. 35
PARTICIPATION IN PLAN BY AFFILIATE......................................... 35
13.1 Adoption by Participating Employers........................... 35
13.2 Special Provisions for Employees of Acquired Companies........ 35
ARTICLE 14................................................................. 36
AMENDMENT AND TERMINATION.................................................. 36
14.1 Amendment..................................................... 36
14.2 Termination................................................... 36
14.3 Full Vesting Upon Termination................................. 36
14.4 Segregation of Trust.......................................... 36
14.5 Committee Determination Conclusive............................ 36
ARTICLE 15................................................................. 37
TOP-HEAVY PROVISIONS....................................................... 37
15.1 Definitions................................................... 37
15.2 Adjustments for Top-Heavy Years............................... 37
ARTICLE 16................................................................. 39
GENERAL PROVISIONS......................................................... 39
16.1 Limitation of Rights.......................................... 39
16.2 No Right to Employment........................................ 39
16.3 Payments Due to Missing Participants.......................... 39
16.4 Transfer to an Affiliate...................................... 39
16.5 Election Made Through Telephone System........................ 39
16.6 Merger or Consolidation with Another Plan..................... 40
16.7 Company Action................................................ 40
16.8 Headings...................................................... 40
16.9 Gender and Plurals............................................ 40
16.10 Construction.................................................. 40
iv
<PAGE> 6
INTRODUCTION
Effective as of the close of business on December 31, 1997, CPC International
Inc. ("CPC") spun-off its corn refining business to CPC shareholders through a
distribution of all of the shares of Corn Products International Inc. ("Corn")
(the "Spin-Off"). In connection with the Spin-Off, effective January 1, 1998,
Corn assumed sponsorship of a defined contribution plan maintained for the
benefit of certain hourly employees, the terms of whose employment are governed
by a collective bargaining agreement, entitled the Corn Products International
Inc. Retirement Savings Plan for Hourly Employees (the "Plan"). This document
constitutes an amendment and restatement of the Plan which was last restated
effective January 1, 1998. This amendment and restatement generally shall be
effective December 1, 1998, except that--
(i) any provision which specifies a different effective date
shall be effective such specified date;
(ii) Sections 8.1(b)(2) and 10.6 of the Plan, to the extent
such Sections reflect modifications required by the Uniformed Services
Employment and Reemployment Rights Act of 1994 ("USERRA"), shall be
effective December 12, 1994; and
(iii) Section 4.2 shall be effective January 1, 1998.
The rights and benefits of Participants who terminate their employment with any
Employer (or any Affiliate thereof) on or after December 1, 1998, and the rights
and benefits of Beneficiaries of such Participants, shall be determined solely
by reference to the terms of this amendment and restatement, as amended from
time to time. Unless otherwise required by applicable law, each Participant who
terminated employment with all Employers and Affiliates thereof prior to
December 1, 1998 shall be entitled to receive a benefit under the terms of the
prior Plan document (as restated effective January 1, 1998, and as subsequently
amended) as in effect on the date of such termination.
The Plan is intended to qualify as a profit sharing plan within the meaning of
section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
with a qualified cash or deferred arrangement described in section 401(k) of the
Code, and its related trust is intended to be tax-exempt under section 501(a) of
the Code.
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<PAGE> 7
ARTICLE 1
DEFINITIONS
The following words and phrases shall, for the purpose of this Plan and
any subsequent amendment thereof, have the following meanings, unless a
different meaning is plainly required by the context:
1.1 "Account" means a Participant's Account under the Plan, which is
composed of the Deferred Contribution Account, Matching Contribution
Account, Service Award Contribution Account and Rollover Account,
maintained for a Participant under the Plan to which are credited the
Participant's share of contributions and earnings and debited the
losses thereon.
1.2 "Affiliate" means (i) any corporation which is a member of a controlled
group of corporations (as defined in section 414(b) of the Code) which
includes the Company, (ii) any trade or business (whether or not
incorporated) which is under common control (as defined in section
414(c) of the Code) with the Company, (iii) any organization (whether
or not incorporated) which is a member of an affiliated service group
(as defined in section 414(m) of the Code) which includes the Company;
and (iv) any other entity required to be aggregated with the Company
pursuant to final regulations under section 414(o) of the Code;
provided, however, that such corporation, trade or business,
organization, or other entity shall be deemed to be an Affiliate only
during the period in which the particular relationship existed.
1.3 "Board of Directors" means the Board of Directors of the Company, as
constituted from time to time.
1.4 "Break in Service Year" means a Plan Year in which an Employee
completes 500 or fewer Hours of Service.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
1.6 "Committee" means the Committee appointed by the Company to administer
the Plan, pursuant to Article 12.
1.7 "Company" means Corn Products International Inc.
1.8 "Company Stock" means common stock of the Company.
1.9 "Compensation" means an Employee's wages as identified under Box 1 of
Form W-2 (but determined without regard to rules that limit
remuneration based on the nature or location
2
<PAGE> 8
of the employment or the services performed), plus elective
contributions that are made by an Employer on behalf of the Employee
that are not includible in gross income under section 125 or 402(e)(3)
of the Code; but reduced by all of the following items, even if
includible in gross income: any overtime pay, commissions, bonuses
(including amounts received as long-term incentive bonuses), income
attributable to the exercise of stock options, reimbursements or other
expense allowances (such as car allowances), fringe benefits (cash and
noncash), moving expenses, deferred compensation, and welfare benefits.
For purposes of determining Compensation earned for services performed
outside the United States, Compensation shall be imputed at a rate
equal to the base rate of pay in effect for the Participant for the
last calendar year employed by an Employer in the United States.
Notwithstanding the foregoing, an Employee's Compensation in a Plan
Year in excess of (i) with respect to the 1998 Plan Year, $160,000 and
(ii) with respect to each subsequent Plan Year, the amount prescribed
by section 401(a)(17) of the Code, shall be disregarded for all
purposes under the Plan.
1.10 "Deferred Contribution" means a contribution made by an Employer on
behalf of a Participant on a before-tax basis, as described in Section
3.1
1.11 "Deferred Contribution Account" means the account maintained for a
Participant to which are allocated the Deferred Contributions made on
behalf of such Participant pursuant to Section 3.1 on a before-tax
basis, plus earnings and net of any losses.
1.12 "Disabled Participant" means a Participant who has incurred a
disability, as such term is defined in the Corn Products International
Inc. Hourly Employees Retirement Income Plan.
1.13 "Effective Date" means December 1, 1998.
1.14 "Eligible Employee" means each Employee of an Employer who is covered
by the collective bargaining agreement between the Company and the Oil,
Chemical and Atomic Workers International Union, Local 7-507 and
International Association of Machinists District No. 8.
1.15 "Employee" means each individual whose relationship with an Employer
is, under common law, that of an employee. Notwithstanding the
foregoing, the term "Employee" shall exclude any individual retained by
an Employer to perform services for such Employer (for either a
definite or indefinite duration) and is characterized thereby as a
fee-for-service worker or independent contractor or in a similar
capacity (rather than in the capacity of an employee), regardless of
such individual's status under common law or for purposes of federal,
state or local tax withholding, employment tax or employment law.
3
<PAGE> 9
1.16 "Employer" means the Company and any other Affiliate which, with the
consent of the Company, elects to participate in this Plan pursuant to
Section 13.1.
1.17 "Employer Contribution" means a contribution made by an Employer, other
than a Deferred Contribution, to a Participant's account pursuant to
the terms of the Plan as in effect at the applicable time.
1.18 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.19 "Hour of Service" (a) means each hour for which an Employee:
(1) is paid, directly or indirectly, or entitled to
payment, for the performance of duties for an
Employer during the applicable computation period;
(2) is paid, directly or indirectly, or entitled to
payment, by an 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 that:
(i) no more than 501 hours shall be credited to
an Employee on account of any single
continuous period during which the Employee
performs no duties (whether or not such
period occurs in a single computation
period); and
(ii) no credit shall be given for any hour
attributable, directly or indirectly, to a
payment made or due under a plan maintained
solely for the purpose of complying with
applicable workers' compensation,
unemployment compensation or disability
insurance laws, or to reimburse an Employee
for medical or medically related expenses
incurred by the Employee;
(3) receives back pay, irrespective of mitigation of
damages, under an award or an agreement with an
Employer. No hour shall be credited under both this
paragraph (3) and under paragraph (1) or paragraph
(2), as the case may be. In addition, hours credited
under this paragraph which are attributable to
periods referred to in subsection (2) shall be
subject to the limitations set forth in that
paragraph; and
(4) is normally scheduled to work doing a period when the
Employee is absent from employment with an Employer
for voluntary or involuntary military service with
the armed forces of the United States, provided that
such
4
<PAGE> 10
Employee returns to work within 90 days after his
discharge date or such longer period of time as may
be prescribed by the Uniformed Services Employment
and Reemployment Rights Act of 1994 ("USERRA").
For Plan Years prior to January 1, 1998, CPC
International, Inc. shall be treated as an Employer
for purposes of this section.
(b) For purposes of this Section, a Participant who is absent from
work for maternity or paternity reasons shall receive credit
for the hours of service for which he would normally have
received credit but for such absence, up to a maximum of 501
hours. An absence from work for maternity or paternity reasons
means an authorized absence because of the Participant's
pregnancy, the birth of a child of the Participant, the
placement of a child with the Participant in connection with
the Participant's adoption of such child, or for purposes of
caring for such child immediately following its birth or
adoption placement. The computation period to which such hours
of service are to be credited shall be:
(i) the 12-consecutive-month period beginning on
the annual anniversary of the Employee's
date of hire in which the absence from work
begins if such crediting is necessary to
prevent the Participant from incurring a
Break in Service Year; or
(ii) the immediately following 12-consecutive-
month period in any other case.
A Participant shall not receive credit for Years of Service for the
hours of service credited for maternity or paternity leave for any
purpose of the Plan other than determining whether a Break in Service
Year has occurred. This subsection shall not in any way be deemed to
grant any rights to maternity or paternity leave.
The special rules provided in Department of Labor ("DOL") Regulation
section 2530.200b-2(b) and (c) shall be used to determine the number of
hours to be credited for periods during which no duties are performed
and for back pay awards, and the computation periods to which they are
to be credited under subsections (b) and (c); provided, however, that
in accordance with DOL Regulation Section 2530.2006-3(e)(1)(ii) any
employee for whom an Affiliate does not keep a record of actual hours
worked shall be credited with 45 Hours of Service for any week in which
the Employee earns an Hour of Service in any week, and accordingly,
Hours of Service shall be credited in weekly equivalencies for each
such Employee.
1.20 "Matching Contribution" means a contribution made by an Employer on
behalf of a Participant as provided in Section 4.1.
5
<PAGE> 11
1.21 "Matching Contribution Account" means the account maintained for a
Participant to which are allocated the Matching Contributions, if any,
made on such Participant's behalf, plus earnings and net of any losses.
1.22 "Participant" means an Eligible Employee who satisfies the requirements
for participation pursuant to Article 2.
1.23 "Plan" means the plan as set forth herein and as it may be amended from
time to time.
1.24 "Plan Administrator" means the person appointed by the Committee
pursuant to Section 12.4 to fulfill the responsibilities relating to
the administration of the Plan specified therein.
1.25 "Plan Year" means the 12-month period ending on each December 31.
1.26 "Rollover Account" means the account maintained for a Participant to
which are allocated the rollover contributions made by the Participant
pursuant to Section 10.1, plus earnings and net of any withdrawals or
losses.
1.27 "Service Award Contribution Account" means the account maintained for a
Participant to which are allocated the Service Award Contributions, if
any, made on behalf of such Participant pursuant to Section 4.2 plus
earnings and net of any losses.
1.28 "Service Award Contribution" means a contribution made by an Employer
on behalf of a Participant as provided in Section 4.2.
1.29 "Trust Agreement" means the trust agreement as amended from time to
time, between the Company (acting on behalf of the Employers) and the
Trustee or Trustees, established for the purpose of funding the
benefits under this Plan.
1.30 "Trust Fund" means all such money or other property which shall be held
by the Trustee pursuant to the terms of the Trust Agreement.
1.31 "Trustee" means the trustee or trustees acting as such under the Trust
Agreement, including any successor or successors.
1.32 "Valuation Date" means any date on which the New York Stock Exchange is
open for trading.
1.33 "Year of Service" means each Plan Year during which any individual
completes 1,000 or more Hours of Service. For purposes of those
Employees who, on January 1, 1998, became employees as a result of the
Spin-Off, this shall include any Years of Service with CPC
International, Inc.
6
<PAGE> 12
ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility to Become a Participant. An Eligible Employee shall be
eligible to become a Participant on the later of the first date on
which he completes an Hour of Service with an Employer and the date he
attains age 18.
2.2 Commencement of Participation. Each Eligible Employee is required to
make an election to participate prior to his commencement of
participation in the Plan. An Eligible Employee's election to commence
participation in the Plan shall become effective on the first day of
the first calendar month coincident with or next following the date he
has satisfied the eligibility requirements set forth in Section 2.1. If
an Eligible Employee does not properly elect to commence participation
as of such date, he may commence his participation on the first day of
any subsequent month. Notwithstanding the foregoing, an Eligible
Employee who previously has not made an election to participate shall
become a Participant on the date such Eligible Employee becomes
entitled to receive a Service Award Contribution pursuant to Section
4.2.
2.3 Cessation of Participation. An Eligible Employee who becomes a
Participant shall remain a Participant until his entire Account balance
is distributed to him.
2.4 Leased Employees. If an individual who performed services as a leased
employee (within the meaning of section 414(n)(2) of the Code) of an
Employer or an Affiliate becomes an Employee, or if an Employee becomes
such a leased employee, then any period during which such services were
so performed shall be taken into account solely for the purposes of (i)
determining whether and when such individual is eligible to participate
in the Plan under this Article 2, (ii) measuring such individual's
Years of Service, and (iii) determining when such individual has
retired or otherwise terminated his or her employment for purposes of
Article 9 to the same extent it would have been had such service been
as an Employee. This Section shall not apply to any period of service
during which such a leased employee was covered by a plan described in
section 414(n)(5) of the Code.
7
<PAGE> 13
ARTICLE 3
DEFERRED CONTRIBUTIONS
3.1 Deferred Contributions.
(a) An Eligible Employee may elect, to have his Employer contribute
Deferred Contributions on his behalf. Any such election shall be made
in the manner prescribed by the Plan Administrator. Such election shall
be effective beginning on the first day of the month which is at least
one day following receipt by the Plan Administrator of the
Participant's election. The Eligible Employee's election shall
authorize such individual's Employer to reduce his compensation
otherwise payable for the period for which such contribution is made by
the amount specified by the Participant according to the provisions of
subsection (b). An Eligible Employee who is not otherwise a Participant
in the Plan shall become a Participant upon making an election to have
Deferred Contributions made on his behalf as described herein. No
contributions shall be made on behalf of a Participant subsequent to
the Valuation Date coincident with or immediately preceding the date of
his termination of employment.
(b) Subject to the limitations prescribed in Section 3.1 and Article 5,
each Employer shall contribute for each pay period on behalf of each of
its Participants who has made an election to have Deferred
Contributions made on his behalf a whole percentage not less than 1%
nor more than 15% of the Participant's Compensation per pay period, as
designated in such election. The amount of Compensation otherwise
payable for the period for which each such contributions is made shall
be reduced by the amount of such contributions by means of a payroll
deduction each pay period.
3.2 Changes in and Terminations of Deferred Contributions. A Participant
may revoke his election to contribute at any time or he may change the
rate of his contributions within the percentage limits permitted under
Section 3.1 at any time by notifying the Plan Administrator in the
manner specified by the Plan Administrator. A change in the rate of
contributions or revocation of an election to contribute becomes
effective on the first day of the month which is at least one day
following the date on which the Plan Administrator has received
notification of such change. Deferred Contributions shall be suspended
during any approved unpaid leave of absence or any other period which
is included in determining Hours of Service under Section 1.19 and for
which a Participant does not receive Compensation, other than a leave
which has a duration of less than one full payroll period. Such
Participant may not begin to contribute under Section 3.1 until the
first day of the next calendar month following the date on which he
resumes receiving Compensation.
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<PAGE> 14
3.3 Annual Limit on Deferred Contributions.
(a) Notwithstanding the provisions of Section 3.1, a Participant's
Deferred Contributions made pursuant to such Section for any calendar
year shall not exceed (i) for the Plan Year commencing on the Effective
Date, $10,000 and (ii) for each subsequent Plan Year, the dollar amount
prescribed by section 402(g) of the Code.
(b) If for any calendar year the Deferred Contributions to this Plan or
the aggregate of Deferred Contributions to this Plan plus amounts
contributed under other plans or arrangements described in sections
401(k), 403(b), 408(k) or 408(p) of the Code will exceed the limit
imposed by subsection (a) of this Section for the calendar year in
which such contributions were made ("excess deferred contributions"),
such Participant shall, pursuant to such rules and at such time
following such calendar year as determined by the Company, be allowed
to submit a written request that the excess deferred contributions plus
any income and minus any loss allocable thereto be distributed to him.
The amount of any income or loss allocable to such excess Deferred
Contributions shall be determined pursuant to Treasury Regulation
section 1.401(k)-1(f)(4)(ii)(C) and (D). Such adjusted amount of excess
deferred contributions shall be distributed to the Participant no later
than April 15 following the calendar year for which such contributions
were made. Notwithstanding the provisions of this paragraph, any such
excess deferred contributions shall be treated as "annual additions"
for purposes of Section 5.1.
9
<PAGE> 15
ARTICLE 4
EMPLOYER CONTRIBUTIONS
4.1 Matching Contributions. For each payroll period during a Plan Year an
Employer shall contribute to the Plan on behalf of each Participant
employed by such Employer an amount equal to 20% of the Deferred
Contributions made by and on behalf of the Participant that together do
not exceed 4% of such Participant's Compensation for such payroll
period during a Plan Year. Any contribution made pursuant to this
Section shall be referred to hereinafter as a "Matching Contribution."
4.2 Service Award Contributions. For each Plan Year, each Employer shall
make a contribution, as specified below, on behalf of each of its
Participants who, in such Plan Year, has completed the number of years
of service specified below. Such contributions shall be made at any
time during or after the end of such Plan Year but in no event later
than the due date of the Employer's federal income tax return for the
tax year in which such Plan Year ends:
Years of Service Amount of Cash Contribution
5 5 times the Employer Average Stock Trading Price
10 10 times the Employer Average Stock Trading Price
15 15 times the Employer Average Stock Trading Price
20 20 times the Employer Average Stock Trading Price
25 25 times the Employer Average Stock Trading Price
30 30 times the Employer Average Stock Trading Price
For each additional 5 Years of Service, the Participant shall receive
an additional 5 times the Employer Average Stock Trading Price.
For purposes of the foregoing, the "Employer Average Stock Trading
Price" shall mean the average of the high and low transaction prices
(as reported in the New York Stock Exchange-Composite Transactions) in
trading of Company Stock on the "Service Award Calculation Date", or if
such day is not a trading day, the trading day next following such
date. The "Service Award Calculation Date" shall mean the first day of
the month in which a Participant completes the number of years of
service required to receive a Service Award Contribution.
Notwithstanding the foregoing, for purposes of Participants entitled to
receive a Service Award Contribution for the 1998 Plan Year, the
Service Award Calculation Date shall be December 1, 1998.
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ARTICLE 5
STATUTORY LIMITATIONS ON BENEFITS
5.1 Maximum Annual Additions Under Section 415 of the Code. Notwithstanding
any other provision of the Plan, the amounts allocated to each
Participant's Account for any Plan Year shall be limited so that--
(i) the aggregate annual additions for such Plan Year to the
Participant's Account in this Plan and in all other defined
contribution plans in which he is a participant shall not
exceed the lesser of
(I) $30,000 (as adjusted for increases in the
cost-of-living pursuant to section 415(d) of the
Code) and
(II) 25% of the Participant's compensation (as
defined below) for such Plan Year, and
(ii) for Plan Years commencing prior to January 1, 2000, the
sum of (A) and (B) below shall not exceed 1.
(A) The annual additions to the Participant's Account
in the Plan and the aggregate annual additions to the
Participant's accounts in all other defined contribution plans
maintained by his Employer (determined as of the close of the
Plan Year) divided by the sum of the lesser of--
(I) 125% of the maximum dollar amount which under
section 415(c)(1)(A) of the Code could have been
contributed on behalf of the Participant to a defined
contribution plan, and
(II) 35% of the Participant's annual compensation,
as determined separately for each of the Participant's years
of service.
(B) The aggregate projected annual benefit of the
Participant under all defined benefit plans maintained by his
Employer (determined as of the close of the Plan Year),
divided by the lesser of--
(I) 125% of the maximum dollar limitation contained
in section 415(b)(1)(A) of the Code as adjusted for
increases in the cost of living as set forth in
Regulations, and
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(II) 140% of the average of the Participant's
compensation for the three consecutive calendar years
during which his compensation was the highest.
If as a result of a reasonable error in estimating a Participant's
annual compensation, a reasonable error in determining the amount of
elective deferrals that may be made by a Participant under section 415
of the Code or under other limited facts and circumstances as
determined by the Commissioner of Internal Revenue, the annual
additions to a Participant's Account exceeds the limitations set forth
in (a) above for any Plan Year, the amounts that would otherwise be
allocated to such Participant's account for such Plan Year under any
other defined contribution plans maintained by an Employer shall be
reduced until the amount to be allocated to the Participant's Account
under the Plan is not so limited or until the amounts allocated under
all such other plans have been reduced to zero, whichever occurs first.
If after such reduction has been made the amount to be allocated to a
Participant's Account under the Plan for such year would exceed the
limitations set forth in this Section, then the Company shall reduce
the amounts to be allocated to such Participant's Account for such year
to the extent of the excess by reducing the amount of the Participant's
Deferred Contributions and corresponding Matching Contributions (if
any) allocated to his Account, plus earnings on such contributions, and
distributing to the Participant the amount by which his Deferred
Contributions and corresponding Matching Contributions in which the
Participant is vested (if any) have been reduced, and earnings on such
contributions. Any Matching Contributions reduced pursuant to this
paragraph in which a Participant is not vested shall be forfeited.
If the combined annual benefit payable to a Participant would
exceed the limitation of paragraph (B) above, then the benefit payable under the
defined benefit plan shall be reduced in order to meet such limitation in the
manner provided in such defined benefit plan.
The "annual additions" for a Plan Year to a Participant's
account in this Plan and in any other defined contribution plan is the sum
during such Plan Year of--
(i) the amount of Employer contributions (including Deferred
Contributions) allocated to such Participant's accounts,
(ii) the amount of forfeitures allocated to such Participant's
accounts,
(iii) the amount allocated to any individual medical benefit
account (as defined in section 415(l) of the Code) maintained on behalf
of the Participant, and
(iv) the amount of contributions by the Participant to such
Plan but excluding any rollover contribution made to such Plan.
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For purposes of this Section, the "limitation year" shall be
the Plan Year, the terms "compensation," "defined contribution plan,"
"defined benefit plan" and "year of service" shall have the meanings
set forth in section 415 of the Code and the Regulations promulgated
thereunder, and a Participant's Employer shall include entities that
are members of the same controlled group (within the meaning of section
414(b) of the Code as modified by section 415(h) of the Code) or
affiliated service group (within the meaning of section 414(m) of the
Code) as his Employer or under common control (within the meaning of
section 414(c) of the Code as modified by section 415(h) of the Code)
with his Employer or such entities.
5.2 Limitation on Contributions.
(a) Deductibility. Notwithstanding anything contained in the Plan to
the contrary, contributions made to the Plan under Section 3.1 and
Article 4 for any Plan Year shall not exceed the maximum amount for
which a deduction is allowable to such Employer for federal income tax
purposes on account of such contributions for the fiscal year of the
Employer which ends with or within a Plan Year. Any contribution which
is determined by the Internal Revenue Service to be nondeductible by an
Employer shall be returned to such Employer within one year following
the date on which such deduction is disallowed.
(b) Mistake of Fact. Any contribution made by an Employer by reason of
a good faith mistake of fact shall, upon the request of such Employer,
be returned by the Trustee to such Employer. The Employer's request and
the return of any such contribution must be made within one year after
such contribution was mistakenly made. The amount to be returned to the
Employer pursuant to this paragraph shall be the excess of the amount
contributed over the amount which would have been contributed had there
not been a mistake of fact. If the return to the Employer of the amount
attributable to the mistaken contribution would cause the amount
credited to any Participant's Account as of the date such amount is to
be returned (as if such date were a Valuation Date) to be reduced to
less than what would have been the amount credited to such Account as
of such date had the mistaken amount not been contributed, the amount
to be returned to the Employer shall be limited so as to avoid such a
reduction.
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ARTICLE 6
TRUST
A Trust shall be created by the execution of a Trust Agreement
between the Company (acting on behalf of the Employers) and the Trustee. All
contributions under the Plan shall be made to the Trustee. The Trustee shall
hold all property received by it and invest the income and allocate the losses
from all property held by it on behalf of the Participants collectively in
accordance with the provisions of the Plan and the Trust Agreement. The Trustee
shall make distributions from the Trust Fund at such time or times to such
person or persons (or such qualified plans or individual retirement accounts)
and in such amounts as the Committee shall direct in accordance with the Plan.
ARTICLE 7
INVESTMENT ELECTIONS AND
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
7.1 Separate Accounts and Investment Elections.
(a) Accounts. The Committee shall establish and maintain, or cause the
Trustee or such other agent as the Committee may select to establish
and maintain, a separate Account for each Participant. Such Accounts
shall be solely for accounting purposes and no segregation of assets of
the Trust among the separate Accounts shall be required. Each Account
shall consist of (a) if Deferred Contributions are being made or have
been made for a Participant, a Deferred Contribution Account, (b) if
Matching Contributions are being made or have been made for a
Participant, a Matching Contribution Account (c) if Service Award
Contributions are being made or have been made, a Service Award
Contribution Account and (d) if a Participant has made a rollover
contribution, a Rollover Account.
(b) Investment Funds. (1) In General. The Committee shall establish and
maintain, or shall cause to be established and maintained, three or
more investment funds, the type and number of such funds to be
determined by the Company, to which all amounts contributed under the
Plan shall be credited according to each Participant's investment
elections pursuant to subsection (c) of this Section. The Trustee shall
establish and maintain, or cause to be established or maintained,
investment subaccounts with respect to each such investment fund to
which amounts contributed under the Plan shall be credited according to
each Participant's investment elections pursuant to subsection (c) of
this Section. All
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<PAGE> 20
such subaccounts shall be for accounting purposes only, and there shall
be no segregation of assets within the investment funds among the
separate subaccounts.
(2) Company Stock Fund. As soon as practicable after the Effective
Date, the Committee shall establish or shall cause to be established a
Company Stock Fund. The assets of the Company Stock Fund shall be
invested primarily in shares of Company Stock and short-term liquid
investments in a commingled money-market fund maintained by the
Trustee, to the extent determined by the Trustee to be necessary to
satisfy such fund's cash needs. Each Participant's proportional
interest in the Company Stock Fund shall be represented by units of
participation, each such unit representing a proportionate interest in
all the assets of such fund. In making purchases or sales of shares of
Company Stock for the Company Stock Fund, the Trustee shall purchase or
sell shares of Company Stock in the manner and in the proportion as
prescribed by the Company in accordance with rules adopted for such
purpose.
(c) Investment Elections. Each Participant shall make an investment
election which shall apply to the investment of his Account balance and
any earnings thereon and shall make an election which shall apply to
future contributions which will be made to such Participant's Account
pursuant to Sections 3.1 and 4.1 and to the loan payments made pursuant
to Section 8.1(e). Such election shall specify that such contributions
be invested either (i) wholly in one fund maintained pursuant to
subsection (b) or (ii) divided among such funds in multiples
established by the Committee from time to time. During any period in
which no direction as to the investment of a Participant's Account is
on file with the Committee, contributions made by him or on his behalf
to the Plan shall be invested in such manner as the Committee shall
determine.
With respect to the allocation of the Participant's existing Account
balances among the available investment funds, a Participant may elect
to change his investment election effective as of any Valuation Date.
The Committee may prescribe uniform rules which shall govern the time
by which any such election shall be made in order to be effective for a
Valuation Date. A Participant may change his investment elections only
once during any one day.
With respect to the investment of future contributions to the
Participant's Account among the available investment funds, a
Participant may elect to change his investment election effective as of
the first day of the payroll period which is at least one day following
the date on which the Plan Administrator receives notification of such
change. The Committee may prescribe uniform rules which shall govern
the date and time by which any such election shall be made in order to
be effective for a payroll period. Such an election may be made as of
any Valuation Date, provided that in the event a Participant makes more
than one election with respect to a payroll period, the last such
election made by the Participant shall control.
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(d) Applicability. For purposes of this Section, the term "Participant"
shall include any Beneficiary of a deceased Participant and any
alternate payee under a qualified domestic relations order on whose
behalf an account has been established under this Plan.
7.2 Allocation of Contributions and Withdrawals to Accounts.
(a) Allocations of Deferred Contributions. Once per calendar month (or
at such other frequency prescribed by the Committee), the Committee
shall deposit the Deferred Contributions made via payroll reduction
during such month (or other period prescribed by the Committee) with
the Trustee. Such contributions shall be allocated to the Deferred
Contribution Account of each Participant on whose behalf such
contributions were made as soon as practicable after such date.
(b) Allocations of Matching Contributions. Once per calendar month (or
at such other frequency prescribed by the Committee), Matching
Contributions made during such month (or other period prescribed by the
Committee) shall be deposited with the Trustee. Such contributions
shall be allocated to the Matching Contribution Account of each
Participant for whom such contributions are made as soon as practicable
after such date.
(c) Allocations of Service Award Contributions. The Committee may
deposit a Participant's Service Award Contribution with the Trustee at
any time during or after the end of the Plan Year for which such
contribution is awarded, but in no event later than the due date of the
Employer's federal income tax return for the tax year in which such
Plan Year ends. Such contribution shall be allocated to the
Participant's Service Award Contribution Account as soon as practicable
after such date.
(d) Allocations of Rollover Contributions. As soon as administratively
practicable after a Participant delivers a rollover contribution to the
Committee, the Committee shall deposit such contribution with the
Trustee. Such contribution shall be allocated to the Participant's
Rollover Account as soon as practicable after such date.
(e) Allocation of Loan Repayments. Once per calendar month (or at such
other frequency prescribed by the Committee), the Committee shall
deposit the loan repayments during such month (or other period
prescribed by the Committee) with the Trustee. Such repayments shall be
allocated to the Deferred Contribution Account, the Matching
Contribution Account and the Service Award Contribution Account as
applicable, of each Participant who made such repayments as soon as
practicable after such date. The Committee shall reduce the
Participant's loan subaccount (as defined in Section 8.1(e) by the
principal portion of such loan repayments.
(f) Allocation of Forfeitures. As of the end of each Plan Year, after
making the adjustments described in Section 7.3, forfeitures arising
under this Plan shall be applied to fund Employer Matching
Contributions.
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7.3 Valuation of Participants' Accounts.
(a) Value of Investment Funds. Except for the Company Stock Fund, as of
each Valuation Date, the value of the portion of Participants' Accounts
that is invested in each investment fund shall be determined based upon
the number of units invested in each such fund and the net asset value
of each such fund, as determined by the Trustee.
(b) Valuation of Portion of Accounts Invested in Company Stock. As soon
as practicable after each Valuation Date, the value of Participants'
Accounts that is invested in Company Stock, including any accumulated
cash, shall be determined by the Trustee, taking into account any cash
dividends, shares received as a stock split or dividend or as a result
of a reorganization or other recapitalization of the Company, or other
distributions paid to shareholders of Company Stock, since the
preceding Valuation Date.
(c) Value of Total Account. The valuation of a Participant's Account as
of any Valuation Date shall be the sum of the values of his Deferred
Contribution Account, Matching Contribution Account, Service Award
Contribution Account and Rollover Account. A Participant's Account
shall be further reduced or increased in such manner as the Committee
determines in its discretion to be necessary to provide an equitable
allocation of any change in the value of the net worth of the Trust
Fund.
7.4 Correction of Error. If it shall come to the attention of the Committee
that an error has been made in any of the allocations prescribed by
this Plan, appropriate adjustment shall be made to the Accounts of all
Participants and Beneficiaries that are affected by such error, except
that no adjustment need be made with respect to the Account of any
Participant which has been distributed in full prior to the discovery
of such error.
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ARTICLE 8
LOANS
8.1 Loans to Participants.
(a) Making of Loans. Subject to the restrictions set forth in this
Section, the Committee shall establish a loan program whereby any
Participant who is an Employee may request, by prior written
application to the Committee, to borrow funds from the Plan. The
principal balance of such loan shall be not less than $1,000 and shall
not exceed the lesser of (1) 50% of the aggregate of the Participant's
vested Account balance under the Plan as of the Valuation Date
coinciding with or immediately preceding the day on which the loan is
made, and (2) $50,000, reduced by the excess, if any, of the highest
outstanding loan balance of the Participant under all plans maintained
by the Employer during the period of time beginning one year and one
day prior to the date such loan is to be made and ending on the date
such loan is to be made over the outstanding balance of loans from all
such plans on the date on which such loan was made.
(b) Restrictions. No Participant may have more than two loans
outstanding at any time. Amounts equal to any such loan (or loans, as
the case may be) shall be debited first from the Participant's Deferred
Contribution Account to the extent thereof, then from his Matching
Contribution Account to the extent thereof and then from his Service
Award Contribution Account, to the extent thereof. Such amounts shall
be debited from the investment fund or funds as the Committee shall, in
its sole discretion, determine. Any loan approved by the Committee
pursuant to the preceding paragraph (a) shall be made only upon the
following terms and conditions:
(1) The period for repayment of the loan shall be
arrived at by mutual agreement between the Committee and the
Participant, but such period shall not exceed five years from
the date of the loan; provided, however, that if the purpose
of the loan, as determined by the Committee, is to acquire any
dwelling unit that within a reasonable period of time is to be
used as the principal residence of the Participant, then such
period for repayment shall not exceed fifteen years. Such loan
may be prepaid, without penalty, by delivery to the Committee
of cash in an amount equal to the entire unpaid balance of
such loan. Any loan is due in full upon termination of
employment.
(2) No loan shall be made unless the Participant
consents to have such loan repaid in substantially equal
installments deducted from the regular payments of the
Participant's compensation during the term of the loan.
Notwithstanding the
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foregoing, loan repayments under this Plan may be suspended
with respect to a Participant in Military Service to the
extent required by USERRA and in accordance with section
414(u)(4) of the Code.
(3) Each loan shall be evidenced by the Participant's
collateral promissory note for the amount of the loan, with
interest, payable to the order of the Trustee, and shall be
secured by an assignment of a portion of the Participant's
vested benefit under the Plan equal to the initial principal
amount of such loan and such other collateral as may be
required by the Committee (subject to any grace period
established by the Committee in accordance with Treasury
regulations).
(4) Each loan shall bear a fixed interest rate which
shall be equal to the prime rate on the last Valuation Date of
the month preceding the date the loan is applied for as
published in the Wall Street Journal on the business day
following such Valuation Date, plus 1%.
(5) Each Participant requesting a loan shall, as a
condition of receiving such loan, pay such reasonable loan
processing fee as shall be set from time to time by the
Committee. To the extent permitted by the Committee, such fee
may be paid from the loan proceeds.
(6) The Committee may, in its sole discretion,
restrict the amount to be disbursed pursuant to any loan
request to the extent it deems necessary to take into account
any fluctuations in the value of a Participant's accounts
since the date on which the Participant filed a request for a
loan.
(7) The Committee may, in its sole discretion, cause
a charge as an expense to the accounts of any Participant
receiving a loan any reasonable administrative fee for
processing or annual maintenance of such loan.
(c) Loan Default. In the event a Participant defaults on a Plan loan,
the entire unpaid balance of the loan shall become due and payable
immediately. The Committee may declare a loan to be in default if any
of the following events occur:
(1) the termination of his employment with his
Employer for any reason (including death);
(2) the Participant becoming a Disabled Participant;
(3) failure of the Participant to make any payment of
principal or interest on the loan on or before the date such
payment is due;
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(4) the Participant's net paycheck (after all other
payroll deductions) decreases to an amount lower than his
payroll deduction loan repayment amount;
(5) failure of the Participant to perform or observe
any of his covenants, duties or agreements under the
promissory note executed by the Participant with respect to
the loan;
(6) receipt by the Plan of opinion of counsel to the
effect that (1) the Plan will, or could, lose its status as a
qualified plan under section 401(a) of the Code unless the
loan is repaid or (2) the loan violates, or may violate, any
provision of ERISA;
(7) any portion of the Participant's account that is
not in excess of the amount that has been pledged as security
for the loan becomes payable from the Plan to the Participant,
to any beneficiary of the Participant, or to any "alternate
payee" of the Participant pursuant to any qualified domestic
relations order (as defined in section 414(p) of the Code); or
(8) the Participant makes an assignment for the
benefit of creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, or becomes a subject of any
wage earner plan under the federal Bankruptcy Code or under
any applicable state insolvency law, or there is commenced
against the Participant any bankruptcy, insolvency, or other
similar proceeding which remains undismissed for a period of
60 days (or the Participant by an act indicates his consent
to, approval of, or acquiescence in any such proceeding).
Notwithstanding the foregoing, loan repayments may be suspended for (i)
any period during which a Participant takes an authorized unpaid sick
leave from his Employer and (ii) any period of a Participant's unpaid
authorized leave of absence, but in no event for a period exceeding one
year. A default shall occur upon the Participant's resumption of active
employment unless the Participant pays all outstanding amounts in
arrears upon such resumption, or upon the expiration of such one-year
period, if earlier.
In the event a default on a Participant loan occurs and the Participant
does not pay the entire unpaid balance of the loan (with accrued unpaid
interest) within five business days after the date the default occurs,
the Participant's vested interest under the Plan that has been pledged
as security for repayment of the Plan loan shall be applied
immediately, to the extent required, to pay the entire unpaid balance
of the loan (and all accrued unpaid interest thereon); provided,
however, that in the case of a default described in subparagraph (7)
above, the Plan may distribute the Participant's promissory note to the
Participant (or if the Participant has died, to his beneficiary) in
full satisfaction of the Plan's liability to the Participant (or if the
Participant has died, to his beneficiary) with respect to that portion
of the Participant's vested account equal to the outstanding loan
amount
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(including accrued unpaid interest). Notwithstanding the foregoing, no
portion of the Participant's account consisting of, or attributable to,
the Participant's elective deferrals (as defined in section 402(g) of
the Code) shall be applied to pay an outstanding loan before the date
the Participant separates from service or, if earlier, attains age
59 1/2.
Failure by the Committee to enforce strictly Plan rights with respect
to a default on a Plan loan shall not constitute a waiver of such
rights.
(d) Applicability. The provisions of this Section 8.1 shall apply to
any person who is a Participant but who is not an Employee and any
Beneficiary of a deceased Participant if such Participant or
Beneficiary is a "party in interest" as defined in section 3(14) of
ERISA. The grant of a loan pursuant to this Section 8.1 and the terms
and conditions thereof shall apply to any such Participant or
Beneficiary in the same manner as to a Participant who is an Employee,
except that the requirements of Section 8.1(b)(2) shall be met with
respect to each such Participant and Beneficiary if such Participant or
Beneficiary consents to have such loan repaid in substantially equal
installments as determined by the Committee, but not less frequently
than quarterly.
(e) Loan Subaccount. The Committee shall cause to be maintained a loan
subaccount for the receipt of amounts debited from a Participant's
accounts attributable to any loan made pursuant to this Section 8.1.
Appropriate accounting entries reflecting such transfers shall be
concurrent with the disbursement to the Participant of amounts
borrowed. A repayment of interest or principal received in respect of
amounts borrowed by a Participant shall be credited to the loan
subaccount of such Participant as soon as practicable after the
Valuation Date coinciding with or next following the date on which such
payment is made. The Committee shall then cause to be credited such
repayments to the Participant's Deferred Contribution Account, Rollover
Account, Service Award Contribution Account and Matching Contribution
Account in the same proportion as such accounts were charged with the
loan. Repayments so allocated to a Participant shall then be allocated
among such Participant's investment fund subaccounts in accordance with
such Participant's investment direction in effect at the time that such
repayments are credited to the Participant's accounts.
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ARTICLE 9
DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT
9.1 Entitlement to Distribution Upon Termination of Employment. (a)
Vesting. A Participant or his designated Beneficiary, as the case may
be, shall be entitled to receive his or her entire Account balance as
soon as administratively practicable following the date on which the
Participant's termination of employment occurs if the Participant
terminates employment after completing at least five Years of Service,
on account of death, after attainment of age 65 or if such Participant
becomes a Disabled Participant. If a Participant terminates employment
for any other reason before completing five Years of Service, the
balance of such Participant's Matching Contribution Account shall be
forfeited as described in subsection (b) below. A Participant is always
fully vested in the balance of such Participant's Deferred Contribution
Account, Service Award Contribution Account and Rollover Account (if
any).
(b) Forfeitures. If upon a Participant's termination of employment the
Participant is not vested in his Matching Contribution Account as
described in subsection (a) above, the balance of such account shall be
credited to a special forfeiture account established on behalf of such
Participant. Such credit shall occur as of the Valuation Date as of
which the adjusted balance is determined, and such account shall not be
taken into account in determining, nor participate in, the allocations
prescribed by Article 7.
The amount credited to a special forfeiture account established on
behalf of a Participant shall be forfeited as of the earlier of (i) in
the case of a Participant who takes a distribution of the vested
portion of the Participant's interest in the Trust Fund as provided in
Section 9.2, as of the end of the date of such distribution and (ii)
the date as of which the Participant incurs 5 consecutive Break in
Service Years. If such Participant is reemployed prior to taking a
distribution and prior to incurring 5 consecutive Break in Service
Years such special account shall be restored. If upon his or her
termination of employment any such Participant received a lump-sum
distribution pursuant to Section 9.2, then he or she shall have the
right to pay an amount equal to such distribution to the Trustee. If
the Participant makes such a payment, then such special account shall
be restored. Any such payment must be made by the fifth anniversary of
the Participant's date of reemployment. If pursuant to this paragraph
the forfeited portion of a Participant's Matching Contribution Account
is to be restored, the amount restored shall be obtained from the total
amount that has been forfeited pursuant to this paragraph (b) during
the Plan Year in which such Participant is reemployed or the Plan Year
in which such Participant makes the payment set forth above, as the
case may be, from the Matching Contribution Accounts of Participants
employed by the same Employer as the reemployed Participant. If the
aggregate amount to be so restored to the accounts of Participants who
are employees of
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a particular Employer exceeds the amount of such forfeitures, such
Employer shall make a contribution in an amount equal to such excess.
9.2 Form of Distribution.
(a) In General. Any distribution to which a Participant or Beneficiary
becomes entitled upon termination of employment shall be distributed by
the Trustee at the direction of the Committee by payment in a single
lump sum in cash. Notwithstanding the preceding sentence, a Participant
or Beneficiary, as the case may be, may elect to receive distribution
of the portion of such Participant's Account that is invested in
Company Stock in the form of whole shares of Company Stock, with cash
in lieu of fractional shares.
9.3 Time of Distribution. Any distribution to which a Participant or his
Beneficiary becomes entitled upon termination of employment shall be
made as soon as administratively practicable following the date elected
by the Participant or the Participant's designated Beneficiary, as the
case may be, provided, however, that:
(a) subject to Section 10.2, if a Participant fails to make any
election, the Participant's Account shall be distributed in a single
lump sum cash payment no later than 60 days after the end of the Plan
Year in which the Participant attains age 65 (or terminates employment,
if later); provided that, the Participant may make an affirmative
election to defer distribution to a later date, but in no event later
than April 1 of the calendar year following the calendar year in which
the Participant's attains age 70 1/2;
(b) distributions to a Participant's Beneficiary on account of the
Participant's death shall be made no later than December 31 of the
calendar year in which occurs the fifth anniversary of the
Participant's death;
(c) with respect to a Participant who continues in employment after
attaining age 70 1/2, distribution of the Participant's account balance
shall commence no later than the Participant's required beginning date.
For purposes of this paragraph, the term "required beginning date"
shall mean (i) with respect to a Participant who is a 5%-owner (within
the meaning of section 416(i) of the Code) in the calendar year in
which he attains age 70 1/2, April 1 of the calendar year following the
calendar year in which the Participant attains age 70 1/2 and (ii) with
respect to any other Participant, April 1 of the calendar year
following the calendar year in which the Participant retires.
Notwithstanding the foregoing, a Participant who is not a 5%-owner and
who attains age 70 1/2 prior to January 1, 1999, shall be permitted to
elect that distributions commence no later than April 1 of the calendar
year following the calendar year in which the Participant attains age
70 1/2. Distributions made under this paragraph shall be made in
accordance with section 401(a)(9) of the Code and regulations
thereunder.
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9.4 Valuation of Accounts. For purposes of determining the value of a
Participant's account balance under the Plan for purposes of this
Article, the Participant's Account balance shall be valued as of the
date the Participant's request for a distribution is received by the
Committee in acceptable form and substance, or such other date
prescribed by the Committee in conjunction with the Plan's recordkeeper
(such date to be applied in a uniform manner).
ARTICLE 10
SPECIAL PARTICIPATION AND DISTRIBUTION RULES
10.1 Direct Rollover Option. In the case of any distribution (including any
withdrawal) that is an "eligible rollover distribution" within the
meaning of section 402(c)(4) of the Code, a distributee may elect that
all or any portion of such distribution to which he is entitled shall
be directly transferred from the Plan to (i) an individual retirement
account or annuity described in section 408 of the Code, (ii) to this
Plan or another employer's retirement plan qualified under section
401(a) of the Code (the terms of which permit the acceptance of
rollover distributions) or (iii) to an annuity plan described in
section 403(a) of the Code; provided, however, that if the distributee
is a surviving spouse of a Participant, such distribution may be
transferred only to an individual retirement account or annuity.
Notwithstanding the foregoing, a distributee shall not be entitled to
elect to have an eligible rollover distribution transferred pursuant to
this subsection if the total of all eligible rollover distributions
with respect to such distributee for the Plan Year is not reasonably
expected to equal at least $200, or in the case of a partial direct
rollover, the portion so rolled over equals at least $500. For purposes
of this subsection, the term "distributee" shall include (i) a
Participant, (ii) an alternate payee (within the meaning of section
414(p)(8) of the Code) with respect to a Participant under a qualified
domestic relations order or (iii) a surviving spouse of a Participant.
10.2 Distribution of Small Account Balances. If the balance of the
Participant's Account to be distributed under this Section does not
exceed $5,000 (or such other amount prescribed by section 411(a)(11) of
the Code) (such amount referred to herein as the "small benefit
amount"), such balance shall be distributed as soon as administratively
practicable after the end of the calendar quarter in which the
Participant=s termination of employment occurs (or such other time
prescribed by the Committee) in a single lump sum cash payment. For
purposes of the foregoing sentence, if as of the date of any previous
distribution, the value of a Participant's Account exceeds the small
benefit amount, the value of the Participant's Account shall at all
times be deemed to exceed the small benefit amount.
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10.3 Designation of Beneficiary. Each Participant shall have the right to
designate a Beneficiary or Beneficiaries (who may be designated
contingently or successively and that may be an entity other than a
natural person) to receive any distribution to which the Participant is
entitled upon his death pursuant to Section 9.1, provided, however,
that no such designation (or change thereof) shall be effective if the
Participant was married through the one-year period ending on the date
of the Participant's death unless such designation (or change thereof)
was consented to at the time of such designation (or change thereof) by
the person who was the Participant's spouse during such period, in
writing, acknowledging the effect of such consent and witnessed by a
notary public or a Plan representative, or it is established to the
satisfaction of the Committee that such consent could not be obtained
because the Participant's spouse cannot be located or such other
circumstances as may be prescribed in Regulations. Subject to the
preceding sentence, a Participant may from time to time, without the
consent of any Beneficiary, change or cancel any such designation. Such
designation and each change therein shall be made in the form
prescribed by the Committee and shall be filed with the Committee. If
(i) no Beneficiary has been named by a deceased Participant, (ii) such
designation is not effective pursuant to the proviso contained in the
first sentence of this Section, or (iii) the designated Beneficiary has
predeceased the Participant, any undistributed balance of the deceased
Participant's account shall be distributed by the Trustee at the
direction of the Committee:
(a) to the surviving spouse of such deceased Participant, if any,
or
(b) if there is no surviving spouse, to the surviving children of
such deceased Participant, if any, in equal shares, or
(c) if there is no surviving spouse and there are no surviving
children, to the person or persons entitled to benefits under any
group term life insurance plan maintained by the Participant's
Employer on account of the Participant's death, in the shares
prescribed by such plan, if any, or
(d) if there is no surviving spouse, there are no surviving
children and there are no benefits payable under any such group
term life insurance plan, to the Participant's estate.
The marriage of a Participant shall be deemed to revoke any prior
designation of a Beneficiary made by him and a divorce shall be deemed
to revoke any prior designation of the Participant's divorced spouse if
written evidence of such marriage or divorce shall be received by the
Committee before distribution of the Participant's Account balance has
been made in accordance with such designation. If within a period of
three years following the death or other termination of employment of
any Participant the Committee in the exercise of reasonable diligence
has been unable to locate the person or persons entitled to benefits
under this Article 10, the rights of such person or persons shall be
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forfeited, provided, however, that the Plan shall reinstate and pay to
such person or persons the amount of the benefits so forfeited upon a
claim for such benefits made by such person or persons. The amount to
be so reinstated shall be obtained from the total amount that shall
have been forfeited pursuant to this Section 10.3 during the Plan Year
that the claim for such forfeited benefit is made. If the amount to be
reinstated exceeds the amount of such forfeitures, the Employer in
respect of whose Employee the claim for forfeited benefit is made shall
make a contribution in an amount equal to the remainder of such excess.
Any such contribution shall be made without regard to whether or not
the limitations set forth in Section 5.3 will be exceeded by such
contribution.
If there is doubt as to the right of any beneficiary to receive any
amount, the Trustee on instructions of the Plan Administrator may
retain such amount until the rights thereto are determined, or it may
pay such amount into any court of appropriate jurisdiction, and none of
the Plan Administrator, the Committee, the Trustee, the Company or any
Employer shall be liable for any interest on such amount or shall be
under any other liability to any person in respect of such amount.
10.4 Distributions to Minor or Disabled Beneficiaries. Any distribution
which is payable to a person who is a minor or to a person who, in the
opinion of the Committee, is unable to manage his affairs by reason of
illness or mental incompetency may be made to or for the benefit of any
such person in such of the following ways as the Committee shall
direct:
(a) directly to any such minor if, in the opinion of the
Committee, he is able to manage his affairs,
(b) to the legal representative of any such person,
(c) to a custodian under a Uniform Gifts to Minors Act for any
such minor, or
(d) to some near relative of any such person to be used for the
latter's benefit.
Neither the Committee nor the Trustee shall be required to review the
application by any third party of any distribution made to or for the
benefit of a person pursuant to this Section.
10.5 Non-Assignability.
(a) In General. It is a condition of the Plan, and all rights of each
Participant and Beneficiary shall be subject thereto, that no right or
interest of any Participant or Beneficiary in the Plan shall be
assignable or transferable in whole or in part, either directly or by
operation of law or otherwise, including, but not by way of limitation,
execution, levy, garnishment, attachment, pledge or bankruptcy, but
excluding devolution by death or mental incompetency, and no right or
interest of any Participant or Beneficiary in the Plan
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shall be liable for, or subject to, any obligation or liability of such
Participant or Beneficiary, including claims for alimony or the support
of any spouse, except as provided below.
(b) Exception for Qualified Domestic Relations Orders. Notwithstanding
any provision of the Plan to the contrary, if the Plan Administrator
shall receive any written judgment, decree or order (including approval
of a property settlement agreement) pursuant to State domestic
relations or community property law relating to the provision of child
support, alimony or marital property rights of a spouse, former spouse,
child or other dependent of a Participant and purporting to provide for
the payment of all or a portion of the Participant's Account to or on
behalf of one or more of such persons (such judgment, decree or order
being hereinafter called a "domestic relations order"), the Plan
Administrator shall arrange to determine whether such order constitutes
a "qualified domestic relations order," as defined in section 414(p) of
the Code and section 206(d)(3) of ERISA. If the order is determined to
be a qualified domestic relations order, all or a portion of the
Participant's Account, as specified in the order, shall be assigned to
the person or persons named therein, and shall be payable in accordance
with the terms of such order.
The manner in which all or any portion of a Participant=s Account under
the Plan may be assigned and paid to any other person pursuant to the
terms of a domestic relations order shall be governed by procedures
adopted by the Plan Administrator for this purpose, section 414(p) of
the Code, section 206(d)(3) of ERISA and Regulations issued thereunder.
Such procedures shall provide that payments under a domestic relations
order applicable to a Participant's Account under the Plan may commence
as soon as administratively practicable after such order is determined
by the Plan Administrator (or its delegate) to constitute a "qualified
domestic relations order" under section 414(p) of the Code and section
206(d)(3) of ERISA, if the terms of the order so provide.
10.6 Reemployment of Veterans. The provisions of this Section shall apply in
the case of the reemployment by an Employer of an Eligible Employee,
within the period prescribed by USERRA, after the Eligible Employee's
completion of a period of qualified military service (as defined in
section 414(u)(5) of the Code). The provisions of this Section are
intended to provide such Eligible Employees with the rights required by
USERRA and section 414(u) of the Code and shall be interpreted in
accordance with such intent.
(a) Make Up of Deferred Contributions. Such Eligible Employee shall be
entitled to make contributions under the Plan in addition to any
Deferred Contributions which the Eligible Employee elects to have made
under the Plan pursuant to Section 3.1 (such contributions referred to
herein as "Make Up Deferred Contributions"). From time to time while
employed by an Employer, such Employee may elect to make such Make Up
Deferred Contributions during the period beginning on the date of such
Employee's reemployment and ending on the earlier of:
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(i) the end of the period equal to the product of
three and such Employee's period of qualified military
service, and
(ii) the 5th anniversary of the date of such
reemployment.
Such Employee shall not be permitted to contribute Make Up Deferred
Contributions to the Plan in excess of the amount which the Employee
could have elected to have made under the Plan in the form of Deferred
Contributions, as the case may be, if the Eligible Employee had
continued in employment with his Employer during such period of
qualified military service. Such Eligible Employee shall be deemed to
have earned "Compensation" from his Employer during such period of
qualified military service for this purpose in the amount prescribed by
sections 414(u)(2)(B) and 414(u)(7) of the Code. The manner in which an
Eligible Employee may elect to make Make Up Deferred Contributions
pursuant to this subsection (a) shall be prescribed by the Committee.
(b) Make Up of Matching Contributions. An Eligible Employee who makes
Make Up Deferred Contributions as described in subsection (a) shall be
entitled to an allocation of Matching Contributions ("Make Up Matching
Contributions") in an amount equal to the amount of Matching
Contributions which would have been allocated to the Matching
Contribution Account of such Eligible Employee under the Plan if such
Make Up Deferred Contributions had been made in the form of Deferred
Contributions, as the case may be, during the period of such Employee's
qualified military service (as determined pursuant to section 414(u) of
the Code). The Eligible Employee's Employer shall make a special
contribution to the Plan which shall be utilized solely for purposes of
such allocation.
Any contributions made by an Eligible Employee or an Employer pursuant
to this Section on account of a period of qualified military service in
a prior Plan Year shall not be subject to the limitations prescribed by
Sections 3.5, 5.3 and 5.1 of the Plan (relating to sections 402(g), 404
and 415 of the Code, respectively) for the Plan Year in which such
contributions are made.
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ARTICLE 11
SHAREHOLDER RIGHTS WITH RESPECT TO
COMPANY STOCK
11.1 Voting Rights. Each Participant who participates in the Company Stock
Fund (or, in the event of the Participant's death, his beneficiary
under the Plan) is, for purposes of this Section, hereby designated as
a "named fiduciary" (within the meaning of Section 403(a)(1) of ERISA)
with respect to a pro rata portion (as hereinafter determined) of the
unallocated shares of Company Stock in the Company Stock Fund (and
certain allocated shares of Company Stock in the Company Stock Fund as
to which timely directions are not received by the Trustee). Such
Participant shall have the right to direct the Trustee as to the manner
in which shares of Company Stock allocated to his accounts under the
Plan and such other shares of common stock are to be voted on each
matter brought before a meeting of the stockholders of the Company as
set forth below.
When the Company files preliminary proxy solicitation materials with
the Securities and Exchange Commission, the Company shall cause a copy
of all materials to be sent simultaneously to the Trustee. Based on
these materials the Trustee shall prepare a voting instruction form. At
the time of mailing of notice of each annual or special stockholders'
meeting of the Company, the Company shall cause a copy of the notice
and all proxy solicitation materials to be sent to, each Participant
with an interest in the Company Stock Fund, together with the foregoing
voting instruction form to be returned to the Trustee or its designee.
The form shall show the number of full and fractional shares of Company
Stock allocated to the Participant's respective accounts. The Company
shall provide the Trustee with a copy of any materials provided to
Participants and shall certify to the Trustee that the materials have
been mailed or otherwise sent to Participants. Upon timely receipt of
directions from each Participant, the Trustee shall vote as directed,
on each such matter, the number of shares (including fractional shares)
of Company Stock allocated to such Participant's accounts, and the
Trustee shall have no discretion in such matter. If the Trustee shall
not receive timely direction from a Participant as to how shares of
common stock allocated to such Participant's account in the Company
Stock Fund shall be voted, the Trustee shall vote such shares in the
same proportion in which the shares held in the Company Stock Fund for
which it received timely directions were voted, and the Trustee shall
have no discretion in such matter.
For purposes of this Section the shares of Company Stock held in the
Company Stock Fund shall be treated as allocated to the accounts of
Participants in proportion to their respective interests in the Company
Stock Fund as of the immediately preceding record date for ownership of
Company stock for stockholders entitled to vote. If any shares held in
the Company Stock Fund are not allocated to the accounts of
Participants when a matter is brought to the stockholders of the
Company for voting, the Trustee shall vote
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such unallocated shares in the same proportion on each issue in which
responding Participants voted the shares allocated to their accounts in
the Company Stock Fund, and the Trustee shall have no discretion in
such matter. Directions from a Participant pursuant to this Section
shall be held in confidence by the Trustee and shall not be divulged or
released to the Company, or any officer or employee thereof, or any
other person.
11.2 Shareholder Rights in the Event of a Tender Offer. In the event a
tender or exchange offer is made for any shares of Company Stock, each
Participant who participates in the Company Stock Fund is, for purposes
of this Section, hereby designated as a "named fiduciary" (within the
meaning of Section 403(a)(1) of ERISA) with respect to a pro rata
portion (as hereinafter determined) of the unallocated shares of
Company Stock in the Company Stock Fund. Such Participant shall have
the right to direct the Trustee in writing as to the manner in which to
respond to such tender or exchange offer with respect to the shares of
Company Stock allocated to his account in the Company Stock Fund and
with respect to a portion of the unallocated shares of Company Stock as
set forth below.
Upon commencement of a tender or exchange offer for any securities held
in the Trust that are Company Stock, the Company shall notify each
Participant with an interest in such securities of the tender or
exchange offer and utilize its best efforts to distribute timely or
cause to be distributed to the Participant the same information that is
distributed to shareholders of the Company in connection with the
tender or exchange offer and, after consulting with the Trustee, shall
provide and pay for a means by which the Participant may direct the
Trustee whether to tender the Company Stock allocated to the
Participant's accounts. The Company shall provide the Trustee with a
copy of any material provided to Participants and shall certify to the
Trustee that the materials have been mailed or otherwise sent to
Participants. Upon timely receipt of directions from each Participant,
the Trustee shall respond as directed with respect to such shares of
Company Stock allocated to the Participant's account in the Company
Stock Fund. The directions received by the Trustee from Participants
and beneficiaries shall be held by the Trustee in confidence and shall
not be divulged or released to any person, including officers or
employees of the Company or any affiliate thereof, except to the extent
that the consequences of such directions are reflected in reports
regularly communicated to any such persons. If the Trustee shall not
receive timely direction from a Participant as to the manner in which
to respond to such tender or exchange offer with respect to shares of
Company Stock allocated to the Participant's account in the Company
Stock Fund, the Trustee shall not tender or exchange such shares of
Company Stock, as the case may be, and the Trustee shall have no
discretion in such matter.
For purposes of this Section, the shares of Company Stock held in the
Company Stock Fund shall be treated as allocated to the accounts of
Participants in proportion to their respective interests in the Company
Stock Fund as of the immediately preceding record date for ownership of
Company Stock for stockholders entitled to tender. The Committee may
direct the Trustee to make a special valuation of the Company Stock
Fund in
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connection with such tender or exchange offer. If, for any reason,
there are any shares of Company Stock held in the Company Stock Fund
which are not allocated to the accounts of Participants at the
applicable time, the Trustee shall respond to such tender or exchange
offer with respect to such unallocated shares by tendering or
exchanging unallocated shares in the same proportion as the allocated
shares held under the Company Stock Fund for which directions were
received from Participants are tendered or exchanged, and by not
tendering or exchanging the balance of such unallocated shares, and the
Trustee shall have no discretion in such matter.
A Participant who has directed the Trustee to tender or exchange some
or all of the shares of Company Stock allocated to his accounts may, at
any time prior to the tender or exchange offer withdrawal date, direct
the Trustee to withdraw some or all of such tendered or exchanged
shares, and the Trustee shall withdraw the directed number of shares
from the tender or exchange offer prior to the offer withdrawal
deadline. Prior to the withdrawal deadline, if any shares of Company
Stock not allocated to Participants' accounts have been tendered or
exchanged, the Trustee shall redetermine the number of such securities
that would be tendered or exchanged under this Section if the date of
the foregoing withdrawal were the date of determination, and withdraw
from the tender or exchange offer the number of shares of Company Stock
to the extent necessary to reduce the amount of such tendered or
exchanged securities not allocated to Participant's accounts to the
amount so redetermined. A Participant shall not be limited as to the
number of directions to tender or exchange or withdraw that the
Participant may give the Trustee.
A direction by a Participant to the Trustee to tender or exchange
shares of Company Stock allocated to his accounts shall not be
considered a written election under the Plan by the Participant to
withdraw, or have distributed, any or all of his withdrawable shares.
The Trustee shall credit to the account of the Participant from which
the tendered or exchanged shares were taken the proceeds received by
the Trustee in exchange for the shares of Company Stock tendered or
exchanged from that account. Pending receipt of directions (through the
Plan Administrator) from the Participant or the Company as to which of
the remaining investment options the proceeds should be invested in,
the Trustee shall invest the proceeds in such investment fund as
specified by the Committee.
11.3 Applicability. For purposes of this Article, the term "Participant"
shall include any Beneficiary of a deceased Participant and any
alternate payee under a qualified domestic relations order on whose
behalf an account has been established under this Plan.
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ARTICLE 12
ADMINISTRATION
12.1 The Committee. The Board of Directors shall appoint the Committee which
shall consist of at least three members. The Committee shall be the
"administrator" of the Plan within the meaning of section 3(16) of
ERISA, and the Company and the Committee each shall be a "named
fiduciary" of the Plan under ERISA. Administration of the Plan shall be
the responsibility of the Committee except to the extent that authority
to hold the Trust Fund of the Plan has been delegated to the Trustee,
in accordance with Section 12.2, and authority to direct the investment
and reinvestment of the Trust Fund has been delegated to the Committee.
12.2 Investment Committee. The Committee may appoint an investment committee
of at least three members, to invest, or direct the investment of, such
portion of the Trust Fund as the Committee may direct. If so appointed,
the investment committee shall be a "named fiduciary" within the
meaning of ERISA to the extent of its responsibilities under the Plan.
12.3 Authority and Duties of the Committee. The Committee may in its
discretion appoint, use or employ accountants, counsel, financial
specialists (including investment advisors and investment managers, as
defined in ERISA) and such other person or persons (who may be
employees of an Employer) as it deems necessary or desirable in
connection with the administration or management of this Plan and the
Trust Fund. The reasonable fees of such persons, and any other
necessary and proper expenses of the Committee, shall be paid out of
the Trust Fund unless such amounts are paid by the Employers.
The Committee shall have the power and discretionary authority to:
(a) Adopt rules, regulations and procedures with respect to the
administration of the Plan;
(b) Construe this document, the Committee's interpretation of which
in good faith shall be final and binding;
(c) Correct any defect, supply any omission, or reconcile any
inconsistency in this document in that manner and to that extent
which the Committee believes is necessary; and
(d) Resolve all questions which arise under this document, including
directions to and questions submitted by the Trustee, any
insurer or any other entity holding the assets of the Plan on
all matters necessary for it to discharge its powers and duties,
and any questions relating to the eligibility of one or more
Participants for benefits
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from the Plan and the amount of such benefits and the manner and
form in which such benefits may be paid.
The Committee also shall have sole discretion to delegate (with written
notice to the Company and the Trustee) any fiduciary responsibilities
to another person, such as the Plan Administrator or an investment
manager. To the extent those responsibilities are delegated, the
Committee shall be relieved of liability for acts or omissions of the
person or persons to whom responsibilities are delegated, to the
fullest extent permitted by law.
Except as it may delegate the power of interpretation as provided
herein, the Committee shall have the exclusive authority to interpret
the Plan provisions and to exercise discretion where necessary or
appropriate in the interpretation and administration of the Plan and to
decide any and all matters arising thereunder or in connection with the
administration of the Plan. Subject to the claims review procedure
established by the Committee, the decisions, actions and records of the
Committee shall be conclusive and binding upon the Employers,
Participants, and their estates, and any and all persons having, or
claiming to have, any rights or interest in or under the Plan.
The Committee shall adopt and implement a policy for the investment of
the Trust Fund, including notification to the Trustee (or the
investment committee or investment manager, if appointed) of such
policy and periodic review of the performance of the Trustee (or the
investment committee or investment manager, if appointed) to assure
investments consistent with such policy.
12.4 Plan Administrator. The Committee shall appoint a Plan Administrator
who shall be responsible for the daily operation of the Plan within the
policies, interpretations and rules made by the Committee. The Plan
Administrator shall also perform such ministerial functions with
respect to the Plan as the Committee shall from time to time designate.
The Plan Administrator may (but need not) be a member of the Committee.
The Plan Administrator may resign upon 45 days written notice to the
Committee (or shorter notice acceptable to the Committee). The
Committee may, in its sole discretion, remove the Plan Administrator.
The Committee shall have the power to fill a vacancy created by the
resignation, removal or death of the Plan Administrator. The reasonable
fees of accountants, counsel or other consultants, the expenses of
clerical help, and any other necessary and proper expenses of the Plan
Administrator, shall be paid out of the Trust Fund unless such amounts
are paid by the Employers. The Plan Administrator shall report to the
Committee from time to time in order that the Plan Administrator's
performance of his duties may be reviewed.
12.5 Review of Fiduciary Responsibility Designations or Allocations. Each
designation or allocation made under Section 12.3 shall also provide
that the Committee shall periodically meet with the person or persons
to whom the delegation was made to review the performance of the person
to whom duties have been delegated. This review, which may
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be conducted by all Committee members or by a designated review
subcommittee, will permit the Committee to determine whether it should
continue the allocation or designation.
12.6 Reliance on Others. The members of the Committee, the Plan
Administrator and the officers and directors of the Company shall be
entitled to rely upon all certificates and reports made by any duly
appointed accountant, upon all opinions given by any duly appointed
legal counsel, and upon such staff or specialists as they may deem
necessary or desirable to employ with respect to their responsibilities
pursuant to the Plan. Any one or all of the foregoing appointees may
also be currently serving or have served in a similar capacity for an
Employer.
12.7 Liability. Neither the Plan Administrator nor any member of the
Committee shall be liable for any act or omission of any other person,
nor for any act or omission on his own part, excepting only his own
willful misconduct or except as otherwise expressly provided in ERISA.
To the extent permitted by applicable law, each Employer shall
indemnify and save harmless each employee, officer or director of such
Employer acting as a fiduciary (other than the Trustee) against any and
all expenses and liabilities arising out of his fiduciary
responsibilities, excepting only expenses and liabilities arising out
of his own willful misconduct; and the Company shall indemnify and hold
harmless the Plan Administrator for all acts and omissions relating to
his duties as Plan Administrator, except those arising out of his
willful misconduct. Expenses against which such person may be
indemnified hereunder include, without limitation, the amount of any
settlement or judgment, costs, counsel fees and related charges
reasonably incurred in connection with a claim asserted or a proceeding
brought or settlement thereof. The Committee, at an Employer's expense,
may settle any such claim asserted or proceeding brought against such
person when such settlement appears to be in the best interest of such
Employer. The foregoing right of indemnification shall be in addition
to any other rights to which any such person may be entitled as a
matter of law.
12.8 Claims Procedure. For purposes of the Plan, a claim for benefit is a
written application for benefit filed with the Plan Administrator. In
the event that any Participant or other payee claims to be entitled to
a benefit under the Plan, and the Plan Administrator determines that
such claim should be denied in whole or in part, the Plan Administrator
shall, in writing, notify such claimant within 90 days of receipt of
such claim that his claim has been denied, setting forth the specific
reasons for such denial. Such notification shall be written in a manner
reasonably expected to be understood by such Participant or other payee
and shall set forth the pertinent sections of the Plan relied on, and
where appropriate, an explanation of how the claimant can obtain review
of such denial. Within 60 days after the mailing or delivery by the
Plan Administrator of such notice, such claimant may request, by
mailing or delivery of written notice to the Committee, a review and/or
hearing by the Committee of the decision denying the claim. If the
claimant fails to request such a review and/or hearing within such
60-day period, it shall be conclusively determined for all
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purposes of this Plan that the denial of such claim by the Plan
Administrator is correct. If such claimant requests a hearing within
such 60-day period, the Committee shall designate a time (which time
shall be not more than 60 days from the date of such claimant's notice
to the Committee) and a place for such hearing, and shall promptly
notify such claimant of such time and place. If only a review is
requested, the Participant or other payee shall have 30 days after
filing a request for review to submit additional written material in
support of the claim. After such review and/or hearing, the Committee
shall determine whether such denial of the claim was correct and shall
notify such claimant in writing of its determination. If such
determination is favorable to the claimant, it shall be binding and
conclusive. If such determination is adverse to such claimant, it shall
be binding and conclusive unless the claimant notifies the Committee
within 90 days after the mailing or delivery to him by the Committee of
its determination that he intends to institute legal proceedings
challenging the determination of the Committee, and actually institutes
such legal proceeding within 180 days after such mailing or delivery.
ARTICLE 13
PARTICIPATION IN PLAN BY AFFILIATE
13.1 Adoption by Participating Employers. Any entity which is an Affiliate
may, with the consent of the Company, become a participating Employer
in this Plan by adopting the Plan for its eligible Employees, and by
taking such other action as the Company deems necessary or appropriate
to become a party to this Plan and trust established hereunder. The
Company and any other participating Employer may, through an amendment
to the Plan, designate particular divisions or units thereof which
shall be eligible to participate in this Plan.
13.2 Special Provisions for Employees of Acquired Companies.
(a) In approving the adoption of the Plan or its extension to employees
of any organization all or a part of whose business or assets, or both,
are acquired by an Employer by merger, purchase or otherwise, the
Company shall, subject to applicable law, designate the extent, if any,
to which the employees' employment with predecessor companies prior to
the date of such adoption or extension shall be considered in
determining their Years of Service and the extent, if any, to which
benefits with respect to employment prior to the date of such adoption
or extension shall be provided under the Plan. Such designations shall
be indicated in the applicable schedule of any appendices to this Plan.
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(b) The special provisions referred to in subsection (a) above shall,
to the extent applicable, govern as to eligibility for, and amounts of,
benefits payable hereunder, the regular provisions of the Plan
notwithstanding.
ARTICLE 14
AMENDMENT AND TERMINATION
14.1 Amendment. The Board of Directors or the Committee (through action
taken by the Board of Directors in accordance with its By-laws)
reserves the right at any time to amend, modify or suspend the Plan,
any contributions thereunder, the Trust Fund or any contract forming a
part of the Plan in whole or in part and for any reason and without the
consent of any Participant or Beneficiary.
14.2 Termination. The Plan may be terminated in its entirety at any time by
resolution adopted by the Board of Directors. Any participating
Employer may terminate the Plan with respect to its Eligible Employees
by withdrawing from participation in the Plan.
14.3 Full Vesting Upon Termination. Upon a full termination or partial
termination of the Plan, each affected Participant shall become 100%
vested in the balance of such Participant's accounts under the Plan.
14.4 Segregation of Trust. In the event of a partial termination of the
Plan, or the withdrawal therefrom by a participating Employer, the
Committee shall determine the portion of the Trust Fund allocable to
the affected Participants. The Trustee shall select the assets to be
withdrawn or segregated and its valuation of them for that purpose
shall be conclusive. All assets of the Plan withdrawn or segregated
under this provision shall be placed in a separate trust fund as
directed by the Committee.
14.5 Committee Determination Conclusive. The Committee's determination as to
the persons to be provided for, the amounts allocated, or any other
material facts shall be conclusive and binding upon the Trustee and all
claimants to any interest in the Plan.
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ARTICLE 15
TOP-HEAVY PROVISIONS
15.1 Definitions. For purposes of this Article 15, the following terms shall
have the following meanings:
(a) "Determination Date" means, with respect to any Plan Year, the last
Valuation Date of the preceding Plan Year.
(b) "Key Employee" means a Participant or former Participant who is a
"key employee" as defined in section 416(i) of the Code.
(c) "Permissive Aggregation Group" means, with respect to a given Plan
Year, this Plan and all other plans of the Company which may be
aggregated in accordance with section 416(g)(2)(A)(ii) of the Code.
(d) "Present Value of Accounts" means, as of a given Determination
Date, a Participant's Account balance under the Plan as of such
Valuation Date. The determination of the Present Value of Accounts
shall take into consideration distributions made during the Plan Year
ending on the Determination Date and the four preceding years.
(e) "Required Aggregation Group" means with respect to a given Plan
Year, this Plan and all other plans of the Company which, in the
aggregate, meet the requirements of the definition contained in section
416(g)(2)(A)(i) of the Code.
(f) "Top-Heavy" means, with respect to the Plan for a Plan Year:
(1) that the Present Value of Accounts of Key Employees
exceeds 60% of the Present Value of Accounts of all
Participants; or
(2) the Plan is part of a Required Aggregation Group and such
Required Aggregation Group is a Top-Heavy Group, unless the
Plan or such Top-Heavy Group is itself part of a Permissive
Aggregation Group which is not a Top-Heavy Group.
(g) "Top-Heavy Group" means, with respect to a given Plan Year, a group
of Plans of the Company which, in the aggregate, meet the requirements
of the definition contained in section 416(g)(2)(B) of the Code.
15.2 Adjustments for Top-Heavy Years. Notwithstanding any other provision of
the Plan to the contrary, the following provisions of this Section
shall automatically become operative
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and shall supersede any conflicting provisions of the Plan if, in any
Plan Year, the Plan is Top-Heavy.
(a) The minimum Employer contribution during the Plan Year on behalf of
a Participant who is not a Key Employee shall be equal to the lesser of
(1) 3% of such Participant's compensation (within the meaning of
section 415 of the Code); or (2) the percentage of compensation at
which Company contributions (including Company contributions
attributable to a salary reduction arrangement) are made (or required
to be made) under the Plan on behalf of the Key Employee for whom such
percentage is the highest.
(b) In the case of a Participant under this Plan who is not a Key
Employee and who also participates in a defined benefit pension plan of
the Company which is included in the Aggregation Group, the provisions
of subsection (a) above shall be inapplicable, and such defined benefit
pension plan shall provide for a defined benefit minimum pension
benefit in accordance with section 416(c)(1) of the Code.
(c) For Plan Years commencing prior to January 1, 2000, in the case of
a Participant who is or has also participated in a defined benefit plan
of the Company (or any member of the Group that is required to be
aggregated with the Company in accordance with section 415(h) of the
Code) in any Plan Year in which the Plan is Top-Heavy, there shall be
imposed under such defined benefit plan the following limitation in
addition to any limitation which may be imposed as described in Article
5. In any such year, for purposes of satisfying the aggregate limit on
contributions and benefits imposed by section 415(e) of the Code,
benefits payable from the defined benefit plan shall, except as
hereinafter described, be reduced so as to comply with a limit
determined in accordance with section 415(e) of the Code, but with the
number "1.0" substituted for the number "1.25" in the "defined benefit
plan fraction" (as defined in section 415(e)(2) of the Code) and in the
"defined contribution plan fraction" (as defined in section 415(e)(3)
of the Code). Notwithstanding the foregoing, if the application of the
additional limitation set forth in this subsection (c) would result in
the reduction of accrued benefits of any Participant under the defined
benefit plan, such additional limitation shall not become operative, so
long as (1) no additional Company contributions, forfeitures or
voluntary nondeductible contributions are allocated to such
Participant's accounts under any defined contribution plan maintained
by the Company including this Plan and (2) no additional benefits
accrue to such Participant under any defined benefit plan maintained by
the Company. Accordingly, in any Plan Year that the Plan is Top-Heavy,
no additional benefits shall accrue under the defined benefit plan on
behalf of any Participant whose overall benefits under the defined
benefit plan otherwise would be reduced in accordance with the
limitation described in this subsection (c).
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ARTICLE 16
GENERAL PROVISIONS
16.1 Limitation of Rights. The Trust Fund shall be the sole source of
benefits under this Plan, and each Participant or any other person who
shall claim the right to any payment or benefit under this Plan shall
be entitled to look only to the Trust Fund for such payment or benefit,
and shall not have any right, claim or demand therefor against the
Company, an Employer, or any officer or director of the Company or an
Employer.
16.2 No Right to Employment. Nothing herein contained shall be deemed to
constitute a contract of employment between any Employer and any
Employee, to give any Employee the right to be retained in the
employment of any Employer, or to interfere with the rights of an
Employer to discharge any Employee at any time.
16.3 Payments Due to Missing Participants. If the Trustee or the Company is
unable to make payment to any person to whom a payment is due under the
Plan because it cannot ascertain the identity or whereabouts of such
person, and if more than six years after such payment is due, a notice
of payment so due is mailed by the Company to the last known address of
such person as shown on the records of the Company and within three
months after such mailing such person has not made written claim
therefor, the Company may direct that such payment and all remaining
payments otherwise due to such person be cancelled. Furthermore, no
amount shall be cancelled under this Section unless the Plan
Administrator verifies to the Committee that he has furnished to such
Participant, when the Participant first became entitled to receive a
distribution from his account, an individual statement setting forth
the nature, amount and form of the nonforfeitable amounts to which the
Participant is entitled. Any amount so cancelled shall be restored by
the Company if and when the same shall be claimed by such person
entitled to receive it.
16.4 Transfer to an Affiliate. In the case of any individual who becomes a
Participant and who was an employee of an Affiliate, the Plan and the
Trustee may permit a transfer of such individual's accrued benefit, if
any, directly into the Trust from such other trust.
16.5 Election Made Through Telephone System. Unless otherwise specified
herein, any election or consent permitted or required to be made or
given by any Participant and any permitted modification or revocation
thereof, shall be made in writing or shall be given by means of such
interactive telephone system as the Committee may designate from time
to time. Each Participant shall have a personal identification number
or "PIN" for purposes of executing transactions through such Benefits
Express interactive telephone system, and entry by a Participant of his
PIN shall constitute his valid signature for purposes of any
transaction the Committee determines should be executed by means of
such interactive telephone system, including but not limited to
enrolling in the Plan, electing contribution rates, making investment
choices, executing loan documents, and consenting to a
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withdrawal or distribution. Any election made through such interactive
telephone system shall be considered submitted to the Committee on the
date it is electronically transmitted.
16.6 Merger or Consolidation with Another Plan. The Plan shall not merge or
consolidate with, or transfer its assets or liabilities to any other
plan or entity unless each Participant would, if the surviving plan or
entity were then terminated, receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the
benefit which he would have been entitled to receive if the Plan had
terminated immediately before the merger, consolidation or transfer.
16.7 Company Action. Any action to be taken hereunder by the Company shall
be taken by the Board of Directors, or by such officer or officers of
the Company which power to take action under this Plan has been
delegated by the Board of Directors.
16.8 Headings. The headings of the Sections in this Plan are used for
reference only and in the case of any conflict the text of the Plan,
rather than such headings, shall control.
16.9 Gender and Plurals. Masculine pronouns include the feminine as well as
the masculine gender, and words used in the singular include the
plural, wherever appropriate.
16.10 Construction. The Plan shall be construed, regulated, and administered
in accordance with the laws of the State of Illinois, except to the
extent superseded by the Code or ERISA.
Executed on the 9th day of December, 1998.
CORN PRODUCTS INTERNATIONAL INC.
By: /s/ James J. Hirscak
-------------------------------------
Title: Vice President of Human Resources
----------------------------------
ATTEST:
By: /s/ Marcia E. Doane
----------------------------------
Title: Vice President General Council
-------------------------------
and Corporate Secretary
-------------------------------
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EXHIBIT 23(a)
[LOGO OF KPMG]
[LETTERHEAD OF KPMG]
CONSENT OF KPMG LLP
The Board of Directors
Corn Products International, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Corn Products International, Inc. of our report dated February 11, 1998,
relating to the consolidated balance sheets of Corn Products International,
Inc. and Subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1997, which report
appears in the December 31, 1997 annual report on Form 10-K of Corn Products
International, Inc.
/s/ KPMG LLP
Chicago, Illinois
January 29, 1999
