Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
UNIVERSAL FOODS CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-0561070
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
433 East Michigan Street
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
UNIVERSAL FOODS CORPORATION SAVINGS PLAN
(Full title of plan)
Terrence M. O'Reilly, Vice
President, Copy to:
Secretary and General Counsel
Universal Foods Corporation Patrick G. Quick
433 East Michigan Street Foley & Lardner
Milwaukee, Wisconsin 53202 777 East Wisconsin Avenue
(414) 271-6755 Milwaukee, Wisconsin 53202
(Name, address and telephone (414) 297-5678
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Offering Registra-
Registered Registered Per Share Price tion Fee
Common Stock, 1,000,000 $40.4688(1) $40,468,750 $12,263.26
$.10 par value shares (1)
Common Stock 1,000,000 (2) (2) (2)
Purchase Rights rights
Interests in Plan (3) (3) (3) (3)
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for Universal
Foods Corporation Common Stock as reported on the New York Stock
Exchange on September 15, 1997.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
Universal Foods Corporation Savings Plan.
_________________________________
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Universal
Foods Corporation (the "Company") or the Universal Foods Corporation
Savings Plan (the "Plan") with the Commission and are incorporated herein
by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1996.
2. The Plan's Annual Report on Form 11-K for the fiscal year
ended September 30, 1996.
3. All other reports filed by the Company and the Plan
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since September 30, 1996.
4. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, dated
December 29, 1976, as amended by Form 8 dated July 16, 1986, and any other
amendments or reports filed for the purpose of updating such description.
5. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on
Form 8-A, dated September 15, 1988, as amended by Form 8, dated
December 22, 1988, and any other amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Company and the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files 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 in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Terrence M. O'Reilly, Vice President, Secretary and General
Counsel to the Company, has rendered an opinion, which is filed as
Exhibit 5 to this Registration Statement, as to the legality of the
securities offered hereby.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-Laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding; and (ii) in proceedings in which the director
or officer is not successful in the defense thereof, unless (in the latter
case only) it is determined that the director or officer breached or
failed to perform his duties to the Company and such breach or failure
constituted: (a) a willful failure to deal fairly with the Company or its
shareholders in connection with a matter in which the director or officer
had a material conflict of interest; (b) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (c) a transaction from which the director or officer
derived an improper personal profit; or (d) willful misconduct. It should
be noted that the Wisconsin Business Corporation Law specifically states
that it is the public policy of the State of Wisconsin to require or
permit indemnification in connection with a proceeding involving
securities regulation, as described therein, to the extent required or
permitted as described above. Additionally, under the Wisconsin Business
Corporation Law, directors of the Company are not subject to personal
liability to the Company, its shareholders or any person asserting rights
on behalf of the Company or its shareholders, for certain breaches or
failures to perform any duty resulting solely from their status as such
directors, except in circumstances paralleling those in subparagraphs (a)
through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-Laws is not exclusive of any other
rights to which a director or officer of the Company may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law, which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4) Universal Foods Corporation Savings Plan
(5) Legal opinion of Terrence M. O'Reilly
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Terrence M. O'Reilly (contained in
Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement
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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
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 Milwaukee, and
State of Wisconsin, on this 11th day of September, 1997.
UNIVERSAL FOODS CORPORATION
By: /s/ Terrence M. O'Reilly
Terrence M. O'Reilly, Vice President,
Secretary and General Counsel
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated as of September 11, 1997.
Each person whose signature appears below constitutes and
appoints Kenneth P. Manning and Terrence M. O'Reilly, and each of them
individually, his/her true and lawful attorney-in-fact and agent, with
full power of substitution and revocation, for him/her and in his/her
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he/she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
<PAGE>
/s/ Kenneth P. Manning /s/ William V. Hickey
Kenneth P. Manning William V. Hickey
Chairman, Chief Executive Officer, Director
President and Director
(Principal Executive Officer)
/s/ Michael Fung /s/ Leon T. Kendall
Michael Fung Leon T. Kendall
Vice President and Chief Financial Director
Officer
(Principal Financial Officer)
/s/ Michael L. Hennen
Michael L. Hennen James H. Keyes
Chief Accounting Officer and Director
Corporate Controller (Principal
Financial Officer and Controller)
/s/ Michael E. Batten /s/ Guy A. Osborn
Michael E. Batten Guy A. Osborn
Director Director
/s/ John F. Bergstrom
John F. Bergstrom William U. Parfet
Director Director
/s/ James L. Forbes /s/ Essie Whitelaw
James L. Forbes Essie Whitelaw
Director Director
/s/ Dr. Carol I. Waslien Ghazaii
Dr. Carol I. Waslien Ghazaii
Director
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the members of the Universal Foods Corporation Benefits
Administrative Committee, who administer the Plan, have duly caused this
Registration Statement to be signed on the Plan's behalf by the
undersigned, thereunto duly authorized, in the City of Milwaukee, and
State of Wisconsin, on this 11th day of September, 1997.
UNIVERSAL FOODS CORPORATION
SAVINGS PLAN
By: /s/ Richard F. Hobbs
Richard F. Hobbs
By: /s/ Richard Carney
Richard Carney
By: /s/ Patricia L. Wegner
Patricia L. Wegner
Members of the Universal Foods
Corporation Benefits
Administrative Committee
<PAGE>
EXHIBIT INDEX
UNIVERSAL FOODS CORPORATION
FORM S-8 REGISTRATION STATEMENT
Exhibit No. Exhibit
(4) Universal Foods Corporation Savings Plan
(5) Legal Opinion of Terrence M. O'Reilly
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Terrence M. O'Reilly (contained
in Exhibit 5)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page
to this Registration Statement)
UNIVERSAL FOODS CORPORATION
SAVINGS PLAN
(With Amendments through September 30, 1995)
<PAGE>
UNIVERSAL FOODS CORPORATION SAVINGS PLAN
Table of Contents
Page
ARTICLE I. DEFINITION OF TERMS . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.02. Construction . . . . . . . . . . . . . . . . . . 6
ARTICLE II. PARTICIPATION AND VESTING SERVICE . . . . . . . . . . . 7
Section 2.01. Participation . . . . . . . . . . . . . . . . . 7
Section 2.02. Vesting Service . . . . . . . . . . . . . . . . 7
Section 2.03. Period of Severance . . . . . . . . . . . . . . 8
Section 2.04. Eligibility for Allocations . . . . . . . . . . 8
ARTICLE III. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 9
Section 3.01. Election to Make Pre-Tax Deposits . . . . . . . 9
Section 3.02. Amount and Payment of Pre-Tax Deposits . . . . . 9
Section 3.03. Employer Matching Contributions . . . . . . . . 12
Section 3.04. No Liability for Future Contributions . . . . . 13
Section 3.05. Funding Policy . . . . . . . . . . . . . . . . . 13
Section 3.06. Employee After-Tax Contributions . . . . . . . . 14
Section 3.07. Rollovers . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV. PARTICIPANTS' ACCOUNTS AND INVESTMENTS . . . . . . . . . 15
Section 4.01. Establishment of Accounts . . . . . . . . . . . 15
Section 4.02. Allocations . . . . . . . . . . . . . . . . . . 15
Section 4.03. Investment . . . . . . . . . . . . . . . . . . . 17
Section 4.04. Maximum Annual Additions . . . . . . . . . . . . 19
ARTICLE V. BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.01. Retirement . . . . . . . . . . . . . . . . . . . 22
Section 5.02. Death . . . . . . . . . . . . . . . . . . . . . 22
Section 5.03. Disability . . . . . . . . . . . . . . . . . . . 22
Section 5.04. Other Severance from Service . . . . . . . . . . 22
Section 5.05. Distributions . . . . . . . . . . . . . . . . . 23
Section 5.06. Payment for Minor or Incompetent Person . . . . 26
Section 5.07. Voting Rights and Tender Offers . . . . . . . . 26
Section 5.08. Change of Control . . . . . . . . . . . . . . . 27
Section 5.09. Loans . . . . . . . . . . . . . . . . . . . . . 28
Section 5.10. Hardship Withdrawals . . . . . . . . . . . . . . 29
Section 5.11. Withdrawals of Certain After-Tax Contributions . 30
Section 5.12. Withholding/Rollover Rules . . . . . . . . . . . 30
Section 5.13. Quarterly Statement . . . . . . . . . . . . . . 31
ARTICLE VI. ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . 32
Section 6.01. Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration . . . . . . . . . . . . . 32
Section 6.02. Appointment and Authority of Benefits
Administrative Committee . . . . . . . . . . . . . . . . . 32
Section 6.03. Use of Professional Services . . . . . . . . . . 34
Section 6.04. Fees and Expenses . . . . . . . . . . . . . . . 34
Section 6.05. Claims Procedure . . . . . . . . . . . . . . . . 34
Section 6.06. Trustee's Responsibilities . . . . . . . . . . . 35
Section 6.07. Fiduciary Insurance and Indemnification . . . . 35
Section 6.08. Agent for Service of Process . . . . . . . . . . 36
Section 6.09. Allocation of Fiduciary Responsibility . . . . . 36
Section 6.10. Liability for Breach of Co-Fiduciary . . . . . . 36
Section 6.11. Communications . . . . . . . . . . . . . . . . . 36
ARTICLE VII. TRUSTEE AND TRUST FUND . . . . . . . . . . . . . . . . 38
Section 7.01. Trustee and Trust Fund . . . . . . . . . . . . . 38
Section 7.02. Investment of Trust Fund . . . . . . . . . . . . 38
Section 7.03. Acquisition of UFC Stock . . . . . . . . . . . . 38
ARTICLE VIII. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . 39
Section 8.01. Amendment . . . . . . . . . . . . . . . . . . . 39
Section 8.02. Termination . . . . . . . . . . . . . . . . . . 39
Section 8.03. Non-Reversion of Assets . . . . . . . . . . . . 39
ARTICLE IX. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 40
Section 9.01. Participants to Furnish Information . . . . . . 40
Section 9.02. Non-Guarantee of Employment or Other Benefits . 40
Section 9.03. Mergers, Consolidations and Transfers of Plan
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 9.04. Spendthrift Clause . . . . . . . . . . . . . . . 40
Section 9.05. Exclusive Benefit . . . . . . . . . . . . . . . 41
Section 9.06. Successors and Assigns . . . . . . . . . . . . . 41
Section 9.07. Top-Heavy Restrictions . . . . . . . . . . . . . 41
Section 9.08. Retroactive Effective Date . . . . . . . . . . . 43
Appendix A 44
UNIVERSAL FOODS CORPORATION
SAVINGS PLAN
Effective January 1, 1989, the Universal Foods Corporation
Savings and Profit Sharing Plan is restated hereunder as the Universal
Foods Corporation Savings Plan for the purpose of complying with various
statutory and regulatory revisions and to implement other changes.
Amendments adopted through January 1, 1990 are incorporated herein.
ARTICLE I. DEFINITION OF TERMS
Section 1.01. Definitions. The following words and phrases
when used herein shall have the following respective meanings, unless the
context clearly indicates otherwise:
(a) "Acquisition Loan" means a loan (or other extension of
credit) used by the Trustee to finance the acquisition of UFC Stock or to
repay a prior Acquisition Loan, which loan may constitute an extension of
credit to the Trust Fund from a party in interest (as defined in ERISA).
(b) "Affiliate" means any Employer and any other corporation
which is a member of a controlled group of corporations (within the
meaning of Section 1563(a) of the Code determined without regard to
subsections (a)(4) or (e)(3)(C) thereof) which includes an Employer.
(c) "Beneficiary" means the person, trust and/or other entity
entitled to receive benefits in the event of the Participant's death. A
Participant shall designate his Beneficiary on the form and in the manner
prescribed by the Benefits Administrative Committee and such designation
may be changed or withdrawn by the Participant at any time. The most
recent valid designation on file with the Benefits Administrative
Committee at the time of the Participant's death shall be the Beneficiary.
Notwithstanding the foregoing, in the event the Participant is married at
the time of his death, the Beneficiary shall be the Participant's spouse
at such time unless such spouse consented in writing to the designation of
an alternative Beneficiary after notice of the spouse's rights and such
consent was witnessed (i) by a Plan representative appointed by the
Benefits Administrative Committee or (ii) by a notary public. In the
event no valid designation of a Beneficiary is on file with the Benefits
Administrative Committee at the date of death or no designated Beneficiary
survives him, the Participant's spouse shall be deemed the Beneficiary; in
the further event the Participant is unmarried or his spouse does not
survive him, the Participant's estate shall be deemed to be his
Beneficiary.
(d) "Benefits Administrative Committee" means the Benefits
Administrative Committee of the Company appointed by the Finance
Committee.
(e) "Benefits Investment Committee" means the Benefits
Investment Committee of the Company appointed by the Finance Committee.
(f) "Code" means the Internal Revenue Code of 1986, as
interpreted and applied by regulations and rulings issued pursuant
thereto, all as amended and in effect from time to time.
(g) "Company" means Universal Foods Corporation, a Wisconsin
corporation, or any successor thereto.
(h) "Compensation" means effective October 1, 1989 a
Participant's total taxable base salary or wages from the Employers before
deductions, together with any overtime pay, commissions, bonuses, Pre-Tax
Deposits hereunder, salary reduction contributions to any plan maintained
by an Employer pursuant to Code Section 125, and salary reduction
contributions to the Management Income Deferral Plan or Executive Income
Deferral Plan, but exclusive of any other deferred compensation, any
distribution of stock, imputed income due to life insurance coverage,
contest prizes, severance pay, car allowance, any other form of additional
remuneration and/or expense reimbursement which the Benefits
Administrative Committee, in its sole discretion, determines not to be
compensation hereunder, and any amounts received for a payroll period
which ends with a day on which the Participant is not an Employee;
provided, however, effective October 1, 1989, the maximum annual
compensation utilized herein for any Employee shall be Two Hundred
Thousand Dollars ($200,000) (or such higher amount permitted pursuant to
applicable regulations due to cost of living increases). Effective
October 1, 1994, the maximum annual compensation utilized herein for any
Employee shall be One Hundred Fifty Thousand Dollars ($150,000) (or such
other amount permitted pursuant to Code Section 401(a)(17) or applicable
regulations). Notwithstanding the preceding $200,000 and $150,000
limitations, earnings received during an October, November, or December
period a Participant is not permitted to make Pre-Tax Deposits due to a
restriction under Section 3.02(e) shall not be treated as Compensation for
purposes of the Compensation limitation. For this definition, "bonuses"
shall be calculated on a paid, not an accrued, basis. Prior to October 1,
1989, "Compensation" excludes overtime pay, commissions, and bonuses.
(i) "Employee" means any person actively employed by an
Employer on its United States payroll who is not in a collective
bargaining unit with which an Employer has a bargaining agreement unless
such agreement specifically provides that persons in such unit shall be
covered by the Plan and is in a group of employees designated in Appendix
A by the Benefits Administrative Committee. A person who is a "leased
employee" within the meaning of Code Section 414(n) and (o) shall not be
eligible to participate in the Plan, but in the event such a person was
participating or subsequently becomes eligible to participate herein,
credit shall be given for the person's service as a leased employee toward
completion of the Plan's eligibility and vesting requirements, including
any service for a member of the controlled group or affiliated service
group.
(j) "Employee After-Tax Contributions" means amounts
designated by Participants pursuant to Section 3.06 which are after-tax
contributions.
(k) "Employer" means the Company and each subsidiary or
affiliate corporation with a United States payroll designated by the
Benefits Administrative Committee as an Employer hereunder.
(l) "Employer Matching Contributions" means amounts
contributed by the Employers pursuant to Section 3.03 based on the Matched
Pre-Tax Deposits of Participants.
(m) "Employment Commencement Date" means the first date on
which a person completes an hour of service, which is an hour for which an
Employee is directly or indirectly paid or entitled to payment by an
Employer or any Affiliate, and shall include hours for which back pay has
been awarded or paid.
(n) "ERISA" means the Employee Retirement Income Security Act
of 1974, as interpreted and applied by regulations and rulings issued
pursuant thereto, all as amended and in effect from time to time.
(o) "Finance Committee" means the Finance Committee of the
Board of Directors of the Company.
(p) "Financed Shares" means shares of UFC Stock acquired by
the Trust Fund with the proceeds of an Acquisition Loan.
(q) "Matched Pre-Tax Deposits" means Pre-Tax Deposits by a
Participant which are subject to matching by Employer Matching
Contributions.
(r) "Participant" means any Employee who has satisfied the
conditions of Section 2.01.
(s) "Plan" means the employee benefit arrangement herein
contained, as amended and in effect from time to time, which plan shall be
known as the "Universal Foods Corporation Savings Plan". The governing
documents for the Plan shall include this plan document, any amendments
hereto, any agreement with any Trustee and any amendments thereto,
resolutions of the Finance Committee relating hereto and such uniformly
applicable rules, regulations and standards promulgated by the Benefits
Administrative Committee consistent and in accordance with the terms
hereof and ERISA requirements. For purposes of the Internal Revenue
Service and Department of Labor, the Plan is composed of two "plans", a
cash or deferred profit sharing plan pursuant to Code Section 401(k) and
an employee stock ownership plan pursuant to Code Sections 409 and 4975.
The assets of the latter plan shall be limited to Employer Matching
Contributions for plan years after September 30, 1988, any Acquisition
Loans and Financed Shares, and any assets attributable thereto.
(t) "Plan Year" means the twelve (12) month period ending on
any September 30.
(u) "Pre-Tax Deposits" means amounts designated by
Participants pursuant to Section 3.02 which are contributed by the
Employers in lieu of payment of an equal amount to the Participants as
compensation. Matched Pre-Tax Deposits are subject to matching by
Employer Matching Contributions, but Unmatched Pre-Tax Deposits are not.
(v) "Severance from Service" means the earliest to occur of
the following:
(i) the date that a Participant quits, retires,
is terminated or dies, whichever occurs
first;
(ii) subject to Section 2.03 hereof, the first
anniversary of the date a Participant
commences a continuous absence from service
with the Affiliates for any other reason,
such as illness, disability, layoff,
vacation, or authorized leave of absence;
provided, however, that for purposes of the
Plan, "an authorized leave of absence" means
an absence from active service with the
Affiliates which an Affiliate authorizes
pursuant to uniform rules consistently
applied in like circumstances for its
personnel who are similarly situated in
respect to such Participant; or
(iii) the date as of which the Participant is
suffering from a disability as evidenced by
receipt of either long-term disability
benefits from a plan sponsored by the
employers or Social Security disability
benefits.
(w) "Trust" means the Trust adopted pursuant to the Universal
Foods Corporation Savings and Profit Sharing Plan Trust Agreement
effective as of October 1, 1976 and as amended and in effect from time to
time, between the Company and the Trustee for the purpose of funding, in
whole or in part, the benefits provided hereunder.
(x) "Trust Fund" means the assets of the Trust as in effect
from time to time.
(y) "Trustee" means Marshall & Ilsley Trust Company or any
successor or successors thereto appointed to hold and administer the
Trust.
(z) "UFC Stock" means common stock of the Company and/or
noncallable preferred stock of the Company which is convertible into
common stock of the Company.
(aa) "Unmatched Pre-Tax Deposits" means Pre-Tax Deposits by a
Participant which are not subject to matching by Employer Matching
Contributions.
(bb) "Vesting Service" means a Participant's years of
employment which are credited under Section 2.02 hereof.
Section 1.02. Construction. (a) Words used herein in the
masculine gender shall include the feminine and words used herein in the
singular shall include the plural in all cases where such would apply.
The words "hereof", "herein", "hereunder" and other similar compounds of
the word "here" shall refer to the entire Plan, not to a particular
article or section hereof. Headings of articles, sections and subsections
are for convenience of reference only; they constitute no part of the Plan
and are not to be considered in the construction hereof. All references
to statutory sections shall include the section so identified as amended
from time to time or any other statute of similar import.
(b) The Plan is composed of two "plans", one intended to be a
cash or deferred arrangement meeting the requirements of Sections 401(k)
and 401(m) of the Code and the other a stock bonus plan meeting the
requirements of Sections 401(a) and 4975(e)(7) of the Code. It shall be
interpreted so as to comply with the applicable requirements thereof,
where such requirements are not clearly contrary to the express terms
hereof. In all other respects, the Plan shall be construed and its
validity determined according to the laws of the State of Wisconsin to the
extent such laws are not preempted by applicable requirements of federal
law. In case any provision of the Plan shall be held illegal or invalid
for any reason, such illegality or invalidity shall not affect the
remaining provisions of the Plan, and the Plan shall be construed and
enforced as if said illegal or invalid provisions had never been included
herein.
ARTICLE II. PARTICIPATION AND VESTING SERVICE
Section 2.01. Participation. (a) An Employee shall become a
Participant hereunder as of the later of the date of becoming an Employee
or the completion of the qualifying period. The qualifying period shall
be satisfied on the Employee's Employment Commencement Date except for
those whose customary employment is at a rate less than one thousand
(1,000) hours of service during a year as determined by the Benefits
Administrative Committee. For such Employees, the qualifying period is
the completion of the twelve (12) month period commencing on the
individual's Employment Commencement Date or any Plan Year which commences
after such Date during which such twelve (12) month period the employee
earns one thousand (1,000) hours of service. Notwithstanding anything
herein to the contrary, any Employee who was employed by Fantasy Flavors,
Inc. on September 16, 1991, shall be eligible to participate in the Plan
as of, but no earlier than, January 1, 1992.
(b) For purposes of this Section and Section 2.04, an hour of
service is an hour for which a person is directly or indirectly paid by an
Affiliate for the performance of duties. Hours of service shall also
include each hour not credited under the preceding sentence for which back
pay has been either awarded or agreed to, and each of the first five
hundred one (501) hours during a single continuous period of absence for
which a person is paid or entitled to payment directly or indirectly for
vacation, holiday, illness, incapacity (including disability), layoff,
jury duty, military duty, or leave of absence. Notwithstanding the
foregoing, no credit shall be given for payments pursuant to applicable
workers' compensation or unemployment compensation or disability insurance
laws. With respect to a person for whom records of hours are not
regularly maintained, such person shall be assumed to have earned
forty-five (45) hours of service in any week in which the person earns at
least one (1) hour under the foregoing rules. The Benefits Administrative
Committee shall determine each person's hours of service in accordance
with Department of Labor Regulations '2530.200b-2(b) and (c).
Section 2.02. Vesting Service. Each Employee's eligibility for
benefits hereunder shall be based in part upon such Employee's years of
Vesting Service. Subject to Section 2.03 hereof, each Employee shall be
credited with Vesting Service for the period beginning on his Employment
Commencement Date and ending on the date of his Severance from Service,
less any period(s) of severance during such period which exceed(s) twelve
(12) months in duration. Service shall be calculated based on years,
months and days. An Employee of an acquired business shall be given
Vesting Service for employment prior to the acquisition date only to the
extent determined by the Benefits Administrative Committee.
Notwithstanding the foregoing, the Vesting Service as of December 31, 1991
of any Employee who was a participant in the Fantasy Flavors, Inc. Savings
and Investment Plan or the Fantasy Flavors, Inc. Profit Sharing Plan on
that date shall be the greater of (i) the amount that would have been
credited to the Employee under the elapsed time method of this Plan as if
Fantasy Flavors, Inc. had been an Affiliate or (ii) the "Years of Service"
earned by the Employee as of such date under the Fantasy Flavors, Inc.
Profit Sharing Plan.
Section 2.03. Period of Severance. (a) For purposes of this
Article, a "period of severance" shall commence on an Employee's Severance
from Service and shall end on the date the Employee first performs paid
services as an employee of an Affiliate following such date, and said
period shall be calculated in years, months and days.
(b) If an Employee who is not entitled to a vested benefit
pursuant to Article V hereof incurs a period of severance of at least
twelve (12) months which equals or exceeds the period of Vesting Service,
the Employee's Vesting Service earned prior to the period of severance
shall be cancelled and disregarded under Section 2.02 for all purposes of
the Plan; provided, however, that service shall be reinstated if the
individual is reemployed within a period of time not longer than
seventy-two (72) months.
(c) Any former Participant who is rehired as an Employee
shall be a Participant immediately. Upon such subsequent participation,
the Vesting Service credited after the rehire shall be added to the
Vesting Service earned prior to the rehire unless otherwise cancelled
pursuant to subsection (b) above.
Section 2.04. Eligibility for Allocations. Participants who
are eligible for allocations of Employer Matching Contributions pursuant
to Section 4.02 for any Plan Year shall be those identified below but
shall not include any other Participant whose employment with the
Employers was severed during the Plan Year due to any other reason:
(i) each Participant who is employed by an
Employer on the last day of such Plan Year,
treating a permanent layoff as a termination
of employment but not a temporary layoff;
(ii) each Participant whose service with an
Employer was severed during such year on
account of death, disability, or retirement
on or after attainment of age fifty-five
(55) with at least ten (10) years of Vesting
Service, and
(iii) with respect to any sale or closing of an
Employer's location, to the extent
specifically authorized by the Benefits
Administrative Committee, any Participant
whose Severance from Service was due to such
sale or closing.
ARTICLE III. CONTRIBUTIONS
Section 3.01. Election to Make Pre-Tax Deposits. A Participant
may file a written election to make Pre-Tax Deposits under the Plan to be
effective on the participation date in Section 2.01. A Participant is not
required to elect to make Pre-Tax Deposits immediately upon completion of
the participation requirements but may, subject to any rules the Benefits
Administrative Committee may adopt, file the election at a later date.
The election shall be filed with the Benefits Administrative Committee on
such form, in the manner, and by the time the Benefits Administrative
Committee prescribes. The election shall be effective as of the
participation date if timely filed or, if not, as of the payroll period
following the timely filing of such election. An election shall continue
in effect until suspended or terminated pursuant to the terms of the Plan.
Section 3.02. Amount and Payment of Pre-Tax Deposits. (a)
Amount. At the time of the election under Section 3.01, the Participant
shall select the rate of Pre-Tax Deposits, which shall be any whole
percentage of Compensation up to a maximum of ten percent (10%). The
first four percent (4%) of such contributions for a Plan Year shall be
Matched Pre-Tax Deposits subject to Employer Matching Contributions. Any
remaining contributions for a Plan Year up to six percent (6%) of
Compensation while a Participant and Employee hereunder shall be Unmatched
Pre-Tax Deposits.
(b) Change in Rate. The rate of a Participant's Pre-Tax
Deposits shall remain in effect and may be changed as of the payroll
period following the timely filing of an appropriate election with the
Benefits Administrative Committee pursuant to such rules as are prescribed
by the Benefits Administrative Committee.
(c) Payment. Pre-Tax Deposits shall be made by payroll
deduction and shall commence with the payroll period in which the election
is effective. Contributions received by the Employers through payroll
deduction shall be remitted to the Trustee as soon as administratively
practicable as determined by the Benefits Administrative Committee but in
no event less frequently than monthly.
(d) Suspension. A Participant may elect in writing to
suspend making any Pre-Tax Deposits effective with the payroll period
following the timely filing of an appropriate election with the Benefits
Administrative Committee pursuant to such rules as are prescribed by the
Benefits Administrative Committee. A Participant's Pre-Tax Deposits shall
be automatically suspended as of the time the Participant ceases to be an
Employee. In addition, a Participant's Pre-Tax Deposits shall be
automatically suspended for a minimum period of twelve (12) months
following any hardship withdrawal of Pre-Tax Deposits pursuant to Section
5.10. A Participant whose Pre-Tax Deposits are suspended may resume
contributions after the minimum period of suspension by an election
pursuant to subsection (b) above.
(e) No Participant shall contribute Pre-Tax Deposits in
excess of $7,000 in any calendar year (or such higher amount permitted
pursuant to Code Section 402(g)) less the amount of any elective deferrals
under all other plans, contracts or arrangements maintained by the
Company. In addition,the Plan is subject to the limitations of Code
Section 401(k) which are incorporated herein by this reference.
Accordingly, the actual deferral percentage for highly compensated
employees as defined in Code Section 414(q) shall not exceed the greater
of:
(i) the actual deferral percentage of the
nonhighly compensated employees multiplied
by 1.25, or
(ii) the lesser of (A) the actual deferral
percentage of the nonhighly compensated
employees plus two percentage points, or (B)
the actual deferral percentage of the
nonhighly compensated employees multiplied
by 2.0,
subject to such other applicable limit as may be prescribed by the
Secretary of the Treasury to prevent the multiple use of this alternative
limitation. In order to ensure the favorable tax treatment of Pre-Tax
Deposits hereunder pursuant to Code Section 401(k) or to ensure compliance
with Code Section 402(g) or 415, the Administrator in its discretion may
prospectively decrease the rate of Pre-Tax Deposits of any Participant at
any time and, to the extent permitted by applicable regulations, may
direct the Trustee to refund Pre-Tax Deposits to any Participant. Any
excess contributions, determined (i) after application of the family
aggregation rules and use of qualified nonelective contributions and/or
qualified matching contributions as helpful in the actual deferral
percentage test, and (ii) by leveling the highest deferral ratios until
the test is satisfied, and excess deferrals shall be distributed including
applicable income determined pursuant to applicable regulations, including
gap period income after 1988, together with any applicable matching
contribution. The amount of a required distribution of excess deferrals
shall be reduced in whole or in part by a prior distribution to such
participant of excess contributions for the applicable period and vice
versa. Leveling with respect to an aggregated family group shall apply
only to the highly compensated members thereof unless the nonhighly
compensated members' contributions were used to determine the applicable
percentage in which case all members are considered for leveling purposes
in proportion to their contributions. Such distributions shall be made
during the plan year following the year the excess contributions were
made, and the amount shall be determined based on the respective portions
attributable to each highly compensated employee. In the discretion of
the Finance Committee the Employers shall make a special nonelective
contribution allocable to the accounts of Participants who are non-highly
compensated employees as defined in Section 414(q) of the Code in the
manner determined by the Finance Committee in order to satisfy the
requirements of Code Section 401(k); and such contributions shall be fully
vested and treated hereunder as Unmatched Pre-Tax Deposits. For purposes
of this Section, "highly compensated employee" means an individual who
during the current Plan Year or the preceding Plan Year:
(i) was at any time a 5% owner of the
Affiliates;
(ii) received compensation from the
Affiliates in excess of $75,000 (or
such higher amount permitted
pursuant to Code Section 414(q));
(iii) received compensation from one or
more Affiliates in excess of $50,000
(or such higher amount permitted
pursuant to Code Section 414(q)) and
was in the top 20%, when ranked on
the basis of compensation, of the
employees of the Affiliates
(disregarding the determination of
the total number of employees, but
not in the identification of the top
20%, employees who have not
completed 6 months of service,
employees who normally work less
than 172 hours per week or 6 months
per year and nonresident aliens who
receive no earned income from
sources within the United States);
or
(iv) was at any time an officer of an
Affiliate and received compensation
from the Affiliates greater than 50%
of the amount in effect under Code
Section 415(b)(1)(A) for such year;
provided, however, that no more than
50 employees shall be taken into
account under this paragraph. If no
officer of the Affiliates meets this
definition, the highest paid officer
of the Affiliates shall be treated
as described in this paragraph.
Notwithstanding the foregoing, an individual who did not satisfy (ii),
(iii) or (iv) during the preceding Plan year shall only be considered
highly compensated if, during the current Plan Year, he is among the 100
most highly compensated individuals employed by all Affiliates. For
purposes of determining who is a highly compensated employee, a family
member of a 5% owner or of one of the 10 most highly compensated
individuals employed by the Affiliates shall not be considered a separate
individual and, further, any compensation paid to such family member or
contribution made on his behalf shall be attributed to the highly
compensated employee described above. An individual shall be considered
to be a "family member" only if such individual is the employee's spouse,
lineal ascendant or descendant or the spouse of a lineal ascendant or
descendant. "Compensation" for purposes of determining who is a highly
compensated individual under this Section, has the meaning set forth in
code Section 415(c)(3), but prior to reduction on account of a
Participant's Pre-Tax Deposits to this Plan or any other contributions not
treated as taxable income by reason of Code Section 125 or 402(a)(8).
Section 3.03. Employer Matching Contributions. (a) For each
Plan Year, the Employers shall contribute in cash and/or UFC Stock to the
Trust Fund an amount which, when aggregated with (i) forfeitures allocable
for such year pursuant to Section 5.04(b), (ii) investment earnings and
losses as of September 30 of such Plan Year on any such contributions made
prior to September 1 of such Plan Year, and (iii) the fair market value of
Financed Shares released from the Loan Suspense Account described in
Section 4.02(c), if any, results in an allocation equal to the Matched
Pre-Tax Deposits made to the Plan for such year by Participants eligible
for allocations as defined in Section 2.04. Notwithstanding the
foregoing, the Employers shall contribute each year such amount, if any,
as may be necessary to permit the Trustee to pay currently maturing
obligations under an Acquisition Loan, taking into account dividends and
other income available to the Trustee for that purpose.
(b) The Employers' contribution for any Plan Year shall be
paid to the Trust Fund not later than the time prescribed by law,
including any extensions thereof, for filing the Employers' federal income
tax returns with respect to such Plan Year.
(c) If any Employer contributes an amount in excess of the
amount it would otherwise have contributed but for a mistake of fact, such
excess, less any losses thereon since its contribution, may, upon the
request of the Employer, be returned to the Employer within one (1) year
from the date of the mistaken contribution, but no such return shall cause
any Participant's account to be reduced to an amount below the amount such
account would contain if the mistaken contribution had not been made.
(d) The Plan is subject to the limitations of Code Section
401(m) which are incorporated herein by this reference. Accordingly, the
actual contribution percentage of employer contributions for highly
compensated employees as defined in Code Section 414(q) shall not exceed
the greater of:
(i) the actual contribution percentage of the
nonhighly compensated employees multiplied
by 1.25, or
(ii) the lesser of (A) the actual contribution
percentage of the nonhighly compensated
employees plus two percentage points, or (B)
the actual contribution percentage of the
nonhighly compensated employees multiplied
by 2.0,
subject to such other applicable limit as may be prescribed by the
Secretary of the Treasury to prevent the multiple use of this alternative
limitation. Any required corrections shall be made in accordance with
Section 3.03(f).
(e) Notwithstanding subsection (a), in the event
contributions are made in the form of UFC Stock instead of cash, the
Employer contributions made to achieve the level of allocations required
hereunder shall be determined by using an average of the closing prices of
UFC Stock on the New York Stock Exchange for the last five (5) days of the
Plan Year on which UFC Stock is actually traded, and contributing
sufficient UFC Stock so that as of the last day of the Plan Year the
eligible Participant's account shall be credited with the value of the
number of whole and fractional shares of UFC Stock which, when multiplied
by the five (5) day average price, will equal the required allocation. In
the event that cash contributions are made and invested in UFC Stock prior
to September 1 of the applicable Plan Year, the amount of required cash
contributions after August 31 of the Plan Year will be equal to the total
contribution required pursuant to subsection (a) less the product of the
number of whole and fractional shares resulting from the prefunding
contributions multiplied by the five (5) day average price.
(f) Limitations. In order to ensure compliance with Code
Section 401(m), any excess aggregate contributions, determined (i) after
application of the family aggregation rules and use of qualified matching
contributions in the actual deferral percentage test, and (ii) by leveling
the highest contribution ratios until the test is satisfied, shall be
distributed, including applicable income determined pursuant to applicable
regulations, including gap period income after 1988 together with any
applicable matching contribution. Such distributions shall be made during
the plan year following the year the excess aggregate contributions were
made, and the amount shall be determined based on the respective portions
attributable to each highly compensated employee and based on compensation
while a participant as defined in Section 3.02(e) above.
Section 3.04. No Liability for Future Contributions. Benefits
and distributions under the Plan shall be only such as can be provided by
the Trust Fund assets, and there shall be no liability or obligation on
the part of any Employer to make any further contributions except as
otherwise provided herein.
Section 3.05. Funding Policy. The funding policy for the Plan
is that Employer contributions shall be made and the Trust Fund managed in
a manner consistent with the Code, ERISA, and other applicable law for the
purposes of providing the benefits described herein and, to the extent
permitted by such law, defraying the reasonable expenses of administering
the Plan and Trust Fund.
Section 3.06. Employee After-Tax Contributions. No Employee
After-Tax Contributions shall be accepted after September 30, 1989.
Employee After-Tax Contributions made prior to October 1, 1989 shall be
retained in the Plan in accordance with the terms hereof.
Section 3.07. Rollovers. The Benefits Administrative Committee
may, in its discretion, direct the Trustee to accept benefits (in the form
of cash) of any Participant arising out of participation in an employee
pension benefit plan maintained by an Employer or a former employer of
such person, as a qualified plan under Section 401 or 403 of the Code to
the extent that such benefits constitute a "qualifying rollover
distribution" under Section 402(a)(5) of the Code or the proceeds from a
rollover individual retirement account under Section 408(d)(3) of the
Code. In no event shall amounts representing nondeductible employee
contributions be transferred to this Plan pursuant to this Section. Any
amount so transferred shall be treated for all purposes of the Plan as
fully vested, shall be given special designation by the Trustee in order
to provide for the proper administration of the Plan, and shall be subject
to such rules and regulations as shall be determined by the Benefits
Administrative Committee.
ARTICLE IV. PARTICIPANTS' ACCOUNTS AND INVESTMENTS
Section 4.01. Establishment of Accounts. The Benefits
Administrative Committee shall establish a separate account for each
Participant with subaccounts for (i) Pre-Tax Deposits, (ii) Employer
Matching Contributions, forfeitures, and shares released from the Loan
Suspense Account pursuant to Section 4.02, (iii) Employee After-Tax
Contributions, (iv) any amount related to the Fantasy Flavors, Inc. Profit
Sharing Plan, and (v) any amount related to the Fantasy Flavors, Inc.
Savings and Investment Plan which shall be further subdivided to reflect
the amounts attributable to pre-tax, after-tax and employer matching
contributions under such plan. The Employer Matching Contribution
subaccount shall be further subdivided to reflect (i) the amount
attributable to the account, adjusted for changes in value, as of the end
of the Plan Year prior to the execution of an Acquisition Loan and (ii)
the amount attributable to Section 4.02(b) allocations for the Plan Year
in which an Acquisition Loan is incurred and for each Plan Year
thereafter. As necessary, investment subaccounts shall be established to
reflect the investment of these subaccounts in the various investment
funds provided herein. The establishment of separate Participant accounts
and subaccounts shall not require a segregation of Trust Fund assets, and
neither the Employers, Participants, former Participants, nor
Beneficiaries shall acquire any right to or interest in any specific asset
of the Trust Fund as a result of any allocation provided for herein.
Section 4.02. Allocations. (a) Subject to the limitations in
Sections 3.02, 3.06, and 4.04, as of the end of each calendar quarter, the
Benefits Administrative Committee shall allocate the Participant's Pre-Tax
Deposits and Employee After-Tax Contributions to the appropriate
subaccounts in accordance with the Participant's investment directions
given pursuant to Section 4.03.
(b) Subject to the limitations in Section 3.03 and 4.04, as
of the end of each Plan Year, the Benefits Administrative Committee shall
allocate to the account of each eligible Participant, as determined
pursuant to Section 2.04, an amount equal to the Participant's Matched
Pre-Tax Deposits for such Plan Year. Such allocation shall be derived
from (i) forfeitures, (ii) Employer Matching Contributions and any
earnings or losses on such amounts contributed prior to September 1 of the
Plan Year, and (iii) the then current fair market value of Financed Shares
released from the Loan Suspense Account described in subsection (c), if
any.
(c) Financed Shares shall initially be credited to a "Loan
Suspense Account" and shall be released and allocated pursuant to
subsection (b) as payments are made on the Acquisition Loan. The number
of Financed Shares to be released from the Loan Suspense Account for
allocation for any year shall be equal to the number of shares in the Loan
Suspense Account immediately before the release multiplied by whichever of
the following fractions is applicable as determined by the Benefits
Investment Committee.
(i) If, but only if, the conditions in (A)
through (D) below are met, the numerator of
the fraction shall be the amount of
principal paid on the Acquisition Loan for
the year and the denominator shall be the
outstanding principal balance due on the
Acquisition Loan at the beginning of the
year (or on the date of the loan, if made
after the beginning of the Plan Year).
(A) The Acquisition Loan provides for
annual payments of principal and
interest at a cumulative rate that
is not less rapid at any time than
level annual payments of such
amounts for ten (10) years.
(B) Interest included in any loan
payment is disregarded only to the
extent that it would be determined
to be interest under standard loan
amortization schedules.
(C) The duration of the Acquisition Loan
(considering any new loan resulting
from the renewal, extension or
refinancing of the initial loan as
being part of the same Acquisition
Loan) does not exceed ten (10)
years.
(D) The Acquisition Loan provides for
the release of any Financed Shares
held as collateral for the loan in
the manner specified in this (c)(i).
(ii) In any other case, the numerator of the
fraction shall be the amount of principal
and interest paid for the year and the
denominator shall be the sum of the
numerator plus the total of principal and
interest to be paid for all future years.
A separate Loan Suspense Account shall be established for each separate
Acquisition Loan. Any cash dividends received on shares of UFC Stock held
in a Loan Suspense Account shall be held and used to repay the related
Acquisition Loan.
(d) In accordance with the requirements of Code Section
409(n), to the extent that a Company shareholder sells UFC Stock to the
Trust Fund and elects (with the consent of the Company) nonrecognition of
gain under Code Section 1042, no portion of the UFC Stock so purchased
from such shareholder subject to Code Section 1042 (or any dividends or
other income attributable thereto) may be allocated to the account of:
(i) the selling shareholder;
(ii) his spouse, brothers or sisters (whether by
the whole or half blood), ancestors or
lineal descendants; or
(iii) any shareholder owning (as determined under
Code Section 318(a)) more than twenty-five
percent (25%) in value of any class of UFC
Stock.
In addition to the foregoing, no allocation of Company contributions or
forfeitures shall be made to such disqualified participants in lieu of
such UFC Stock.
Section 4.03. Investment. (a) Election. Each Participant
shall direct, on such a form and in the manner the Benefits Administrative
Committee prescribes, the percentage of the Participant's account balance,
which shall be invested in each fund described in subsection (b) subject
to the following conditions:
(i) any percentage selected must be in whole
multiples of twenty-five percent (25%); and
(ii) amounts allocated pursuant to Section
4.02(b) for Plan Years ending after
September 30, 1988 must be invested in the
UFC Stock Fund.
In the event a Participant fails to direct investment of any part of the
account, such amount shall be invested on the Participant's behalf in the
Government Securities Fund except as provided in (ii) above. A
Participant's direction of investment shall remain in effect and may be
changed only on a quarterly basis at such times and pursuant to such rules
as the Benefits Administrative Committee may establish. A Participant may
provide separate directions of investment applicable to the existing
account balances or to future contributions and may change a prior
direction with respect to one but not the other. No reallocation of
existing account balances shall be made due to differences in investment
results between various funds except as provided in a subsequent
investment election specifically for such reallocation.
(b) Investment Funds. There shall be four (4) investment
funds entitled and with the investment characteristics described below:
(i) Fixed Income Fund: This shall be a fund to
be invested primarily in obligations issued
or fully guaranteed as to payment of
principal and interest by the United States
of America or any agency or instrumentality
thereof, commercial paper variable demand
notes, dated commercial paper, bank
certificates of deposit, bank repurchase
agreements, time deposits, or guaranteed
interest and/or principal contracts issued
by insurance companies or banks.
(ii) Government Securities Fund: This shall be a
fund to be invested primarily in securities
with maturities of one year or less issued
or guaranteed by the United States of
America.
(iii) Equity Fund: This shall be a fund to be
invested primarily in common and preferred
stocks and bonds or notes issued by federal,
state, or local governments or any corporate
entity other than an Affiliate.
(iv) UFC Stock Fund: This shall be a fund
primarily invested in UFC Stock. The ERISA
limitation on the maximum amount of employer
securities in a plan shall not be applicable
hereto.
Pending investment in securities of a character prescribed for the fund,
any part of a fund may be invested in savings accounts or other deposits
with a bank, commercial paper or other short-term securities, not
including any securities of an Affiliate. Changes in the foregoing funds
may be made and additional funds may be established in the discretion of
the Benefits Administrative Committee, with such titles and investment
characteristics as shall be determined by the Benefits Administrative
Committee and communicated to Participants.
(c) Allocation: Subject to Section 5.09, each Participant's
account shall be invested in the various funds as directed by the
Participant pursuant to subsection (a). At the end of each Plan Year
quarter, the Benefits Administrative Committee shall increase or decrease
each subaccount with its proportionate share of any changes in fair market
value of the Trust Fund assets attributable to the applicable investment
fund since the end of the preceding Plan Year quarter. The Benefits
Administrative Committee may establish reasonable, uniform fees which may
be charged to Participants making investment elections hereunder. For
purposes of allocating investment return, one-half of any Pre-Tax Deposits
and Employee After-Tax Contributions made during the applicable quarter
shall be deemed to have been invested for the entire quarter. Any
earnings or losses related to prefunding of Employer Matching
Contributions shall affect the amount of such contributions and shall not
be allocated as earnings under this subsection.
Section 4.04. Maximum Annual Additions. (a) Notwithstanding
the other provisions of this Plan, annual additions to the account of any
Participant for a Plan Year shall not exceed the lesser of:
(i) subject to subsection (b) below, thirty
thousand dollars ($30,000) as adjusted
pursuant to Section 415(c)(1)(A) and (d)(1)
of the Code; or
(ii) twenty-five percent (25%) of the
Participant's total compensation (as defined
in subsection (c) of Section 415 of the Code
using accrued, not paid, bonuses) from the
Affiliates for such Plan Year.
The term "annual additions" as used in this subsection shall mean the
amount of the Pre-Tax Deposits, Employer Matching Contributions, and
Employee After-Tax Contributions and forfeitures for the Plan Year
allocated to the account of the Participant, but shall not include the
amount of any Employer contribution used to pay interest on an Acquisition
Loan. If a Participant also participates in another qualified defined
contribution plan maintained by an Employer, then the sum of his annual
additions under this Plan and under such other plan shall not exceed the
limitations described in (i) or (ii) above subject to any special
limitations applicable to such other plan. In the event that at any
September 30 such limitations would be exceeded after appropriate
reduction to his allocation in the Universal Foods Transition Retirement
Plan, then the Participant's annual additions to his account shall be
reduced as may be necessary to satisfy such limitations.
(b) Under certain circumstances, the dollar limitation set
forth in subsection (a)(i) of this Section may be increased. The increase
will occur only if not more than one-third (1/3) of the total Employer
contributions for the Plan Year are allocated to the accounts of
Participants who are highly compensated employees as determined under Code
Section 414(q). The amount of increase will be the lesser of: (i) the
dollar amount otherwise applicable for the Plan Year; or (ii) the amount
of Employer contributions allocated to the Participant's account for the
Plan Year representing UFC Stock which is:
(A) contributed to the Plan for that
Plan Year;
(B) purchased with Employer
contributions (in cash) not later
than sixty (60) days after the due
date (including extensions) for
filing the Company's Federal income
tax return for that Plan Year; or
(C) released from the Loan Suspense
Account by reason of payments on an
Acquisition Loan for that Plan Year.
In addition, Employer contributions which are used (not later than the due
date, including extensions, for filing the Company's Federal income tax
return for the Plan Year) to pay interest on an Acquisition Loan and any
forfeitures resulting from Financed Shares shall not be included as annual
additions in any Plan Year in which not more than one-third (1/3) of the
Employer contributions applied to pay principal and/or interest on an
Acquisition Loan are allocated to Participants who are highly compensated
employees as determined under Code Section 414(q). The Benefits
Administrative Committee shall reallocate such Employer contributions to
the extent necessary to satisfy this special rule after appropriate
reduction to his allocation in the Universal Foods Transition Retirement
Plan.
(c) In addition, if a Participant is also participating in a
qualified defined benefit plan which an Affiliate maintains on his behalf,
the sum of the defined benefit fraction and the defined contribution
fraction as defined in Section 415(e) will not exceed one (1) and the
limitations of Code Section 415(e) are hereby incorporated by reference.
If as of any September 30 such rules are violated, the benefit of any
active defined benefit plan shall be reduced accordingly; otherwise, the
annual additions for the Plan Year hereunder shall be reduced to satisfy
such limitations.
(d) In the event that either of the rules set forth in this
Section would otherwise be violated, there shall be deducted from such
Participant's account such amount as may be necessary to satisfy both of
such rules; any such amount shall be treated as a forfeiture for purposes
of Sections 3.03 and 4.02(b); provided that if such reallocation to the
accounts of other Participants is not possible as the result of the
application of this Section, then the reallocable amounts shall be
credited to a suspense account subject to the following conditions:
(i) amounts in the suspense account shall be
allocated at such time, including
termination of the Plan or complete
discontinuance of Employer contributions, as
the foregoing limitations permit,
(ii) any income produced by such suspense account
shall be held in the suspense account,
(iii) no further Employer contributions shall be
permitted until the foregoing limitations
permit their allocation to Participants'
accounts, and
(iv) upon termination of the Plan any unallocable
amounts in the suspense account shall revert
to the Company.
ARTICLE V. BENEFITS
Section 5.01. Retirement. For any Participant hired by an
Affiliate prior to attainment of age sixty (60), the account of such
Participant shall be fully vested and nonforfeitable upon attainment of
age sixty-five (65) if then employed with an Affiliate. For any
Participant first hired by an Affiliate after attainment of age sixty
(60), the account of such Participant shall be fully vested and
nonforfeitable as of the fifth (5th) anniversary of such date of hire if
then employed with an Affiliate. Payments shall commence as soon as
practicable after the Participant's Severance from Service and be payable
in accordance with Section 5.05.
Section 5.02. Death. Upon a Participant's death before his
Severance from Service for any other reason, the entire amount credited to
his account shall be fully vested and nonforfeitable. Upon a
Participant's death, whether before or after commencement of payment of
benefits, the vested amount credited to his account shall be payable in
accordance with Section 5.05 to the Participant's Beneficiary.
Section 5.03. Disability. If a Participant's Severance from
Service occurs on account of a disability as described in Section
1.01(v)(iii), the entire amount credited to his account shall be fully
vested and nonforfeitable and shall be payable to him in accordance with
Section 5.05.
Section 5.04. Other Severance from Service. (a) Any
Participant whose Severance from Service occurs by reason other than
retirement, death or disability shall be fully vested and nonforfeitable
with respect to the amount credited to his Pre-Tax Deposits and Employee
After-Tax Contributions subaccounts and with respect to that percentage of
his Employer Matching Contributions subaccount determined in accordance
with the following table, which amount shall be payable to him in
accordance with Section 5.05:
Years of
Vesting Service Old Schedule New Schedule
Less than 1 0% 0%
1 10% 20%
2 20% 40%
3 30% 60%
4 40% 80%
5 50% 100%
6 60% 100%
7 70% 100%
8 80% 100%
9 90% 100%
10 or more 100% 100%
The new schedule shall apply to any Participant who earns an hour of
service as defined in Section 2.01(b) on or after October 1, 1989. A
Participant whose Severance from Service is due to a sale or closing of an
Employer's location shall be fully vested in his entire account balance to
the extent specifically authorized by the Benefits Administrative
Committee. Notwithstanding the foregoing, a Participant is fully vested
in the Fantasy Flavors, Inc. Savings and Investment Plan subaccount and
the Fantasy Flavors, Inc. Profit Sharing Plan subaccount.
(b) Any amounts in a Participant's
account which are not vested under subsection (a) above upon his Severance
from Service shall be maintained in such account and shall continue to
share in investment earnings and losses under Article IV hereof until a
forfeiture occurs. A conditional forfeiture shall occur on the September
30 immediately following the later of the Participant's one year period of
severance under Section 2.03 hereof or the distribution of the
Participant's vested benefit pursuant to Section 5.05. Except as
otherwise provided in this subsection (b), forfeitures shall be added to
Employer Matching Contributions and allocated under Section 4.02(b). In
the event a former Participant is reemployed prior to such September 30,
he shall not receive any further distribution until he again severs his
service with the Employers, and any forfeitable amount shall remain in his
account and continue to vest in accordance with subsection (a) above. In
the event the Participant is reemployed after such September 30 and within
a period of time not longer than seventy-two (72) months (or, if greater,
the number of years of vesting service plus one, times twelve (12)) (a
"final forfeiture break in service"), his conditionally forfeited account
shall be reestablished from forfeitures of other Participants or from a
special Employer contribution as determined by the Benefits Administrative
Committee, and such reconstituted account shall continue to vest in
accordance with subsection (a). Upon a final forfeiture break in service,
the forfeiture shall become final regardless of the future employment of
the Participant. Separate subaccounts shall be maintained for Employer
contributions accrued with respect to a Participant before a final
forfeiture break in service and after such a break, and the vested portion
of the pre-break accrued benefit shall not be less than an amount "X"
determined by the formula X=P (AB+D) -D, where P is the vested percentage
at the relevant time, AB is the account balance at the relevant time, and
D is the amount of the distribution.
Section 5.05. Distributions. (a) Time. In the event of
a Participant's Severance from Service with the Employers, the entire
amount to which the Participant is entitled under the Plan shall be
distributed to him or his Beneficiary, as the case may be, within sixty
(60) days after the end of the Plan Year quarter in which the event giving
rise to such distribution occurs; provided, however, that a Participant
with a Fantasy Flavors, Inc. Profit Sharing Plan subaccount may elect to
receive such subaccount within thirty (30) days after the end of such Plan
Year quarter. Notwithstanding any other provision in this Section, the
account balance of a Participant shall be distributed no later than April
1 of the calendar year following the calendar year in which he attains age
seventy and one-half (702). If a Participant who has severed his service
or has incurred a disability subsequently dies prior to receiving his
total distribution hereunder, the remainder of such distribution shall
then be made to his Beneficiary. Except with respect to death benefits,
no lump sum cash distribution in excess of Three Thousand Five Hundred
Dollars ($3,500) shall be made prior to the Participant's attainment of
age seventy and one-half (702) without the consent of the Participant to
the extent required by law.
(b) Form. The amount to which a Participant or his
Beneficiary, as the case may be, is entitled hereunder shall be rendered,
at the election of the recipient, in the form of
(i) a lump sum distribution consisting
entirely of cash or UFC Stock, as
determined by the Participant,
except that cash shall be
distributed in lieu of any
fractional share of UFC Stock; or
(ii) as an annuity, if such amount
exceeds Three Thousand Five Hundred
Dollars ($3,500).
If a Participant is married at the time he is entitled to commencement of
the distribution, the following rules apply:
(iii) Except as elected to the contrary
pursuant to (iv) below, the benefit
shall be paid by purchasing a joint
and survivor annuity contract from
a licensed insurance company using
unisex actuarial factors and
providing a monthly benefit for the
life of the Participant commencing
immediately and, if the Participant
predeceases the Participant's
spouse as of the commencement date,
a survivor's benefit to the spouse
for the spouse's remaining life
equal to one-half of the monthly
amount received by the Participant.
(iv) A Participant may elect, in writing
on a form provided by and filed
with the Benefits Administrative
Committee, against receiving
payments in the form of such a
joint and survivor annuity, but
such election shall only be
effective if the spouse consents to
such election and acknowledges the
effect of such waiver, such consent
being witnessed by a Plan
representative appointed by the
Benefits Administrative Committee
or a notary public.
In the event (i) a Participant dies prior to commencement of annuity
benefits hereunder, (ii) a Beneficiary is the applicable Participant's
spouse, and (iii) the benefit payable to such spouse is in excess of Three
Thousand Five Hundred Dollars ($3,500), unless such spouse elects in
writing to receive the lump sum payment otherwise payable pursuant to
subsection (i) above, the benefit payable to such spouse shall be paid by
purchasing a life only annuity contract from a licensed insurance company
using unisex actuarial factors and providing a monthly benefit for the
life of the spouse commencing immediately. Any elections hereunder may be
made or revoked at any time prior to the benefit commencement date, and
the Benefits Administrative Committee shall provide the Participant and
the spouse, as applicable, notice of their rights under this subsection in
accordance with the requirements of applicable regulations at least ninety
(90) days prior to such benefit commencement. Any spouse consent shall
only be valid for benefits commencing within ninety (90) days of such
consent. In addition, an unmarried Participant who elects an annuity
distribution shall be provided a life only annuity contract unless the
Participant elects to the contrary, to the extent and in the manner
required by law.
(c) Installments. Notwithstanding (a) and (b) above, in
the event the total account has ever exceeded $3,500 and subject to the
spouse consent rules above, a Participant or his Beneficiary, as the case
may be, may elect to receive the Fantasy Flavors, Inc. Savings and
Investment Plan subaccount and Fantasy Flavors, Inc. Profit Sharing Plan
subaccount, if any, in a series of substantially equal monthly, quarterly
or annual installments over a period not exceeding the greater of (i) the
Participant's life expectancy or (ii) the joint and last survivor life
expectancy of the Participant and his Beneficiary. If distribution is
made under this installment method and the Beneficiary is not the spouse
of the Participant, the present value of the payments expected to be made
over the life expectancy of the Participant shall be more than 50 percent
of the present value of the total payments to be made to the Participant
and his Beneficiary. If a distribution is made to or for the benefit of a
Participant's Beneficiary on account of the Participant's death before
commencement of payment in accordance with this subsection (c), such
distribution will normally be completed within five years after the
Participant's death, except that:
(i) if the distribution is payable to a
Beneficiary who is not the
Participant's surviving spouse, it
may be payable over a period not
extending beyond the life
expectancy of such person,
commencing not later than one year
after the date of the Participant's
death (or such later date as the
Secretary of the Treasury may
prescribe), or
(ii) if the distribution is payable to a
Beneficiary who is the surviving
spouse of the Participant, it may
be payable over a period not
extending beyond the life
expectancy of such surviving
spouse, and it may commence not
later than one year after the date
of the Participant's death or, if
later, the date the Participant
would have attained age 702 years
had he or she lived.
A Participant may direct how his benefits in the Fantasy Flavors, Inc.
Savings and Investment Plan subaccount and Fantasy Flavors, Inc. Profit
Sharing Plan subaccount are to be paid to his Beneficiary. If the
deceased Participant did not file a direction with the Benefits
Administrative Committee prior to his death, the Beneficiary may elect a
form of payment. However, where distribution has commenced, pursuant to
this subsection (c) prior to the Participant's death, the remaining
portions of the Participant's subaccounts will be distributed to the
Participant's Beneficiary at least as rapidly as the installment payments
otherwise selected by the Participant prior to death. For purposes of
this subsection, the life expectancy of a Participant, the joint and last
survivor expectancy of the Participant and the Participant's spouse, and
the life expectancy of the Participant's spouse shall not be recalculated.
Furthermore, under regulations prescribed by the Secretary of the Treasury
pursuant to Section 401(a)(9) of the Code, any amount paid to a child of a
deceased Participant shall be treated as if it had been paid to the
surviving spouse of the Participant if such amount will become payable to
the surviving spouse upon such child reaching the age of majority (or
other designated event permitted under said regulations).
(d) The provisions of the Plan are intended to comply
with Code Section 401(a)(9) which prescribes certain rules regarding
minimum distributions and requires that death benefits be incidental to
retirement benefits. All distributions under the Plan shall be made in
conformance with Section 401(a)(9) and the regulations thereunder which
are incorporated herein by reference. The provisions of the Plan
governing distributions are intended to apply in lieu of any default
provisions prescribed in regulations; provided, however, that Code Section
401(a)(9) and the regulations thereunder override any Plan provision
inconsistent with such Code Section and regulations.
Section 5.06. Payment for Minor or Incompetent Person. In
the event that any amount is payable under the Plan to a minor or to any
person deemed by the Benefits Administrative Committee to be incompetent,
either mentally or physically, such payment shall be made for the benefit
of such minor or incompetent person in any of the following ways, as
determined in the Benefits Administrative Committee's sole discretion:
(a) to the legal representative of such minor or incompetent person; (b)
directly to such minor or incompetent person; or (c) to some near relative
of such minor or incompetent person to be used for the latter's benefit.
The Benefits Administrative Committee shall not be required to see to the
proper application of any such payment made to any person pursuant to the
provisions of this Section 5.06.
Section 5.07. Voting Rights and Tender Offers. (a) The
voting rights of any UFC Stock held in the Trust Fund shall be exercised
by the Trustee as directed by the Benefits Investment Committee in a
manner it determines to be in the best interests of Participants.
Notwithstanding the foregoing, with respect to UFC Stock allocated to a
Participant's ESOP subaccount, prior to an occasion for the exercise of
UFC Stock voting rights, the Benefits Administrative Committee shall
provide each Participant with notification of such occasion together with
any other information being provided by the Company to its shareholders
with respect to such occasion. Each Participant is entitled to direct the
Benefits Administrative Committee as to the manner in which UFC Stock then
allocated to his ESOP subaccount is to be voted on such occasion; provided
that, with respect to any fractional share of such UFC Stock, it shall be
combined with fractional shares in other Participants' ESOP subaccounts to
be voted to reflect, to the extent the Benefits Administrative Committee
determines it is possible, the directions of the Participants with
fractional shares in their UFC Stock subaccounts. The voting directions
with respect to the UFC Stock of all Participants shall be communicated by
the Benefits Administrative Committee to the Trustee for voting in
accordance therewith.
(b) In the event of any tender offer for shares of UFC
Stock held in the Trust Fund, the Trustee shall respond to the tender
offer with respect to any such shares as directed by the Benefits
Investment Committee in a manner the Benefits Investment Committee
determines to be in the best interests of Participants.
Section 5.08. Change of Control. (a) For purposes of
this Section, the term "change of control of Company" means:
(i) the acquisition of more than
eighty-five percent (85%) of the
outstanding shares of voting stock
directly or indirectly by any
person or group of persons acting
in concert, excluding affiliates of
the Company, by means of an offer
made publicly to the holders of all
or substantially all of the
outstanding shares of any one or
more classes of the voting stock of
the Company to acquire such shares
for cash, securities, other
property or any combination
thereof; or
(ii) the sale, assignment or transfer by
the Company of all or substantially
all of its business and assets to
any person, excluding affiliates of
the Company; or
(iii) a merger, consolidation or other
business combination by the Company
into or with any person in which
neither the Company nor any
subsidiary thereof is the
continuing or successor
corporation.
(iv) As a result of, or in connection
with, any cash tender or exchange
offer, merger or other business
combination, sale of assets or
contested election or any
combination of the foregoing
transactions, the persons who are
directors of the Company before any
of the foregoing transactions shall
cease to constitute a majority of
the Board of Directors of the
Company or any successor to the
Company.
(b) In the event of a change of control of the Company,
all account balances of all Participants employed on such date shall be
fully vested and nonforfeitable.
Section 5.09. Loans. (a) The Benefits Administrative
Committee shall be responsible for the administration of this loan
program. Upon written application to the Benefits Administrative
Committee and subject to spouse consent in the form specified in Section
5.05(b), a Participant or the Beneficiary of a deceased Participant
(collectively referred to as "Borrower") may borrow against the Borrower's
vested account balances provided, however, that at no time shall the total
balance of any loans outstanding (including any such loans during the
preceding twelve (12) months) exceed the lesser of (i) $50,000, or (ii)
one-half of the value of the Borrower's accounts as of the last day of the
calendar quarter immediately preceding the application, but not in excess
of the Borrower's subaccounts attributable to Employee After-Tax
Contributions, rollover contributions pursuant to Section 3.07, the
Fantasy Flavors, Inc. Savings and Investment Plan, the Fantasy Flavors,
Inc. Profit Sharing Plan, and Pre-Tax Deposits. All loans shall be
approved in writing by the Benefits Administrative Committee and shall
bear interest at a rate commensurate with the rate that would be charged
by commercial lenders for similar loans in accordance with Department of
Labor Regulation ' 2550.408b-1 as determined by the Benefits
Administrative Committee. The term of the loan shall be such period as
may be agreed upon by the Borrower and the Benefits Administrative
Committee, but in no event shall exceed five (5) years in duration, except
for the purchase of the Borrower's principal residence. Every loan
applicant shall receive a clear statement of the charges involved in each
loan transaction, including the dollar amount and annual interest rate or
the finance charge.
(b) Amounts loaned to a Borrower pursuant to subsection
(a) above shall be deducted from the Borrower's account for purposes of
the allocation of Trust Fund earnings under Section 4.03 hereof, in the
order and from the subaccounts specified above. All loans made pursuant
to this Section 5.09 shall be investments for the benefit of the
Borrower's account to be treated as a segregated account, and all interest
and principal paid thereon shall be allocated to the Borrower's account.
In the event that the Borrower fails to make two (2) or more consecutive
payments, the loan shall be in default. The Benefits Administrative
Committee shall notify the Borrower in writing of the default. If the
Borrower fails to cure the default by making all necessary payments within
thirty (30) days of such written notice, the Benefits Administrative
Committee may direct the Trustee to charge the total amount of such loan
(including accrued interest) or any portion thereof from the portion of
the Borrower's account, at such time as will not risk disqualification of
the Plan, and such account shall be reduced by said amount. All loans
shall be secured by the Borrower's segregated loan account, which shall
consist of the Borrower's indebtedness plus interest and shall be funded
from the account attributable to (i) rollover contributions, (ii) Employee
After-Tax Contributions and then (iii) Pre-Tax Deposits.
(c) In the sole discretion of the Benefits
Administrative Committee limitations on the number, dollar amount, and
repayment of loans hereunder shall be imposed on a uniform and
nondiscriminatory basis, together with any other rules and regulations
deemed appropriate, including the assessment of a processing fee.
Section 5.10. Hardship Withdrawals. (a) Upon a showing
of substantial hardship, as determined by the Benefits Administrative
Committee and subject to spouse consent in the form specified in Section
5.05(b), a Participant may withdraw any portion of the balance in his
account which is attributable to Pre-Tax Deposits, Employee After-Tax
Contributions, pre-tax and after-tax contributions in the Fantasy Flavors,
Inc. Savings and Investment Plan subaccount, and rollover contributions
pursuant to Section 3.07. Upon written request to and approval of the
Benefits Administrative Committee. Earnings after December 31, 1988 on
Pre-Tax Deposits may not be withdrawn and Pre-Tax Deposits shall be deemed
the last amounts withdrawn. For purposes of this Section, substantial
hardship shall mean:
(i) medical expenses described in Code
Section 213(d) incurred by the
Participant, the Participant's
spouse or any dependents of the
Participant (as defined in Code
Section 152) which are not
reimbursed by insurance;
(ii) purchase (excluding mortgage
payments) of a principal residence
for the Participant;
(iii) payment of tuition for the next
semester or quarter of
post-secondary education for the
Participant or the Participant's
spouse, children or dependents; or
(iv) the need to prevent the eviction of
the Participant from his principal
residence or foreclosure on the
mortgage of the Participant's
principal residence.
The hardship withdrawal shall be limited to the amount of the immediate
and heavy financial need. A withdrawal may be made from the Employee
After-Tax Contribution subaccount and rollover contributions pursuant to
Section 3.07 without a prior loan, but any withdrawal from the Pre-Tax
Deposits subaccount shall be made only after the Participant takes all
permitted loans and distributions hereunder and any other plan maintained
by the Affiliates. The foregoing definition of hardship shall apply on
and after April 1, 1989; prior to that date, the definition in the Plan in
effect December 31, 1988 shall apply.
(b) The Benefits Administrative Committee may amend this
Section in its discretion to permit hardship withdrawals pursuant to any
rules which satisfy the applicable regulations and rulings of the Internal
Revenue Service from time to time.
(c) In the event of a hardship withdrawal of Pre-Tax
Deposits, the Participant shall be subject to an additional contribution
limitation for the next following calendar year. The $7,000 limitation of
Section 3.02(e) shall be applied by counting any Pre-Tax Deposits in
either the calendar year in which the withdrawal occurs or the next
following calendar year.
Section 5.11. Withdrawals of Certain After-Tax
Contributions. Subject to spouse consent in the form specified in Section
5.05(b), a Participant may withdraw in full the portion of his Fantasy
Flavors, Inc. Savings and Investment Plan subaccount attributable to his
after-tax contributions. Any withdrawal request pursuant to this Section
shall be subject to those reasonable procedures established by the
Benefits Administrative Committee.
Section 5.12. Withholding/Rollover Rules. (a) This
section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this section, a distributee
may elect, at the time and in the manner prescribed by the Administrative
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a
direct rollover as such terms are defined herein.
(b) An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not
include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer securities).
(c) An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an annuity
plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement annuity.
(d) A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are distributees with regard to the
interest of the spouse or former spouse.
(e) A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
Section 5.13. Quarterly Statement. As soon as practicable
following the end of each Plan Year quarter, and at such other times as it
determines, the Benefits Administrative Committee shall provide each
Participant with a statement reflecting the status of the Participant's
account as of such date.
ARTICLE VI. ADMINISTRATION
Section 6.01. Allocation of Responsibility Among
Fiduciaries for Plan and Trust Administration. The Finance Committee,
Benefits Administrative Committee and Trustee shall be "Named Fiduciaries"
within the meaning of Section 402(a)(2) of ERISA. The Named Fiduciaries
shall have only those specific powers, duties, responsibilities and
obligations as are specifically given them under this Plan or the trust
agreement. In general, the Finance Committee shall have the sole
authority to appoint and remove the members of the Benefits Administrative
Committee and to amend or terminate the Plan in whole or in part. The
Benefits Administrative Committee shall have the responsibility for the
administration of this Plan, which responsibility is specifically
described in this Plan. The Trustee shall have the sole responsibility
for the administration of the Trust and the management of the assets held
thereunder, except to the extent such responsibility is delegated to any
investment managers in accordance with such trust agreement. Each Named
Fiduciary may rely upon any direction, information or action of any other
Named Fiduciary as being proper, and is not required to inquire into the
propriety of any such direction, information or action. It is intended
under this Plan that each Named Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and
obligations under this Plan and shall not be responsible for any act or
failure to act of another Named Fiduciary. An individual may serve in
more than one fiduciary capacity hereunder.
Section 6.02. Appointment and Authority of Benefits
Administrative Committee. (a) The general responsibility for carrying
out the provisions of the Plan shall be placed in the Benefits
Administrative Committee which shall be comprised of not less than three
(3) employees of the Employers or any Affiliate thereof appointed from
time to time by the Finance Committee. The Benefits Administrative
Committee may appoint from its number such officers and/or subcommittees
with such powers as it shall determine and may authorize one or more of
its number or any agent to execute or deliver any instrument or make any
payment on its behalf. The Benefits Administrative Committee may
designate and allocate any fiduciary responsibility to one or more of its
members or to any other person or persons. It may retain counsel, employ
agents and provide for such clerical, accounting and actuarial services as
it may require. The foregoing sentence shall in no way affect the duty
and obligation of the Benefits Administrative Committee to retain such
services in connection with the carrying out of its duties and to
designate an independent, qualified public accountant as provided in
Section 6.03(b) hereof.
(b) The Benefits Administrative Committee shall hold
meetings upon such notice, at such place and at such times as it may from
time to time determine. A meeting may be held in any manner as may be
determined by the Benefits Administrative Committee, but in any event,
where all members are not physically present, the actions of the Benefits
Administrative Committee shall be reduced to writing and sent to all
members within ten (10) days of the date of such meeting.
(c) A majority of the Benefits Administrative Committee
shall constitute a quorum, and any action which the Plan authorizes or
requires the Benefits Administrative Committee to take shall require the
written approval or the affirmative vote of a majority of its members.
(d) Members of the Benefits Administrative Committee
shall not be paid any compensation from the assets of the Plan.
(e) Subject to the provisions of the Plan, the Benefits
Administrative Committee may from time to time establish rules for the
transaction of its business. The determination of the Benefits
Administrative Committee as to any disputed question pertaining to the
Plan shall be conclusive.
(f) Any member of the Benefits Administrative Committee
may resign by delivering his written resignation to the Finance Committee.
Any member of the Benefits Administrative Committee may be removed by the
Finance Committee, and such removal shall be effective at such time as is
provided for by the Finance Committee. Notice of such removal shall be
conveyed to the member so removed in the manner provided by the Finance
Committee.
(g) In addition, the Benefits Administrative Committee
shall have the following specific duties and authority under the Plan:
(i) To determine a funding policy in
accordance with Section 3.05
herein;
(ii) To exercise discretionary authority
to determine eligibility for
benefits and to construe the terms
of the Plan, any such determination
or construction shall be final and
binding on all parties unless
arbitrary and capricious.
(iii) To prescribe and require the use of
appropriate forms;
(iv) To formulate, issue and apply rules
and regulations;
(v) To make appropriate determinations
and calculations;
(vi) To authorize and direct benefit
payments; and
(vii) To prepare and file reports,
notices, and any other documents
relating to the Plan which may be
required by law.
The Benefits Administrative Committee shall exercise any authority
allocated hereunder in any manner consistent with ERISA and the applicable
provisions of the Plan.
Section 6.03. Use of Professional Services. (a) The
Benefits Administrative Committee may allocate fiduciary duties to any
other person or persons. The Benefits Administrative Committee may employ
agents, provide for clerical services as required and, subject to the
approval of the Finance Committee, retain counsel.
(b) The Benefits Administrative Committee shall, subject
to the approval of the Finance Committee, engage an independent, qualified
public accountant who shall audit the Plan and its assets in compliance
with ERISA (and if the Benefits Administrative Committee so elects,
subject to the approval of the Finance Committee, remove and appoint
another such accountant).
Section 6.04. Fees and Expenses. Where the Benefits
Administrative Committee utilizes services as provided in Section 6.03
hereof, the Benefits Administrative Committee shall review the fees and
other costs for these services and shall authorize the payment of such
fees and costs. Such fees and costs and other expenses incurred or
authorized by the Benefits Administrative Committee shall be paid by the
Employers or from the Plan assets as determined by the Benefits
Administrative Committee.
Section 6.05. Claims Procedure. A Participant or
Beneficiary may file with the Benefits Administrative Committee a claim
with respect to the Plan. Any such claim shall be filed in writing
stating the nature of the claim, the facts supporting the claim, the
amount claimed and the name and address of the claimant. The Benefits
Administrative Committee, within ninety (90) days (or one hundred eighty
(180) days if special circumstances require an extension of time for
processing the claim and the Benefits Administrative Committee notifies
the claimant of such extension prior to ninety (90) days from the date of
the initial filing of the claim) after receipt of the notice, shall render
a written decision on the claim. If the claim shall be denied, either in
whole or in part, the decision shall include the specific reason or
reasons for the denial; specific reference to the pertinent Plan provision
or provisions which is the basis for the denial; a description of any
additional material or information necessary for the claimant to perfect
the claim and an explanation why the information or material is necessary;
and appropriate information as to the steps to be taken if the Participant
or Beneficiary wishes to appeal the Benefits Administrative Committee's
decision. The claimant may file with the Benefits Administrative
Committee, within sixty (60) days after receiving such notification, a
written notice of request for review of the Benefits Administrative
Committee's decision. The review shall be made by the Benefits
Administrative Committee. The written notice of appeal should contain (i)
a statement of the ground(s) for the appeal, (ii) a specific reference to
the pertinent Plan provision or provisions on which the appeal is based,
(iii) a statement of the argument(s) and authority (if any) supporting
each ground for the appeal, and (iv) any other pertinent documents or
comments which the claimant desires to submit in support of the appeal.
The Benefits Administrative Committee shall render a written decision on
the claim which shall include the specific reasons for the decision and a
reference to the pertinent Plan provisions on which the decision was based
within sixty (60) days (or one hundred twenty (120) days if special
circumstances require an extension of time for processing the claim and
the Benefits Administrative Committee notifies the claimant of such
extension prior to sixty (60) days from the date of the initial filing of
the claim) after receipt of the documents requested for review. A copy of
the Benefits Administrative Committee's decision shall be mailed promptly
to the claimant. If a Participant or Beneficiary shall not file written
notice with the Benefits Administrative Committee at the times set forth
above, the Participant or Beneficiary shall have waived all benefits other
than as set forth in the notice from the Benefits Administrative
Committee.
The foregoing claims procedure shall be the only method by
which claims of Participants, former Participants or Beneficiaries shall
be decided under this Plan. Oral communications by potential claimants to
the Benefits Administrative Committee shall have no force and effect
hereunder.
Section 6.06. Trustee's Responsibilities. The duties,
authority and responsibility of any Trustee or other person handling all
or any part of the Plan assets shall include and be limited to the duties,
authority and responsibility expressly set forth in a written agreement
between the Company and any such Trustee or other person.
Section 6.07. Fiduciary Insurance and Indemnification.
The Company or any Affiliate shall maintain and keep in force such
insurance as the Benefits Administrative Committee shall determine to
insure and protect the directors, officers, employees of the Company or
any Affiliate thereof and any appropriately authorized delegates or
appointees of them against any and all claims, damages, liability, loss,
cost or expense (including attorneys' fees) arising out of or resulting
from (including failure to act with respect to) any responsibility, duty,
function or activity of any such person in relation to the Plan, including
without limitation, the members of the Benefits Administrative Committee
and directors, officers and employees of the Employers or any subsidiary
or Affiliate thereof performing responsibilities, duties, functions,
and/or actions at the direction or under the authority of any of the
foregoing.
In lieu of and/or as a supplement and in addition to the
insurance referred to in the foregoing sentence, the Affiliates shall
indemnify and hold harmless their directors, officers and employees
against any and all claims, damages, liability, loss, cost or expense
(including attorneys' fees) arising out of or resulting from (including
failure to act with respect to) any responsibility, duty, function or
activity of any such person in relation to the Plan (or trust agreement,
if applicable) including without limitation the members of the Benefits
Administrative Committee and directors, officers and employees of the
Affiliates performing responsibilities, duties, functions and/or actions
at the direction or under the authority of any of the foregoing; provided,
however, that no such indemnification shall extend to any matter as to
which it shall have been adjudged by any court of competent jurisdiction
that such person or persons have acted in bad faith or were guilty of
gross negligence in the performance of any duties hereunder unless such
Court shall, in view of all the circumstances of the case, determine that
such person or persons are fairly and reasonably entitled to
indemnification.
Section 6.08. Agent for Service of Process. The Chairman
of the Benefits Administrative Committee is hereby designated as the agent
for service of legal process with respect to all matters pertaining to the
Plan.
Section 6.09. Allocation of Fiduciary Responsibility.
This Article VI provides for "Named Fiduciaries" as required by Section
402(a)(1) of ERISA and a procedure for the allocation of responsibilities
as required by Section 402(b)(2) of ERISA. If the Finance Committee or
Benefits Administrative Committee allocates responsibility as herein
provided, such Named Fiduciaries shall not be responsible for the actions
of the person(s) to whom the responsibility is allocated except as
provided in Section 405(c)(2) of ERISA.
Section 6.10. Liability for Breach of Co-Fiduciary. The
members of the Finance Committee and the Benefits Administrative Committee
shall not be liable for the acts of commission or omission of another
fiduciary unless (i) such member knowingly participated or knowingly
attempted to conceal the act or omission of another fiduciary and he knew
the act or omission was a breach of fiduciary responsibility by the other
fiduciary; or (ii) such member has knowledge of a breach by the other
fiduciary and shall not make reasonable efforts to remedy the breach; or
(iii) such member's breach of the member's own fiduciary responsibility
permitted the other fiduciary to commit a breach.
Section 6.11. Communications. All requests, appeals,
elections and other communications to the Benefits Administrative
Committee shall be in writing and shall be made by transmitting the same
via the U.S. Mail, certified, return receipt requested, addressed as
follows:
Universal Foods Corporation
433 East Michigan Street
Milwaukee, Wisconsin 53202
Attention: Chairman, Benefits Administrative Committee
Universal Foods Corporation Savings Plan
ARTICLE VII. TRUSTEE AND TRUST FUND
Section 7.01. Trustee and Trust Fund. The powers and
duties of the Trustee with respect to the Plan and Trust Fund are set
forth in the Trust.
Section 7.02. Investment of Trust Fund. (a) All
contributions made to the Trust Fund pursuant to this Plan shall be paid
to the Trustee and shall be invested pursuant to Section 4.03 and the
Trust. Such investments may include participations in any common trust
fund established or maintained by the Trustee for the collective
investment of fiduciary funds and shall not be limited by any state
statute or judicial decision prescribing or limiting investments
appropriate for trustees. There shall be no limitation on the percentage
of the Trust Fund which may be composed of UFC Stock.
(b) The Benefits Administrative Committee may direct the
Trustee to incur Acquisition Loans from time to time to finance the
acquisition of UFC Stock for the Trust Fund or to repay a prior
Acquisition Loan. An installment obligation incurred in connection with
the purchase of UFC Stock shall constitute an Acquisition Loan. An
Acquisition Loan shall be for a specific term, shall be a reasonable rate
of interest and shall not be payable on demand except in the event of
default. An Acquisition Loan may be secured by a collateral pledge of the
Financed Shares so acquired. No other assets of the Trust Fund may be
pledged as collateral for an Acquisition Loan and no lender shall have
recourse against the Trust Fund other than any Financed Shares remaining
subject to pledge. Any pledge of Financed Shares shall provide for the
release of shares so pledged in a manner provided in Section 4.02(c)
hereof. Repayments of principal and interest on any Acquisition Loan
shall be made by the Trustee (as directed by the Benefits Administrative
Committee) only from Employer contributions paid in cash to enable the
Trustee to repay such Acquisition Loan, from earnings attributable to such
Employer contributions, or from any cash dividends received by the Trust
Fund on such Financed Shares.
Section 7.03. Acquisition of UFC Stock. It is intended
that the Trustee qualify as an "agent independent of the issuer" within
the meaning of Rule 10b-18 under the Securities Exchange Act of 1934, as
amended, and accordingly neither the Company nor any Affiliate of the
Company may exercise any direct or indirect control or influence over the
times when, or the prices at which, the Trustee purchases shares of UFC
Stock in the market, the amounts to be purchased, the manner in which the
shares are to be purchased, or the selection of a broker or dealer through
which purchases are executed. Purchases will not be made for the purpose
of creating actual or apparent active trading in, or raising the price of,
UFC Stock. Any such investment and reinvestment shall meet the applicable
provisions of ERISA and the Code.
ARTICLE VIII. AMENDMENT AND TERMINATION
Section 8.01. Amendment. The Company shall have the
right, by action of the Finance Committee, to modify, alter or amend the
Plan at any time and in any manner which does not cause any part of the
Plan to be used for, or diverted to, any purpose other than the exclusive
benefit of the Participants or Beneficiaries. Notwithstanding the
foregoing, no amendment to the Plan shall decrease a Participant's accrued
benefit or vested percentage or eliminate an optional form of distribution
for a previously accrued benefit.
Section 8.02. Termination. The Company shall have the
right to terminate the Plan, in whole or in part, by action of the Finance
Committee. An Employer may terminate its participation in the Plan by
action of its board of directors. In the event of any termination,
partial termination or permanent discontinuance of Employer contributions,
the account balances of Participants affected by such action shall be
fully vested and nonforfeitable.
Section 8.03. Non-Reversion of Assets. In no event shall
the Employers receive any amount from the Plan, except that, (i) to the
extent that any contributions hereunder are made by a mistake of fact,
such amount may, at the request of the Benefits Administrative Committee,
be returned within one (1) year after it is made, (ii) all contributions
hereto being hereby expressly conditioned on the deductibility of the
contribution under Code Section 404, and to the extent such deduction is
disallowed it may, at the request of the Benefits Administrative
Committee, be returned within one (1) year after the disallowance of such
deduction, and (iii) amounts may be returned pursuant to Section
4.04(d)(iv) hereof.
ARTICLE IX. GENERAL PROVISIONS
Section 9.01. Participants to Furnish Information. Each
Participant entitled to benefits under the Plan shall furnish to the
Benefits Administrative Committee such evidence, data or information as
the Benefits Administrative Committee considers necessary or desirable in
order to administer the Plan properly.
Section 9.02. Non-Guarantee of Employment or Other
Benefits. Neither the establishment of the Plan, nor any modification or
amendment hereof, nor the payment of benefits hereunder shall be construed
as giving any Participant or other person whomsoever any legal or
equitable right against the Employers, the Finance Committee, the Benefits
Administrative Committee, the Benefits Investment Committee, or their
respective members or the Trustee, or the right to payment of any benefits
hereunder (unless the same shall be specifically provided herein) or as
giving any Employee the right to be retained in the service of the
Employers or the Affiliates.
Section 9.03. Mergers, Consolidations and Transfers of
Plan Assets. In the case of any merger, consolidation with, or transfer
of assets or liabilities to any other plan, each Participant must be
entitled (if the Plan then terminated) to receive a benefit immediately
after the merger, consolidation, or transfer which is equal to or greater
than the benefit the Participant would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan
then terminated) pursuant to the requirements of ERISA and the Code.
Section 9.04. Spendthrift Clause. No Participant, former
Participant or Beneficiary entitled to benefits hereunder shall have the
right to transfer, assign, alienate, anticipate, pledge or encumber any
part of such benefits, nor shall such benefits, or any part of the Plan
assets or any contract from which such benefits are payable, be subject to
seizure by legal process by any creditor of such Participant, former
Participant or Beneficiary. In the event that such Participant or other
person entitled to such benefits, or such creditor thereof, shall attempt
to effect a division as hereinabove described, of any such benefit, the
Plan may pay over to or apply on the behalf of such Participant, former
Participant or Beneficiary, all or any part of such benefits to which such
person would otherwise have been entitled hereunder. Notwithstanding the
foregoing, the Trustee may recognize a qualified domestic relations order
with respect to child support, alimony payments or marital property rights
if such order contains sufficient information for the Benefits
Administrative Committee to determine that it meets the applicable
requirements of Section 414(p) of the Code. Such an order may permit
distribution to an alternate payee prior to the time a Participant would
be eligible for benefits hereunder. The Benefits Administrative Committee
shall establish written procedures concerning the notification of
interested parties and the determination of the validity of such orders.
Section 9.05. Exclusive Benefit. All contributions made
under the Plan shall be paid to the Trust, and all property and funds of
the Trust allocable to the Plan, including income from investments and
from all other sources, shall be managed solely in the interest of
Participants and Beneficiaries and for the exclusive purpose of:
(i) providing benefits to Participants
and Beneficiaries; and
(ii) defraying reasonable expenses of
administering the Plan.
Section 9.06. Successors and Assigns. The Plan shall be
binding upon the successors and assigns of the Employers.
Section 9.07. Top-Heavy Restrictions. (a)
Notwithstanding any provision to the contrary herein, in accordance with
Code Section 416, if the Plan is a top-heavy plan for any Plan Year, then
the provisions of this Section shall be applicable. The Plan is
"top-heavy" for a Plan Year if as of its "determination date" (i.e., the
last day of the preceding Plan Year or the last day of the Plan's first
Plan Year, whichever is applicable), the total present value of the
accrued benefits of key employees (as defined in Code Section 416(i)(1)
and applicable regulations) exceeds sixty percent (60%) of the total
present value of the accrued benefits of all employees under the Plan
(excluding those of former key employees) (as such amounts are computed
pursuant to Section 416(g) and applicable regulations using a five percent
(5%) interest assumption and a 1971 GAM mortality assumption) unless such
plan can be aggregated with other plans maintained by the applicable
controlled group in either a permissive or required aggregation group and
such group as a whole is not top-heavy. In addition, a plan is top-heavy
if it is part of a required aggregation group which is top-heavy. Any
plan of a controlled group may be included in a permissive aggregation
group as long as together they satisfy the Code Section 401(a)(4) and 410
discrimination requirements. Plans of a controlled group which must be
included in a required aggregation group (including any terminated plans)
include any plan in which a key employee participates and any plan which
enables such a plan to meet the Section 401(a)(4) or 410 discrimination
requirements. The present values of aggregated plans are determined
separately as of each plan's determination date and the results aggregated
for the determination dates which fall in the same calendar year. A
"controlled group" for purposes of this Section includes any group
employers aggregated pursuant to Code Sections 414(b), (c) or (m). The
calculation of the present value shall be done as of a valuation date
which for a defined contribution plan is the determination date and for a
defined benefit plan is the date as of which funding calculations are
generally made within the twelve month period ending on the determination
date. Solely for the purpose of determining if the Plan, or any other
plan included in a required aggregation group of which this Plan is a
part, is top-heavy (within the meaning of Section 416(g) of the Code) the
accrued benefit of an employee other than a key employee (within the
meaning of Section 416(i)(1) of the Code) shall be determined under (i)
the method, if any, that uniformly applies for accrual purposes under all
plans maintained by the Affiliates, or (ii) if there is no such method, as
if such benefit accrued not more rapidly than the slowest accrual rate
permitted under the fractional accrual rate of Section 411(b)(1)(C) of the
Code.
(b) If the Plan is top-heavy in a Plan Year, nonkey
employee participants who have not separated from service at the end of
such Plan Year will receive allocations of Employer contributions and
forfeitures under this Plan and/or the Universal Foods Retirement Employee
Stock Ownership Plan at least equal to five percent (5%) of compensation
(as defined in Code Section 415) for such year.
(c) If the controlled group maintains a defined benefit
plan and a defined contribution plan which both cover one or more of the
same key employees, and if such plans are top-heavy, then the limitation
of this Plan with respect to the Code Section 415(e) maximum benefit
limitations shall be amended to refer to a 1.0 adjustment on the dollar
limitation rather than a 1.25 adjustment. This provision shall not apply
if the Plan is not "super top-heavy" and if the minimum benefit
requirements of this Section are met when five percent (5%) is changed to
seven and one-half percent (7.5%) for each year such plan is top-heavy. A
plan is "super top-heavy" if the ratio referred to in subsection (a) above
results in a percentage in excess of ninety percent (90%) rather than a
percentage in excess of sixty percent (60%).
(d) If the Plan is top-heavy in a Plan Year, the vesting
schedule shall automatically be amended for any employee employed on the
first day of such year or thereafter so that the vested percentage for
employer-derived benefits is equal to the greater of the vesting provided
under other provisions of the Plan or the following schedule:
Years of Service Nonforfeitable Percentage
1 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
where "years of service" means the years credited for vesting purposes
under the Plan or, if greater, the years required to be counted under Code
Section 411 and applicable regulations thereto. If the Plan thereafter
ceases to be top-heavy for a Plan Year, the vesting schedule above shall
be disregarded and the original schedule applied, except with respect to
any Participant with five (5) or more years of service and except that no
Participant's vested percentage as of the end of the prior year shall be
decreased. Any non-vested Participant who acquires a vested interest in
the employer-derived benefit by operation of the amended vesting schedule
shall not be subject thereafter to a cancellation of service.
Notwithstanding anything in this Section to the contrary, the amendment of
the vesting schedule pursuant to this subsection shall not affect the
calculation of benefit amounts or the determination of benefit
commencement dates hereunder.
Section 9.08. Retroactive Effective Date. The
provisions of Section 1.01 with respect to leased employees, of Sections
3.02, 3.03 and 3.06 with respect to contribution limitations, of Section
4.04 with respect to benefit limitations, of Section 5.09 with respect to
plan loans and of Section 9.07 shall apply retroactively from and after
October 1, 1987.
<PAGE>
UNIVERSAL FOODS CORPORATION SAVINGS PLAN
Appendix A
Participating Groups
All salaried employees of the Employers in the following
Divisions who meet the participation requirements of Section 2.01(a) of
the Plan:
Corporate Division (Universal Foods Corporation)
Color Division (Warner-Jenkinson Company, Inc.)
Dehydrated Division (Rogers Foods, Inc.)
Red Star Yeast and Products Division (Universal Foods
Corporation)
Flavor Division (Universal Flavor Corp. and subsidiaries)
Red Star Bioproducts (Universal Foods Corporation)
All non-union hourly employees of the Employers in the
following locations who meet the participation requirements of Section
2.01(a) of the Plan:
Color Division (Warner-Jenkinson Company, Inc.)
Red Star Yeast and Products Division (Universal Foods
Corporation)
Flavor Division (Universal Flavor Corp. and subsidiaries)
Exhibit 5
UNIVERSAL FOODS CORPORATION
T. M. O'Reilly
Vice President, Secretary September 15, 1997
and General Counsel
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Universal Foods Corporation
Ladies & Gentlemen:
As Vice President, Secretary and General Counsel of Universal
Foods Corporation, I am familiar with the Form S-8 Registration Statement
(the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), relating to 1,000,000 shares of the
Company's Common Stock, $.10 par value per share (the "Common Stock"), and
interests in the Universal Foods Corporation Savings Plan (the "Plan")
which may be issued or acquired pursuant to the Plan.
In this regard, I have examined: (a) the Plan; (b) signed
copies of the Registration Statement; (c) the Company's Articles of
Incorporation and Bylaws, as amended to date; (d) resolutions of the
Company's Board of Directors relating to the Plan; and (e) such other
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Common
Stock to be acquired by the Plan will be purchased either in the open
market or directly from the Company or other private sources. To the
extent that the shares of Common Stock acquired by the Plan shall
constitute shares issued by and purchased from the Company, such shares of
Common Stock, when issued pursuant to the terms and conditions of the
Plan, and as contemplated in the Registration Statement, will be validly
issued, fully paid and nonassessable, except as otherwise provided by
Section 180.0622(2)(b) of the Wisconsin Statutes.
I consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, I do not admit that I am
an "expert" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
/s/ T. M. O'Reilly
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Universal Foods Corporation on Form S-8 of our reports dated
November 14, 1996 and March 20, 1997, appearing in the Annual Report on
Form 10-K of Universal Foods Corporation for the year ended September 30,
1996 and in the Annual Report on Form 11-K of Universal Foods Corporation
Savings Plan for the year ended September 30, 1996, respectively.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
September 16, 1997
Milwaukee, Wisconsin
