<PAGE>
As filed with the Securities and Exchange Commission on October 1,1997
Registration No. 333-[______]
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
FMC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-0479804
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification Number)
200 East Randolph Drive
Chicago, Illinois 60601
312/861-6000
(Address of principal executive offices)
UNITED DEFENSE LIMITED PARTNERSHIP SALARIED EMPLOYEES' PLAN
UNITED DEFENSE LIMITED PARTNERSHIP YORK PLAN
UNITED DEFENSE LIMITED PARTNERSHIP 401(K) PLAN FOR EMPLOYEES COVERED BY A
COLLECTIVE BARGAINING AGREEMENT
(Full title of the plans)
Charlotte M. Smith
Assistant Secretary and Associate General Counsel
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities to be Amount to be registered Proposed maximum Proposed maximum Amount of registration
registered offering price per aggregate offering fee(1)
share(1) price(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares $.10 par 2,250,000(2) $88.94 $200,115,000 $60,640.91
value
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee based upon the average of the high and low
prices reported for the Common Shares on the NYSE on September 29, 1997.
(2) Pursuant to Rule 416, this Registration Statement shall also be deemed to
cover any additional shares offered under the Plans in order to reflect
share splits, share dividends, mergers and other capital changes.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers and indeterminate amount of interests in the
Plans to be offered or sold pursuant to the terms herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not being filed with or included in this Form S-8 (by incorporation by reference
or otherwise) in accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission"). These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents filed by FMC Corporation, a Delaware corporation,
(the "Company") with the Commission are incorporated herein by reference except
to the extent that any statement or information therein is modified, superseded
or replaced by a statement or information contained in any other subsequently
filed document incorporated by reference:
1. FMC Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
December 31, 1996.
3. The description of the Company's Common Shares contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act dated May 12, 1986, relating to the Company's Plan of
Recapitalization and the listing of the Common Stock on the New York,
Chicago and Pacific Stock Exchanges.
4. The description of the Company's Rights, with respect to Common Shares,
contained in the "Description of Registrant's Securities to be Registered"
of the Company's Registration Statement on Form 8-A filed with the
Commission on March 18, 1986 as amended by the Company's Form 8 Amendment
to Application filed with the Commission on February 27, 1988 and the
Company's Form 8-A/A filed with the Commission on February 12, 1996.
5. All documents filed by the Company or the Plans pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
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.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceedings, whether civil, criminal, administrative
or investigative by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. Depending on the character of the proceeding, a
<PAGE>
corporation may indemnify against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the person indemnified
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the corporation and, with respect to any
criminal action or proceeding, had no cause to believe such person's conduct was
unlawful. In the case of an action by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of such person's duty to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine that despite the adjudication of liability such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper. Section 145 further provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith. Section 145 also states that the indemnification
provided for in such section shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled and empowers the corporation to
purchase and maintain insurance on behalf of directors, officers, employees and
agents of the corporation against any liability asserted against such person or
incurred by such person in any such capacity or arising out of such person's
status as such whether or not the corporation would have the power to indemnify
such person against such liabilities under Section 145.
The Registrant's Certificate of Incorporation provides that a current or
former director shall not be liable to the Registrant or its shareholders for
damages for any breach of fiduciary duty except under those circumstances set
forth in Section 102(b)(7) of the Delaware General Corporation Law.
The Registrant's By-Laws provide for indemnification, to the fullest
extent permitted by applicable law, of any of its directors and officers who
are, or have been, or are threatened to be, made a party to an action or
proceeding, whether civil or criminal, by reason of the fact that such director
or officer is a director or officer of the Registrant, against any judgments,
fines, amounts paid in settlement and expenses, including attorneys' fees, or
any appeal therein. The By-Laws also provide that additional indemnification
may be provided by the Registrant to any other person to the extent permitted by
applicable law.
The Registrant has purchased directors' and officers' liability insurance
in the amounts and subject to the conditions set forth in such policies covering
certain liabilities incurred by its officers and directors in connection with
the performance of their respective duties.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
---------
See Index to Exhibits.
<PAGE>
Item 9. Undertakings.
-------------
1. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
2. The Registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement; provided, however, that paragraphs (a)(1))(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
b. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all 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, and in the capacities indicated, in the City of Chicago, State of
Illinois, on the 26th day of September, 1997.
FMC CORPORATION
By: /s/ Michael J. Callahan
-------------------------------------
Michael J. Callahan
Executive Vice President-Finance
UNITED DEFENSE LIMITED PARTNERSHIP SALARIED
EMPLOYEES' PLAN
By: United Defense, L.P.
By: FMC Corporation
Its: General Partner
By: /s/ Michael J. Callahan
--------------------------------
Michael J. Callahan
Executive Vice President-Finance
UNITED DEFENSE LIMITED PARTNERSHIP YORK PLAN
By: United Defense, L.P.
By: FMC Corporation
Its: General Partner
By: /s/ Michael J. Callahan
--------------------------------
Michael J. Callahan
Executive Vice President-Finance
UNITED DEFENSE LIMITED PARTNERSHIP 401(K) PLAN
FOR EMPLOYEES COVERED BY A COLLECTIVE BARGAINING
AGREEMENT
By: United Defense, L.P.
By: FMC Corporation
Its: General Partner
By: /s/ Michael J. Callahan
--------------------------------
Michael J. Callahan
Executive Vice President-Finance
<PAGE>
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities
indicated on the 26th day of September, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------- -----
<S> <C>
ROBERT N. BURT* Chairman of the Board and Chief
- ------------------------ Executive Officer
ROBERT N. BURT
MICHAEL J. CALLAHAN Executive Vice President-Finance
- ------------------------ (Principal Financial Officer)
MICHAEL J. CALLAHAN
RONALD D. MAMBU Controller
- ------------------------ (Principal Accounting Officer)
RONALD D. MAMBU
LARRY D. BRADY* Director
- ------------------------
LARRY D. BRADY
B.A. BRIDGEWATER, JR.* Director
- ------------------------
B.A. BRIDGEWATER, JR.
PATRICIA A. BUFFLER* Director
- ------------------------
PATRICIA A. BUFFLER
ALBERT J. COSTELLO* Director
- ------------------------
ALBERT J. COSTELLO
Director
- ------------------------
PAUL L. DAVIES, JR.
JEAN A. FRANCOIS-PONCET* Director
- ------------------------
JEAN A. FRANCOIS-PONCET
PEHR G. GYLLENHAMMAR* Director
- ------------------------
PEHR G. GYLLENHAMMAR
EDWARD C. MEYER* Director
- ------------------------
EDWARD C. MEYER
Director
- ------------------------
E.J. MOONEY
WILLIAM F. REILLY* Director
- ------------------------
WILLIAM F. REILLY
JAMES R. THOMPSON* Director
- ------------------------
JAMES R. THOMPSON
CLAYTON YEUTTER* Director
- ------------------------
CLAYTON YEUTTER
*By: /s/ Michael J. Callahan
--------------------------------
MICHAEL J. CALLAHAN
(Attorney-in-Fact)
</TABLE>
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Description of Exhibit
No.
- ------- ----------------------
4.1 Restated Certificate of Incorporation
of the Company as filed on July 11,
1986 (incorporated by reference from
Exhibit 3.1 to the Form SE filed on
March 25, 1993)
4.2 Amendment to Restated Certificate of
Incorporation filed on April 30, 1987
(incorporated by reference from Exhibit
3.2 to the Form SE filed on March 25,
1993)
4.3 Amended and Restated By-Laws of the
Company, as amended (incorporated by
reference from Exhibit 4.3 to Form S-8
Registration Statement No. 333-18383
filed on December 18, 1996)
4.4 Amended and Restated Rights Agreement
dated as of February 19, 1988, between
the Company and Harris Trust and
Savings Bank (incorporated by reference
from Exhibit 4 to the Form SE filed on
March 25, 1993)
4.5 Amendment to Amended and Restated
Rights Agreement, dated February 9,
1996, between the Company and Harris
Trust and Savings Bank (incorporated by
reference from Exhibit 1 to the Form
8-K filed on February 9, 1996)
4.6 United Defense Limited Partnership Salaried
Employees' Plan
4.7 Amendment to United Defense Limited Partnership
Salaried Employees' Plan
4.8 United Defense Limited Partnership York
Plan
4.9 Amendment to United Defense Limited Partnership
York Plan
4.10 United Defense Limited Partnership 401(k) Plan
for Employees Covered by a Collective Bargaining
Agreement
4.11 Amendment to United Defense Limited Partnership
401(k) Plan for Employees Covered by a Collective
Bargaining Agreement
5 Opinion of Charlotte M. Smith on the
legality of the Common Shares
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Charlotte M. Smith (included in
the Opinion filed as Exhibit 5)
24 Powers of Attorney of certain officers
and directors of the Company
<PAGE>
EXHIBIT 4.6
UNITED DEFENSE LIMITED PARTNERSHIP
----------------------------------
SALARIED EMPLOYEES' PLAN
------------------------
Page i
<PAGE>
UDLP SALARIED
-------------
EMPLOYEES'
----------
PLAN
----
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1 ESTABLISHMENT OF THE PLAN............................ 1
SECTION 2 ELIGIBILITY AND PARTICIPATION........................ 2
(a) Participants................................... 2
(b) Suspension of Active Participation............. 2
(c) Termination of Participation................... 3
SECTION 3 EMPLOYEE-ELECTED COMPANY CONTRIBUTIONS............... 4
(a) Employee-Elected Company Contributions......... 4
(b) Changing the Rate of Employee-Elected Company
Contributions.................................. 5
(c) Payroll Deductions............................. 5
(d) Investment of Employee-Elected Company
Contributions.................................. 5
(e) Transfer of Funds.............................. 5
(f) Rollover Amount From Other Plans............... 6
(g) Special Employee Contributions................. 7
SECTION 4 COMPANY CONTRIBUTIONS................................ 10
(a) Company Contributions.......................... 10
(b) Allocation of Company Contributions and
Forfeitures.................................... 11
</TABLE>
Page ii
<PAGE>
UDLP SALARIED
EMPLOYEES' PLAN
---------------
TABLE OF CONTENTS
-----------------
(Continued)
-----------
<TABLE>
<S> <C>
SECTION 5 WITHDRAWALS......................................... 12
(a) Withdrawals from Special Employee
Contributions................................. 12
(b) Withdrawals from Employee Contributions....... 12
(c) Withdrawals from Employer Contributions....... 13
(d) Hardship Withdrawals.......................... 13
(e) Age 59-1/2 Withdrawals........................ 15
(f) Election and Payment of Withdrawals........... 15
(g) Source of Payment............................. 15
(h) Form of Payment and Valuation Date............ 16
(i) Limitation on Withdrawals..................... 16
(j) Suspension for Withdrawals.................... 16
SECTION 6 LOANS............................................... 18
(a) Terms of Loans................................ 18
(a) Limitations on Loans.......................... 19
(c) Loan Procedures............................... 19
(d) Repayment of Loans............................ 19
SECTION 7 VESTING............................................. 20
(a) Five-Year Vesting............................. 20
(b) Graded Vesting................................ 20
(c) Full Vesting.................................. 20
SECTION 8 DISTRIBUTABLE INTERESTS AND FORFEITURES............. 21
(a) Plan Benefits................................. 21
(b) Forfeitures................................... 21
</TABLE>
Page iii
<PAGE>
UDLP SALARIED
EMPLOYEES' PLAN
---------------
TABLE OF CONTENTS
-----------------
(Continued)
-----------
<TABLE>
<S> <C>
SECTION 9 FORM OF PLAN BENEFIT................................. 23
(a) Normal Forms of Distribution................... 23
(b) Optional Form of Distribution.................. 24
(c) Participant's Election to Receive Cash......... 25
(d) Missing Persons................................ 25
(e) Payments to Beneficiary........................ 26
(f) Change of Election............................. 27
(g) Foreign Transfers.............................. 27
SECTION 10 CLAIM PROCEDURE...................................... 29
(a) Application for Benefits....................... 29
(b) Denial of Applications......................... 29
SECTION 11 APPEAL PROCEDURE..................................... 30
(a) The Review Panel............................... 30
(b) Requests for a Review.......................... 30
(c) Decision on Review............................. 30
(d) Rules and Procedures........................... 31
(e) Exhaustion of Remedies......................... 31
SECTION 12 ADMINISTRATION AND OPERATION OF THE PLAN............. 32
(a) Administrative Responsibilities................ 32
(b) Appointment of Trustees........................ 32
(c) Delegation of Fiduciary Responsibilities....... 32
SECTION 13 FUNDING OF THE PLAN.................................. 34
(a) Funding Policy and Method...................... 34
(b) Public Accountant.............................. 34
(c) Basis of Payments to the Plan.................. 34
(d) Basis of Payments from the Plan................ 35
(e) Investment of Trust Assets..................... 35
</TABLE>
Page iv
<PAGE>
UDLP SALARIED
-------------
EMPLOYEES' PLAN
---------------
TABLE OF CONTENTS
-----------------
(Continued)
<TABLE>
<S> <C>
SECTION 14 PARTICIPANTS' ACCOUNTS................................ 37
(a) Participants' Accounts.......................... 37
(b) Rules Relating to Plan Investments and
Earnings Adjustments............................ 37
(c) Stock Fund...................................... 38
SECTION 15 AMENDMENT AND TERMINATION OF THE PLAN................. 40
(a) Future of the Plan.............................. 40
(b) Amendments...................................... 40
(c) Termination of the Plan......................... 40
(d) Allocation of Trust Fund Upon Termination....... 41
SECTION 16 CONTRIBUTION LIMITATIONS.............................. 42
(a) Limitation of Allocations....................... 42
(b) Maximum Annual Additions........................ 43
(c) Adjustment for Excessive Annual Additions....... 49
SECTION 17 TOP HEAVY PROVISIONS.................................. 51
(a) Top Heavy Plan Requirements..................... 51
(b) Determination of Top Heavy Status............... 51
(c) Minimum Benefit Requirement for Top Heavy Plan.. 56
</TABLE>
Page v
<PAGE>
UDLP SALARIED
-------------
EMPLOYEES' PLAN
---------------
TABLE OF CONTENTS
-----------------
(Continued)
<TABLE>
<S> <C>
SECTION 18 GENERAL PROVISIONS................................... 58
(a) Plan Mergers................................... 58
(b) No Assignment of Property Rights............... 58
(c) Beneficiary.................................... 59
(d) Incapacity..................................... 59
(e) Employment Rights.............................. 59
(f) Voting Rights.................................. 60
(g) Rights on Tender or Exchange Offer............. 60
(h) Account Statements............................. 61
(i) Choice of Law.................................. 61
SECTION 19 DEFINITIONS.......................................... 62
SECTION 20 EXECUTION............................................ 71
</TABLE>
Page vi
<PAGE>
SECTION 1
UNITED DEFENSE LIMITED PARTNERSHIP
----------------------------------
SALARIED EMPLOYEES' PLAN
------------------------
SECTION 1. ESTABLISHMENT OF THE PLAN.
-------------------------------------
United Defense Limited Partnership Salaried Employees' Plan is established
by UDLP effective January 1, 1995. The Plan is intended to provide employees of
the Company an opportunity for systematic investment, to strengthen the interest
of employees in the Company and thereby promote the mutual interests of the
Company, its eligible employees and its shareholders, and to provide a measure
of financial security for employees and their beneficiaries. The Plan is
subject to change to meet applicable rules and regulations of the Internal
Revenue Service and the United States Department of Labor and for such other
reasons as UDLP may determine. The Plan is intended to qualify as a profit-
sharing plan for purposes of sections 401(a), 402, 412, and 417 of the Code.
Certain capitalized terms in the Plan text are defined in alphabetical order in
Section 19.
Page 1
<PAGE>
SECTION 2
SECTION 2. ELIGIBILITY AND PARTICIPATION.
----------------------------------------
(a) Participants. Participation in the Plan is voluntary. An Eligible
-------------
Employee may elect at any time to participate in the Plan by filing the
prescribed application form with the local personnel office. The Regular
Compensation of an Eligible Employee who so elects to participate shall be
reduced by an amount equal to the Dollar Limit, but not more than 15% of his
Earnings, which reduced amount shall be his "Adjusted Regular Compensation."
Such Eligible Employee shall become a Participant on the first day of the first
payroll period occurring on or after the first of the calendar month next
following the date his application form is received by UDLP in the local human
resources office. If a Participant terminates employment with the Affiliated
Group, he shall resume participation on the first day of the payroll period
following the 30th day after his election to resume participation, on the
prescribed application form, is received by UDLP in the local human resources
office.
(b) Suspension of Active Participation. A Participant's Active
-----------------------------------
Participation in the Plan shall be suspended during the following periods of
time:
(i) Any period during which he continues to be an employee of the
Affiliated Group but does not qualify as an Eligible Employee.
(ii) Any period for which he does not receive Earnings, including
(without limitation) any leave of absence without pay.
(iii) A period described in Subsection 3(a)(ii) and the last sentence
of Subsection 5(j) (voluntary discontinuance of Employee-Elected Company
Contributions).
Page 2
<PAGE>
SECTION 2(b)(iv)
(iv) A period described in Subsections 5(a) and (b) relating to
periods of suspension following various forms of withdrawal.
(v) The period falling between the date when her employment with
the Company terminates and the date when her participation terminates under
Subsection 2(c).
While a Participant's Active Participation is suspended, she
shall neither elect any Employee-Elected Company Contributions nor receive any
allocation of Company Contributions or Forfeitures made with respect to the
period of suspended Active Participation. Vesting will continue during
suspension and termination periods under (i), (iii), and (iv) above but not
under (v) above. Vesting will continue only during the first 12 months of a
period under (ii) above, but not thereafter. The accounts of a Participant whose
Active Participation is suspended shall, subject to Subsection 3(e), remain
invested in the FMC Stock Fund, Harsco Stock Fund, Equity Fund, or Fixed Income
Fund, as the case may be, and shall continue to be credited with any earnings,
appreciation or losses arising with respect thereto.
(c) Termination of Participation. Any Participant shall cease to
----------------------------
participate in the Plan as of the date when her entire Plan Benefit has been
distributed or on the date of her death.
Page 3
<PAGE>
SECTION 3
SECTION 3. EMPLOYEE-ELECTED COMPANY CONTRIBUTIONS.
--------------------------------------------------
(a) Employee-Elected Company Contributions.
--------------------------------------
(i) Election. While a Participant's Active Participation is not
--------
suspended he may elect to have contributed to the Trust out of the amount of his
compensation reduction provided in Subsection 2(a), an "Employee-Elected Company
Contribution." A Participant may elect an annual rate of Employee-Elected
Company Contributions of at least 2% and up to 15% (in whole percentages) of his
Earnings, but not more than the Dollar Limit per Year by filing the prescribed
application form with the local personnel office. No Participant shall be
permitted to have Employee-Elected Company Contributions made under this Plan
during any Year that, when aggregated with elective deferrals (within the
meaning of Code section 402(g)(3)) made under all other plans of the Company
during such Year, such contributions exceed the Dollar Limit. Such election
shall be effective beginning with the first payroll period occurring on or after
the first of the calendar month next following the date his application form is
received by UDLP in the local human resources office.
(ii) Discontinuance. A Participant may elect at any time the
--------------
discontinuance of future Employee-Elected Company Contributions, effective
beginning with the first payroll period occurring on or after the first of the
calendar month next following the date her election, on the prescribed form, is
filed with the local human resources office. The Active Participation of any
Participant who makes such an election shall be suspended under Subsection 2(b)
for a minimum period of six (6) months, and thereafter Active Participation
shall be resumed the first day of the first payroll period following the 30th
day after her election to resume Employee-Elected Company Contributions is
received by UDLP in the local human resources office, on the prescribed
application form.
Page 4
<PAGE>
SECTION 3(b)
(b) Changing the Rate of Employee-Elected Company Contributions. A
-----------------------------------------------------------
Participant may elect to change her rate of Employee-Elected Company
Contributions to any other rate available to her under Subsection 3(a) above.
Any election under this Subsection 3(b) shall be made by filing the prescribed
form with the local human resources office and shall be effective beginning with
the first payroll period occurring on or after the first of the calendar month
next following the date her form is filed. No Participant shall make more than
two elections under this Subsection 3(b) during any Plan Year, unless UDLP
consents to any additional election or elections.
(c) Payroll Deductions. During each payroll period, the portion of a
------------------
Participant's share of her compensation reduction that the Participant does not
elect to have contributed to the Trust as an Employee-Elected Company
Contribution (or the entire amount of such compensation reduction during any
period of suspension) shall be paid to the Participant in cash as compensation
in addition to the Participant's Adjusted Regular Compensation.
(d) Investment of Employee-Elected Company Contributions. A Participant's
----------------------------------------------------
Employee-Elected Company Contributions shall be invested (i) entirely in the FMC
Harsco Stock Fund, the Fixed Income Fund, or the Equity Fund, or (ii) in two or
more of those Funds in multiples of 25%, as he shall elect by filing the
prescribed application form except that a Participant whose investment in the
Harsco Stock Fund (excluding Harsco Stock transferred into this Plan from an
"Other Plan" as defined in Subsection 3(f)) exceeds 10% of her Plan Benefit may
not elect any further investment in the Harsco Stock Fund. A Participant may
change such election prospectively for an entire Plan Year by filing the
prescribed form with the local personnel office not less than 30 days prior to
such Plan Year.
(e) Transfer of Funds. A Participant who has attained age 55 may elect to
-----------------
transfer among the Fixed Income Fund, the FMC Stock Fund, the Harsco Stock Fund,
and the Equity Fund the entire balance (if any) of his Employee Contributions
Account, Special Employee Contributions Account, and Employee-Elected Company
Contributions Account
Page 5
<PAGE>
SECTION 3(e)
then invested in any of such Funds, or any portion of the aggregate balance of
those accounts, in multiples of 20%. Any election under this Subsection 3(e)
shall be made by filing the prescribed form by the fifth working day of a Plan
Year with the local personnel office, and such transfer shall be made effective
the first day of that Plan Year. For purposes of accounting for such a
transfer, the value of the Participant's balance in the account or portion
thereof transferred shall be determined as of the Valuation Date preceding the
month when such transfer is effective. No Participant shall make more than one
such transfer during each Plan Year.
(f) Rollover Amount From Other Plans. An Eligible Employee, regardless of
--------------------------------
whether she has elected to otherwise participate in the Plan, may transfer to
the Trust Fund in cash a "Qualified Total Distribution," as defined in Section
402(a)(5)(E)(i) of the Code, if the distribution is from a plan which meets the
requirements of Section 401(a) of the Code (the "Other Plan"), subject to refund
upon any subsequent contrary determination by the Internal Revenue Service. The
procedures approved by UDLP shall provide that such a transfer may be made only
if the following conditions are met:
(i) the transfer occurs on or before the 60th day following the
Eligible Employee's receipt of the distribution from the Other Plan; and
(ii) the amount transferred is equal to any portion of the
distribution the Eligible Employee received from the Other Plan, subject to the
maximum rollover provision of Section 402(a)(5)(B) of the Code, limiting such
amount to the fair market value of all property received in the distribution
reduced by employee contributions, as defined in Section 402(a)(5)(D)(ii) of the
Code.
Notwithstanding the foregoing, if an Eligible Employee had deposited a
distribution previously received from an Other Plan into an individual
retirement account ("IRA"), as
Page 6
<PAGE>
SECTION 3(f)(ii)
defined in Section 408 of the Code, she may transfer the amount of that
distribution, plus earnings on it, from the IRA to this Plan, but only if the
rollover amount is deposited with the Trustee on or before the 60th day
following receipt of it from the IRA.
UDLP shall develop such procedures, and may require such
information from an Eligible Employee desiring to make such a transfer, as it
deems necessary or desirable to determine that the proposed transfer will meet
the requirements of this Subsection. Upon approval by UDLP, the amount
transferred shall be deposited in the Trust Fund, credited to the Employee's
Employee-Elected Company Contributions Account, and invested entirely in the
Fixed Income Fund. Such Account shall be fully vested in the Eligible Employee,
shall share in the earnings and appreciation of the fund or funds in which it is
invested in accordance with Subsection 13(b), but shall not share in Company
Contributions and Forfeitures .
(g) Special Employee Contributions.
------------------------------
(i) Election. A Participant who has no currently effective election
--------
of Employee-Elected Company Contributions or who has a currently effective
election of Employee-Elected Company Contributions equal to the Dollar Limit
(but less than 15% of his Earnings) may elect to make "Special Employee
Contributions." A Participant may, by filing the prescribed application form
with UDLP, elect a rate of Special Employee Contributions, in whole percentages
of his Earnings, of up to a percentage that when aggregated with the rate of his
Employee-Elected Company Contributions will equal 15% of his Earnings. Except as
provided in Subsection 18(i), such election shall be effective beginning with
the first payroll period occurring on or after the first of the calendar month
next following the date his application form is received by UDLP in the local
human resources office.
Page 7
<PAGE>
SECTION 3(g)(ii)
(ii) Discontinuance. A Participant may elect at any time the
--------------
discontinuance of future Special Employee Contributions, effective beginning
with the first payroll period occurring on or after the first of the calendar
month next following the date her election, on the prescribed form, is received
by UDLP by filing the form with the local personnel office. The right of a
Participant who makes such an election to make Special Employee Contributions
shall be suspended for a minimum period of six (6) months, and thereafter
Special Employee Contributions shall be resumed the first day of the first
payroll period following the 30th day after her election to resume Special
Employee Contributions is received by UDLP in the local human resources office,
on the prescribed application form.
(iii) Changing the Rate of Special Employee Contributions. A
---------------------------------------------------
Participant may elect to change her rate of Special Employee Contributions to
any other rate available to her under Subsection 3(g)(i) above. Any election
under this Subsection 3(g)(iii) shall be made by filing the prescribed form with
the local personnel office and shall be effective beginning with the first
payroll period occurring on or after the first of the calendar month next
following the date her form is received by UDLP in the local human resources
office. No Participant shall make more than two elections under this Subsection
3(g)(iii) during any Plan Year, unless UDLP consents to any additional election
or elections.
(iv) Payroll Deductions. Special Employee Contributions shall be
------------------
made only through periodic payroll deductions, unless UDLP consents to another
method of payment. Any commencement or discontinuance of withholding, or any
change in the rate of withholding, shall be effective on the first day of the
appropriate payroll period following the 30th day after the appropriate election
form is received by UDLP. All Special Employee Contributions withheld during a
calendar month shall be paid to the Trustee and credited to the appropriate
Special Employee Contributions Account as described in Section 14.
Page 8
<PAGE>
SECTION 3(g)(v)
(v) Investment of Special Employee Contributions. A Participant's
--------------------------------------------
Special Employee Contributions shall be invested in the same manner as his
Employee-Elected Company Contributions (if any) as elected under Subsection
3(d). If the Participant has no currently effective election of Employee-
Elected Company Contributions, he may elect to invest his Special Employee
Contributions in the manner provided in Section 3(d).
Page 9
<PAGE>
SECTION 4
SECTION 4. COMPANY CONTRIBUTIONS.
---------------------------------
(a) Company Contributions. For each calendar month, UDLP shall make a
---------------------
"Company Contribution." The amount of such contribution shall be equal to the
sum of the percentages, as set forth below, of (i) all Basic Contributions for
such month invested in the FMC Stock Fund and the Harsco Stock Fund, less the
Forfeitures (if any) which are credited against such contribution pursuant to
Subsection 8(b), and (ii) all Basic Contributions for such month invested in the
Fixed Income Fund and Equity Fund. UDLP shall determine such percentages for
any Plan Year prior to the beginning of such Plan Year by applying the following
schedule to the ratio of Profits to Average Invested Capital for the immediately
preceding calendar year:
Basic Contributions Invested in Stock Funds:
-------------------------------------------
Profits as Percentage of Company Contributions
Average Invested Capital: plus Forfeitures:
------------------------- ---------------------
Less than 6% 30% of Basic Contributions
6% or more but less than 6.5% 40% of Basic Contributions
6.5% or more but less than 7% 50% of Basic Contributions
7% or more but less than 7.5% 60% of Basic Contributions
7.5% or more but less than 8% 70% of Basic Contributions
8% or more 80% of Basic Contributions
Page 10
<PAGE>
SECTION 4(a)
Basic Contributions Invested in Fixed Income Fund and Equity Fund:
-----------------------------------------------------------------
Profits as Percentage of Company Contributions
Average Invested Capital: plus Forfeitures:
------------------------- ---------------------
Less than 6% 15% of Basic Contributions
6% or more but less than 6.5% 20% of Basic Contributions
6.5% or more but less than 7% 25% of Basic Contributions
7% or more but less than 7.5% 30% of Basic Contributions
7.5% or more but less than 8% 35% of Basic Contributions
8% or more 40% of Basic Contributions
The Company shall communicate the rate of Company Contributions as part of the
first general communication to participants after such rate is determined.
(b) Allocation of Company Contributions and Forfeitures. The Company
---------------------------------------------------
Contribution for any calendar month shall be paid to the Trustee as soon as
practicable, and such payment may include advance Company Contributions. The
Company Contribution, together with any current Forfeitures credited thereto,
but not including any advance Company Contributions, shall be allocated first to
the reinstatement of prior Forfeitures to which reemployed Participants may be
entitled under Subsection 8(b) and second to the payment of administrative
expenses payable out of the Trust Fund. The balance of such contributions and
current Forfeitures shall be apportioned among the Company Contributions
Accounts of all Participants who elected any Basic Contributions for such month
in the ratio that each Participant's Basic Contributions for such month bears to
the total Basic Contributions made by all Participants for such month. All
Company Contributions and Forfeitures allocated to Company Contributions
Accounts shall be invested in FMC Stock as part of the FMC Stock Fund.
Page 11
<PAGE>
SECTION 5
SECTION 5. WITHDRAWALS.
-----------------------
(a) Withdrawals from Special Employee Contributions. Any Participant may
-----------------------------------------------
withdraw from her Special Employee Contributions Account the following amounts
in the order listed: (i) all or part of her Special Employee Contributions made
after March 31, 1986, and before January 1, 1987, (ii) all earnings or
appreciation attributable to Special Employee Contributions made after March 31,
1986, and before January 1, 1987, (iii) all or part of her Special Employee
Contributions made after December 31, 1986. Any participant may also withdraw
the following amounts in the order listed: (x) all earnings or appreciation
attributable to Special Employee Contributions made after December 31, 1986, and
(y) all of the current value of vested Company Contributions attributable to
Special Employee Contributions made after December 31, 1986. The active
participation of any Participant who makes a withdrawal under Subsections
5(a)(iii), (x), and (y) above shall be suspended until the first day of the
payroll period coinciding with or next following the date six months after the
first day of the month following the month in which the request to make a
withdrawal is effective, as defined in Subsection 5(f).
(b) Hardship Withdrawals. A Participant who encounters a "Financial
--------------------
Hardship," resulting in an immediate and heavy financial need, may withdraw an
amount necessary to satisfy that need, including, all or part of the following
amounts in the order listed: (i) the current value of his Special Employee
Contributions (if any) made before January 1, 1987, (ii) the current value of
his Special Employee Contributions made after December 31, 1986, (iii) the
current value of his aggregate Employee-Elected Company Contributions not
previously withdrawn, and the earnings on them as of December 31, 1988, and (iv)
the value of his Company Contributions Account as of December 31, 1988. UDLP
shall determine whether an event constitutes a Financial Hardship. Subject to
the review procedure described in Section 10, such determination shall be
conclusive and
Page 12
<PAGE>
SECTION 5(b)
binding on all persons. The following expenditures will be conclusively
considered to be made on account of immediate and heavy financial need: (i)
medical expenses described in section 213(d) of the Code incurred by the
Participant, the Participant's spouse, or any dependents of the Participant (as
defined in section 152 of the Code); (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; and (iv) expenditures to prevent
the eviction of the Participant from the Participant's principal residence or
foreclosure on the mortgage of the Participant's principal residence. In
determining whether a withdrawal is necessary to satisfy a financial need, UDLP
may reasonably rely upon the Participant's representation that the need cannot
be met by insurance, reasonable liquidation of assets (not itself creating a
hardship), cessation of Employee-Elected Company Contributions and Special
Employee Contributions, by other distributions or other nontaxable loans from
plans maintained by UDLP or any other employer, or by borrowing from commercial
sources on reasonable commercial terms. The Active Participation of any
Participant who makes this hardship withdrawal shall not be suspended, and the
unwithdrawn portion of his Company Contributions Account shall continue to vest.
(c) Age 59-1/2 Withdrawals. A Participant who has attained age 59-1/2 may
----------------------
withdraw his entire Special Employee Contributions Account (if any), his entire
Employee-Elected Company Contributions Account, and his entire Company
Contributions Account. A Participant who has an outstanding loan under Section
6 may not make such a withdrawal except upon repayment of the loan. Upon such a
withdrawal the Participant will not incur
Page 13
<PAGE>
SECTION 5(C)
any suspension of Active Participation and will continue to have the right to
elect to make contributions to the Plan in the same manner he had prior to the
withdrawal.
(d) Election and Payment of Withdrawals. A request to make a withdrawal,
-----------------------------------
and any election of a source of payment under Subsection 5(g) below, shall be
filed with the local personnel office on the prescribed form. A withdrawal
request is effective in the month in which the proper form is dated and signed,
provided the form is received by UDLP no later than the fifth working day of the
following month. Any withdrawal request form received after such fifth working
day shall be effective in the month in which received by UDLP. A hardship
withdrawal shall be paid as soon as practicable after valuation pursuant to
Subsection 5(f) below, and all other withdrawals shall be paid within 30 days
after valuation.
(e) Source of Payment. A Participant who, under Subsection 5(a),
-----------------
withdraws less than the entire value of his Special Employee Contributions
Account and who has interests in more than one investment fund may specify
whether such withdrawal shall be entirely from one fund or from more than one
fund in specified parts. The withdrawal from such Account shall not exceed the
Participant's aggregate Special Employee Contributions placed in each such
Account and not previously withdrawn.
(f) Form of Payment and Valuation Date. All withdrawals shall be paid in
----------------------------------
cash. The Participant's interest in the FMC Stock, Harsco Stock, Equity, and
Fixed Income Funds shall be valued as of the Valuation Date in the month in
which such withdrawal request is effective, as defined in Subsection 5(d).
(g) Limitation on Withdrawals. No withdrawal shall be in an amount less
-------------------------
than the smaller of the entire vested interest or $250.00. A withdrawal from
any of the Participant's Accounts shall not include any portion of the Account
which has been loaned to the Participant under Section 6. No Participant may
make a withdrawal after the Plan is
Page 14
<PAGE>
SECTION 5(g)
terminated pursuant to Section 15, and no Participant who has notice that the
Plan will be so terminated may make a withdrawal.
(h) Suspension for Withdrawal. The Active Participation of any Participant
-------------------------
who makes a withdrawal from her Special Employee Contributions Account (other
than Special Employee Contributions made before January 1, 1987, and any
earnings or appreciation attributable to them) shall be suspended for six
months, as provided in Subsection 5(a). A Participant whose Active
Participation has been so suspended may resume Active Participation upon filing
the prescribed reinstatement form for such purpose with the local personnel
office. Such Active Participation shall be resumed the first day of the
appropriate payroll period beginning on or after the first day of the calendar
month immediately following the later of (i) the end of her suspension, or (ii)
the date her reinstatement form is received by UDLP. If reinstatement of Active
Participation is not elected on the prescribed form within 30 days after the
withdrawal suspension ends, the Participant will be treated as though she had
elected to discontinue future Employee-Elected Company Contributions.
<PAGE>
SECTION 6
SECTION 6. LOANS.
-----------------
(a) Terms of Loans. Any Participant or Beneficiary who is a "party in
---------------
interest" as to the Plan, as defined in Section 3(14) of ERISA, may borrow from
the Plan as provided in this Section 6. (References to Participants in this
Section shall include Beneficiaries). Loans shall not be made available to
highly compensated employees (as defined in section 414(q) of the Code) in an
amount greater than the amount made available to other employees. The minimum
amount that may be borrowed is $1,000, and higher amounts may be borrowed in
multiples of $500. The maximum amount that may be borrowed is the lesser of (i)
$50,000 (reduced by the highest outstanding loan balance of that Participant for
the prior 12 months) and (ii) 50 per cent of the Participant's vested Plan
Benefit. The period of repayment for any loan shall be five (5) years. A
Participant may prepay a loan in a lump sum on any date more than three (3)
months after the loan is made. Each loan shall be secured by the Participant's
Plan Benefit. For the purposes of determining the portion of a Participant's
Plan Benefit that is distributable by withdrawal or otherwise, and the portion
of a Participant's Accounts that are subject to the allocation of earnings,
appreciation, or depreciation, the amount of a loan will be deducted from the
Participant's accounts in the following order: (i) the Special Employee
Contributions Account (if any), (ii) the Employee-Elected Company Contributions
Account, (iii) the vested portion of the Company Contributions Account when the
loan is made. A partial deduction to an account will be allocated according to
the Participant's then current investment election. Each loan shall bear
interest at the Fixed Income Fund rate at the time the loan is made or other
reasonable rate of interest determined by UDLP at the time the loan is made.
Page 16
<PAGE>
SECTION 6(b)
(b) Limitations on Loans. No loan shall be made to a Participant who has
---------------------
more than one outstanding loan, who UDLP determines to have insufficient monthly
net base pay to repay the loan, who has defaulted on a previous loan from the
Plan, or has borrowed from the Plan within the prior twelve (12) months.
(c) Loan Procedures. A Participant may apply for a loan by filing the
----------------
prescribed application form with the local personnel office accompanied by any
processing fee established by UDLP. A borrowing Participant will be required to
sign a collateral promissory note secured by the Participant's Plan Benefit and
will receive a Federal Truth-In-Lending Disclosure Statement. A Participant's
accounts will be valued on the Valuation Date in the month in which the loan is
requested, and the loan will be disbursed as soon as practicable after that
Valuation Date.
(d) Repayment of Loans. Each loan will be repaid through payroll
------------------
deductions beginning with the first payroll period of the month following the
month in which the loan is disbursed. If a Participant's employment is suspended
such that the Participant is no longer receiving a paycheck, the Participant
shall make substantially level monthly loan repayments directly to the Plan.
Monthly loan payments of principal and interest will be credited to the accounts
of a Participant from which deducted in reverse of the order provided in
Subsection 6(a), but allocated among investment funds according to the
Participant's investment election when the repayment is made. A lump sum payment
will be credited among investment funds in proportion to its original deduction
from those funds. If a Participant ceases to be a party in interest as to the
Plan because his employment terminates or for any other reason, the loan will be
repaid within thirty (30) days after such cessation, and any outstanding loan
balance will be deducted from any distribution of the Participant's Plan
Benefit.
Page 17
<PAGE>
SECTION 7
SECTION 7. VESTING.
-------------------
(a) Five-Year Vesting. A Participant shall become fully vested in his
------------------
entire Company Contributions Account when he completes five Years of Service.
(b) Graded Vesting. A Participant who is not fully vested under
--------------
Subsection 7(a) shall become vested in his Company Contributions Accounts, on
the first day following completion of a given Year of Service in accordance with
the following schedule:
Percentage of Company
Years of Service Contributions Accounts Vested
---------------- -----------------------------
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
(c) Full Vesting. Notwithstanding Subsections 7(a) and (b) above, a
-------------
Participant shall become vested in his entire Company Contributions Accounts if
one of the following events occurs:
(i) He attains age 55.
(ii) He becomes permanently and totally disabled as determined by
UDLP on the basis of competent medical evidence. Subject to the review procedure
described in Section 11, such determination shall be conclusive and binding upon
all persons.
(iii) He dies.
A Participant shall at all times be vested in his entire
Special Employee Contributions and Employee-Elected Company Contributions
Accounts.
Page 18
<PAGE>
SECTION 8
SECTION 8. DISTRIBUTABLE INTERESTS AND FORFEITURES.
----------------------------------------------------
(a) Plan Benefits. If a Participant's employment with the Affiliated Group
--------------
terminates, if he becomes permanently and totally disabled, if he attains age
70-1/2, or if he elects under Subsection 9(g) to have his Plan Benefit
distributed to him, he will be entitled to receive (i) his entire Special
Employee Contributions Account, (ii) his entire Employee-Elected Company
Contributions Account, and (iii) the portion (if any) of his Company
Contributions Account that is vested under Section 7 as of the date when such
employment terminates.
(b) Forfeitures. If a Participant is not entitled to receive 100% of his
------------
Company Contributions Account under Subsection 7(a), (b), or (c) on the date
when his employment with the Affiliated Group terminates, the non-vested portion
shall be forfeited as of such date. If such Participant is reemployed by the
Affiliated Group within five (5) years from the date of termination, the
forfeited amount shall be reinstated to his Company Contributions Account and
may vest pursuant to Section 7. If such Participant terminates his employment
with the Affiliated Group a second time before he is 100% vested in his Company
Contributions Account, the amount payable from that account shall be computed as
follows:
(i) Add the amount of the prior payment from the account to current
balance of the account,
(ii) Apply the Participant's current vesting percentage (based upon
all his Years of Service) to the total obtained in (i) above.
(iii) Subtract from the amount obtained in (ii) above the amount of
the prior payment from the account.
Page 19
<PAGE>
SECTION 8(b)(iii)
The result is the amount payable to him from that account. All
amounts which are forfeited during a calendar month shall be debited against the
appropriate Company Contributions Accounts and shall be credited to the Company
Contributions for the calendar month or months next following. Notwithstanding
the foregoing, if a Participant's termination of employment is due to a
"maternity or paternity leave," then this Subsection 8(b) shall be read by
substituting the number "six (6)" for the number "five (5)" wherever it appears
herein. For the purposes of this Plan, "maternity or paternity leave" means
termination of employment or absence from work due to the pregnancy of the
Participant, the birth of a child of the Participant, the placement of a child
in connection with the adoption of the child by a Participant, or the caring for
a Participant's child during the period immediately following the child's birth
or placement for adoption. UDLP shall determine, under rules of uniform
application and based on information provided to UDLP by the Participant,
whether or not the Participant's termination of employment or absence from work
is due to "maternity or paternity leave."
Page 20
<PAGE>
SECTION 9
SECTION 9. FORM OF PLAN BENEFIT.
---------------------------------
(a) Normal Forms of Distribution.
-----------------------------
(i) Lump Sum Payment. A Participant's Plan Benefit shall be
----------------
distributed to him (or to his Beneficiary if such Participant dies before the
Distribution Date), unless an installment distribution is elected pursuant to
Subsection 9(b)(ii), in the form of a lump sum. Such distribution shall consist
of (i) a certificate for whole shares of FMC Stock, with a check for any
fractional share, representing his vested interest (if any) in the FMC Stock
Fund, (ii) is certificate for whole shares of Harsco Stock, with a check for the
value of his vested interest (if any) in the Harsco Stock Fund, (iii) a check
for the value of his interests (if any) in the Fixed Income Fund and the Equity
fund, and (iv) a check for the value of his vested interest in the FMC Stock
Fund and Harsco Stock Fund to the extent not previously invested in FMC or
Harsco Stock.
(ii) Valuation Date. For purposes of determining the amount of a lump
---------------
sum distribution under Subsection 9(a)(i) above, the value of the Participant's
interest in the FMC Stock, Harsco Stock, Fixed Income, and Equity Funds shall be
determined as of the Valuation Date next preceding the date of the distribution.
(iii) Distribution Date. A Participant's Plan Benefit shall be
------------------
distributed to such Participant (or to such Participant's Beneficiary if such
Participant has died before the Distribution Date) as soon as practicable after
the Participant's termination of employment, but not later than 60 days after
the close of the Plan Year in which such termination occurs, unless distribution
is deferred pursuant to Subsection 9(b). If a Participant attains age 70-1/2,
regardless of whether her employment terminates, her Plan Benefit shall be
distributed to her no later that April 1 of the Year following the Year in which
the Participant attains age 70-1/2.
Page 21
<PAGE>
SECTION 9(a)(iii)
(b) Optional Form of Distribution.
------------------------------
(i) Participant's Election to Defer. With respect to a Participant
--------------------------------
whose employment terminates on or after her 55th birthday or whose Plan Benefit
is valued at not less than $3,500, the distribution or commencement of
distribution of the Participant's Plan Benefit (including the Participant's
share, if any, of the Company Contributions and Forfeitures for the Plan Year in
which the Participant's employment with the Affiliated Group terminates) will be
deferred to no later than April 1 of the Year following the Year in which the
Participant attains age 70-1/2 unless the Participant elects an immediate
distribution as provided in Subsection 9(a)(iii). A Participant may so defer a
portion of the Plan Benefit and receive an immediate distribution of the balance
of it. Such election must be filed with UDLP on the prescribed form before the
date such employment terminates, before the Participant dies, or before UDLP
determines that the Participant is permanently and totally disabled, as the case
may be, and shall, except as provided in Subsection 9(f), be irrevocable. If
such an election is not made properly in accordance with this paragraph, the
method of payment described in Subsection 9(a)(i) and (iii) shall be used.
(ii) Annual Installments. A Participant entitled to elect to defer
--------------------
distribution of his Plan Benefit under Subsection 9(b)(i) may elect to have the
distribution paid in cash over an installment period of not more than 10 years.
Such election must be filed with UDLP on the prescribed form before the date
employment terminates, before the Participant dies, or before UDLP determines
that the Participant is permanently and totally disabled, as the case may be,
and shall, except as provided in Subsection 9(f), be irrevocable. The election
shall specify the number of annual installments. If an installment election is
made, the Plan Benefit shall be distributed in annual installments as follows:
The amount of each annual installment shall be paid during the first month of
the year. The value of Stock and/or cash
Page 22
<PAGE>
SECTION 9(b)(ii)
to be distributed in each installment shall be determined by dividing the amount
of Stock and/or cash credited to the Participant's Plan Benefit account as of
the date the installment is being paid by the total number of annual
installments elected minus the number of annual installments which have
previously been paid. The amount payable with respect to the Stock portion of
the installment shall be determined as of the Valuation Date immediately
preceding the date payment is made.
(iii) Valuation Date. The Plan Benefit of a Participant who makes an
---------------
election to defer distribution or to receive an installment distribution under
Subsections 9(b)(i) or (ii) above, shall remain invested in the Trust Fund in
the manner selected under Subsection 3(e) or (f) and shall be subject to the
earnings and appreciation or depreciation applicable thereto until the Valuation
Date preceding the final distribution month designated by the Participant.
(c) Participant's Election to Receive Cash. A Participant or Beneficiary
--------------------------------------
entitled to receive shares of Stock may instead elect to receive a check for the
value of all or part of the Participant's vested interest in the FMC or Harsco
Stock Fund plus a certificate for whole shares of FMC or Harsco Stock
representing the balance (if any) of such interest. Any such election shall be
filed with the local personnel office on the prescribed form on or before the
Participant's termination date if filed by the Participant, and if filed by a
Beneficiary, within 90 days after the Participant's death.
(d) Missing Persons. If UDLP and the Trustee shall be unable, within two
----------------
years after any amount becomes due and payable from the Plan to a Participant or
Beneficiary, to make payment because the identity or whereabouts of such person
cannot be ascertained, UDLP may mail a notice by registered mail to the last
known address of such person outlining the following action to be taken unless
such person makes written reply to UDLP within 60 days from the mailing of such
notice: UDLP may direct that amount and all
Page 23
<PAGE>
SECTION 9(d)
further benefits with respect to such person shall be discontinued and all
liability for the payment thereof shall terminate; provided, however, that in
the event of the subsequent reappearance of the Participant or Beneficiary prior
to termination of the Plan, the benefits which were due and payable and which
such person missed shall be paid in a single sum, and the future benefits due
such person shall be reinstated in full. Any benefits discontinued as provided
above, including benefits attributable to Special Employee Contributions,
Employee-Elected Company Contributions, and Company Contributions, shall be
treated as a Forfeiture under Subsection 8(b).
(e) Payments to Beneficiary. A Beneficiary entitled to a distribution
-----------------------
under this Plan may ask that any unpaid Plan Benefit be distributed by one of
the forms of distribution specified in the foregoing provisions of this Section
9, subject to the approval of UDLP and to the following limitations:
(i) If the distribution of a Participant's Plan Benefit in
installments under Subsection 9(b)(ii) has begun and the Participant dies before
her entire Plan Benefit has been distributed to her, the remaining portion of
such interest shall be distributed at least as rapidly as under the installment
method selected as of her date of death.
(ii) If a Participant dies before she has begun to receive any
distributions of her Plan Benefit, her death benefit shall be distributed to her
Beneficiaries within 5 years after her death.
(iii) The 5-year distribution requirement of Subsection 9(e)(ii) shall
not apply to any portion of the deceased Participant's Plan Benefit which is
payable to or for the benefit of a designated Beneficiary. For purposes of this
Subsection 9(e), "designated Beneficiary" shall include any person to whom a
Participant's Plan Benefit is paid pursuant to Subsection 18(c). In such event,
such portion may be distributed in not more than 10 annual installments,
provided such distribution begins not later than one (1) year after the
Page 24
<PAGE>
SECTION 9(e)(iii)
date of the Participant's death (or such later date as may be prescribed by
Treasury regulations).
Except, however, in the event the Participant's spouse is her
Beneficiary, the requirement that distributions commence within one year of a
Participant's death shall not apply. In lieu thereof, such distribution must
commence no later than the date on which the deceased Participant would have
attained age seventy and one-half (70 1/2). If the surviving spouse dies before
the distributions to such spouse begin, then the 5-year distribution requirement
of Subsection 9(e)(ii) shall apply as if the spouse were the Participant.
(f) Change of Election. Any Participant (or the Participant's Beneficiary
-------------------
if the Participant has died) who has made an election to defer distribution or
to receive an installment distribution (whether or not such installment payments
have commenced) under Subsections 9(b)(i) or (ii) above, may subsequently elect
to have the entire amount then credited to the Participant's Plan Benefit
account distributed immediately in a lump sum or elect to have installment
payments commence in a year earlier than the year originally elected. Any other
type of change in a Participant's or Beneficiary's deferral election, including
without limitation, the earlier distribution of part of the amount credited to a
Participant's Plan Benefit account, a change from lump sum payments to
installment payments or the postponement of a distribution or the commencement
of installment payments, may be made only with the approval of UDLP.
(g) Foreign Transfers. Any Participant who transfers from employment with
------------------
the Company to employment with a foreign corporation that is a member of the
Affiliated Group, but is not a participating company in this Plan, may elect to
be treated as having terminated employment with the Affiliated Group for
purposes of this Section 9 and to be entitled to a distribution of her Plan
Benefit. Such election may be made at any time on or
Page 25
<PAGE>
SECTION 9(g)
after the date of the transfer of employment and before the Participant's death,
permanent and total disability, or actual termination of employment with the
Affiliated Group, and the Participant's distribution options under this Section
9 shall be determined as of the effective date of that election.
Page 26
<PAGE>
SECTION 10
SECTION 10. CLAIM PROCEDURE.
-----------------------------
(a) Application for Benefits. Any application for benefits under the Plan
-------------------------
and all inquiries concerning the Plan shall be submitted to UDLP. Applications
for benefits shall be in writing on the form prescribed by UDLP and shall be
signed by the Participant or, in the case of a benefit payable after the death
of the Participant, by the Participant's Beneficiary.
(b) Denial of Applications. Within a reasonable period of time after UDLP
-----------------------
receives an application, it shall give written notice to the applicant of its
decision on the application. In the event any application for benefits is
denied in whole or in part, UDLP shall notify the applicant in writing of the
right to a review of the denial. Such written notice shall set forth, in a
manner calculated to be understood by the applicant, specific reasons for the
denial, specific references to the Plan provisions on which the denial is based,
a description of any information or material necessary to perfect the
application, an explanation of why such material is necessary and an explanation
of the Plan's review procedure.
Page 27
<PAGE>
SECTION 11
SECTION 11. APPEAL PROCEDURE.
------------------------------
(a) The Review Panel. FMC shall appoint a "Review Panel" which shall
----------------
consist of three or more individuals who may (but need not) be employees of
UDLP. The Review Panel shall be the named fiduciary which has the authority to
act with respect to any appeal from a denial of benefits under the Plan.
(b) Requests for a Review. Any person whose application for benefits is
----------------------
denied in whole or in part (or the applicant's authorized representative) may
appeal from the denial by submitting to the Review Panel a request for a review
of the application within three months after receiving written notice of the
denial. UDLP shall give the applicant or such representative an opportunity to
review pertinent materials (other than legally privileged documents) in
preparing such request for review. The request for review shall be in writing
and addressed as follows: "FMC Employee Welfare Benefits Plan Committee, 200
East Randolph Drive, Chicago, Illinois 60601." The request for review shall set
forth all of the grounds on which it is based, all facts in support of the
request and any other matters which the applicant deems pertinent. The Review
Panel may require the applicant to submit such additional facts, documents or
other material as it may deem necessary or appropriate in making its review.
(c) Decision on Review. The Review Panel shall act upon each request for
-------------------
review within 60 days after receipt thereof unless special circumstances require
further time for processing, but in no event shall the decision on review be
rendered more than 120 days after the Review Panel receives the request for
review. The Review Panel shall give prompt, written notice of its decision to
UDLP and to the applicant. In the event the Review Panel confirms the denial of
the application for benefits in whole or in part, such notice shall set forth,
in a manner calculated to be understood by the applicant, the specific reasons
for such denial and specific references to the Plan provisions on which the
decision was based.
Page 28
<PAGE>
SECTION 11(d)
(d) Rules and Procedures. The Review Panel shall establish such rules and
---------------------
procedures, consistent with ERISA and the Plan, as it may deem necessary or
appropriate in carrying out its responsibilities under this Section 11.
(e) Exhaustion of Remedies. No legal or equitable action for benefits
----------------------
under the Plan shall be brought unless and until the claimant (i) has submitted
a written application for benefits in accordance with Subsection 10(a), (ii) has
been notified by UDLP that the application is denied, (iii) has filed a written
request for a review of the application in accordance with Subsection 11(b)
above, and (iv) has been notified in writing that the Review Panel has affirmed
the denial of the application; provided that legal action may be brought after
the Review Panel has failed to take any action on the claim within the time
prescribed in Subsections 10(b) or 11(c) above.
Page 29
<PAGE>
SECTION 12
SECTION 12. ADMINISTRATION AND OPERATION OF THE PLAN.
------------------------------------------------------
(a) Administrative Responsibilities. FMC is the "plan sponsor" and the
--------------------------------
"administrator" of the Plan, as such terms are used in ERISA. UDLP is the named
fiduciary which has the authority to control and manage the operation and
administration of the Plan. UDLP shall make such rules, regulations,
interpretations, and computations and shall take such other action to administer
the Plan as it may deem appropriate, in its sole discretion, and, subject to the
provisions of Section 11, any interpretation of the provisions of the Plan and
any decision on any matter within its discretion as Plan administrator made by
UDLP in good faith shall be conclusive and binding on all persons. In
administering the Plan, UDLP shall act in a nondiscriminatory manner to the
extent required by Section 401(a) and related sections of the Code and shall at
all times discharge its duties with respect to the Plan in accordance with the
standards set forth in Section 404(a)(1) of ERISA.
(b) Appointment of Trustees. UDLP is the named fiduciary which has the
------------------------
authority to appoint one or more Trustees to hold all assets of the Plan in
Trust. UDLP shall enter into a Trust Agreement with respect to the assets to be
held in trust thereunder with each Trustee it appoints.
(c) Delegation of Fiduciary Responsibilities. UDLP may engage such
-----------------------------------------
attorneys, actuaries, accountants and consultants to render advice or to perform
services with regard to its responsibilities under the Plan as it shall
determine to be necessary or appropriate. UDLP may designate by written
instrument one or more actuaries, accountants or consultants as fiduciaries to
carry out, where appropriate, its fudiciary responsibilities.
Page 30
<PAGE>
SECTION 12(c)
UDLP's duties and responsibilities under the Plan shall be carried out
by its directors, officers and employees, acting on behalf of and in the name of
UDLP in their capacity as directors, officers, and employees and not as
individual fiduciaries. Except as provided in Subsection 11(a) (Review Panel),
no director, officer, or employee of UDLP shall be a fiduciary with respect to
the Plan unless he is specifically so designated and expressly accepts such
designation.
Page 31
<PAGE>
SECTION 13
SECTION 13. FUNDING OF THE PLAN.
---------------------------------
(a) Funding Policy and Method. UDLP from time to time shall estimate the
--------------------------
benefits, withdrawals, and administrative expenses to be paid out of the Trust
Fund in cash during the period for which the estimate is made and shall also
estimate the contributions to be made to the Plan during such period by
Participants and by UDLP. UDLP shall inform the Trustee of the estimated cash
needs of and contributions to the Plan during the period for which such
estimates are made. Such estimates shall be made on an annual, quarterly,
monthly, or other basis, as UDLP shall determine.
(b) Public Accountant. UDLP shall engage an independent qualified public
------------------
accountant to conduct such examinations and to render such opinions as are
required by Section 103(a)(3) of ERISA. UDLP in its discretion may remove and
discharge the person so engaged, but in such case it shall engage a successor
independent qualified public accountant to perform such examinations and to
render such opinions.
(c) Basis of Payments to the Plan. Each Participant whose participation is
------------------------------
not suspended may elect to have UDLP make Employee-Elected Company Contributions
as provided in Section 3. UDLP shall make Company Contributions as provided in
Section 4; provided, however, that this obligation of UDLP shall cease when the
Plan is terminated. In the case of a partial termination of the Plan, this
obligation shall cease with respect to the Participants and Beneficiaries who
are affected by such partial termination. All Employee-Elected Company
Contributions and all Company Contributions shall be paid to the Trustee within
the periods of time specified herein.
Page 32
<PAGE>
SECTION 13(d)
(d) Basis of Payments from the Plan. All benefits and withdrawals payable
--------------------------------
under the Plan shall be paid by the Trustee pursuant to the directions of UDLP
and the terms of the Trust Agreement. The Trustee shall pay all expenses of the
Plan out of the Trust Fund, except that UDLP shall pay expenses that cannot be
charged to the Trust under applicable law.
(e) Investment of Trust Assets. The Trustee shall invest in the FMC Stock,
---------------------------
Harsco Stock, Fixed Income or Equity Fund all amounts which are paid to it with
respect to the Plan, less the amount of any administrative expenses payable out
of the Trust Fund under Subsection 13(d) above. Company Contributions shall be
invested in the FMC Stock Fund, and dividends or other earnings attributable
thereto shall be allocated and credited pro rata to shares held by the
Participant. Employee-Elected Company Contributions shall be invested in the
FMC Stock, Harsco Stock, Fixed Income, or Equity Fund pursuant to the directions
of the Participants as conveyed to the Trustee by the Company. Interest,
dividends, other earnings, and proceeds from sales attributable to the Fixed
Income Fund and the Equity Fund shall be reinvested in the Fixed Income Fund and
the Equity Fund, respectively. The Trustee shall invest the Fixed Income Fund
and the Equity Fund as directed by UDLP, except that (1) the Fixed Income Fund
shall be invested and reinvested only (A) in guaranteed income contracts and
similar products, if any, guaranteeing repayment of principal in full together
with interest at a fixed or fixed minimum rate, whether issued by an insurance
company or other financial institution, (B) securities issued or guaranteed by
the United States of America or any agency or instrumentality thereof, or, (C)
pending investment in the contracts or securities described in (A) and (B), in
any of the debt obligations described in the following sentence, and (2) the
Equity Fund shall be invested and reinvested only in shares of mutual funds
registered
Page 33
<PAGE>
SECTION 13(e)
under the Investment Company Act of 1940, or, pending investment in such mutual
fund shares, in any of the debt obligations described in the following sentence.
Pending investment in Stock, the Trustee may invest any amounts to be placed in
the Stock Funds in any common, group or collective investment trust that is
maintained by the Trustee and that provides for the pooling or commingling of
the assets of plans described in section 401(a) and exempt from tax under
section 501(a) of the Code, or in short-term, interest-bearing debt obligations,
including (without limitation except as stated) savings accounts, certificates
of deposit, banker's acceptances, commercial paper of institutions having a
short-term commercial paper rating of A-1, P-1 from Standard & Poor's and
Moody's, and United States Treasury Bills and Notes. The form of such temporary
investments shall be at the exclusive discretion of the Trustee.
Page 34
<PAGE>
SECTION 14
SECTION 14. PARTICIPANTS' ACCOUNTS
-----------------------------------
(a) Participants' Accounts. For each Participant, UDLP will maintain,
----------------------
where applicable, a Special Employee Contributions Account, an Employee-Elected
Company Contributions Account, and a Company Contributions Account in the Stock
Fund, Fixed Income Fund, or Equity Funds in accordance with her currently
effective investment election. Subject to the provisions of Subsection 14(c),
the amount of Employee-Elected Company Contributions and Special Employee
Contributions (if any) withheld from Earnings during the Plan Year will be
allocated to each Participant's Employee-Elected Company Contributions Account
and Special Employee Contributions Account as of the end of each calendar month,
and the Company Contribution for each Participant for each Plan Year will be
allocated to her Company Contributions Account as of the end of each calendar
month.
UDLP shall maintain records relative to a Participant's accounts so
that the current value of her accounts in the Fixed Income Fund, the Stock
Funds, and the Equity Fund may be determined as of any month's end.
(b) Rules Relating to Plan Investments and Earnings Adjustments. The Fixed
------------------------------------------------------------
Income Fund, Stock Funds, and Equity Fund shall be invested by the Trustee as
provided in Section 13(e) and in the Trust Agreement. Each such fund will be
valued at the fair market value thereof as of the close of business on each
Valuation Date as prescribed in Section 5 or 9 (and at such other dates as may
be requested by UDLP) before adding Employee-Elected Company Contributions and
Special Employee Contributions thereto as of such date by adding (i) the fair
market value of all securities and contracts held in each such fund, (ii) any
accrued interest or declared dividends on such investments in the Stock Funds
not reflected in (i) above, and (iii) an amount equal to the cash then held in
each such fund; and subtracting there from any liabilities of each such fund.
Participants' accounts in each such
Page 35
<PAGE>
SECTION 14(b)
fund will be adjusted as of the close of business on each Valuation Date as
prescribed in Section 5 or 9 to equal the fair market value of each fund on that
day as determined above.
Withdrawals shall be made in cash, and distributions shall be made from
each such fund only as of the first day of the month.
The amount to be paid upon such a withdrawal distribution shall be based
on the value, as determined by UDLP, of the Participant's account as of the
Valuation Date prescribed in Section 5 or 9. If the Plan Benefit is payable in
installments as provided by Section 9(b)(iii), the remaining unpaid balance
shall be revalued as of each Valuation Date preceding the due date of each
installment. The unpaid Plan Benefit shall be a liability of each such fund as
of the Valuation Date prescribed in Section 5 or 9.
(c) Stock Funds. The Trustee shall on a reasonably current basis apply all
------------
cash, attributable to the Stock Funds, except any cash needed to satisfy current
cash flow requirements, to the acquisition of Stock of FMC or Harsco as the case
maybe.
(i) As of each Valuation Date, UDLP shall allocate any net amount
contributed to the Company Contributions Account, the Special Employee
Contributions Account (if any), and the Employee-Elected Company Contributions
Account of each Participant for which it was contributed. Such crediting of
contributions shall be effected initially by posting dollar credits to the
appropriate accounts. Dollar credits to a Participant's Company Contributions
Account, Special Employee Contributions Account, or Employee-Elected Company
Contributions Account shall (unless and until converted) constitute the cash
distribution value to her of her share in the unassigned assets of the Trust
Fund. Such dollar credits, however, shall as promptly as practicable after
posting thereof (but in no event after such Participant's termination of
employment) be converted into Stock credits by assigning to such account, in
substitution for such dollar credits, but subject to such conditions regarding
distribution as are provided in this Plan, shares of Stock upon the
Page 36
<PAGE>
SECTION 14(c)(i)
basis of the average cost of such shares available for this purpose. As soon as
convenient, and at least annually, UDLP in connection with the account statement
described in Subsection 18(h), shall furnish to each Participant a statement
showing the amounts and cost basis of Stock assigned and the dollar credits
posted to her Special Employee Contributions Account (if any), her Company
Contributions Account, and Employee-Elected Company Contributions Account, which
statement shall be cumulative from year to year so that such statement shall
show the total credit to the Participant's accounts.
(ii) Amounts equal (after appropriate adjustment for any withholding
which may be required by an applicable tax law) to the amounts of dividends on
shares of Stock assigned to the Participant's Company Contributions Account,
Special Employee Contributions Account, or Employee-Elected Company
Contributions Account shall be paid to the Trustee during such Plan Year and
shall remain in the Stock Funds and be credited to her Company Contributions
Account, Special Employee Contributions Account, or Employee-Elected Company
Contributions Account. Such crediting shall be effected by posting to her
account dollar credits which shall be separate from but added to the dollar
credits resulting from contributions and deposits and which shall be convertible
into Stock credits as hereinabove provided (but in no event after such
Participant's termination of employment).
Page 37
<PAGE>
SECTION 15
SECTION 15. AMENDMENT AND TERMINATION OF THE PLAN.
---------------------------------------------------
(a) Future of the Plan. UDLP expects to continue the Plan indefinitely.
-------------------
Future conditions, however, cannot be foreseen, and UDLP retains the authority
to amend or to terminate the Plan at any time and for any reason.
(b) Amendments. No amendment of the Plan shall (i) reduce the benefit of
-----------
any Participant accrued under the Plan before such amendment is adopted or (ii)
divert any part of the assets of the Plan to purposes other than the exclusive
purpose of providing benefits to the Participants and Beneficiaries who have an
interest in the Plan and of defraying the reasonable expenses of administering
the Plan and the Trust Fund. For the purposes of this Section, a Plan amendment
which has the effect of eliminating or reducing an early retirement benefit or
eliminating an optional form of benefit (as provided in Treasury regulations)
shall be treated as reducing the benefit of a Participant accrued under the
Plan.
(c) Termination of the Plan. Upon termination of the Plan, no part of the
------------------------
Trust Fund shall revert to the Company or be used for or diverted to purposes
other than the exclusive purpose of providing benefits to the Participants and
Beneficiaries who have an interest in the Plan and of defraying the reasonable
expenses of administering the Plan and such termination. Upon termination of
the Plan or upon complete discontinuance of Company Contributions, each
Participant shall become vested in his entire Company Contributions Account.
Upon termination of the Plan, the Trust shall continue until the Trust Fund has
been distributed as provided in Subsection 15(d) below. Any other provision
hereof notwithstanding, the Company shall have no obligation to continue
contributions to the Plan after termination of the Plan. Except as otherwise
provided in ERISA, neither the Company nor any other person shall have any
liability or obligation
Page 38
<PAGE>
SECTION 15(c)
to provide benefits hereunder after such termination. Upon such termination,
Participants and Beneficiaries shall obtain benefits solely from the Trust Fund.
Upon partial termination of the Plan, this Subsection 15(c) shall apply only
with respect to such Participants and Beneficiaries as are affected by such
partial termination.
(d) Allocation of Trust Fund Upon Termination. Upon termination of the
------------------------------------------
Plan, the interest of each Participant in the Plan shall be distributed to him
as provided herein, subject to Section 403(d)(1) of ERISA.
Page 39
<PAGE>
SECTION 16
SECTION 16. CONTRIBUTION LIMITATIONS.
--------------------------------------
(a) Limitation of Allocations.
--------------------------
(i) Deferral Percentage. The Employee-Elected Company Contributions
--------------------
and the Company Contributions (and a pro rata share of the investment earnings
attributable to each) allocated to a Participant shall be reduced if necessary
to comply with the deferred percentage limitations of Subsection 401(k)(3) of
the Code (a copy of which is attached as Exhibit A). Whether such reduction is
necessary shall be determined for each Year. Any such reduction shall be
effected by reducing first, Employee-Elected Company Contributions, then (if
necessary), the Company Contributions, allocated to Participants who are "highly
compensated employees" of the Company (as defined in Section 414(q) of the Code)
and whose "actual deferral percentage" (as defined in Section 401(k)(3)(B) of
the Code) exceeds the permissible actual deferral percentage for highly
compensated employees, commencing with those Participants whose actual deferral
percentage is highest. The amount of any Participant's Employee-Elected Company
Contributions reduced retroactively shall be paid to her in cash within two and
one-half (2-1/2) months after the close of the Plan Year. Alternatively, to the
extent provided in Treasury Regulations, UDLP may elect or permit the
Participant to elect to treat all or a portion of the amount of excess Employee-
Elected Company Contributions as an amount distributed to the Participant and
then contributed by the Participant to the Plan.
(ii) Contribution Percentage. The Special Employee Contributions and
------------------------
the Company Contributions (and a pro rata share of the earnings attributable to
each) allocated to a Participant shall be reduced if necessary to comply with
the contribution percentage limitations of Subsection 401(m) of the Code (a copy
of which is attached as Exhibit B).
Page 40
<PAGE>
SECTION 16(a)(ii)
Whether such reduction is necessary shall be determined for each Year. Any such
reduction shall be effected by reducing first, Special Employee Contributions,
then (if necessary), the Company Contributions, allocated to Participants who
are "highly compensated employees" of the Company (as defined in Section 414(q)
of the Code) and whose "contribution percentage" (as defined in Section 401(m)
of the Code) exceeds the permissible contribution percentage for highly
compensated employees, commencing with those Participants whose contribution
percentage is highest. The amount of any Participant's Special Employee
Contributions and Company Contributions reduced retroactively shall be paid to
him in cash within two and one-half (2-1/2) months after the close of the Plan
Year.
(b) Maximum Annual Additions.
-------------------------
(1) Notwithstanding the foregoing, the maximum Annual Additions
credited to a Participant's accounts for any Plan Year shall equal the lesser
of: (A) $30,000 or, if greater, one-fourth (1/4) of the defined benefit dollar
limitation as provided in Code Section 405(b)(1) for the Plan Year, or (B)
twenty-five percent (25%) of the Participant's 415 Compensation for such Plan
Year.
(2) For purposes of applying the limitations of Code section 415,
"Annual Additions" means the sum credited to a Participant's accounts for any
Plan Year of (A) Company contributions, (B) employee contributions, (C)
Forfeitures, (D) amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Code Section 415 (l)(1) which is part of a
defined benefit plan maintained by the Affiliated Group and (E) amounts derived
from contributions paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to the post-retirement medical
benefits allocated to the separate account of a five percent owner (as defined
in Code section 416(i)1(B)(i) under a welfare benefit plan (as defined in Code
section 419(e)) maintained by the Affiliated Group.
Page 41
<PAGE>
SECTION 16(b)(3)
(3) For purposes of applying the limitations of Code section 415, the
following are not "Annual Additions": (A) transfer of funds from one qualified
plan to another; (B) rollover contributions (as defined in Code sections
402(a)(5), 403(a)(4), 408(d)(3) and 409(b)(3)(C)); (C) repayments of loans made
to a Participant from the Plan; (D) repayments of distributions received by a
Participant pursuant to Code section 411(a)(7)(B) (cash-outs); (E) repayments of
distributions received by a Participant pursuant to Code section 411(A)(3)(D)
(mandatory contributions); (F) employee contributions to a simplified employee
pension allowed as a deduction under Code section 219(a); and (G) deductible
employee contributions to a qualified Plan.
(4) For purposes of applying the limitations of Code section 415, "415
Compensation" shall include the Participant's wages, salaries, fees for
professional service and other amounts for personal services actually rendered
in the course of employment with the Company not in excess of $200,000
(including, but not limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses and in the case of a Participant who is an Employee
within the meaning of Code section 401(c)(1) and the regulations thereunder, the
Participant's earned income (as described in Code section 401(c)(2) and the
regulations thereunder)) paid during the Plan Year. "415 Compensation" shall
exclude (A)(i) contributions made by the Company to a plan of deferred
compensation to the extent that, before the application of the Code section 415
limitations to the Plan, the contributions are not includable in the gross
income of the Participant for the taxable year in which contributed, (ii)
Company contributions made on behalf of a Participant to a simplified employee
pension plan described in Code section 408(k) to the extent such contributions
are deductible by the Participant under Code section 219(a), (iii) any
distributions from a plan
Page 42
<PAGE>
Section 16(b)(A)
of deferred compensation regardless of whether such amounts are includable in
the gross income of the Participant when distributed except that any amounts
received by a Participant pursuant to an unfunded non-qualified plan to the
extent such amounts are includable in the gross income of the Participant; (B)
amounts realized from the exercise of a non-qualified stock option or when
restricted stock (or property) held by a Participant either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (C)
amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; and (D) other amounts which receive special tax
benefits, such as premiums for group term life insurance (but only to the extent
that the premiums are not includable in the gross income of the Participant), or
contributions made by the Company (whether or not under a salary reduction
agreement) towards the purchase of any annuity contract described in Code
section 403(b) (whether or not the contributions are excludable from the gross
income of the Participant).
(5) The limitation stated in Subsection 16(b)(l)(i) above shall be
adjusted annually as provided in Code section 415(d) pursuant to the regulations
prescribed by the Secretary of the Treasury. The adjusted limitation is
effective as of January 1st of each calendar year and is applicable to Plan
Years ending with or within that calendar year.
(6) For the purpose of this Section, all qualified defined benefit
plans (whether terminated or not) ever maintained by the Affiliated Group shall
be treated as one defined benefit plan, and all qualified defined contribution
plans (whether terminated or not) ever maintained by the Affiliated Group shall
be treated as one defined contribution plan.
Page 43
<PAGE>
SECTION 16(b)(7)(A)
(7)(A) If a Participant participates in more than one defined
contribution plan maintained by the Affiliated Group which have different plan
years, the maximum Annual Additions under this Plan shall equal the maximum
Annual Additions for the Plan Year minus any Annual Additions previously
credited to such Participant's accounts during the Plan Year.
(7)(B) If a Participant participates in both a defined contribution
plan subject to Code section 412 and a defined contribution plan not subject to
Code section 412 maintained by the Affiliated Group which have the same plan
year, Annual Additions will be credited to the Participant's accounts under the
defined contribution plan subject to Code section 412 prior to crediting Annual
Additions to the Participant's accounts under the defined contribution plan not
subject to Code section 412.
(7)(C) If a Participant participates in more than one defined
contribution plan not subject to Code section 412 maintained by the Affiliated
Group which have the same plan year, the maximum Annual Additions under this
Plan shall equal the product of (i) the maximum Annual Additions for the Plan
Year minus any Annual Additions previously credited under subparagraphs (A) or
(B) above, multiplied by (ii) a fraction (I) the numerator of which is the
Annual Additions which would be credited to such Participant's accounts under
this Plan without regard to the limitations of Code section 415 and (II) the
denominator of which is such Annual Additions for all plans described in this
subparagraph.
(8) Subject to the exception in Section 16(b)(13) below, if an Employee
is (or has been) a Participant in one or more defined benefit plans and one or
more defined contribution plans maintained by the Affiliated Group, the sum of
the defined benefit plan fraction and the defined contribution plan fraction for
any Plan Year may not exceed 1.0.
Page 44
<PAGE>
SECTION 16(b)(9)(A)
(9)(A) The "Defined Benefit Plan Fraction" for any Plan Year is a
fraction (i) the numerator of which is the "projected annual benefit" of the
Participant under the Plan (determined as of the close of the Plan Year), and
(ii) the denominator of which is the greater of the product of 1.25 multiplied
by the "protected current accrued benefit" or the lesser of: (I) the product of
1.25 multiplied by the maximum dollar limitation provided under Code section
415(b)(1)(A) for such Plan Year, or (II) the product of 1.4 multiplied by the
amount which may be taken into account under Code section 415(b)(1)(B) for such
Plan Year.
(9)(B) For purposes of applying the limitations of Code section 415,
the "projected annual benefit" for any Participant is the benefit, payable
annually, under the terms of the Plan determined pursuant to Regulation 1.415-
7(b)(3).
(9)(C) For purposes of applying the limitations of Code section 415,
"protected current accrued benefit" for any Participant in a defined benefit
plan in existence on July 1, 1982, shall be the accrued benefit, payable
annually, provided for under question T-3 of Internal Revenue Service Notice 83-
10.00 (10)(A) The "Defined Contribution Plan Fraction" for any Plan Year is a
fraction (i) the numerator of which is the sum of the Annual Additions to the
Participant's accounts as of the close of the Plan Year and (ii) the denominator
of which is the sum of the lesser of the following amounts determined for such
year and each prior year of service with the Affiliated Group: (I) the product
of 1.25 multiplied by the dollar limitation in effect under Code section
415(c)(1)(A) for such Plan year (determined without regard to Code section
415(c)(6)), or (II) the product of 1.4 multiplied by the amount which may be
taken into account under Code section 415(c)(1)(B) for such Plan Year.
Page 45
<PAGE>
SECTION 16(b)(10)(B)
(B) Notwithstanding the foregoing, the numerator of the Defined
Contribution Plan Fraction shall be adjusted pursuant to Regulation 1.415-
7(d)(1) and questions T-6 and T-7 of Internal Revenue Service Notice 83-10.
(C) For defined contribution plans in effect on or before July 1,
1982, the Company may elect, for any Plan Year ending after December 31, 1982,
that the amount taken into account in the denominator for every Participant for
all Plan Years ending before January 1, 1983 shall be an amount equal to the
product of (i) the denominator for the Plan Year ending in 1982 determined under
the law in effect for the Plan Year ending in 1982 multiplied by (II) the
Transition Fraction.
(D) For purposes of the preceding paragraph, the term Transition
Fraction shall mean a fraction (i) the numerator of which is the lesser of (I)
$51,875 or (II) 1.4 multiplied by twenty-five percent (25%) of the Participant's
415 Compensation for the Plan Year ending in 1981, and (ii) the denominator of
which is the lesser of (I) $41,500 or (II) twenty-five percent (25%) of the
Participant's 415 Compensation for the Plan Year ending in 1981.
(E) Notwithstanding the foregoing, for any Plan Year in which the
Plan is a Top Heavy Plan, $41,500 shall be substituted for $51,875 in
determining the Transition Fraction unless the extra minimum allocation is being
provided pursuant to Section 17(c). However, for any Plan Year in which this
Plan is a Super Top Heavy Plan, $41,500 shall be substituted for $51,875 in any
event.
(11) Notwithstanding the foregoing, for any Plan Year in which the
Plan is a Top Heavy Plan, 1.0 shall be substituted for 1.25 in Subsections
16(b)(9)(A) and 16(b)(10)(A) unless the extra minimum allocation is being
provided pursuant to Section 17(c). However, for any Plan Year in which the Plan
is a Super Top Heavy Plan, 1.0 shall be substituted for 1.25 in any event.
Page 46
<PAGE>
SECTION 16(b)(12)
(12) If the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction shall exceed 1.0 in any Plan Year for any Participant
in this Plan for reasons other than described in Subsection 16(b)(13) below, the
Company shall adjust, to the extent necessary, the numerator of the Defined
Benefit Plan Fraction for such Plan Year. If, after adjusting the numerator of
the Defined Benefit Plan Fraction for the Plan Year, the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction still exceed
1.0, the Company shall then limit the Annual Additions to such Participant's
accounts so that the sum of both fractions shall not exceed 1.0 in any Plan Year
for such Participant.
(13) If (A) the substitution of 1.00 for 1.25 and $41,500 for
$51,875 above or (B) the excess benefit accruals or Annual Additions provided
for in Internal Revenue Service Notice 82-19 cause the 1.0 limitation to be
exceeded for any Participant in any Plan Year, such Participant shall be subject
to the following restrictions for each future Plan Year until the 1.0 limitation
is satisfied: (i) the Participant's accrued benefit under the defined benefit
plan shall not increase (ii) no Annual Additions may be credited to a
Participant's accounts and (iii) no employee contributions (voluntary or
mandatory) shall be made under any defined benefit plan or any defined
contribution plan of the Affiliated Group.
(c) Adjustment For Excessive Annual Additions.
-----------------------------------------
(1) If as a result of the allocation of Forfeitures, a reasonable
error in estimating a Participant's compensation or other facts and
circumstances to which Regulation 1.415-6(b)(6) shall be applicable, the Annual
Additions under this Plan would cause the maximum Annual Additions to be
exceeded for any Participant, the Company shall (A) return any voluntary
employee contributions credited for the Plan year to the extent that the return
would reduce the "excess amount" in the Participant's accounts (B) hold any
"excess amount" remaining after the return of any voluntary employee
contributions
Page 47
<PAGE>
SECTION 16(c)(1)
in a Section 415 Suspense Account (C) allocate and reallocate the
Section 415 Suspense Account in the next Plan Year (and succeeding Plan Years if
necessary) to all Participants in the Plan before any Company or employee
contributions which would constitute Annual Additions are made to the Plan for
such Plan Year (D) reduce Company contributions to the Plan for such Plan Year
by the amount of the Section 415 Suspense Account allocated and reallocated
during such Plan Year. Company Contributions and Forfeitures for a given Year
in the Section 415 Suspense Account will be allocated to the Company
Contributions Accounts of Participants in proportion to the amount of Employee-
Elected Company contributions made by such Participants for such Year.
(2) For purposes of this Section, "excess amount" for any Participant
for a Plan Year shall mean the excess, if any, of (A) the Annual Additions which
would be credited to his account under the terms of the Plan without regard to
the limitations of Code section 415 over (B) the maximum Annual Additions
determined pursuant to Section 16(b).
(3) For purposes of this Section, "Section 415 Suspense Account"
shall mean an unallocated account equal to the sum of "excess amounts" for all
Participants in the Plan during the Plan Year. The Section 415 Suspense Account
shall not share in any earnings or losses of the Trust Fund.
(4) The Plan may not distribute "excess amounts" to Participants or
Former Participants.
Page 48
<PAGE>
SECTION 17
SECTION 17. TOP HEAVY PROVISIONS
---------------------------------
(a) Top Heavy Plan Requirements. For any Top Heavy Plan Year, the Plan
---------------------------
shall provide the following:
(i) special minimum allocation requirements of Code section 416(c)
pursuant to Section 17(c) of the Plan; and
(ii) special Earnings requirements of Code section 416(d).
(b) Determination of Top Heavy Status.
---------------------------------
(1) This Plan shall be a Top Heavy Plan for any Plan Year commencing
after December 31, 1983, in which, as of the Determination Date, (i) the present
value of accrued benefits of Key Employees and (ii) the sum of the Aggregate
Accounts of Key Employees under this Plan and all plans of an Aggregation Group,
exceeds sixty percent (60%) of the present value of accrued benefits and the
Aggregate Accounts of all Key and Non-Key Employees under this Plan and all
plans of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but
such Participant was a Key Employee for any prior Plan Year, such Participant's
present value of accrued benefit and/or Aggregate Account balance shall not be
taken into account for purposes of determining whether this Plan is a Top Heavy
or Super Top Heavy Plan (or whether any Aggregation Group which includes this
Plan is a Top Heavy Group). In addition, for Plan Years beginning after December
31, 1984, if a Participant or former Participant has not received any
compensation from the Company (other than benefits under the Plan) at any time
during the five year period ending on the Determination Date, the Aggregate
Account and/or present value of accrued benefit for such Participation or former
Participant shall not be taken into account for the purposes of determining
whether this Plan is a Top Heavy or Super Top Heavy Plan.
Page 49
<PAGE>
SECTION 17 (b)(2)
(2) This Plan shall be a Super Top Heavy Plan for any Plan Year
commencing after December 31, 1983, in which, as of the Determination Date, (A)
the present value of accrued benefits of Key Employees and (B) the sum of the
Aggregate Accounts of Key Employees under this Plan and all plans of an
Aggregation Group, exceeds ninety percent (90%) of the present value of accrued
benefits and the Aggregate Accounts of all Key and Non-Key Employees under this
Plan and all plans of an Aggregation Group.
(3) Aggregate Account: A Participant's Aggregate Account as of the
Determination Date is the sum of:
(A) his account balances as of the most recent valuation
occurring within a twelve (12) month period ending on the Determination Date;
(B) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of any contributions
actually made after the valuation date but on or before the Determination Date,
except for the first Plan Year when such adjustment shall also reflect the
amount of any contributions made after the Determination Date that are allocated
as of a date in that first Plan Year;
(C) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4) preceding Plan Years.
However, in the case of distributions made after the valuation date and prior to
the Determination Date, such distributions are not included as distributions for
top heavy purposes to the extent that such distributions are already included in
the Participant's Aggregate Account balance as of the valuation date.
Notwithstanding anything herein to the contrary, all distributions, including
distributions made prior to January 1, 1984, and distributions under a
terminated plan which if it had not been terminated would have been required to
be included in an Aggregation Group, will be counted.
Page 50
<PAGE>
SECTION 17(b)(3)(D)
(D) any employee contributions, whether voluntary or mandatory.
However, amounts attributable to tax deductible qualified deductible employee
contributions shall not be considered to be a part of the Participant's
Aggregate Account balance.
(E) with respect to unrelated rollovers and plan-to-plan
transfers (ones which are both initiated by the Participant and made from a plan
maintained by one employer to a plan maintained by another employer), if this
Plan provides the rollovers or plan-to-plan transfers, it shall always consider
such rollover or plan-to-plan transfer as a distribution for the purposes of
this Section. If this Plan is the plan accepting such rollovers or plan-to-plan
transfers, it shall not consider such rollovers or plan-to-plan transfers
accepted after December 31, 1983 as part of the Participant's Aggregate Account
balance. However, rollovers or plan-to-plan transfers accepted prior to January
1, 1984 shall be considered as part of the Participant's Aggregate Account
balance.
(F) with respect to related rollovers and plan-to-plan transfers
(ones either not initiated by the Participant or made to a plan maintained by
the same employer), if this Plan provides the rollover or plan-to-plan transfer,
it shall not be counted as a distribution for purposes of this Section. If this
Plan is the plan accepting such rollover or plan-to-plan transfer, it shall
consider such rollover or plan-to-plan transfer as part of the Participant's
Aggregate Account balance, irrespective of the date on which such rollover or
plan-to-plan transfer is accepted.
(4) "Aggregation Group" means either a Required Aggregation Group or
a Permissive Aggregation Group as hereinafter determined.
Page 51
<PAGE>
SECTION 17(b)(3)(A)
(A) Required Aggregation Group: In determining a Required
Aggregation Group hereunder, each plan of the Company in which a Key Employee is
a participant, and each other plan of the Company which enables any plan in
which a Key Employee participates to meet the requirements of Code sections
401(a)(4) or 410, will be required to be aggregated. Such group shall be known
as a Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the
group will be considered a Top Heavy Plan if the Required Aggregation Group is a
Top Heavy Group. No plan in the Required Aggregation Group will be considered a
Top Heavy Plan if the Required Aggregation Group is not a Top Heavy Group.
(B) Permissive Aggregation Group: The Company may also include
any other plan not required to be included in the Required Aggregation Group,
provided the resulting group, taken as a whole, would continue to satisfy the
provisions of Code sections 401(a)(4) and 410. Such group shall be known as a
Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan that
is part of the Required Aggregation Group will be considered a Top Heavy Plan if
the Permissive Aggregation Group is a Top Heavy Group. No plan in the Permissive
Aggregation Group will be considered a Top Heavy Plan if the Permissive
Aggregation Group is not a Top Heavy Group.
(C) Only those plans of the Company in which the Determination
Dates fall within the same calendar year shall be aggregated in order to
determine whether such plans are Top Heavy Plans.
(5) "Determination Date" means (a) the last day of the
preceding Plan Year, or (b) in the case of the first Plan Year, the last day of
such Plan Year.
Page 52
<PAGE>
SECTION 17(b)(3)(C)(6)
(6) Present Value of Accrued Benefit: In the case of a
defined benefit plan, a Participant's present value of accrued benefit shall be
as determined under the provisions of all the defined benefit plans of the
Company.
(7) "Top Heavy Group" means an Aggregation Group in which,
as of the Determination Date, the sum of:
(A) the present value of accrued benefits of Key Employees under
all defined benefit plans included in the group, and
(B) the Aggregate Accounts of Key Employees under all defined
contribution plans included in the group,
exceeds sixty percent (60%) of a similar sum determined for all
Participants.
(8) "Top Heavy Plan Year" means that, for a particular Plan
Year commencing after December 31, 1983, the Plan is a Top Heavy Plan.
(9) Notwithstanding anything herein to the contrary, the
effective date otherwise provided for herein for the application of Code section
416 to this Plan (Plan Years beginning after December 31, 1983) shall be
extended in accordance with any act of Congress or regulatory authority.
Page 53
<PAGE>
SECTION 17(c)
(c) Minimum Benefit Requirement for Top Heavy Plan.
----------------------------------------------
(1) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of the
Company contributions and Forfeitures allocated to the accounts of each Non-Key
Employee shall be equal to at least three percent (3%) of such Non-Key
Employee's 416 Compensation. However, if (i) the sum of the Company
contributions and Forfeitures allocated to the accounts of each Key Employee for
such Top Heavy Plan Year is less than three percent (3%) of each Key Employee's
416 Compensation and (ii) this Plan is not required to be included in an
Aggregation Group to enable a defined benefit plan to meet the requirements of
Code section 401(a)(4) or 410, the sum of the Company contributions and
Forfeitures allocated to the accounts of each Non-Key Employee shall be equal to
the largest percentage allocated to the accounts of each Key Employee.
Except, however, no such minimum allocation shall be required in
this Plan for any Non-Key Employee who participates in another defined
contribution plan subject to Code Section 412 included with this Plan in a
Required Aggregation Group.
(2) For any Plan Year when (A) the Plan is a Top Heavy Plan but
not a Super Top Heavy Plan and (B) a Key Employee is a Participant in both this
Plan and a defined benefit plan included in a Required Aggregation Group which
is top heavy, the extra minimum allocation (required by Subsections 15(b)(10)(E)
and 15(b)(11) to provide higher limitations) shall be provided for each Non-Key
Employee who is a Participant only in this Plan by substituting four percent
(4%) for three percent (3%) in the paragraph above.
(3) For purposes of the minimum allocations set forth above, the
percentage allocated to the account of any Key Employee shall be equal to the
ratio of the sum of the Company contributions and Forfeitures allocated on
behalf of such Key Employee divided by the 416 Compensation for such Key
Employee.
Page 54
<PAGE>
(4) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the accounts of all Non-Key Employees who are
Participants and who are employed by the Company on the last day of the Plan
Year, including Non-Key Employees who have (i) failed to complete a Year of
Service and (ii) declined to make mandatory contributions (if required) to the
Plan.
(5) In lieu of the above, if a Non-Key Employee participates in
this Plan and a defined benefit pension plan included in a Required Aggregation
Group which is top heavy, a minimum allocation of five percent (5%) of 416
Compensation shall be provided under this Plan.
However, for any Plan Year when (A) the Plan is a Top Heavy Plan
but not a Super Top Heavy Plan and (B) a Key Employee is a Participant in both
this Plan and a defined benefit plan included in a Required Aggregation Group
which is top heavy, seven and one-half percent (7 1/2%) shall be substituted for
five percent (5%), and the extra minimum allocation (required by Subsections
16(b)(10)(E) and 16(b)(11) to provide higher limitations) shall be provided in
this Plan.
(6) For the purposes of this Section, "416 Compensation" shall
mean W-2 wages for the calendar year ending with or within the Plan Year and
shall be limited to $200,000 in Top Heavy Plan Years.
Page 55
<PAGE>
SECTION 18
SECTION 18. GENERAL PROVISIONS.
------------------------------
(a) Plan Mergers. The Plan shall not be merged or consolidated with any
------------
other plan, and no assets or liabilities of the Plan shall be transferred to any
other plan, unless each Participant would receive a benefit immediately after
such merger, consolidation or transfer (if the Plan then terminated) which is
equal to or greater than the benefit such Participant would have been entitled
to receive immediately before such merger, consolidation or transfer (if the
Plan had then terminated).
(b) No Assignment of Property Rights. The interest or property rights of
--------------------------------
any person in the Plan, in the Trust Fund or in any payment to be made under the
shall not be assignable nor be subject to alienation or option, either by
voluntary or involuntary assignment or by operation of law, including (without
limitation) bankruptcy, garnishment, attachment or other creditor's process, and
any act in violation of this Subsection 15(c) shall be void. This provision
shall not apply to a "qualified domestic relations order" defined in Code
section 414(p), and those other domestic relations orders permitted to be so
treated by UDLP under the provisions of the Retirement Equity Act of 1984. UDLP
shall establish a written procedure to determine the qualified status of
domestic relations orders and to administer distributions under such qualified
orders. Further, to the extent provided under a "qualified domestic relations
order", a former spouse of a Participant shall be treated as the spouse or
surviving spouse for all purposes under the Plan.
Page 56
<PAGE>
SECTION 18(c)
(c) Beneficiary. The "Beneficiary" of a Participant shall be the person or
-----------
persons so designated by such Participant. Unless it is established to the
satisfaction of UDLP that a Participant has no spouse, the spouse cannot be
located, or such other circumstances exist as may be prescribed by Income Tax
Regulations promulgated by the Secretary of the Treasury, the designation of a
person other than the Participant's spouse as Beneficiary may be made only with
the written consent of the spouse, acknowledging the effect of the designation
and witnessed by a Plan representative or a notary public. Any designation
which lacks required spousal consent on the date of the Participant's death
shall be void, and the Participant shall be deemed to have designated his spouse
as Beneficiary. If no Beneficiary has been designated or if the designated
Beneficiary is not living when a Plan Benefit is to be distributed, the
Beneficiary shall be such Participant's spouse if then living, or if not, his
then living children in equal shares or, if there are no such children, her
estate. A Participant may revoke and change a designation of a Beneficiary at
any time. A designation of a Beneficiary, or any revocation and change thereof,
shall be effective only if it is made in writing in a form acceptable to UDLP
and is received by it prior to the Participant's death.
(d) Incapacity. If, in the opinion of UDLP, any person becomes unable to
----------
handle properly any property distributable under the Plan, FMC may make any
arrangement for distribution on her behalf that it determines will be beneficial
to her, including (without limitation) distribution to her guardian,
conservator, spouse or dependent.
(e) Employment Rights. Nothing in the plan shall be deemed to give any
-----------------
person a right to remain in the employ of the Affiliated Group or affect any
right of the Affiliated Group to terminate a person's employment with or without
cause.
Page 57
<PAGE>
SECTION 18(f)
(f) Voting Rights. Each Participant (or, in the event of her death, her
-------------
Beneficiary) shall have the right to direct the Trustee as to the manner in
which shares of Stock allocated to her accounts as of the Valuation Date
coinciding with or immediately preceding the record date for an annual or
special stockholders' meeting of FMC or Harsco are to be voted on each matter
brought before such stockholders' meeting. Before each such meeting of
stockholders, FMC shall cause to be furnished to each Participant (or
Beneficiary) a copy of the proxy solicitation material, together with a form
requesting confidential directions on how such shares of Stock allocated to such
Participant's accounts shall be voted on each such matter. Upon timely receipt
of such directions the Trustee shall on each such matter vote as directed the
number of shares (including fractional shares) of Stock allocated to such
Participant's accounts. The instructions received by the Trustee from
Participants shall be held by the Trustee in confidence and shall not be
divulged or released to any person, including officers or employees of FMC or
Harsco or any member of the Affiliated Group. The Trustee shall vote all
unallocated shares, as well as allocated shares for which it has not received
direction, as directed by FMC, which may delegate to an independent fiduciary,
the authority to so direct the Trustee.
(g) Rights on Tender or Exchange Offer. Each Participant (or, in the event
----------------------------------
of her death, her Beneficiary) shall have the right, to the extent of the number
of shares of Stock (including fractional shares) allocated to her accounts as of
the Valuation Date coinciding with or immediately preceding a tender or exchange
offer with respect to such shares of Stock, to direct the Trustee in writing as
to the manner in which to respond to the tender or exchange offer. FMC shall
use its best efforts to timely distribute or cause to be distributed to each
Participant (or Beneficiary) such information as will be distributed to
stockholders of FMC or Harsco as the case may be in connection with any such
tender or exchange offer. Upon timely receipt of such instructions, the Trustee
shall respond as instructed with respect
Page 58
<PAGE>
SECTION 18(g)
to such shares of Stock. The instructions received by the Trustee from
Participants shall be held by the Trustee in confidence and shall not be
divulged or released to any person including officers or employees of FMC or any
member of the Affiliated Group. If the Trustee shall not receive timely
instruction from a Participant (or Beneficiary) as to the manner in which to
respond to such a tender or exchange offer, the Trustee shall not tender or
exchange any shares of Stock with respect to which such Participant has the
right of direction. Unallocated shares of Stock shall be tendered or exchanged
by the Trustee in the same proportion as shares of Stock with respect to which
Participants (or Beneficiaries) have the right of direction are tendered or
exchanged. Any consideration received for stock tendered and sold shall be
placed in a separate account in the FMC Stock Fund or Harsco Stock Fund until
FMC instructs the Trustee as to its further disposition, and, pending receipt of
such instructions, the Trustee may temporarily invest any cash consideration in
accordance with the provisions of Subsection 13(e) regarding temporary
investments.
(h) Account Statements. At least annually, UDLP shall furnish for each
------------------
Participant an account statement as required by ERISA as of the Valuation Date
preceding the date of such statement.
(i) Choice of Law. The Plan and all rights thereunder shall be
-------------
interpreted and construed in accordance with ERISA and, to the extent that state
law is not pre-empted by ERISA, the law of the State of Illinois.
Page 59
<PAGE>
SECTION 19
SECTION 19. DEFINITIONS.
------------------------
(a) "Active Participation" means a Participant has a currently effective
election of Employee-Elected Company Contributions and is eligible to receive
allocations of Company Contributions and Forfeitures.
(b) "Adjusted Regular Compensation" means the Participant's Regular
Compensation reduced by an amount equal to the Dollar Limit, but not more than
16% of his Earnings, as provided in Subsection 2(a).
(c) "Affiliate" means any corporation, other than a Foreign Subsidiary or
unincorporated trade or business, with respect to which at least 50 percent of
the total combined voting power of all classes of stock entitled to vote or not
less than 80 percent of the total value of shares of all classes of stock (or in
the case of an unincorporated trade or business or "controlling interest" as
defined in regulations under Section 414(c) of the Code) is owned by:
(i) UDLP;
(ii) One or more corporations or unincorporated trade or business
owned by UDLP as described in subdivision (i); or
(iii) UDLP and one or more corporations or unincorporated trades or
business owned by UDLP as described in subdivision (i).
(d) "Affiliated Group" means (i) UDLP and (ii) any corporation or
unincorporated trade or business (including an Affiliate) in which UDLP and/or
one or more Affiliates own either stock possessing at least 80 percent of the
total combined voting power of all classes of stock entitled to vote or at least
80 percent of the total value of all shares of all classes of stock (or in the
case of an unincorporated trade or business, or "controlling interest" as
defined in regulations under Section 414(c) of the Code).
Page 60
<PAGE>
SECTION 19(f)
(e) "Aggregate Account" means, with respect to each Participant, the
value of all accounts maintained on behalf of a Participant, whether
attributable to Company or employee contributions, subject to the provisions of
Section 17(b).
(f) "Average Invested Capital" means the average of the beginning and
ending balances of stockholders' equity, short-term debt, and long term debt,
all as stated in the consolidated balance sheet in the annual report of UDLP,
and the receivable sale facility established in connection with the 1986
recapitalization.
(g) "Basic Contributions" means that portion of a Participant's
annualized Employee-Elected Company Contributions and Special Employee
Contributions not in excess of 5% of her Earnings.
(h) "Beneficiary" means the person or persons determined pursuant to
Subsection 18(c).
(i) "Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
(j) "Company" means UDLP, and any predecessor companies of UDLP and any
Affiliates which UDLP has designated as participating companies with respect to
the Plan and which have accepted participation in the Plan. The designation of
any Affiliate as a participating company may be subject to such terms and
conditions as UDLP may determine.
(k) "Company Contributions" means contributions made by UDLP under
Subsection 4(a), including Company contributions made to the Harsco Corporation
Savings Plan and transferred to this Plan, but not including Employee-Elected
Company Contributions.
Page 61
<PAGE>
SECTION 19(l)
(l) "Company Contributions Account" means an account maintained for each
Participant to which is allocated her share of Company Contributions and
Forfeitures and all earnings, appreciation or losses attributable thereto.
(m) "Distribution Date" means the date, determined pursuant to Subsection
9(c), as of which the distribution of a Plan Benefit is made.
(n) "Dollar Limit" means the maximum amount of Employee-Elected Company
Contributions excludable from the gross income of a Participant in a given year
as provided in Code Section 402(g) and as adjusted from time to time by the
Secretary of the Treasury pursuant to Code Section 415(d).
(o) "Earnings" means the Participant's total annual income for the
current Year determined during the Year by annualizing the current rate of pay
(not in excess of $150,000 for Years after 1993 as adjusted for cost of living
increases in accordance with Code Section 401(a)(17)(B)), including base salary;
overtime pay; administrative or discretionary bonuses earned; sales bonuses and
sales commissions earned in such Year and her Employee-Elected Company
Contributions. Earnings does not include expatriate premiums, awards, moving
expense allowances, or other special payments. Effective April 1, 1991,
"Earnings" (1) means the Participant's total annual income for the current Year,
which will be determined during the Year by annualizing the current rate of pay,
and (2) includes sales bonuses and sales commissions earned in such Year
determined without regard to such bonuses and/or commissions for preceding
Years.
(p) "Eligible Employee" means any individual employed by the Company,
except as hereinafter provided.
"Eligible Employee" does not include (i) any individual whose employment is
covered by a collective-bargaining agreement unless such agreement expressly
provides for
Page 62
<PAGE>
SECTION 19(p)
participation in the Plan by such employee, (ii) leased employees within the
meaning of Code section 414(n)(2), and (iii) any employee who generally resides
outside the United States or whose principal duties generally are performed
outside the United States, as determined by UDLP, unless UDLP designates such
employee as an Eligible Employee.
Any individual who is a United States citizen and who is employed by
a Foreign Subsidiary in a position which would make such individual an Eligible
Employee if employed by UDLP shall be deemed to be employed by UDLP, provided
that no entity other than UDLP makes contributions under any funded plan of
deferred compensation with respect to the remuneration such individual receives
from such Foreign Subsidiary.
An individual's status as an Eligible Employee shall be determined by
UDLP. Subject to the review procedure described in Section 11, such
determination shall be conclusive and binding on all persons.
(q) "Employee-Elected Company Contributions" means amounts contributed to
the Trust as elected by Participants under Subsection 3(b).
(r) "Employee-Elected Company Contributions Account" means an account
maintained for each Participant and for each Eligible Employee who has
transferred to the Trust a "Qualified Total Distribution" under Subsection 3(g)
but is not otherwise a Participant to which is credited all of her Employee-
Elected Company Contributions, her Qualified Total Distributions, and any
earnings, appreciation, or losses attributable thereto.
(s) "Equity Fund" means an investment fund established and maintained by
the Trustee as a part of the Trust Fund. Any contributions to the Plan placed in
the Equity Fund, and all earnings and appreciation attributable thereto, shall
be invested and reinvested only in shares of mutual funds registered under the
Investment Company Act of 1940.
Page 63
<PAGE>
SECTION 19(t)
(t) "ERISA" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
(u) "Fixed Income Fund" means an investment fund established and
maintained by the Trustee as a part of the Trust Fund. Any contributions to the
Plan placed in the Fixed Income Fund, and all earnings and appreciation
attributable thereto, shall be invested and reinvested only in (A) guaranteed
income contracts and similar products, if any, guaranteeing repayment of
principal in full together with interest at a fixed or fixed minimum rate,
whether issued by an insurance company or other financial institution, (B)
securities issued or guaranteed by the United States of America or any agency or
instrumentality thereof, or (C) pending investment in the contracts or
securities described in (A) and (B), in short-term, interest-bearing debt
obligations as provided in Section 13(e). The Fixed Income Fund was formerly
called the "Guaranteed Income Fund."
(v) "UDLP" means UDLP Corporation, a Delaware corporation.
(w) "FMC Stock Fund" means an investment fund established and maintained
by the Trustee as part of the Trust Fund. Any contributions to the Plan placed
in the FMC Stock Fund, and all dividends and other earnings and appreciation
attributable thereto, shall other earnings and appreciation attributable thereto
shall be revested only in FMC Stock.
(x) "FMC Stock" means common stock of FMC.
(y) "Foreign Subsidiary" means a foreign corporation covered by an
agreement between the Company and the Internal Revenue Service extending Federal
Social Security benefits to such foreign corporation's employees who are United
States citizens, provided that either (i) not less than 20% of the voting stock
of such foreign corporation is owned by the Company or (ii) more than 50% of the
voting stock of such foreign corporation is owned by another foreign corporation
which is described in (i) above.
Page 64
<PAGE>
SECTION 19(aa)
(aa) "Forfeiture" means the portion (if any) of a Participant's Company
Contributions Account which is forfeited pursuant to Section 8(b) upon
termination of employment.
(bb) "Harsco" means Harsco Corporation, a Delaware Corporation.
(cc) "Harsco Stock" means common stock of Harsco.
(dd) "Harsco Stock Fund" means an investment fund established and
maintained by the Trustee as part of the Trust Fund. Any contributions to the
Plan placed in the Harsco Stock Fund and all dividends and other earnings
attributable thereto, shall be invested only in Harsco Stock.
(ee) "Key Employee" means those employees defined in Code section 416(i)
and the Treasury regulations thereunder. Generally, they shall include any
employee or former employee of the Affiliated Group (and her Beneficiaries) who,
at any time during the Plan Year or any of the preceding four (4) Plan Years,
is:
(i) An officer of the Company (as that term is defined within the
meaning of the regulations under Code section 416) having annual 415
Compensation greater than 50 percent of the amount in effect under Code section
415(b)(1)(A) for any such Plan Year.
(ii) One of the ten employees of the Affiliated Group owning (or
considered as owning within the meaning of Code section 318) the largest
interests in all employers required to be aggregated under Code sections 414(b),
(c), and (m). However, an employee will not be considered a top ten owner for a
Plan Year if the employee earns not more than the amount in effect under Code
section 415(c)(1)(A).
(iii) A "Five Percent Owner" of the Company. "Five Percent Owner"
means any person who owns (or is considered as owning within the meaning of Code
section 318) more than five percent (5%) of the outstanding stock of the Company
or stock possessing more than five percent (5%) of the total combined voting
power of all stock of the Company
Page 65
<PAGE>
SECTION 19(ee)(iii)
or, in the case of an unincorporated business, any person who owns more than
five percent (5%) of the capital or profits interest in the Company. In
determining percentage ownership hereunder, employers that would otherwise be
aggregated under Code sections 414(b), (c), and (m) shall be treated as separate
employers.
(iv) A "One Percent Owner" of the Company having an annual 415
Compensation from the Affiliated Group of more than $150,000. "One Percent
Owner" means any person who owns or is considered as owning within the meaning
of (Code section 318) more than one percent (1%) of the outstanding stock of the
Company or stock possessing more than one percent (1%) of the total combined
voting power of all stock of the Company or, in the case of an unincorporated
business, any person who owns more than one percent (1%) of the capital or
profits interest in the Company. In determining percentage ownership hereunder,
employers that would otherwise be aggregated under Code sections 414(b), (c),
and (m) shall be treated as separate employers. However, in determining whether
an individual has 415 Compensation of more than $150,000, 415 Compensation from
each employer required to be aggregated under Code sections 414(b), (c) and (m)
shall be taken into account.
(ff) "Non-Key Employee" means any employee or former employee of the
Affiliated Group (and her beneficiaries) who is not a Key Employee.
(gg) "Participant" means an Eligible Employee who has elected to
participate in the Plan as provided in Subsection 2(a) or who has transferred to
the Trust a "Qualified Total Distribution" under Subsection 3(g).
(hh) "Plan" means the UDLP Employees' Thrift and Stock Purchase Plan, as
it may be amended from time to time.
Page 66
<PAGE>
SECTION 19(ii)
(ii) "Plan Benefit" means the aggregate of any distributions from a
Participant's Special Employee Contributions Account, Employee-Elected Company
Contributions Account, and Company Contributions Account, to which she becomes
entitled under Section 8(a) upon termination of employment or upon becoming
permanently and totally disabled.
(jj) "Plan Year" means a period of 12 consecutive months beginning on
April 1.
(kk) "Profits" means the sum of consolidated net income of FMC and the
after-tax cost of interest on all short-term and long-term debt of FMC all as
stated in its annual report, plus the costs associated with the receivable sale
facility established in connection with the 1986 recapitalization. To the
extent authorized by FMC there shall be excluded from "Profits" all losses,
income or gain resulting from discontinued operations, disposal of discontinued
operations, extraordinary items and changes in accounting practices.
(ll) "Regular Compensation" means the Participant's total annual income
for the Year including base salary, overtime pay, administrative, discretionary
and sales bonuses, and sales commissions earned in such Year. Regular
Compensation does not include expatriate premiums, awards, moving expense
allowances, or other special payments.
(mm) "Special Employee Contributions" means employee contributions made
under Subsection 3(g).
(nn) "Special Employee Contributions Account" means an account maintained
for each Participant to which is credited all of her Special Employee
Contributions and any earnings, appreciation, or losses attributable thereto.
(oo) "Stock" means the common stock of FMC and Harsco.
(pp) "Stock Funds" means the FMC Stock Fund and the Harsco Stock Fund.
(qq) "Super Top Heavy Plan" means a plan described in Section 17(b)(2).
Page 67
<PAGE>
SECTION 19(rr)
(rr) "Top Heavy Plan" means a plan described in Section 17(b)(1).
(ss) "Top Heavy Plan Year" means that, for a particular Plan Year
commencing after December 31, 1983, the Plan is a Top Heavy Plan.
(tt) "Trust" means the trust established by the Trust Agreement. "Trust
Agreement" means the trust agreement or agreements, as amended from time to
time, entered into by UDLP and the Trustee pursuant to Subsection 12(b).
"Trustee" means the trustee or trustees at any time appointed by UDLP pursuant
to Subsection 12(b). "Trust Fund" means the trust fund established and
maintained by the Trustee to hold all assets of the Plan pursuant to the Trust
Agreement.
(uu) "UDLP" means United Defense Limited Partnership
(vv) "Valuation Date" means the last business day of each calendar month.
(ww) "Year" means a calendar year.
(xx) "Year of Service" means calendar months of employment by the
Affiliated Group (including any interruption of employment up to 12 months)
divided by 12. A partial month shall be counted as a whole month, and any
fractional Year of Service shall be ignored. "Year of Service" shall not include
(i) any period in excess of 12 months for which the individual does not receive
Earnings, including (without limitation) any leave of absence without pay or
(ii) any other interruption of employment in excess of 12 months.
"Year of Service" shall be determined taking into account any period
during which the individual was a leased employee within the meaning of Code
section 414(n)(2), unless during such period leased employees constitute less
than twenty percent (20%) of the Company's nonhighly compensated work force
within the meaning of Code section 414(n)(1)(C)(ii) and the individual is
covered by a plan described in Code section 414(n)(5).
Page 68
<PAGE>
SECTION 20
SECTION 20. EXECUTION.
-----------------------
To record the adoption of the Plan to read as set forth herein, United
Defense Limited Partnership has caused its authorized officer to execute the
same the ______day of _____________________ 1995, but effective January 1, 1995.
UNITED DEFENSE LIMITED PARTNERSHIP
By: FMC CORPORATION its General Partner
By: /s/ Patrick J. Head
--------------------------------------
Chairman, Employee Welfare Benefits
Plan Committe
Page 69
<PAGE>
EXHIBIT A
---------
Section 401(k)(3), Internal
---------------------------
Revenue Code of 1986
--------------------
(3) APPLICATION OF PARTICIPATION AND DISCRIMINATION STANDARDS. -
---------------------------------------------------------
(A) A cash or deferred arrangement shall not be treated as a qualified
cash or deferred arrangement unless -
(i) those employees eligible to benefit under the arrangement satisfy
the provisions of section 410(b)(1), and
(ii) the actual deferral percentage for eligible highly compensated
employees (as defined in paragraph (5) for such year bears a relationship to the
actual deferral percentage for all other eligible employees for such plan year
which meets either of the following tests:
(I) The actual deferral percentage for the group of eligible
highly compensated employees is not more than the actual deferral percentage of
all other eligible employees multiplied by 1.25.
(II) The excess of the actual deferral percentage for the group
of eligible highly compensated employees over that of all other eligible
employees is not more than 2 percentage points, and the actual deferral
percentage for the group of eligible highly compensated employees is not more
than the actual deferral percentage of all other eligible employees multiplied
by 2.
If 2 or more plans which include cash or deferred
arrangements are considered as 1 plan for purposes of section 401(a)(4) or
410(b), the cash or deferred arrangements included in such plans shall be
treated as 1 arrangement for purposes of this subparagraph.
Page 70
<PAGE>
If any highly compensated employee is a participant under 2
or more cash or deferred arrangements of the employer, for purposes of
determining the deferral percentage with respect to such employee, all such cash
or deferred arrangements shall be treated as 1 cash or deferred arrangement.
(B) For purposes of subparagraph (A), the actual deferral percentage for a
specified group of employees for a plan year shall be the average of the ratios
(calculated separately for each employee in such group) of -
(i) the amount of employer contributions actually paid over to the
trust on behalf of each such employee for such plan year, to
(ii) the employee's compensation for such plan year.
(C) A cash or deferred arrangement shall be treated as meeting the
requirements of subsection (a)(4) with respect to contributions if the
requirements of subparagraph (A)(ii) are met.
(D) For purposes of subparagraph (B), the employer contributions on behalf
of any employee -
(i) shall include any employer contributions made pursuant to the
employee's election under paragraph (2), and
(ii) under such rules as the Secretary may prescribe, may, at the
election of employer, include -
(I) matching contributions (as defined in section 401(m)(4)(A))
which meets the requirements of paragraph (2)(B) and (C), and
(II) qualified nonelective contributions (within the meaning of
section 401(m)(4)(C)).
Page 71
<PAGE>
EXHIBIT B
---------
Section 401(m), Internal
------------------------
Revenue Code of 1986
--------------------
(m) NONDISCRIMINATION TEST FOR MATCHING CONTRIBUTIONS AND EMPLOYEE
--------------------------------------------------------------
CONTRIBUTIONS. -
- -------------
(1) IN GENERAL - A defined contribution plan shall be treated as meeting
----------
the requirements of subsection (a)(4) with respect to the amount of any matching
contribution or employee contribution for any plan year only if the contribution
percentage requirement of paragraph (2) of this subsection is met for such plan
year.
(2) REQUIREMENTS.-
------------
(A) CONTRIBUTION PERCENTAGE REQUIREMENT. - A plan meets the
-----------------------------------
contribution percentage requirement of this paragraph for any plan year only if
the contribution percentage for eligible highly compensated employees does not
exceed the greater of -
(i) 125 percent of such percentage for all other eligible
employees, or
(ii) the lesser of 200 percent of such percentage for all other
eligible employees, or such percentage for all other eligible employees plus 2
percentage points.
(B) MULTIPLE PLANS TREATED AS A SINGLE PLAN. - If two or more plans
---------------------------------------
of an employer to which matching contributions, employee contributions, or
elective deferrals are made are treated as one plan for purposes of section
410(b), such plans shall be treated as one plan for purposes of this subsection.
If a highly compensated employee participates in two or more plans of an
employer to which contributions to which this subsection applies are made, all
such contributions shall be aggregated for purposes of this subsection.
Page 72
<PAGE>
(3) CONTRIBUTION PERCENTAGE. - For purposes of paragraph (2), the
-----------------------
contribution percentage for a specified group of employees for a plan year shall
be the average for the ratios (calculated separately for each employee in such
group) of -
(A) the sum of the matching contributions and employee contributions
paid under the plan on behalf of each such employee for such plan year, to,
(B) the employee's compensation (within the meaning of section
414(s)) for such plan year.
Under regulations, an employer may elect to take into account (in computing the
contribution percentage) elective deferrals and qualified nonelective
contributions under the plan or any other plan of the employer. If matching
contributions are taken into account for purposes of subsection (k)(3)(A)(ii)
for any plan year, such contributions shall not be taken into account under
subparagraph (A) for such year.
(4) DEFINITIONS. - For purposes of this subsection-
-----------
(A) MATCHING CONTRIBUTION - The term "matching contribution" means -
---------------------
(i) any employer contribution made to a defined contribution plan on
behalf of an employee on account of an employee contribution made by such
employee, and
(ii) any employer contribution made to a defined contribution
plan on behalf of an employee on account of an employee's elective deferral.
(B) ELECTIVE DEFERRAL - The term "elective deferral" means any
----------------
employer contribution described in section 402(g)(3).
(C) QUALIFIED NONELECTIVE CONTRIBUTIONS - The term "qualified
-----------------------------------
nonelective contribution" means any employer contribution (other than a matching
contribution) with respect to which -
Page 73
<PAGE>
(i) the employee may not elect to have the contribution paid to
the employee in cash instead of being contributed to the plan, and
(ii) the requirements of subparagraphs (B) and (C) of subsection
(k)(2) are met.
(5) EMPLOYEES TAKEN INTO CONSIDERATION. -
----------------------------------
(A) IN GENERAL - Any employee who is eligible to make an employee
---------
contribution (or, if the employer takes elective contributions into account,
elective contributions) or to receive a matching contribution under the plan
being tested under paragraph (1) shall be considered an eligible employee for
purposes of this subsection.
(B) CERTAIN NONPARTICIPANTS - If an employee contribution is required
-----------------------
as a condition of participation in the plan, any employee who would be a
participant in the plan if such employee made such a contribution shall be
treated as an eligible employee on behalf of whom no employer contributions are
made.
(6) PLAN NOT DISQUALIFIED IF EXCESS AGGREGATE CONTRIBUTIONS DISTRIBUTED
-------------------------------------------------------------------
BEFORE END OF FOLLOWING PLAN YEAR -
- ---------------------------------
(A) IN GENERAL - A plan shall not be treated as failing to meet the
----------
requirements of paragraph (1) for any plan year if, before the close of the
following plan year, the amount of the excess aggregate contributions for such
plan year (and any income allocable to such contributions) is distributed (or,
if forfeitable, is forfeited). Such contributions (and such income) may be
distributed without regard to any other provision of law.
Page 74
<PAGE>
(B) EXCESS AGGREGATE CONTRIBUTIONS- For purposes of subparagraph (A)
------------------------------
the term "excess aggregate contributions" means, with respect to any plan year,
the excess of -
(i) the aggregate amount of the matching contributions and
employee contributions (and any qualified nonelective contribution or elective
contribution taken into account in computing the contribution percentage)
actually made on behalf of highly compensated employees for such plan year, over
(ii) the maximum amount of such contributions permitted under the
limitations of paragraph (2)(A) (determined by reducing contributions made on
behalf of highly compensated employees in order of their contribution
percentages beginning with the highest of such percentages).
(C) METHOD OF DISTRIBUTING EXCESS AGGREGATE CONTRIBUTIONS - Any
-----------------------------------------------------
distribution of the excess aggregate contributions for any plan year shall be
made to highly compensated employees on the basis of the respective portions of
such amounts attributable to each of such employees. Forfeitures of excess
aggregate contributions may not be allocated to participants whose contributions
are reduced under this paragraph.
(D) COORDINATION WITH SUBSECTION (k) AND 402(g) - The determination
-------------------------------------------
of the amount of excess aggregate contributions with respect to a plan shall be
made after -
(i) first determining the excess deferrals (within the meaning
of section 402(g), and
(ii) then determining the excess contributions under subsection
(k).
Page 75
<PAGE>
(7) TREATMENT OF DISTRIBUTIONS. -
--------------------------
(A) ADDITIONAL TAX OF SECTION 72(t) NOT APPLICABLE - No tax shall be
----------------------------------------------
imposed under section 72(t) on any amount required to be distributed under
paragraph (6).
(B) EXCLUSION OF EMPLOYEE CONTRIBUTIONS - Any distribution
-----------------------------------
attributable to employee contributions shall not be included in gross income
except to the extent attributable to income on such contributions.
(8) HIGHLY COMPENSATED EMPLOYEE - For purposes of this subsection, the term
---------------------------
"highly compensated employee" has the meaning given to such term by section
414(q).
(9) REGULATIONS - The Secretary shall prescribe such regulations as may be
-----------
necessary to carry out the purposes of this subsection and subsection (k)
including -
(A) such regulations as may be necessary to prevent the multiple use
of the alternative limitation with respect to any highly compensated employee,
and
(B) regulations permitting appropriate aggregation of plans and
contributions. For purposes of the preceding sentence, the term "alternative
limitation" means the limitation of section 401(k)(3)(A)(ii)(II) and the
limitation of paragraph (2)(A)(ii) of this subsection.
Page 76
<PAGE>
Exhibit 4.7
AMENDMENT
TO THE
UNITED DEFENSE LIMITED PARTNERSHIP SALARIED EMPLOYEES' PLAN
WHEREAS, United Defense, L.P. (the "Company") sponsors and maintains
the United Defense Limited Partnership Salaried Employees' Plan (the "Plan") for
the benefit of its employees; and
WHEREAS, the Company deems it desirable to amend the Plan to provide
for multiple investment fund options under the Plan and to make certain other
administrative changes.
NOW, THEREFORE, pursuant to the power of amendment contained in
Section 15(a) of the Plan, the Company hereby amends the Plan, effective the 7th
day of July, 1997, by amending the Plan in the following particulars:
1. By substituting the phrase "Investment Funds (as defined herein
in Section 13(e) of the Plan)" for the phrase "FMC Stock Fund, Harsco Stock
Fund, Equity Fund or Fixed Income Fund" where such latter phrase appears in
Section 2(b) of the Plan.
2. By substituting the following for the second sentence in Section
3(a)(ii) of the Plan:
"The Active Participation of any Participant who makes such an
election shall be suspended. Active Participation shall be resumed as soon
as administratively feasible following the Participant's election to resume
Employee-Elected Company Contribution is received by UDLP in the local
Human Resources office on the prescribed application form."
3. By substituting the following for Section 3(d) of the Plan:
"(d) Investment of Employee-Elected Company Contributions. At such
-----------------------------------------------------
time as UDLP establishes Investment Funds in accordance with Section 13(e),
UDLP shall establish uniform rules concerning Participants' investment
elections. In general, as of the date an employee becomes a Participant
and as of any change date thereafter,
<PAGE>
each Participant may elect, by giving written notice to UDLP at least 30
days (or such other period as UDLP may establish) in advance, in accordance
with uniform rules established by UDLP and on a form provided by it for
this purpose, or by authorized telephonic voice response, to have future
contributions made by such Participant or on the Participant's behalf
(prior to any subsequent election such Participant may make), other than
Company Contributions, invested in accordance with such Participant's
election entirely in one of the Investment Funds or partially in each of
two or more of the Investment Funds."
4. By substituting the following for Section 3(e) of the Plan:
"(e) Transfer of Funds. As of any change date, each Participant may
------------------
elect, by giving written notice to UDLP at least 30 days (or such other
periods as UDLP may establish on a uniform and nondiscriminatory basis) in
advance, in accordance with uniform rules established by UDLP and on a form
provided by it for this purpose, or by authorized telephonic voice
response, to have such Participant's account balances, other than his
Company Contributions Account, as of that date (after all adjustments as of
that date have been made) invested in accordance with such Participant's
election entirely in one of the Investment Funds or partially in each of
two or more of the Investment Funds; provided, however, that any such
transfer must be in an amount at least equal to the lesser of the aggregate
balance of such accounts or $250. Any investment election made by a
Participant shall be deemed to be a continuing election until changed.
During any period for which a Participant has not made either or both of
the above elections, such Participant will be considered to have elected to
have the Participant's account balances or future contributions, or both,
as the case may be, invested entirely in such fund as is prescribed by
UDLP. UDLP shall from time to time notify each Trustee or insurance
company with custody of an Investment Fund of the aggregate amounts to be
invested in each Investment Fund in accordance with Participants'
elections. Notwithstanding anything to the contrary, (i) Company
Contributions shall be invested in the FMC Stock Fund and no amount of
Company Contributions shall be invested in any other Investment Fund and
(ii) only Participants who are at least age 55 may transfer funds out of
the FMC Stock Fund and such Participants may only do so annually."
5. By substituting the phrase "an Investment Fund selected by UDLP"
for the phrase "Fixed Income Fund" where such latter phrase appears in Sections
3(f) and 6(a) of the Plan.
6. By substituting the phrase "Investment Funds other than the FMC
Stock Fund and the Harsco Stock Fund" for the phrase "Fixed Income Fund and
Equity Fund" where such latter phrase appears in Sections 4(a) and 9(a)(i) of
the Plan.
2
<PAGE>
7. By substituting the word "week" for the phrase "calendar month"
and the word "month" whereby such phrase or word appears in Section 4(a) and
4(b) of the Plan.
8. By substituting the following for the last sentence in Section
4(b) of the Plan:
"All Company Contributions allocated to Company Contributions
Accounts shall be invested in FMC stock as part of the FMC Stock Fund.
Forfeitures shall be invested in an Investment Fund selected by UDLP."
9. By substituting the phrase "all or part of" for the words "his
entire" where it appears in the first sentence of Section 5(c) of the Plan.
10. By substituting the phrase "Investment Funds" for the phrase "FMC
Stock Fund, Harsco Stock Fund, Equity Fund or Fixed Income Fund" where such
latter phrase (or a similar phrase referring to all such investment funds)
appears in Sections 5(f), 14(a), 14(b) of the Plan.
11. By substituting the following sentence for the fifth sentence of
Section 6(a) of the Plan:
"The period of repayment for any loan shall be from one (1) to
five (5) years in six-month increments."
12. By adding the following phrase at the end of the first sentence
in Section 9(b)(ii) of the Plan:
"or in such variable systematic withdrawal payments as may be
established in the uniform and nondiscriminatory basis by UDLP."
13. By substituting the following sentence for the second sentence in
Section 13(d):
"The trustee shall pay all expenses of the Plan out of the Trust
Fund, except that Participants shall be charged a participation fee in the
amount of $25.00 per year per Participant and a loan processing fee in the
amount of $75 per loan application, and UDLP shall pay expenses not covered
by the participation fee and that cannot be charged to the Trust under
applicable law."
14. By substituting the following for Section 13(e) of the Plan:
"(e) Investment Funds. From time to time, UDLP may cause one or
-----------------
more investment funds ("Investment Funds") to be established within the
Trust for the
3
<PAGE>
investment of Participants' accounts, including a fund consisting of
qualifying employer securities (as defined in Section 407(d)(5) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")).
UDLP may, in its discretion, establish pass through voting procedures
regarding the voting and tendering of qualifying employer securities with
respect to a fund of qualifying employer securities. The Plan may invest in
qualifying employer securities to the maximum extent permitted by ERISA (up
to 100% in common stock in the case of a profit sharing plan). The
continued availability of any Investment Fund is necessarily conditioned
upon the terms and conditions of the applicable investment management
agreements and the continued availability of Investment Funds established
cannot be assured on the same terms and conditions as may apply from time
to time. Participants will be informed from time to time of the
availability of Investment Funds as they are established or superseded. Any
Investment Fund may be partially or entirely invested in any common,
commingled or collective trust fund, pooled investment fund or mutual fund
which is invested in property of the kind specified for that Investment
Fund."
15. By substituting the phrase "Stock Fund Units" for the phrase
"Stock Credits" or "shares of Stock" and for the words "Stock" or "shares"
standing alone where any such phrases or words appear in Section 14(c)(i) and
(ii).
16. By deleting Sections 19(s) and 19(u) and redesignating Section
19(t) as Section 19(s), Sections 19(v) through 19(dd) as Sections 19(t) through
19(bb).
17. By inserting the following new section as Section 19(cc) and by
redesignating Sections 19(ee) through 19(xx) as Sections 19(dd) through 19(ww):
"(cc) An 'Investment Fund' means an investment fund established
and maintained by the Trustee as part of the Trust Fund. Any contributions
to the Plan placed in Investment Funds shall be invested and reinvested in
property of the kind specified for that Investment Fund, including in any
common, commingled or collective trust fund, pooled investment fund or
mutual fund which is invested in property of the kind specified for that
Investment Fund."
18. By substituting the following as Section 19(ii):
"(ii) 'Plan Year' means the period of nine consecutive months
beginning on April 1, 1997 and ending on December 31, 1997 and each period
of 12 consecutive months beginning on January 1 thereafter."
4
<PAGE>
19. By substituting the following for Section 19(uu) of the Plan:
"(uu) 'Valuation Date' means any business day or any Valuation
Date otherwise prescribed for specific purposes in the Plan."
* * *
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of the effective date herein.
UNITED DEFENSE, L.P.
/s/ Michael J. Callahan
-----------------------------------------------
By: Michael J. Callahan
-------------------------------------------
Title: Chairman, FMC Corporation
----------------------------------------
Employee Welfare Benefits Plan Committee
5
<PAGE>
EXHIBIT 4.8
UNITED DEFENSE LIMITED PARTNERSHIP
----------------------------------
YORK PLAN
---------
<PAGE>
UDLP YORK PLAN
--------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1 ESTABLISHMENT OF THE PLAN.......................................... 1
SECTION 2 ELIGIBILITY AND PARTICIPATION...................................... 2
(a) Participants.................................................. 2
(b) Suspension of Active Participation............................ 2
(c) Termination of Participation.................................. 3
SECTION 3 EMPLOYEE-ELECTED COMPANY CONTRIBUTIONS............................. 4
(a) Employee-Elected Company Contributions........................ 4
(b) Changing the Rate of Employee-Elected Company
Contributions................................................. 5
(c) Payroll Deductions............................................ 5
(d) Investment of Employee-Elected Company
Contributions................................................. 5
(e) Transfer of Funds............................................. 5
(f) Rollover Amount From Other Plans.............................. 6
(g) Special Employee Contributions................................ 7
SECTION 4 COMPANY CONTRIBUTIONS.............................................. 10
(a) Company Contributions......................................... 10
(b) Allocation of Company Contributions and
Forfeitures................................................... 10
SECTION 5 WITHDRAWALS........................................................ 11
(a) Withdrawals from Special Employee
Contributions................................................. 11
(b) Hardship Withdrawals.......................................... 11
(c) Age 59-1/2 Withdrawals........................................ 12
(d) Election and Payment of Withdrawals........................... 12
(e) Source of Payment............................................. 12
(f) Form of Payment and Valuation Date............................ 13
(g) Limitation on Withdrawals..................................... 13
(h) Suspension for Withdrawal..................................... 13
</TABLE>
Page i
<PAGE>
UDLP YORK PLAN
--------------
TABLE OF CONTENTS
-----------------
(Continued)
-----------
<TABLE>
<S> <C>
SECTION 6 LOANS................................................................. 14
(a) Terms of Loans.................................................. 14
(b) Limitations on Loans............................................ 15
(c) Loan Procedures................................................. 15
(d) Repayment of Loans.............................................. 15
SECTION 7 VESTING............................................................... 16
(a) Five-Year Vesting............................................... 16
(b) Graded Vesting.................................................. 16
(c) Full Vesting.................................................... 16
SECTION 8 DISTRIBUTABLE INTERESTS AND FORFEITURES............................... 17
(a) Plan Benefits................................................... 17
(b) Forfeitures..................................................... 17
SECTION 9 FORM OF PLAN BENEFIT.................................................. 19
(a) Normal Forms of Distribution.................................... 19
(b) Optional Form of Distribution................................... 20
(c) Participant's Election to Receive Cash.......................... 21
(d) Missing Persons................................................. 21
(e) Payments to Beneficiary......................................... 22
(f) Change of Election.............................................. 23
(g) Foreign Transfers............................................... 23
SECTION 10 CLAIM PROCEDURE....................................................... 25
(a) Application for Benefits........................................ 25
(b) Denial of Applications.......................................... 25
</TABLE>
Page ii
<PAGE>
UDLP YORK PLAN
--------------
TABLE OF CONTENTS
-----------------
(Continued)
-----------
<TABLE>
<S> <C>
SECTION 11 APPEAL PROCEDURE...................................................... 26
(a) The Review Panel................................................ 26
(b) Requests for a Review........................................... 26
(c) Decision on Review.............................................. 26
(d) Rules and Procedures............................................ 27
(e) Exhaustion of Remedies.......................................... 27
SECTION 12 ADMINISTRATION AND OPERATION OF THE PLAN.............................. 28
(a) Administrative Responsibilities................................. 28
(b) Appointment of Trustees......................................... 28
(c) Delegation of Fiduciary Responsibilities........................ 28
SECTION 13 FUNDING OF THE PLAN................................................... 30
(a) Funding Policy and Method....................................... 30
(b) Public Accountant............................................... 30
(c) Basis of Payments to the Plan................................... 30
(d) Basis of Payments from the Plan................................. 31
(e) Investment of Trust Assets...................................... 31
SECTION 14 PARTICIPANTS' ACCOUNTS................................................ 33
(a) Participants' Accounts.......................................... 33
(b) Rules Relating to Plan Investments and
Earnings Adjustments............................................ 33
(c) Stock Funds..................................................... 34
SECTION 15 AMENDMENT AND TERMINATION OF THE PLAN................................. 36
(a) Future of the Plan.............................................. 36
(b) Amendments...................................................... 36
(c) Termination of the Plan......................................... 36
(d) Allocation of Trust Fund Upon Termination....................... 37
</TABLE>
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<PAGE>
UDLP YORK PLAN
--------------
TABLE OF CONTENTS
-----------------
(Continued)
<TABLE>
<S> <C>
SECTION 16 CONTRIBUTION LIMITATIONS.............................................. 38
(a) Limitation of Allocations....................................... 38
(b) Maximum Annual Additions........................................ 39
(c) Adjustment for Excessive Annual Additions....................... 45
SECTION 17 TOP HEAVY PROVISIONS.................................................. 47
(a) Top Heavy Plan Requirements..................................... 47
(b) Determination of Top Heavy Status............................... 47
(c) Minimum Benefit Requirement for Top Heavy Plan.................. 52
SECTION 18 GENERAL PROVISIONS.................................................... 54
(a) Plan Mergers.................................................... 54
(b) No Assignment of Property Rights................................ 54
(c) Beneficiary..................................................... 55
(d) Incapacity...................................................... 55
(e) Employment Rights............................................... 55
(f) Voting Rights................................................... 56
(g) Rights on Tender or Exchange Offer.............................. 56
(h) Account Statements.............................................. 57
(i) Choice of Law................................................... 57
SECTION 19 DEFINITIONS........................................................... 58
SECTION 20 EXECUTION............................................................. 67
</TABLE>
Page iv
<PAGE>
SECTION 1
UNITED DEFENSE LIMITED PARTNERSHIP
----------------------------------
YORK PLAN
---------
SECTION 1. ESTABLISHMENT OF THE PLAN.
--------------------------------------
United Defense Limited Partnership York Plan is established by UDLP
effective January 1, 1995. The Plan is intended to provide employees of the
Company an opportunity for systematic investment, to strengthen the interest of
employees in the Company and thereby promote the mutual interests of the
Company, its eligible employees and its shareholders, and to provide a measure
of financial security for employees and their beneficiaries. The Plan is
subject to change to meet applicable rules and regulations of the Internal
Revenue Service and the United States Department of Labor and for such other
reasons as UDLP may determine. The Plan is intended to qualify as a profit-
sharing plan for purposes of sections 401(a), 402, 412, and 417 of the Code.
Certain capitalized terms in the Plan text are defined in alphabetical order in
Section 19.
Page 1
<PAGE>
SECTION 2
SECTION 2. ELIGIBILITY AND PARTICIPATION.
------------------------------------------
(a) Participants. Participation in the Plan is voluntary. An Eligible
-------------
Employee may elect at any time to participate in the Plan by filing the
prescribed application form with the local personnel office. The Regular
Compensation of an Eligible Employee who so elects to participate shall be
reduced by an amount equal to the Dollar Limit, but not more than 16% of his
Earnings, which reduced amount shall be his "Adjusted Regular Compensation."
Such Eligible Employee shall become a Participant on the first day of the first
payroll period occurring on or after the first of the calendar month next
following the date his application form is received by UDLP in the local human
resources office. If a Participant terminates employment with the Affiliated
Group, he shall resume participation on the first day of the payroll period
following the 30th day after his election to resume participation, on the
prescribed application form, is received by UDLP in the local human resources
office.
(b) Suspension of Active Participation. A Participant's Active
-----------------------------------
Participation in the Plan shall be suspended during the following periods of
time:
(i) Any period during which he continues to be an employee of the
Affiliated Group but does not qualify as an Eligible Employee.
(ii) Any period for which he does not receive Earnings, including
(without limitation) any leave of absence without pay.
(iii) A period described in Subsection 3(a)(ii) and the last sentence
of Subsection 5(j) (voluntary discontinuance of Employee-Elected Company
Contributions).
(iv) A period described in Subsections 5(a) and (b) relating to
periods of suspension following various forms of withdrawal.
Page 2
<PAGE>
SECTION 2(b)(v)
(v) The period falling between the date when her employment with the
Company terminates and the date when her participation terminates under
Subsection 2(c).
While a Participant's Active Participation is suspended, she
shall neither elect any Employee-Elected Company Contributions nor receive any
allocation of Company Contributions or Forfeitures made with respect to the
period of suspended Active Participation. Vesting will continue during
suspension and termination periods under (i), (iii), and (iv) above but not
under (v) above. Vesting will continue only during the first 12 months of a
period under (ii) above, but not thereafter. The accounts of a Participant whose
Active Participation is suspended shall, subject to Subsection 3(e), remain
invested in the FMC Stock Fund, Harsco Stock Fund, Equity Fund, or Fixed Income
Fund, as the case may be, and shall continue to be credited with any earnings,
appreciation or losses arising with respect thereto.
(c) Termination of Participation. Any Participant shall cease to
-----------------------------
participate in the Plan as of the date when her entire Plan Benefit has been
distributed or on the date of her death.
Page 3
<PAGE>
SECTION 3
SECTION 3. EMPLOYEE-ELECTED COMPANY CONTRIBUTIONS.
---------------------------------------------------
(a) Employee-Elected Company Contributions.
---------------------------------------
(i) Election. While a Participant's Active Participation is not
--------
suspended he may elect to have contributed to the Trust out of the amount of his
compensation reduction provided in Subsection 2(a), an "Employee-Elected Company
Contribution." A Participant may elect an annual rate of Employee-Elected
Company Contributions of at least 2% and up to 16% (in whole percentages) of his
Earnings, but not more than the Dollar Limit per Year by filing the prescribed
application form with the local personnel office. No Participant shall be
permitted to have Employee-Elected Company Contributions made under this Plan
during any Year that, when aggregated with elective deferrals (within the
meaning of Code section 402(g)(3)) made under all other plans of the Company
during such Year, such contributions exceed the Dollar Limit. Such election
shall be effective beginning with the first payroll period occurring on or after
the first of the calendar month next following the date his application form is
received by UDLP in the local human resources office.
(ii) Discontinuance. A Participant may elect at any time the
---------------
discontinuance of future Employee-Elected Company Contributions, effective
beginning with the first payroll period occurring on or after the first of the
calendar month next following the date her election, on the prescribed form, is
filed with the local human resources office. The Active Participation of any
Participant who makes such an election shall be suspended under Subsection 2(b)
for a minimum period of six (6) months, and thereafter Active Participation
shall be resumed the first day of the first payroll period following the 30th
day after her election to resume Employee-Elected Company Contributions is
received by UDLP in the local human resources office, on the prescribed
application form.
Page 4
<PAGE>
SECTION 3(b)
(b) Changing the Rate of Employee-Elected Company Contributions. A
------------------------------------------------------------
Participant may elect to change her rate of Employee-Elected Company
Contributions to any other rate available to her under Subsection 3(a) above.
Any election under this Subsection 3(b) shall be made by filing the prescribed
form with the local human resources office and shall be effective beginning with
the first payroll period occurring on or after the first of the calendar month
next following the date her form is filed. No Participant shall make more than
two elections under this Subsection 3(b) during any Plan Year, unless UDLP
consents to any additional election or elections.
(c) Payroll Deductions. During each payroll period, the portion of a
-------------------
Participant's share of her compensation reduction that the Participant does not
elect to have contributed to the Trust as an Employee-Elected Company
Contribution (or the entire amount of such compensation reduction during any
period of suspension) shall be paid to the Participant in cash as compensation
in addition to the Participant's Adjusted Regular Compensation.
(d) Investment of Employee-Elected Company Contributions. A Participant's
----------------------------------------------------
Employee-Elected Company Contributions shall be invested (i) entirely in the FMC
Stock Fund, the Harsco Stock Fund, the Fixed Income Fund, or the Equity Fund, or
(ii) in two or more of those Funds in multiples of 25%, as he shall elect by
filing the prescribed application form except that a Participant whose
investment in the Harsco Stock Fund (excluding Harsco Stock transferred into
this Plan from an "Other Plan" as defined in Subsection 3(f)) exceeds 10% of her
Plan Benefit may not elect any further investment in the Harsco Stock Fund. A
Participant may change such election prospectively for an entire Plan Year by
filing the prescribed form with the local personnel office not less than 30 days
prior to such Plan Year.
(e) Transfer of Funds. A Participant who has attained age 55 may elect to
------------------
transfer among the Fixed Income Fund, the FMC Stock Fund, the Harsco Stock Fund,
and the
Page 5
<PAGE>
SECTION 3(e)
Equity Fund all or part of the balance of his Employee-Elected Company
Contributions Account and Special Employee Contributions Account then invested
in any of such Funds, in multiples of 20%. Any election under this Subsection
3(e) shall be made by filing the prescribed form by the fifth working day of a
Plan Year with the local personnel office, and such transfer shall be made
effective the first day of that Plan Year. For purposes of accounting for such
a transfer, the value of the Participant's balance in the account or portion
thereof transferred shall be determined as of the Valuation Date preceding the
month when such transfer is effective. No Participant shall make more than one
such transfer during each Plan Year.
(f) Rollover Amount From Other Plans. With the approval of the UDLP, an
--------------------------------
Eligible Employee, regardless of whether she has elected to otherwise
participate in the Plan, may contribute to the Plan an amount received from a
deferred compensation plan which qualifies under Code Section 401 or Code
Section 403(a) ("Rollover Contribution"), pursuant to Code Section 402(c). A
Rollover Contribution can include both direct rollovers and amounts distributed
to a Participant and then rolled over, and also includes a direct trust to trust
transfer. In addition, if a Participant had deposited a "qualified total
distribution" within the meaning of Code Section 402(a)(5)(E) (as in effect
prior to January 1, 1993) or an Eligible Rollover Distribution (as defined in
Subsection 9(i)) into an individual retirement account as defined in Code
Section 408, he or she may transfer the amount of the distribution plus earnings
from the individual retirement account to the Plan; provided, however, that the
rollover amount is deposited with the Trustee within 60 days after receipt from
the individual retirement account. A Rollover Contribution shall be in cash or
in such other property as is acceptable to the Trustee. In the event that a
Participant
Page 6
<PAGE>
SECTION 3(f)
a contribution pursuant to this Section that was intended to be a Rollover
Contribution, which UDLP later discovers not to be a Rollover Contribution, the
Trustee shall distribute to such Participant as soon as practicable after such
discovery the portion of his Account attributable to his or her Rollover
Contribution determined as of the Valuation Date coincident with or immediately
preceding such discovery.
UDLP shall develop such procedures, and may require such
information from an Eligible Employee desiring to make such a transfer, as it
deems necessary or desirable to determine that the proposed transfer will meet
the requirements of this Subsection. Upon approval by UDLP, the amount
transferred shall be deposited in the Trust Fund, credited to the Employee's
Employee-Elected Company Contributions Account, and invested entirely in the
Fixed Income Fund. Such Account shall be fully vested in the Eligible Employee,
shall share in the earnings and appreciation of the fund or funds in which it is
invested in accordance with Subsection 13(b), but shall not share in Company
Contributions and Forfeitures .
(g) Special Employee Contributions.
-------------------------------
(i) Election. A Participant who has no currently effective election
--------
of Employee-Elected Company Contributions or who has a currently effective
election of Employee-Elected Company Contributions of less than 16% of his
Earnings may elect to make "Special Employee Contributions." A Participant may,
by filing the prescribed application form with UDLP, elect a rate of Special
Employee Contributions, in whole percentages of his Earnings, of up to a
percentage that when aggregated with the rate of his Employee-Elected Company
Contributions will equal 16% of his Earnings. Except as
Page 7
<PAGE>
SECTION 3(g)(ii)
provided in Subsection 18(i), such election shall be effective beginning with
the first payroll period occurring on or after the first of the calendar month
next following the date his application form is received by UDLP in the local
human resources office.
(ii) Discontinuance. A Participant may elect at any time the
--------------
discontinuance of future Special Employee Contributions, effective beginning
with the first payroll period occurring on or after the first of the calendar
month next following the date her election, on the prescribed form, is received
by UDLP by filing the form with the local personnel office. The right of a
Participant who makes such an election to make Special Employee Contributions
shall be suspended for a minimum period of six (6) months, and thereafter
Special Employee Contributions shall be resumed the first day of the first
payroll period following the 30th day after her election to resume Special
Employee Contributions is received by UDLP in the local human resources office,
on the prescribed application form.
(iii) Changing the Rate of Special Employee Contributions. A
---------------------------------------------------
Participant may elect to change her rate of Special Employee Contributions to
any other rate available to her under Subsection 3(g)(i) above. Any election
under this Subsection 3(g)(iii) shall be made by filing the prescribed form with
the local personnel office and shall be effective beginning with the first
payroll period occurring on or after the first of the calendar month next
following the date her form is received by UDLP in the local human resources
office. No Participant shall make more than two elections under this Subsection
3(g)(iii) during any Plan Year, unless UDLP consents to any additional election
or elections.
(iv) Payroll Deductions. Special Employee Contributions shall be made
------------------
only through periodic payroll deductions, unless UDLP consents to another method
of payment. Any commencement or discontinuance of withholding, or any change in
the rate of withholding, shall be effective on the first day of the appropriate
payroll period following the
Page 8
<PAGE>
SECTION 3(g)(iv)
30th day after the appropriate election form is received by UDLP. All Special
Employee Contributions withheld during a calendar month shall be paid to the
Trustee and credited to the appropriate Special Employee Contributions Account
as described in Section 14.
(v) Investment of Special Employee Contributions. A Participant's
--------------------------------------------
Special Employee Contributions shall be invested in the same manner as his
Employee-Elected Company Contributions (if any) as elected under Subsection
3(d). If the Participant has no currently effective election of Employee-Elected
Company Contributions, he may elect to invest his Special Employee Contributions
in the manner provided in Section 3(d).
Page 9
<PAGE>
SECTION 4
SECTION 4. COMPANY CONTRIBUTIONS.
----------------------------------
(a) Company Contributions. For each calendar month, UDLP shall make a
----------------------
"Company Contribution." The amount of such contribution shall be equal to fifty
percent (50%) of all Basic Contributions for such month less the Forfeitures (if
any) which are credited against such contribution pursuant to Subsection 8(b).
(b) Allocation of Company Contributions and Forfeitures. The Company
---------------------------------------------------
Contribution for any calendar month shall be paid to the Trustee as soon as
practicable, and such payment may include advance Company Contributions. The
Company Contribution, together with any current Forfeitures credited thereto,
but not including any advance Company Contributions, shall be allocated first to
the reinstatement of prior Forfeitures to which reemployed Participants may be
entitled under Subsection 8(b) and second to the payment of administrative
expenses payable out of the Trust Fund. The balance of such contributions and
current Forfeitures shall be apportioned among the Company Contributions
Accounts of all Participants who elected any Basic Contributions for such month
in the ratio that each Participant's Basic Contributions for such month bears to
the total Basic Contributions made by all Participants for such month. All
Company Contributions and Forfeitures allocated to Company Contributions
Accounts shall be invested in FMC Stock as part of the FMC Stock Fund.
Page 10
<PAGE>
SECTION 5
SECTION 5. WITHDRAWALS.
------------------------
(a) Withdrawals from Special Employee Contributions. Any Participant may
-----------------------------------------------
withdraw all or part of the amount in her Special Employee Contributions Account
and all of the current value of vested Company Contributions attributable to her
Special Employee Contributions. The active participation of any Participant who
makes a withdrawal described above shall be suspended until the first day of the
payroll period coinciding with or next following the date six months after the
first day of the month following the month in which the request to make a
withdrawal is effective, as defined in Subsection 5(f).
(b) Hardship Withdrawals. A Participant who encounters a "Financial
---------------------
Hardship," resulting in an immediate and heavy financial need, may withdraw an
amount necessary to satisfy that need, including, all or part of the following
amounts in the order listed: (i) the current value of his Special Employee
Contributions (if any), and (ii) the current value of his aggregate Employee-
Elected Company Contributions not previously withdrawn (but not the earnings on
them). UDLP shall determine whether an event constitutes a Financial Hardship.
Subject to the review procedure described in Section 10, such determination
shall be conclusive and binding on all persons. The following expenditures will
be conclusively considered to be made on account of immediate and heavy
financial need: (i) medical expenses described in section 213(d) of the Code
incurred by the Participant, the Participant's spouse, or any dependents of the
Participant (as defined in section 152 of the Code); (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; and (iv)
expenditures to prevent the eviction of the Participant from the Participant's
principal residence or foreclosure on the mortgage of the Participant's
principal residence. In determining whether a
Page 11
<PAGE>
SECTION 5(b)
withdrawal is necessary to satisfy a financial need, UDLP may reasonably rely
upon the Participant's representation that the need cannot be met by insurance,
reasonable liquidation of assets (not itself creating a hardship), cessation of
Employee-Elected Company Contributions and Special Employee Contributions, by
other distributions or other nontaxable loans from plans maintained by UDLP or
any other employer, or by borrowing from commercial sources on reasonable
commercial terms. The Active Participation of any Participant who makes this
hardship withdrawal shall not be suspended, and his Company Contributions
Account shall continue to vest.
(c) Age 59-1/2 Withdrawals. A Participant who has attained age 59-1/2 may
-----------------------
withdraw his entire Special Employee Contributions Account (if any), his entire
Employee-Elected Company Contributions Account, and his entire Company
Contributions Account. A Participant who has an outstanding loan under Section
6 may not make such a withdrawal except upon repayment of the loan. Upon such a
withdrawal the Participant will not incur any suspension of Active Participation
and will continue to have the right to elect to make contributions to the Plan
in the same manner he had prior to the withdrawal.
(d) Election and Payment of Withdrawals. A request to make a withdrawal,
------------------------------------
and any election of a source of payment under Subsection 5(g) below, shall be
filed with the local personnel office on the prescribed form. A withdrawal
request is effective in the month in which the proper form is dated and signed,
provided the form is received by UDLP no later than the fifth working day of the
following month. Any withdrawal request form received after such fifth working
day shall be effective in the month in which received by UDLP. A hardship
withdrawal shall be paid as soon as practicable after valuation pursuant to
Subsection 5(f) below, and all other withdrawals shall be paid within 30 days
after valuation.
(e) Source of Payment. A Participant who, under Subsection 5(a), withdraws
------------------
less than the entire value of his Special Employee Contributions Account and who
has interests
Page 12
<PAGE>
in more than one investment fund may specify whether such withdrawal shall be
entirely from one fund or from more than one fund in specified parts. The
withdrawal from such Account shall not exceed the Participant's aggregate
Special Employee Contributions placed in each such Account and not previously
withdrawn.
(f) Form of Payment and Valuation Date. All withdrawals shall be paid in
-----------------------------------
cash. The Participant's interest in the FMC Stock, Harsco Stock, Equity, and
Fixed Income Funds shall be valued as of the Valuation Date in the month in
which such withdrawal request is effective, as defined in Subsection 5(d).
(g) Limitation on Withdrawals. No withdrawal shall be in an amount less
--------------------------
than the smaller of the entire vested interest or $250.00. A withdrawal from
any of the Participant's Accounts shall not include any portion of the Account
which has been loaned to the Participant under Section 6. No Participant may
make a withdrawal after the Plan is terminated pursuant to Section 15, and no
Participant who has notice that the Plan will be so terminated may make a
withdrawal.
(h) Suspension for Withdrawal. The Active Participation of any Participant
-------------------------
who makes a withdrawal from her Special Employee Contributions Account shall be
suspended for six months, as provided in Subsection 5(a). A Participant whose
Active Participation has been so suspended may resume Active Participation upon
filing the prescribed reinstatement form for such purpose with the local
personnel office. Such Active Participation shall be resumed the first day of
the appropriate payroll period beginning on or after the first day of the
calendar month immediately following the later of (i) the end of her suspension,
or (ii) the date her reinstatement form is received by UDLP. If reinstatement of
Active Participation is not elected on the prescribed form within 30 days after
the withdrawal suspension ends, the Participant will be treated as though she
had elected to discontinue future Employee-Elected Company Contributions.
Page 13
<PAGE>
SECTION 6
SECTION 6. LOANS.
------------------
(a) Terms of Loans. Any Participant or Beneficiary who is a "party in
---------------
interest" as to the Plan, as defined in Section 3(14) of ERISA, may borrow from
the Plan as provided in this Section 6. (References to Participants in this
Section shall include Beneficiaries). Loans shall not be made available to
highly compensated employees (as defined in section 414(q) of the Code) in an
amount greater than the amount made available to other employees. The minimum
amount that may be borrowed is $1,000, and higher amounts may be borrowed in
multiples of $500. The maximum amount that may be borrowed is the lesser of (i)
$50,000 (reduced by the highest outstanding loan balance of that Participant for
the prior 12 months) and (ii) 50 per cent of the Participant's vested Plan
Benefit. The period of repayment for any loan shall be five (5) years. A
Participant may prepay a loan in a lump sum on any date more than three (3)
months after the loan is made. Each loan shall be secured by the Participant's
Plan Benefit. For the purposes of determining the portion of a Participant's
Plan Benefit that is distributable by withdrawal or otherwise, and the portion
of a Participant's Accounts that are subject to the allocation of earnings,
appreciation, or depreciation, the amount of a loan will be deducted from the
Participant's accounts in the following order: (i) the Special Employee
Contributions Account (if any), (ii) the Employee-Elected Company Contributions
Account, (iii) the vested portion of the Company Contributions Account when the
loan is made. A partial deduction to an account will be allocated according to
the Participant's then current investment election. Each loan shall bear
interest at the Fixed Income Fund rate at the time the loan is made or other
reasonable rate of interest determined by UDLP at the time the loan is made.
Page 14
<PAGE>
SECTION 6(b)
(b) Limitations on Loans. No loan shall be made to a Participant who has
---------------------
more than one outstanding loan, who UDLP determines to have insufficient monthly
net base pay to repay the loan, who has defaulted on a previous loan from the
Plan, or has borrowed from the Plan within the prior twelve (12) months.
(c) Loan Procedures. A Participant may apply for a loan by filing the
----------------
prescribed application form with the local personnel office accompanied by any
processing fee established by UDLP. A borrowing Participant will be required to
sign a collateral promissory note secured by the Participant's Plan Benefit and
will receive a Federal Truth-In-Lending Disclosure Statement. A Participant's
accounts will be valued on the Valuation Date in the month in which the loan is
requested, and the loan will be disbursed as soon as practicable after that
Valuation Date.
(d) Repayment of Loans. Each loan will be repaid through payroll
-------------------
deductions beginning with the first payroll period of the month following the
month in which the loan is disbursed. If a Participant's employment is suspended
such that the Participant is no longer receiving a paycheck, the Participant
shall make substantially level monthly loan repayments directly to the Plan.
Monthly loan payments of principal and interest will be credited to the accounts
of a Participant from which deducted in reverse of the order provided in
Subsection 6(a), but allocated among investment funds in proportion to the
amounts originally deducted from those funds. A lump sum payment will be
credited among investment funds in proportion to its original deduction from
those funds. If a Participant ceases to be a party in interest as to the Plan
because his employment terminates or for any other reason, the loan will be
repaid within thirty (30) days after such cessation, and any outstanding loan
balance will be deducted from any distribution of the Participant's Plan
Benefit.
Page 15
<PAGE>
SECTION 7
SECTION 7. VESTING.
--------------------
(a) Five-Year Vesting. A Participant shall become fully vested in his
------------------
entire Company Contributions Account when he completes five Years of Service.
(b) Graded Vesting. A Participant who is not fully vested under Subsection
---------------
7(a) shall become vested in his Company Contributions Accounts, on the first day
following completion of a given Year of Service in accordance with the following
schedule:
Percentage of Company
Years of Service Contributions Accounts Vested
---------------- -----------------------------
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
(c) Full Vesting. Notwithstanding Subsections 7(a) and (b) above, a
-------------
Participant shall become vested in his entire Company Contributions Accounts if
one of the following events occurs:
(i) He attains age 55.
(ii) He becomes permanently and totally disabled as determined by
UDLP on the basis of competent medical evidence. Subject to the review procedure
described in Section 11, such determination shall be conclusive and binding upon
all persons.
(iii) He dies.
A Participant shall at all times be vested in his entire
Special Employee Contributions and Employee-Elected Company Contributions
Accounts.
Page 16
<PAGE>
SECTION 8
SECTION 8. DISTRIBUTABLE INTERESTS AND FORFEITURES.
----------------------------------------------------
(a) Plan Benefits. If a Participant's employment with the Affiliated Group
--------------
terminates, if he becomes permanently and totally disabled, if he attains age
70-1/2, or if he elects under Subsection 9(g) to have his Plan Benefit
distributed to him, he will be entitled to receive (i) his entire Special
Employee Contributions Account, (ii) his entire Employee-Elected Company
Contributions Account, and (iii) the portion (if any) of his Company
Contributions Account that is vested under Section 7 as of the date when such
employment terminates.
(b) Forfeitures. If a Participant is not entitled to receive 100% of his
------------
Company Contributions Account under Subsection 7(a), (b), or (c) on the date
when his employment with the Affiliated Group terminates, the non-vested portion
shall be forfeited as of such date. If such Participant is reemployed by the
Affiliated Group within five (5) years from the date of termination, the
forfeited amount shall be reinstated to his Company Contributions Account and
may vest pursuant to Section 7. If such Participant terminates his employment
with the Affiliated Group a second time before he is 100% vested in his Company
Contributions Account, the amount payable from that account shall be computed as
follows:
(i) Add the amount of the prior payment from the account to current
balance of the account,
(ii) Apply the Participant's current vesting percentage (based upon
all his Years of Service) to the total obtained in (i) above.
(iii) Subtract from the amount obtained in (ii) above the amount of
the prior payment from the account.
Page 17
<PAGE>
SECTION 8(b)(iii)
The result is the amount payable to him from that account. All
amounts which are forfeited during a calendar month shall be debited against the
appropriate Company Contributions Accounts and shall be credited to the Company
Contributions for the calendar month or months next following. Notwithstanding
the foregoing, if a Participant's termination of employment is due to a
"maternity or paternity leave," then this Subsection 8(b) shall be read by
substituting the number "six (6)" for the number "five (5)" wherever it appears
herein. For the purposes of this Plan, "maternity or paternity leave" means
termination of employment or absence from work due to the pregnancy of the
Participant, the birth of a child of the Participant, the placement of a child
in connection with the adoption of the child by a Participant, or the caring for
a Participant's child during the period immediately following the child's birth
or placement for adoption. UDLP shall determine, under rules of uniform
application and based on information provided to UDLP by the Participant,
whether or not the Participant's termination of employment or absence from work
is due to "maternity or paternity leave."
Page 18
<PAGE>
SECTION 9
SECTION 9. FORM OF PLAN BENEFIT.
---------------------------------
(a) Normal Forms of Distribution.
-----------------------------
(i) Lump Sum Payment. A Participant's Plan Benefit shall be
----------------
distributed to him (or to his Beneficiary if such Participant dies before the
Distribution Date), unless an installment distribution is elected pursuant to
Subsection 9(b)(ii), in the form of a lump sum. Such distribution shall consist
of (i) a certificate for whole shares of FMC Stock, with a check for any
fractional share, representing his vested interest (if any) in the FMC Stock
Fund, (ii) is certificate for whole shares of Harsco Stock, with a check for the
value of his vested interest (if any) in the Harsco Stock Fund, (iii) a check
for the value of his interests (if any) in the Fixed Income Fund and the Equity
fund, and (iv) a check for the value of his vested interest in the FMC Stock
Fund and Harsco Stock Fund to the extent not previously invested in FMC or
Harsco Stock.
(ii) Valuation Date. For purposes of determining the amount of a
--------------
lump sum distribution under Subsection 9(a)(i) above, the value of the
Participant's interest in the FMC Stock, Harsco Stock, Fixed Income, and Equity
Funds shall be determined as of the Valuation Date next preceding the date of
the distribution.
(iii) Distribution Date. A Participant's Plan Benefit shall be
------------------
distributed to such Participant (or to such Participant's Beneficiary if such
Participant has died before the Distribution Date) as soon as practicable after
the Participant's termination of employment, but not later than 60 days after
the close of the Plan Year in which such termination occurs, unless distribution
is deferred pursuant to Subsection 9(b). If a Participant attains age 70-1/2,
regardless of whether her employment terminates, her Plan Benefit shall be
distributed to her no later that April 1 of the Year following the Year in which
the Participant attains age 70-1/2.
Page 19
<PAGE>
SECTION 9(b)
(b) Optional Form of Distribution.
------------------------------
(i) Participant's Election to Defer. With respect to a Participant
--------------------------------
whose employment terminates on or after her 55th birthday or whose Plan Benefit
is valued at not less than $3,500, the distribution or commencement of
distribution of the Participant's Plan Benefit (including the Participant's
share, if any, of the Company Contributions and Forfeitures for the Plan Year in
which the Participant's employment with the Affiliated Group terminates) will be
deferred to no later than April 1 of the Year following the Year in which the
Participant attains age 70-1/2 unless the Participant elects an immediate
distribution as provided in Subsection 9(a)(iii). A Participant may so defer a
portion of the Plan Benefit and receive an immediate distribution of the balance
of it. Such election must be filed with UDLP on the prescribed form before the
date such employment terminates, before the Participant dies, or before UDLP
determines that the Participant is permanently and totally disabled, as the case
may be, and shall, except as provided in Subsection 9(f), be irrevocable. If
such an election is not made properly in accordance with this paragraph, the
method of payment described in Subsection 9(a)(i) and (iii) shall be used.
(ii) Annual Installments. A Participant entitled to elect to defer
--------------------
distribution of his Plan Benefit under Subsection 9(b)(i) may elect to have the
distribution paid in cash over an installment period of not more than 10 years.
Such election must be filed with UDLP on the prescribed form before the date
employment terminates, before the Participant dies, or before UDLP determines
that the Participant is permanently and totally disabled, as the case may be,
and shall, except as provided in Subsection 9(f), be irrevocable. The election
shall specify the number of annual installments. If an installment election is
made, the Plan Benefit shall be distributed in annual installments as follows:
The amount of each annual installment shall be paid during the first month of
the year. The value of Stock and/or cash
Page 20
<PAGE>
SECTION 9(b)(ii)
to be distributed in each installment shall be determined by dividing the amount
of Stock and/or cash credited to the Participant's Plan Benefit account as of
the date the installment is being paid by the total number of annual
installments elected minus the number of annual installments which have
previously been paid. The amount payable with respect to the Stock portion of
the installment shall be determined as of the Valuation Date immediately
preceding the date payment is made.
(iii) Valuation Date. The Plan Benefit of a Participant who makes an
---------------
election to defer distribution or to receive an installment distribution under
Subsections 9(b)(i) or (ii) above, shall remain invested in the Trust Fund in
the manner selected under Subsection 3(e) or (f) and shall be subject to the
earnings and appreciation or depreciation applicable thereto until the Valuation
Date preceding the final distribution month designated by the Participant.
(c) Participant's Election to Receive Cash. A Participant or Beneficiary
--------------------------------------
entitled to receive shares of Stock may instead elect to receive a check for the
value of all or part of the Participant's vested interest in the FMC or Harsco
Stock Fund plus a certificate for whole shares of FMC or Harsco Stock
representing the balance (if any) of such interest. Any such election shall be
filed with the local personnel office on the prescribed form on or before the
Participant's termination date if filed by the Participant, and if filed by a
Beneficiary, within 90 days after the Participant's death.
(d) Missing Persons. If UDLP and the Trustee shall be unable, within two
----------------
years after any amount becomes due and payable from the Plan to a Participant or
Beneficiary, to make payment because the identity or whereabouts of such person
cannot be ascertained, UDLP may mail a notice by registered mail to the last
known address of such person outlining the following action to be taken unless
such person makes written reply to UDLP within 60 days from the mailing of such
notice: UDLP may direct that amount and all
Page 21
<PAGE>
SECTION 9(d)
further benefits with respect to such person shall be discontinued and all
liability for the payment thereof shall terminate; provided, however, that in
the event of the subsequent reappearance of the Participant or Beneficiary prior
to termination of the Plan, the benefits which were due and payable and which
such person missed shall be paid in a single sum, and the future benefits due
such person shall be reinstated in full. Any benefits discontinued as provided
above, including benefits attributable to Special Employee Contributions,
Employee-Elected Company Contributions, and Company Contributions, shall be
treated as a Forfeiture under Subsection 8(b).
(e) Payments to Beneficiary. A Beneficiary entitled to a distribution
-----------------------
under this Plan may ask that any unpaid Plan Benefit be distributed by one of
the forms of distribution specified in the foregoing provisions of this Section
9, subject to the approval of UDLP and to the following limitations:
(i) If the distribution of a Participant's Plan Benefit in
installments under Subsection 9(b)(ii) has begun and the Participant dies before
her entire Plan Benefit has been distributed to her, the remaining portion of
such interest shall be distributed at least as rapidly as under the installment
method selected as of her date of death.
(ii) If a Participant dies before she has begun to receive any
distributions of her Plan Benefit, her death benefit shall be distributed to her
Beneficiaries within 5 years after her death.
(iii) The 5-year distribution requirement of Subsection 9(e)(ii)
shall not apply to any portion of the deceased Participant's Plan Benefit which
is payable to or for the benefit of a designated Beneficiary. For purposes of
this Subsection 9(e), "designated Beneficiary" shall include any person to whom
a Participant's Plan Benefit is paid pursuant to Subsection 18(c). In such
event, such portion may be distributed in not more than 10 annual installments,
provided such distribution begins not later than one (1) year after the
Page 22
<PAGE>
SECTION 9(e)(iii)
date of the Participant's death (or such later date as may be prescribed by
Treasury regulations).
Except, however, in the event the Participant's spouse is her
Beneficiary, the requirement that distributions commence within one year of a
Participant's death shall not apply. In lieu thereof, such distribution must
commence no later than the date on which the deceased Participant would have
attained age seventy and one-half (70 1/2). If the surviving spouse dies before
the distributions to such spouse begin, then the 5-year distribution requirement
of Subsection 9(e)(ii) shall apply as if the spouse were the Participant.
(f) Change of Election. Any Participant (or the Participant's Beneficiary
-------------------
if the Participant has died) who has made an election to defer distribution or
to receive an installment distribution (whether or not such installment payments
have commenced) under Subsections 9(b)(i) or (ii) above, may subsequently elect
to have the entire amount then credited to the Participant's Plan Benefit
account distributed immediately in a lump sum or elect to have installment
payments commence in a year earlier than the year originally elected. Any other
type of change in a Participant's or Beneficiary's deferral election, including
without limitation, the earlier distribution of part of the amount credited to a
Participant's Plan Benefit account, a change from lump sum payments to
installment payments or the postponement of a distribution or the commencement
of installment payments, may be made only with the approval of UDLP.
(g) Foreign Transfers. Any Participant who transfers from employment with
------------------
the Company to employment with a foreign corporation that is a member of the
Affiliated Group, but is not a participating company in this Plan, may elect to
be treated as having terminated employment with the Affiliated Group for
purposes of this Section 9 and to be entitled to a distribution of her Plan
Benefit. Such election may be made at any time on or
Page 23
<PAGE>
SECTION 9(g)
after the date of the transfer of employment and before the Participant's death,
permanent and total disability, or actual termination of employment with the
Affiliated Group, and the Participant's distribution options under this Section
9 shall be determined as of the effective date of that election.
Page 24
<PAGE>
SECTION 10
SECTION 10. CLAIM PROCEDURE.
-----------------------------
(a) Application for Benefits. Any application for benefits under the Plan
-------------------------
and all inquiries concerning the Plan shall be submitted to UDLP. Applications
for benefits shall be in writing on the form prescribed by UDLP and shall be
signed by the Participant or, in the case of a benefit payable after the death
of the Participant, by the Participant's Beneficiary.
(b) Denial of Applications. Within a reasonable period of time after UDLP
-----------------------
receives an application, it shall give written notice to the applicant of its
decision on the application. In the event any application for benefits is
denied in whole or in part, UDLP shall notify the applicant in writing of the
right to a review of the denial. Such written notice shall set forth, in a
manner calculated to be understood by the applicant, specific reasons for the
denial, specific references to the Plan provisions on which the denial is based,
a description of any information or material necessary to perfect the
application, an explanation of why such material is necessary and an explanation
of the Plan's review procedure.
Page 25
<PAGE>
SECTION 11
SECTION 11. APPEAL PROCEDURE.
------------------------------
(a) The Review Panel. FMC shall appoint a "Review Panel" which shall
----------------
consist of three or more individuals who may (but need not) be employees of
UDLP. The Review Panel shall be the named fiduciary which has the authority to
act with respect to any appeal from a denial of benefits under the Plan.
(b) Requests for a Review. Any person whose application for benefits is
----------------------
denied in whole or in part (or the applicant's authorized representative) may
appeal from the denial by submitting to the Review Panel a request for a review
of the application within three months after receiving written notice of the
denial. UDLP shall give the applicant or such representative an opportunity to
review pertinent materials (other than legally privileged documents) in
preparing such request for review. The request for review shall be in writing
and addressed as follows: "FMC Employee Welfare Benefits Plan Committee, 200
East Randolph Drive, Chicago, Illinois 60601." The request for review shall set
forth all of the grounds on which it is based, all facts in support of the
request and any other matters which the applicant deems pertinent. The Review
Panel may require the applicant to submit such additional facts, documents or
other material as it may deem necessary or appropriate in making its review.
(c) Decision on Review. The Review Panel shall act upon each request for
-------------------
review within 60 days after receipt thereof unless special circumstances require
further time for processing, but in no event shall the decision on review be
rendered more than 120 days after the Review Panel receives the request for
review. The Review Panel shall give prompt, written notice of its decision to
UDLP and to the applicant. In the event the Review Panel confirms the denial of
the application for benefits in whole or in part, such notice shall set forth,
in a manner calculated to be understood by the applicant, the specific reasons
for such denial and specific references to the Plan provisions on which the
decision was based.
Page 26
<PAGE>
SECTION 11(d)
(d) Rules and Procedures. The Review Panel shall establish such rules and
---------------------
procedures, consistent with ERISA and the Plan, as it may deem necessary or
appropriate in carrying out its responsibilities under this Section 11.
(e) Exhaustion of Remedies. No legal or equitable action for benefits
----------------------
under the Plan shall be brought unless and until the claimant (i) has submitted
a written application for benefits in accordance with Subsection 10(a), (ii) has
been notified by UDLP that the application is denied, (iii) has filed a written
request for a review of the application in accordance with Subsection 11(b)
above, and (iv) has been notified in writing that the Review Panel has affirmed
the denial of the application; provided that legal action may be brought after
the Review Panel has failed to take any action on the claim within the time
prescribed in Subsections 10(b) or 11(c) above.
Page 27
<PAGE>
SECTION 12
SECTION 12. ADMINISTRATION AND OPERATION OF THE PLAN.
------------------------------------------------------
(a) Administrative Responsibilities. FMC is the "plan sponsor" and the
--------------------------------
"administrator" of the Plan, as such terms are used in ERISA. UDLP is the named
fiduciary which has the authority to control and manage the operation and
administration of the Plan. UDLP shall make such rules, regulations,
interpretations, and computations and shall take such other action to administer
the Plan as it may deem appropriate, in its sole discretion, and, subject to the
provisions of Section 11, any interpretation of the provisions of the Plan and
any decision on any matter within its discretion as Plan administrator made by
UDLP in good faith shall be conclusive and binding on all persons. In
administering the Plan, UDLP shall act in a nondiscriminatory manner to the
extent required by Section 401(a) and related sections of the Code and shall at
all times discharge its duties with respect to the Plan in accordance with the
standards set forth in Section 404(a)(1) of ERISA.
(b) Appointment of Trustees. UDLP is the named fiduciary which has the
------------------------
authority to appoint one or more Trustees to hold all assets of the Plan in
Trust. UDLP shall enter into a Trust Agreement with respect to the assets to be
held in trust thereunder with each Trustee it appoints.
(c) Delegation of Fiduciary Responsibilities. UDLP may engage such
-----------------------------------------
attorneys, actuaries, accountants and consultants to render advice or to perform
services with regard to its responsibilities under the Plan as it shall
determine to be necessary or appropriate. UDLP may designate by written
instrument one or more actuaries, accountants or consultants as fiduciaries to
carry out, where appropriate, its fudiciary responsibilities.
Page 28
<PAGE>
SECTION 12(c)
UDLP's duties and responsibilities under the Plan shall be carried out
by its directors, officers and employees, acting on behalf of and in the name of
UDLP in their capacity as directors, officers, and employees and not as
individual fiduciaries. Except as provided in Subsection 11(a) (Review Panel),
no director, officer, or employee of UDLP shall be a fiduciary with respect to
the Plan unless he is specifically so designated and expressly accepts such
designation.
Page 29
<PAGE>
SECTION 13
SECTION 13. FUNDING OF THE PLAN.
---------------------------------
(a) Funding Policy and Method. UDLP from time to time shall estimate the
--------------------------
benefits, withdrawals, and administrative expenses to be paid out of the Trust
Fund in cash during the period for which the estimate is made and shall also
estimate the contributions to be made to the Plan during such period by
Participants and by UDLP. UDLP shall inform the Trustee of the estimated cash
needs of and contributions to the Plan during the period for which such
estimates are made. Such estimates shall be made on an annual, quarterly,
monthly, or other basis, as UDLP shall determine.
(b) Public Accountant. UDLP shall engage an independent qualified public
------------------
accountant to conduct such examinations and to render such opinions as are
required by Section 103(a)(3) of ERISA. UDLP in its discretion may remove and
discharge the person so engaged, but in such case it shall engage a successor
independent qualified public accountant to perform such examinations and to
render such opinions.
(c) Basis of Payments to the Plan. Each Participant whose participation is
-----------------------------
not suspended may elect to have UDLP make Employee-Elected Company Contributions
as provided in Section 3. UDLP shall make Company Contributions as provided in
Section 4; provided, however, that this obligation of UDLP shall cease when the
Plan is terminated. In the case of a partial termination of the Plan, this
obligation shall cease with respect to the Participants and Beneficiaries who
are affected by such partial termination. All Employee-Elected Company
Contributions and all Company Contributions shall be paid to the Trustee within
the periods of time specified herein.
Page 30
<PAGE>
SECTION 13(d)
(d) Basis of Payments from the Plan. All benefits and withdrawals payable
--------------------------------
under the Plan shall be paid by the Trustee pursuant to the directions of UDLP
and the terms of the Trust Agreement. The Trustee shall pay all expenses of the
Plan out of the Trust Fund, except that UDLP shall pay expenses that cannot be
charged to the Trust under applicable law.
(e) Investment of Trust Assets. The Trustee shall invest in the FMC Stock,
--------------------------
Harsco Stock, Fixed Income or Equity Fund all amounts which are paid to it with
respect to the Plan, less the amount of any administrative expenses payable out
of the Trust Fund under Subsection 13(d) above. Company Contributions shall be
invested in the FMC Stock Fund, and dividends or other earnings attributable
thereto shall be allocated and credited pro rata to shares held by the
Participant. Employee-Elected Company Contributions shall be invested in the FMC
Stock, Harsco Stock, Fixed Income, or Equity Fund pursuant to the directions of
the Participants as conveyed to the Trustee by the Company. Interest, dividends,
other earnings, and proceeds from sales attributable to the Fixed Income Fund
and the Equity Fund shall be reinvested in the Fixed Income Fund and the Equity
Fund, respectively. The Trustee shall invest the Fixed Income Fund and the
Equity Fund as directed by UDLP, except that (1) the Fixed Income Fund shall be
invested and reinvested only (A) in guaranteed income contracts and similar
products, if any, guaranteeing repayment of principal in full together with
interest at a fixed or fixed minimum rate, whether issued by an insurance
company or other financial institution, (B) securities issued or guaranteed by
the United States of America or any agency or instrumentality thereof, or, (C)
pending investment in the contracts or securities described in (A) and (B), in
any of the debt obligations described in the following sentence, and (2) the
Equity Fund shall be invested and reinvested only in shares of mutual funds
registered
Page 31
<PAGE>
SECTION 13(e)
under the Investment Company Act of 1940, or, pending investment in such mutual
fund shares, in any of the debt obligations described in the following sentence.
Pending investment in Stock, the Trustee may invest any amounts to be placed in
the Stock Funds in any common, group or collective investment trust that is
maintained by the Trustee and that provides for the pooling or commingling of
the assets of plans described in section 401(a) and exempt from tax under
section 501(a) of the Code, or in short-term, interest-bearing debt obligations,
including (without limitation except as stated) savings accounts, certificates
of deposit, banker's acceptances, commercial paper of institutions having a
short-term commercial paper rating of A-1, P-1 from Standard & Poor's and
Moody's, and United States Treasury Bills and Notes. The form of such temporary
investments shall be at the exclusive discretion of the Trustee.
Page 32
<PAGE>
SECTION 14
SECTION 14. PARTICIPANTS' ACCOUNTS
-----------------------------------
(a) Participants' Accounts. For each Participant, UDLP will maintain, where
-----------------------
applicable, a Special Employee Contributions Account, an Employee-Elected
Company Contributions Account, and a Company Contributions Account in the Stock
Fund, Fixed Income Fund, or Equity Funds in accordance with her currently
effective investment election. Subject to the provisions of Subsection 14(c),
the amount of Employee-Elected Company Contributions and Special Employee
Contributions (if any) withheld from Earnings during the Plan Year will be
allocated to each Participant's Employee-Elected Company Contributions Account
and Special Employee Contributions Account as of the end of each calendar month,
and the Company Contribution for each Participant for each Plan Year will be
allocated to her Company Contributions Account as of the end of each calendar
month.
UDLP shall maintain records relative to a Participant's accounts so that
the current value of her accounts in the Fixed Income Fund, the Stock Funds, and
the Equity Fund may be determined as of any month's end.
(b) Rules Relating to Plan Investments and Earnings Adjustments. The Fixed
------------------------------------------------------------
Income Fund, Stock Funds, and Equity Fund shall be invested by the Trustee as
provided in Section 13(e) and in the Trust Agreement. Each such fund will be
valued at the fair market value thereof as of the close of business on each
Valuation Date as prescribed in Section 5 or 9 (and at such other dates as may
be requested by UDLP) before adding Employee-Elected Company Contributions and
Special Employee Contributions thereto as of such date by adding (i) the fair
market value of all securities and contracts held in each such fund, (ii) any
accrued interest or declared dividends on such investments in the Stock Funds
not reflected in (i) above, and (iii) an amount equal to the cash then held in
each such fund; and subtracting there from any liabilities of each such fund.
Participants' accounts in each such
Page 33
<PAGE>
SECTION 14(b)
fund will be adjusted as of the close of business on each Valuation Date as
prescribed in Section 5 or 9 to equal the fair market value of each fund on that
day as determined above.
Withdrawals shall be made in cash, and distributions shall be made from
each such fund only as of the first day of the month.
The amount to be paid upon such a withdrawal distribution shall be based
on the value, as determined by UDLP, of the Participant's account as of the
Valuation Date prescribed in Section 5 or 9. If the Plan Benefit is payable in
installments as provided by Section 9(b)(iii), the remaining unpaid balance
shall be revalued as of each Valuation Date preceding the due date of each
installment. The unpaid Plan Benefit shall be a liability of each such fund as
of the Valuation Date prescribed in Section 5 or 9.
(c) Stock Funds. The Trustee shall on a reasonably current basis apply all
-----------
cash, attributable to the Stock Funds, except any cash needed to satisfy current
cash flow requirements, to the acquisition of Stock of FMC or Harsco as the case
maybe.
(i) As of each Valuation Date, UDLP shall allocate any net amount
contributed to the Company Contributions Account, the Special Employee
Contributions Account (if any), and the Employee-Elected Company Contributions
Account of each Participant for which it was contributed. Such crediting of
contributions shall be effected initially by posting dollar credits to the
appropriate accounts. Dollar credits to a Participant's Company Contributions
Account, Special Employee Contributions Account, or Employee-Elected Company
Contributions Account shall (unless and until converted) constitute the cash
distribution value to her of her share in the unassigned assets of the Trust
Fund. Such dollar credits, however, shall as promptly as practicable after
posting thereof (but in no event after such Participant's termination of
employment) be converted into Stock credits by assigning to such account, in
substitution for such dollar credits, but subject to such conditions regarding
distribution as are provided in this Plan, shares of Stock upon the
Page 34
<PAGE>
SECTION 14(c)(i)
basis of the average cost of such shares available for this purpose. As soon as
convenient, and at least annually, UDLP in connection with the account statement
described in Subsection 18(h), shall furnish to each Participant a statement
showing the amounts and cost basis of Stock assigned and the dollar credits
posted to her Special Employee Contributions Account (if any), her Company
Contributions Account, and Employee-Elected Company Contributions Account, which
statement shall be cumulative from year to year so that such statement shall
show the total credit to the Participant's accounts.
(ii) Amounts equal (after appropriate adjustment for any withholding
which may be required by an applicable tax law) to the amounts of dividends on
shares of Stock assigned to the Participant's Company Contributions Account,
Special Employee Contributions Account, or Employee-Elected Company
Contributions Account shall be paid to the Trustee during such Plan Year and
shall remain in the Stock Funds and be credited to her Company Contributions
Account, Special Employee Contributions Account, or Employee-Elected Company
Contributions Account. Such crediting shall be effected by posting to her
account dollar credits which shall be separate from but added to the dollar
credits resulting from contributions and deposits and which shall be convertible
into Stock credits as hereinabove provided (but in no event after such
Participant's termination of employment).
Page 35
<PAGE>
SECTION 15
SECTION 15. AMENDMENT AND TERMINATION OF THE PLAN.
---------------------------------------------------
(a) Future of the Plan. UDLP expects to continue the Plan indefinitely.
-------------------
Future conditions, however, cannot be foreseen, and UDLP retains the authority
to amend or to terminate the Plan at any time and for any reason.
(b) Amendments. No amendment of the Plan shall (i) reduce the benefit of
-----------
any Participant accrued under the Plan before such amendment is adopted or (ii)
divert any part of the assets of the Plan to purposes other than the exclusive
purpose of providing benefits to the Participants and Beneficiaries who have an
interest in the Plan and of defraying the reasonable expenses of administering
the Plan and the Trust Fund. For the purposes of this Section, a Plan amendment
which has the effect of eliminating or reducing an early retirement benefit or
eliminating an optional form of benefit (as provided in Treasury regulations)
shall be treated as reducing the benefit of a Participant accrued under the
Plan.
(c) Termination of the Plan. Upon termination of the Plan, no part of the
------------------------
Trust Fund shall revert to the Company or be used for or diverted to purposes
other than the exclusive purpose of providing benefits to the Participants and
Beneficiaries who have an interest in the Plan and of defraying the reasonable
expenses of administering the Plan and such termination. Upon termination of
the Plan or upon complete discontinuance of Company Contributions, each
Participant shall become vested in his entire Company Contributions Account.
Upon termination of the Plan, the Trust shall continue until the Trust Fund has
been distributed as provided in Subsection 15(d) below. Any other provision
hereof notwithstanding, the Company shall have no obligation to continue
contributions to the Plan after termination of the Plan. Except as otherwise
provided in ERISA, neither the Company nor any other person shall have any
liability or obligation
Page 36
<PAGE>
SECTION 15(c)
to provide benefits hereunder after such termination. Upon such termination,
Participants and Beneficiaries shall obtain benefits solely from the Trust Fund.
Upon partial termination of the Plan, this Subsection 15(c) shall apply only
with respect to such Participants and Beneficiaries as are affected by such
partial termination.
(d) Allocation of Trust Fund Upon Termination. Upon termination of the
------------------------------------------
Plan, the interest of each Participant in the Plan shall be distributed to him
as provided herein, subject to Section 403(d)(1) of ERISA.
Page 37
<PAGE>
SECTION 16
SECTION 16. CONTRIBUTION LIMITATIONS.
--------------------------------------
(a) Limitation of Allocations.
--------------------------
(i) Deferral Percentage. The Employee-Elected Company Contributions
--------------------
and the Company Contributions (and a pro rata share of the investment earnings
attributable to each) allocated to a Participant shall be reduced if necessary
to comply with the deferred percentage limitations of Subsection 401(k)(3) of
the Code (a copy of which is attached as Exhibit A). Whether such reduction is
necessary shall be determined for each Year. Any such reduction shall be
effected by reducing first, Employee-Elected Company Contributions, then (if
necessary), the Company Contributions, allocated to Participants who are "highly
compensated employees" of the Company (as defined in Section 414(q) of the Code)
and whose "actual deferral percentage" (as defined in Section 401(k)(3)(B) of
the Code) exceeds the permissible actual deferral percentage for highly
compensated employees, commencing with those Participants whose actual deferral
percentage is highest. The amount of any Participant's Employee-Elected Company
Contributions reduced retroactively shall be paid to her in cash within two and
one-half (2-1/2) months after the close of the Plan Year. Alternatively, to the
extent provided in Treasury Regulations, UDLP may elect or permit the
Participant to elect to treat all or a portion of the amount of excess Employee-
Elected Company Contributions as an amount distributed to the Participant and
then contributed by the Participant to the Plan.
(ii) Contribution Percentage. The Special Employee Contributions and
------------------------
the Company Contributions (and a pro rata share of the earnings attributable to
each) allocated to a Participant shall be reduced if necessary to comply with
the contribution percentage limitations of Subsection 401(m) of the Code (a copy
of which is attached as Exhibit B).
Page 38
<PAGE>
SECTION 16(a)(ii)
Whether such reduction is necessary shall be determined for each Year. Any such
reduction shall be effected by reducing first, Special Employee Contributions,
then (if necessary), the Company Contributions, allocated to Participants who
are "highly compensated employees" of the Company (as defined in Section 414(q)
of the Code) and whose "contribution percentage" (as defined in Section 401(m)
of the Code) exceeds the permissible contribution percentage for highly
compensated employees, commencing with those Participants whose contribution
percentage is highest. The amount of any Participant's Special Employee
Contributions and Company Contributions reduced retroactively shall be paid to
him in cash within two and one-half (2-1/2) months after the close of the Plan
Year.
(b) Maximum Annual Additions.
-------------------------
(1) Notwithstanding the foregoing, the maximum Annual Additions
credited to a Participant's accounts for any Plan Year shall equal the lesser
of: (A) $30,000 or, if greater, one-fourth (1/4) of the defined benefit dollar
limitation as provided in Code Section 405(b)(1) for the Plan Year, or (B)
twenty-five percent (25%) of the Participant's 415 Compensation for such Plan
Year.
(2) For purposes of applying the limitations of Code section 415,
"Annual Additions" means the sum credited to a Participant's accounts for any
Plan Year of (A) Company contributions, (B) employee contributions, (C)
Forfeitures, (D) amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Code Section 415 (l)(1) which is part of a
defined benefit plan maintained by the Affiliated Group and (E) amounts derived
from contributions paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to the post-retirement medical
benefits allocated to the separate account of a five percent owner (as defined
in Code section 416(i)1(B)(i) under a welfare benefit plan (as defined in Code
section 419(e)) maintained by the Affiliated Group.
Page 39
<PAGE>
SECTION 16(b)(3)
(3) For purposes of applying the limitations of Code section 415, the
following are not "Annual Additions": (A) transfer of funds from one qualified
plan to another; (B) rollover contributions (as defined in Code sections
402(a)(5), 403(a)(4), 408(d)(3) and 409(b)(3)(C)); (C) repayments of loans made
to a Participant from the Plan; (D) repayments of distributions received by a
Participant pursuant to Code section 411(a)(7)(B) (cash-outs); (E) repayments of
distributions received by a Participant pursuant to Code section 411(A)(3)(D)
(mandatory contributions); (F) employee contributions to a simplified employee
pension allowed as a deduction under Code section 219(a); and (G) deductible
employee contributions to a qualified Plan.
(4) For purposes of applying the limitations of Code section 415, "415
Compensation" shall include the Participant's wages, salaries, fees for
professional service and other amounts for personal services actually rendered
in the course of employment with the Company not in excess of $200,000
(including, but not limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses and in the case of a Participant who is an Employee
within the meaning of Code section 401(c)(1) and the regulations thereunder, the
Participant's earned income (as described in Code section 401(c)(2) and the
regulations thereunder)) paid during the Plan Year. "415 Compensation" shall
exclude (A)(i) contributions made by the Company to a plan of deferred
compensation to the extent that, before the application of the Code section 415
limitations to the Plan, the contributions are not includable in the gross
income of the Participant for the taxable year in which contributed, (ii)
Company contributions made on behalf of a Participant to a simplified employee
pension plan described in Code section 408(k) to the extent such contributions
are deductible by the Participant under Code section 219(a), (iii) any
distributions from a plan
Page 40
<PAGE>
Section 16(b)(4)
of deferred compensation regardless of whether such amounts are includable in
the gross income of the Participant when distributed except that any amounts
received by a Participant pursuant to an unfunded non-qualified plan to the
extent such amounts are includable in the gross income of the Participant; (B)
amounts realized from the exercise of a non-qualified stock option or when
restricted stock (or property) held by a Participant either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture; (C)
amounts realized from the sale, exchange or other disposition of stock acquired
under a qualified stock option; and (D) other amounts which receive special tax
benefits, such as premiums for group term life insurance (but only to the extent
that the premiums are not includable in the gross income of the Participant), or
contributions made by the Company (whether or not under a salary reduction
agreement) towards the purchase of any annuity contract described in Code
section 403(b) (whether or not the contributions are excludable from the gross
income of the Participant).
(5) The limitation stated in Subsection 16(b)(l)(i) above shall be
adjusted annually as provided in Code section 415(d) pursuant to the regulations
prescribed by the Secretary of the Treasury. The adjusted limitation is
effective as of January 1st of each calendar year and is applicable to Plan
Years ending with or within that calendar year.
(6) For the purpose of this Section, all qualified defined benefit
plans (whether terminated or not) ever maintained by the Affiliated Group shall
be treated as one defined benefit plan, and all qualified defined contribution
plans (whether terminated or not) ever maintained by the Affiliated Group shall
be treated as one defined contribution plan.
Page 41
<PAGE>
SECTION 16(b)(7)(A)
(7)(A) If a Participant participates in more than one defined
contribution plan maintained by the Affiliated Group which have different plan
years, the maximum Annual Additions under this Plan shall equal the maximum
Annual Additions for the Plan Year minus any Annual Additions previously
credited to such Participant's accounts during the Plan Year.
(7)(B) If a Participant participates in both a defined contribution
plan subject to Code section 412 and a defined contribution plan not subject to
Code section 412 maintained by the Affiliated Group which have the same plan
year, Annual Additions will be credited to the Participant's accounts under the
defined contribution plan subject to Code section 412 prior to crediting Annual
Additions to the Participant's accounts under the defined contribution plan not
subject to Code section 412.
(7)(C) If a Participant participates in more than one defined
contribution plan not subject to Code section 412 maintained by the Affiliated
Group which have the same plan year, the maximum Annual Additions under this
Plan shall equal the product of (i) the maximum Annual Additions for the Plan
Year minus any Annual Additions previously credited under subparagraphs (A) or
(B) above, multiplied by (ii) a fraction (I) the numerator of which is the
Annual Additions which would be credited to such Participant's accounts under
this Plan without regard to the limitations of Code section 415 and (II) the
denominator of which is such Annual Additions for all plans described in this
subparagraph.
(8) Subject to the exception in Section 16(b)(13) below, if an Employee
is (or has been) a Participant in one or more defined benefit plans and one or
more defined contribution plans maintained by the Affiliated Group, the sum of
the defined benefit plan fraction and the defined contribution plan fraction for
any Plan Year may not exceed 1.0.
Page 42
<PAGE>
SECTION 16(b)(9)(A)
(9)(A) The "Defined Benefit Plan Fraction" for any Plan Year is a
fraction (i) the numerator of which is the "projected annual benefit" of the
Participant under the Plan (determined as of the close of the Plan Year), and
(ii) the denominator of which is the greater of the product of 1.25 multiplied
by the "protected current accrued benefit" or the lesser of: (I) the product of
1.25 multiplied by the maximum dollar limitation provided under Code section
415(b)(1)(A) for such Plan Year, or (II) the product of 1.4 multiplied by the
amount which may be taken into account under Code section 415(b)(1)(B) for such
Plan Year.
(9)(B) For purposes of applying the limitations of Code section 415,
the "projected annual benefit" for any Participant is the benefit, payable
annually, under the terms of the Plan determined pursuant to Regulation 1.415-
7(b)(3).
(9)(C) For purposes of applying the limitations of Code section 415,
"protected current accrued benefit" for any Participant in a defined benefit
plan in existence on July 1, 1982, shall be the accrued benefit, payable
annually, provided for under question T-3 of Internal Revenue Service Notice 83-
10.00
(10)(A) The "Defined Contribution Plan Fraction" for any Plan Year is a
fraction (i) the numerator of which is the sum of the Annual Additions to the
Participant's accounts as of the close of the Plan Year and (ii) the denominator
of which is the sum of the lesser of the following amounts determined for such
year and each prior year of service with the Affiliated Group: (I) the product
of 1.25 multiplied by the dollar limitation in effect under Code section
415(c)(1)(A) for such Plan year (determined without regard to Code section
415(c)(6)), or (II) the product of 1.4 multiplied by the amount which may be
taken into account under Code section 415(c)(1)(B) for such Plan Year.
Page 43
<PAGE>
SECTION 16(b)(10)(B)
(B) Notwithstanding the foregoing, the numerator of the Defined
Contribution Plan Fraction shall be adjusted pursuant to Regulation 1.415-
7(d)(1) and questions T-6 and T-7 of Internal Revenue Service Notice 83-10.
(C) For defined contribution plans in effect on or before July 1, 1982,
the Company may elect, for any Plan Year ending after December 31, 1982, that
the amount taken into account in the denominator for every Participant for all
Plan Years ending before January 1, 1983 shall be an amount equal to the product
of (i) the denominator for the Plan Year ending in 1982 determined under the law
in effect for the Plan Year ending in 1982 multiplied by (II) the Transition
Fraction.
(D) For purposes of the preceding paragraph, the term Transition
Fraction shall mean a fraction (i) the numerator of which is the lesser of (I)
$51,875 or (II) 1.4 multiplied by twenty-five percent (25%) of the Participant's
415 Compensation for the Plan Year ending in 1981, and (ii) the denominator of
which is the lesser of (I) $41,500 or (II) twenty-five percent (25%) of the
Participant's 415 Compensation for the Plan Year ending in 1981.
(E) Notwithstanding the foregoing, for any Plan Year in which the Plan
is a Top Heavy Plan, $41,500 shall be substituted for $51,875 in determining the
Transition Fraction unless the extra minimum allocation is being provided
pursuant to Section 17(c). However, for any Plan Year in which this Plan is a
Super Top Heavy Plan, $41,500 shall be substituted for $51,875 in any event.
(11) Notwithstanding the foregoing, for any Plan Year in which the Plan
is a Top Heavy Plan, 1.0 shall be substituted for 1.25 in Subsections
16(b)(9)(A) and 16(b)(10)(A) unless the extra minimum allocation is being
provided pursuant to Section 17(c). However, for any Plan Year in which the
Plan is a Super Top Heavy Plan, 1.0 shall be substituted for 1.25 in any event.
Page 44
<PAGE>
SECTION 16(b)(12)
(12) If the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction shall exceed 1.0 in any Plan Year for any Participant
in this Plan for reasons other than described in Subsection 16(b)(13) below, the
Company shall adjust, to the extent necessary, the numerator of the Defined
Benefit Plan Fraction for such Plan Year. If, after adjusting the numerator of
the Defined Benefit Plan Fraction for the Plan Year, the sum of the Defined
Benefit Plan Fraction and the Defined Contribution Plan Fraction still exceed
1.0, the Company shall then limit the Annual Additions to such Participant's
accounts so that the sum of both fractions shall not exceed 1.0 in any Plan Year
for such Participant.
(13) If (A) the substitution of 1.00 for 1.25 and $41,500 for $51,875
above or (B) the excess benefit accruals or Annual Additions provided for in
Internal Revenue Service Notice 82-19 cause the 1.0 limitation to be exceeded
for any Participant in any Plan Year, such Participant shall be subject to the
following restrictions for each future Plan Year until the 1.0 limitation is
satisfied: (i) the Participant's accrued benefit under the defined benefit plan
shall not increase (ii) no Annual Additions may be credited to a Participant's
accounts and (iii) no employee contributions (voluntary or mandatory) shall be
made under any defined benefit plan or any defined contribution plan of the
Affiliated Group.
(c) Adjustment For Excessive Annual Additions.
------------------------------------------
(1) If as a result of the allocation of Forfeitures, a reasonable
error in estimating a Participant's compensation or other facts and
circumstances to which Regulation 1.415-6(b)(6) shall be applicable, the Annual
Additions under this Plan would cause the maximum Annual Additions to be
exceeded for any Participant, the Company shall (A) return any voluntary
employee contributions credited for the Plan year to the extent that the return
would reduce the "excess amount" in the Participant's accounts (B) hold any
"excess amount" remaining after the return of any voluntary employee
contributions
Page 45
<PAGE>
SECTION 16(c)(1)
in a Section 415 Suspense Account (C) allocate and reallocate the
Section 415 Suspense Account in the next Plan Year (and succeeding Plan Years if
necessary) to all Participants in the Plan before any Company or employee
contributions which would constitute Annual Additions are made to the Plan for
such Plan Year (D) reduce Company contributions to the Plan for such Plan Year
by the amount of the Section 415 Suspense Account allocated and reallocated
during such Plan Year. Company Contributions and Forfeitures for a given Year
in the Section 415 Suspense Account will be allocated to the Company
Contributions Accounts of Participants in proportion to the amount of Employee-
Elected Company contributions made by such Participants for such Year.
(2) For purposes of this Section, "excess amount" for any Participant
for a Plan Year shall mean the excess, if any, of (A) the Annual Additions which
would be credited to his account under the terms of the Plan without regard to
the limitations of Code section 415 over (B) the maximum Annual Additions
determined pursuant to Section 16(b).
(3) For purposes of this Section, "Section 415 Suspense Account"
shall mean an unallocated account equal to the sum of "excess amounts" for all
Participants in the Plan during the Plan Year. The Section 415 Suspense Account
shall not share in any earnings or losses of the Trust Fund.
(4) The Plan may not distribute "excess amounts" to Participants or
Former Participants.
Page 46
<PAGE>
SECTION 17
SECTION 17. TOP HEAVY PROVISIONS
---------------------------------
(a) Top Heavy Plan Requirements. For any Top Heavy Plan Year, the Plan
----------------------------
shall provide the following:
(i) special minimum allocation requirements of Code section 416(c)
pursuant to Section 17(c) of the Plan; and
(ii) special Earnings requirements of Code section 416(d).
(b) Determination of Top Heavy Status.
----------------------------------
(1) This Plan shall be a Top Heavy Plan for any Plan Year commencing
after December 31, 1983, in which, as of the Determination Date, (i) the present
value of accrued benefits of Key Employees and (ii) the sum of the Aggregate
Accounts of Key Employees under this Plan and all plans of an Aggregation Group,
exceeds sixty percent (60%) of the present value of accrued benefits and the
Aggregate Accounts of all Key and Non-Key Employees under this Plan and all
plans of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but
such Participant was a Key Employee for any prior Plan Year, such Participant's
present value of accrued benefit and/or Aggregate Account balance shall not be
taken into account for purposes of determining whether this Plan is a Top Heavy
or Super Top Heavy Plan (or whether any Aggregation Group which includes this
Plan is a Top Heavy Group). In addition, for Plan Years beginning after December
31, 1984, if a Participant or former Participant has not received any
compensation from the Company (other than benefits under the Plan) at any time
during the five year period ending on the Determination Date, the Aggregate
Account and/or present value of accrued benefit for such Participation or former
Participant shall not be taken into account for the purposes of determining
whether this Plan is a Top Heavy or Super Top Heavy Plan.
Page 47
<PAGE>
SECTION 17 (b)(2)
(2) This Plan shall be a Super Top Heavy Plan for any Plan Year
commencing after December 31, 1983, in which, as of the Determination Date, (A)
the present value of accrued benefits of Key Employees and (B) the sum of the
Aggregate Accounts of Key Employees under this Plan and all plans of an
Aggregation Group, exceeds ninety percent (90%) of the present value of accrued
benefits and the Aggregate Accounts of all Key and Non-Key Employees under this
Plan and all plans of an Aggregation Group.
(3) Aggregate Account: A Participant's Aggregate Account as of the
Determination Date is the sum of:
(A) his account balances as of the most recent valuation
occurring within a twelve (12) month period ending on the Determination Date;
(B) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of any contributions
actually made after the valuation date but on or before the Determination Date,
except for the first Plan Year when such adjustment shall also reflect the
amount of any contributions made after the Determination Date that are allocated
as of a date in that first Plan Year;
(C) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4) preceding Plan Years.
However, in the case of distributions made after the valuation date and prior to
the Determination Date, such distributions are not included as distributions for
top heavy purposes to the extent that such distributions are already included in
the Participant's Aggregate Account balance as of the valuation date.
Notwithstanding anything herein to the contrary, all distributions, including
distributions made prior to January 1, 1984, and distributions under a
terminated plan which if it had not been terminated would have been required to
be included in an Aggregation Group, will be counted.
Page 48
<PAGE>
SECTION 17(b)(3)(D)
(D) any employee contributions, whether voluntary or mandatory.
However, amounts attributable to tax deductible qualified deductible employee
contributions shall not be considered to be a part of the Participant's
Aggregate Account balance.
(E) with respect to unrelated rollovers and plan-to-plan
transfers (ones which are both initiated by the Participant and made from a plan
maintained by one employer to a plan maintained by another employer), if this
Plan provides the rollovers or plan-to-plan transfers, it shall always consider
such rollover or plan-to-plan transfer as a distribution for the purposes of
this Section. If this Plan is the plan accepting such rollovers or plan-to-plan
transfers, it shall not consider such rollovers or plan-to-plan transfers
accepted after December 31, 1983 as part of the Participant's Aggregate Account
balance. However, rollovers or plan-to-plan transfers accepted prior to January
1, 1984 shall be considered as part of the Participant's Aggregate Account
balance.
(F) with respect to related rollovers and plan-to-plan transfers
(ones either not initiated by the Participant or made to a plan maintained by
the same employer), if this Plan provides the rollover or plan-to-plan transfer,
it shall not be counted as a distribution for purposes of this Section. If this
Plan is the plan accepting such rollover or plan-to-plan transfer, it shall
consider such rollover or plan-to-plan transfer as part of the Participant's
Aggregate Account balance, irrespective of the date on which such rollover or
plan-to-plan transfer is accepted.
(4) "Aggregation Group" means either a Required Aggregation Group or
a Permissive Aggregation Group as hereinafter determined.
Page 49
<PAGE>
SECTION 17(b)(3)(A)
(A) Required Aggregation Group: In determining a Required Aggregation
Group hereunder, each plan of the Company in which a Key Employee is a
participant, and each other plan of the Company which enables any plan in which
a Key Employee participates to meet the requirements of Code sections 401(a)(4)
or 410, will be required to be aggregated. Such group shall be known as a
Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the group
will be considered a Top Heavy Plan if the Required Aggregation Group is a Top
Heavy Group. No plan in the Required Aggregation Group will be considered a Top
Heavy Plan if the Required Aggregation Group is not a Top Heavy Group.
(B) Permissive Aggregation Group: The Company may also include any
other plan not required to be included in the Required Aggregation Group,
provided the resulting group, taken as a whole, would continue to satisfy the
provisions of Code sections 401(a)(4) and 410. Such group shall be known as a
Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan that is
part of the Required Aggregation Group will be considered a Top Heavy Plan if
the Permissive Aggregation Group is a Top Heavy Group. No plan in the
Permissive Aggregation Group will be considered a Top Heavy Plan if the
Permissive Aggregation Group is not a Top Heavy Group.
(C) Only those plans of the Company in which the Determination Dates
fall within the same calendar year shall be aggregated in order to determine
whether such plans are Top Heavy Plans.
(5) "Determination Date" means (a) the last day of the preceding
Plan Year, or (b) in the case of the first Plan Year, the last day of such Plan
Year.
Page 50
<PAGE>
SECTION 17(b)(3)(C)(6)
(6) Present Value of Accrued Benefit: In the case of a defined
benefit plan, a Participant's present value of accrued benefit shall be as
determined under the provisions of all the defined benefit plans of the Company.
(7) "Top Heavy Group" means an Aggregation Group in which, as
of the Determination Date, the sum of:
(A) the present value of accrued benefits of Key Employees under all
defined benefit plans included in the group, and
(B) the Aggregate Accounts of Key Employees under all defined
contribution plans included in the group,
exceeds sixty percent (60%) of a similar sum determined for all
Participants.
(8) "Top Heavy Plan Year" means that, for a particular Plan Year
commencing after December 31, 1983, the Plan is a Top Heavy Plan.
(9) Notwithstanding anything herein to the contrary, the
effective date otherwise provided for herein for the application of Code section
416 to this Plan (Plan Years beginning after December 31, 1983) shall be
extended in accordance with any act of Congress or regulatory authority.
Page 51
<PAGE>
SECTION 17(c)
(c) Minimum Benefit Requirement for Top Heavy Plan.
-----------------------------------------------
(1) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of the
Company contributions and Forfeitures allocated to the accounts of each Non-Key
Employee shall be equal to at least three percent (3%) of such Non-Key
Employee's 416 Compensation. However, if (i) the sum of the Company
contributions and Forfeitures allocated to the accounts of each Key Employee for
such Top Heavy Plan Year is less than three percent (3%) of each Key Employee's
416 Compensation and (ii) this Plan is not required to be included in an
Aggregation Group to enable a defined benefit plan to meet the requirements of
Code section 401(a)(4) or 410, the sum of the Company contributions and
Forfeitures allocated to the accounts of each Non-Key Employee shall be equal to
the largest percentage allocated to the accounts of each Key Employee.
Except, however, no such minimum allocation shall be required in
this Plan for any Non-Key Employee who participates in another defined
contribution plan subject to Code Section 412 included with this Plan in a
Required Aggregation Group.
(2) For any Plan Year when (A) the Plan is a Top Heavy Plan but
not a Super Top Heavy Plan and (B) a Key Employee is a Participant in both this
Plan and a defined benefit plan included in a Required Aggregation Group which
is top heavy, the extra minimum allocation (required by Subsections 15(b)(10)(E)
and 15(b)(11) to provide higher limitations) shall be provided for each Non-Key
Employee who is a Participant only in this Plan by substituting four percent
(4%) for three percent (3%) in the paragraph above.
(3) For purposes of the minimum allocations set forth above, the
percentage allocated to the account of any Key Employee shall be equal to the
ratio of the sum of the Company contributions and Forfeitures allocated on
behalf of such Key Employee divided by the 416 Compensation for such Key
Employee.
Page 52
<PAGE>
(4) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the accounts of all Non-Key Employees who are
Participants and who are employed by the Company on the last day of the Plan
Year, including Non-Key Employees who have (i) failed to complete a Year of
Service and (ii) declined to make mandatory contributions (if required) to the
Plan.
(5) In lieu of the above, if a Non-Key Employee participates in
this Plan and a defined benefit pension plan included in a Required Aggregation
Group which is top heavy, a minimum allocation of five percent (5%) of 416
Compensation shall be provided under this Plan.
However, for any Plan Year when (A) the Plan is a Top Heavy Plan
but not a Super Top Heavy Plan and (B) a Key Employee is a Participant in both
this Plan and a defined benefit plan included in a Required Aggregation Group
which is top heavy, seven and one-half percent (7 1/2%) shall be substituted for
five percent (5%), and the extra minimum allocation (required by Subsections
16(b)(10)(E) and 16(b)(11) to provide higher limitations) shall be provided in
this Plan.
(6) For the purposes of this Section, "416 Compensation" shall
mean W-2 wages for the calendar year ending with or within the Plan Year and
shall be limited to $200,000 in Top Heavy Plan Years.
Page 53
<PAGE>
SECTION 18
SECTION 18. GENERAL PROVISIONS.
--------------------------------
(a) Plan Mergers. The Plan shall not be merged or consolidated with any
-------------
other plan, and no assets or liabilities of the Plan shall be transferred to any
other plan, unless each Participant would receive a benefit immediately after
such merger, consolidation or transfer (if the Plan then terminated) which is
equal to or greater than the benefit such Participant would have been entitled
to receive immediately before such merger, consolidation or transfer (if the
Plan had then terminated).
(b) No Assignment of Property Rights. The interest or property rights of
---------------------------------
any person in the Plan, in the Trust Fund or in any payment to be made under the
Plan shall not be assignable nor be subject to alienation or option, either by
voluntary or involuntary assignment or by operation of law, including (without
limitation) bankruptcy, garnishment, attachment or other creditor's process, and
any act in violation of this Subsection 15(c) shall be void. This provision
shall not apply to a "qualified domestic relations order" defined in Code
section 414(p), and those other domestic relations orders permitted to be so
treated by UDLP under the provisions of the Retirement Equity Act of 1984. UDLP
shall establish a written procedure to determine the qualified status of
domestic relations orders and to administer distributions under such qualified
orders. Further, to the extent provided under a "qualified domestic relations
order", a former spouse of a Participant shall be treated as the spouse or
surviving spouse for all purposes under the Plan.
Page 54
<PAGE>
SECTION 18(c)
(c) Beneficiary. The "Beneficiary" of a Participant shall be the person
------------
or persons so designated by such Participant. Unless it is established to the
satisfaction of UDLP that a Participant has no spouse, the spouse cannot be
located, or such other circumstances exist as may be prescribed by Income Tax
Regulations promulgated by the Secretary of the Treasury, the designation of a
person other than the Participant's spouse as Beneficiary may be made only with
the written consent of the spouse, acknowledging the effect of the designation
and witnessed by a Plan representative or a notary public. Any designation which
lacks required spousal consent on the date of the Participant's death shall be
void, and the Participant shall be deemed to have designated his spouse as
Beneficiary. If no Beneficiary has been designated or if the designated
Beneficiary is not living when a Plan Benefit is to be distributed, the
Beneficiary shall be such Participant's spouse if then living, or if not, his
then living children in equal shares or, if there are no such children, her
estate. A Participant may revoke and change a designation of a Beneficiary at
any time. A designation of a Beneficiary, or any revocation and change thereof,
shall be effective only if it is made in writing in a form acceptable to UDLP
and is received by it prior to the Participant's death.
(d) Incapacity. If, in the opinion of UDLP, any person becomes unable to
-----------
handle properly any property distributable under the Plan, FMC may make any
arrangement for distribution on her behalf that it determines will be beneficial
to her, including (without limitation) distribution to her guardian,
conservator, spouse or dependent.
(e) Employment Rights. Nothing in the plan shall be deemed to give any
------------------
person a right to remain in the employ of the Affiliated Group or affect any
right of the Affiliated Group to terminate a person's employment with or without
cause.
Page 55
<PAGE>
SECTION 18(f)
(f) Voting Rights. Each Participant (or, in the event of her death, her
-------------
Beneficiary) shall have the right to direct the Trustee as to the manner in
which shares of Stock allocated to her accounts as of the Valuation Date
coinciding with or immediately preceding the record date for an annual or
special stockholders' meeting of FMC or Harsco are to be voted on each matter
brought before such stockholders' meeting. Before each such meeting of
stockholders, FMC shall cause to be furnished to each Participant (or
Beneficiary) a copy of the proxy solicitation material, together with a form
requesting confidential directions on how such shares of Stock allocated to such
Participant's accounts shall be voted on each such matter. Upon timely receipt
of such directions the Trustee shall on each such matter vote as directed the
number of shares (including fractional shares) of Stock allocated to such
Participant's accounts. The instructions received by the Trustee from
Participants shall be held by the Trustee in confidence and shall not be
divulged or released to any person, including officers or employees of FMC or
Harsco or any member of the Affiliated Group. The Trustee shall vote all
unallocated shares, as well as allocated shares for which it has not received
direction, as directed by FMC, which may delegate to an independent fiduciary,
the authority to so direct the Trustee.
(g) Rights on Tender or Exchange Offer. Each Participant (or, in the
----------------------------------
event of her death, her Beneficiary) shall have the right, to the extent of the
number of shares of Stock (including fractional shares) allocated to her
accounts as of the Valuation Date coinciding with or immediately preceding a
tender or exchange offer with respect to such shares of Stock, to direct the
Trustee in writing as to the manner in which to respond to the tender or
exchange offer. FMC shall use its best efforts to timely distribute or cause to
be distributed to each Participant (or Beneficiary) such information as will be
distributed to stockholders of FMC or Harsco as the case may be in connection
with any such tender or exchange offer. Upon timely receipt of such
instructions, the Trustee shall respond as instructed with respect
Page 56
<PAGE>
SECTION 18(g)
to such shares of Stock. The instructions received by the Trustee from
Participants shall be held by the Trustee in confidence and shall not be
divulged or released to any person including officers or employees of FMC or any
member of the Affiliated Group. If the Trustee shall not receive timely
instruction from a Participant (or Beneficiary) as to the manner in which to
respond to such a tender or exchange offer, the Trustee shall not tender or
exchange any shares of Stock with respect to which such Participant has the
right of direction. Unallocated shares of Stock shall be tendered or exchanged
by the Trustee in the same proportion as shares of Stock with respect to which
Participants (or Beneficiaries) have the right of direction are tendered or
exchanged. Any consideration received for stock tendered and sold shall be
placed in a separate account in the FMC Stock Fund or Harsco Stock Fund until
FMC instructs the Trustee as to its further disposition, and, pending receipt of
such instructions, the Trustee may temporarily invest any cash consideration in
accordance with the provisions of Subsection 13(e) regarding temporary
investments.
(h) Account Statements. At least annually, UDLP shall furnish for each
-------------------
Participant an account statement as required by ERISA as of the Valuation Date
preceding the date of such statement.
(i) Choice of Law. The Plan and all rights thereunder shall be
--------------
interpreted and construed in accordance with ERISA and, to the extent that state
law is not pre-empted by ERISA, the law of the State of Illinois.
Page 57
<PAGE>
SECTION 19
SECTION 19. DEFINITIONS.
-------------------------
(a) "Active Participation" means a Participant has a currently effective
election of Employee-Elected Company Contributions and is eligible to receive
allocations of Company Contributions and Forfeitures.
(b) "Adjusted Regular Compensation" means the Participant's Regular
Compensation reduced by an amount equal to the Dollar Limit, but not more than
16% of his Earnings, as provided in Subsection 2(a).
(c) "Affiliate" means any corporation, other than a Foreign Subsidiary or
unincorporated trade or business, with respect to which at least 50 percent of
the total combined voting power of all classes of stock entitled to vote or not
less than 80 percent of the total value of shares of all classes of stock (or in
the case of an unincorporated trade or business or "controlling interest" as
defined in regulations under Section 414(c) of the Code) is owned by:
(i) UDLP;
(ii) One or more corporations or unincorporated trade or business
owned by UDLP as described in subdivision (i); or
(iii) UDLP and one or more corporations or unincorporated trades or
business owned by UDLP as described in subdivision (i).
(d) "Affiliated Group" means (i) UDLP and (ii) any corporation or
unincorporated trade or business (including an Affiliate) in which UDLP and/or
one or more Affiliates own either stock possessing at least 80 percent of the
total combined voting power of all classes of stock entitled to vote or at least
80 percent of the total value of all shares of all classes of stock (or in the
case of an unincorporated trade or business, or "controlling interest" as
defined in regulations under Section 414(c) of the Code).
Page 58
<PAGE>
SECTION 19(e)
(e) "Aggregate Account" means, with respect to each Participant, the value
of all accounts maintained on behalf of a Participant, whether attributable to
Company or employee contributions, subject to the provisions of Section 17(b).
(f) "Basic Contributions" means that portion of a Participant's annualized
Employee-Elected Company Contributions and Special Employee Contributions not in
excess of 6% of her Earnings or such lesser amount permitted by the collective
bargaining agreement applicable to the Participant.
(g) "Beneficiary" means the person or persons determined pursuant to
Subsection 18(c).
(h) "Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
(i) "Company" means UDLP, and any predecessor companies of UDLP and any
Affiliates which UDLP has designated as participating companies with respect to
the Plan and which have accepted participation in the Plan. The designation of
any Affiliate as a participating company may be subject to such terms and
conditions as UDLP may determine.
(j) "Company Contributions" means contributions made by UDLP under
Subsection 4(a), including Company contributions made to the Harsco Corporation
Savings Plan II and transferred to this Plan, but not including Employee-Elected
Company Contributions.
(k) "Company Contributions Account" means an account maintained for each
Participant to which is allocated her share of Company Contributions and
Forfeitures and all earnings, appreciation or losses attributable thereto.
Page 59
<PAGE>
SECTION 19(l)
(l) "Distribution Date" means the date, determined pursuant to Subsection
9(c), as of which the distribution of a Plan Benefit is made.
(m) "Dollar Limit" means the maximum amount of Employee-Elected Company
Contributions excludable from the gross income of a Participant in a given year
as provided in Code Section 402(g) and as adjusted from time to time by the
Secretary of the Treasury pursuant to Code Section 415(d).
(n) "Earnings" means the Participant's total annual income for the current
Year determined during the Year by annualizing the current rate of pay (not in
excess of $150,000 as adjusted for cost of living increases in accordance with
Code Section 401(a)(17)(B)), including base salary; overtime pay; administrative
or discretionary bonuses earned; sales bonuses and sales commissions earned in
such Year and her Employee-Elected Company Contributions. Earnings does not
include expatriate premiums, awards, moving expense allowances, or other special
payments.
(o) "Eligible Employee" means any individual employed by the Company,
whose employment is covered by a collective-bargaining agreement that expressly
provides that the employees subject thereto shall be covered by or remain
covered by this Plan. "Eligible Employee" does not include (i) any leased
employee within the meaning of Code section 414(n)(2), or (ii) any employee who
generally resides outside the United States or whose principal duties generally
are performed outside the United States, as determined by UDLP, unless UDLP
designates such employee as an Eligible Employee.
An individual's status as an Eligible Employee shall be determined by
UDLP. Subject to the review procedure described in Section 11, such
determination shall be conclusive and binding on all persons.
Page 60
<PAGE>
SECTION 19(p)
(p) "Employee-Elected Company Contributions" means amounts contributed to
the Trust as elected by Participants under Subsection 3(b).
(q) "Employee-Elected Company Contributions Account" means an account
maintained for each Participant and for each Eligible Employee who has
transferred to the Trust a "Rollover Contribution" under Subsection 3(g) but is
not otherwise a Participant to which is credited all of her Employee-Elected
Company Contributions, her Rollover Contributions, and any earnings,
appreciation, or losses attributable thereto.
(r) "Equity Fund" means an investment fund established and maintained by
the Trustee as a part of the Trust Fund. Any contributions to the Plan placed in
the Equity Fund, and all earnings and appreciation attributable thereto, shall
be invested and reinvested only in shares of mutual funds registered under the
Investment Company Act of 1940.
(s) "ERISA" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
(t) "Fixed Income Fund" means an investment fund established and
maintained by the Trustee as a part of the Trust Fund. Any contributions to the
Plan placed in the Fixed Income Fund, and all earnings and appreciation
attributable thereto, shall be invested and reinvested only in (A) guaranteed
income contracts and similar products, if any, guaranteeing repayment of
principal in full together with interest at a fixed or fixed minimum rate,
whether issued by an insurance company or other financial institution, (B)
securities issued or guaranteed by the United States of America or any agency or
Page 61
<PAGE>
SECTION 19(t)
instrumentality thereof, or (C) pending investment in the contracts or
securities described in (A) and (B), in short-term, interest-bearing debt
obligations as provided in Section 13(e). The Fixed Income Fund was formerly
called the "Guaranteed Income Fund."
(u) "FMC" means FMC Corporation, a Delaware corporation.
(v) "FMC Stock Fund" means an investment fund established and maintained
by the Trustee as part of the Trust Fund. Any contributions to the Plan placed
in the FMC Stock Fund, and all dividends and other earnings and appreciation
attributable thereto, shall other earnings and appreciation attributable thereto
shall be revested only in FMC Stock.
(w) "FMC Stock" means common stock of FMC.
(x) "Foreign Subsidiary" means a foreign corporation covered by an
agreement between the Company and the Internal Revenue Service extending Federal
Social Security benefits to such foreign corporation's employees who are United
States citizens, provided that either (i) not less than 20% of the voting stock
of such foreign corporation is owned by the Company or (ii) more than 50% of the
voting stock of such foreign corporation is owned by another foreign corporation
which is described in (i) above.
(y) "Forfeiture" means the portion (if any) of a Participant's Company
Contributions Account which is forfeited pursuant to Section 8(b) upon
termination of employment.
(z) "Harsco" means Harsco Corporation, a Delaware Corporation.
(aa) "Harsco Stock" means common stock of Harsco.
(bb) "Harsco Stock Fund" means an investment fund established and
maintained by the Trustee as part of the Trust Fund. Any contributions to the
Plan placed in the Harsco Stock Fund and all dividends and other earnings
attributable thereto, shall be invested only in Harsco Stock.
Page 62
<PAGE>
SECTION 19(cc)
(cc) "Key Employee" means those employees defined in Code section 416(i)
and the Treasury regulations thereunder. Generally, they shall include any
employee or former employee of the Affiliated Group (and her Beneficiaries) who,
at any time during the Plan Year or any of the preceding four (4) Plan Years,
is:
(i) An officer of the Company (as that term is defined within the
meaning of the regulations under Code section 416) having annual 415
Compensation greater than 50 percent of the amount in effect under Code section
415(b)(1)(A) for any such Plan Year.
(ii) One of the ten employees of the Affiliated Group owning (or
considered as owning within the meaning of Code section 318) the largest
interests in all employers required to be aggregated under Code sections 414(b),
(c), and (m). However, an employee will not be considered a top ten owner for a
Plan Year if the employee earns not more than the amount in effect under Code
section 415(c)(1)(A).
(iii) A "Five Percent Owner" of the Company. "Five Percent Owner"
means any person who owns (or is considered as owning within the meaning of Code
section 318) more than five percent (5%) of the outstanding stock of the Company
or stock possessing more than five percent (5%) of the total combined voting
power of all stock of the Company or, in the case of an unincorporated business,
any person who owns more than five percent (5%) of the capital or profits
interest in the Company. In determining percentage ownership hereunder,
employers that would otherwise be aggregated under Code sections 414(b), (c),
and (m) shall be treated as separate employers.
(iv) A "One Percent Owner" of the Company having an annual 415
Compensation from the Affiliated Group of more than $150,000. "One Percent
Owner" means any person who owns or is considered as owning within the meaning
of (Code section 318) more than one percent (1%) of the outstanding stock of the
Company or stock
Page 63
<PAGE>
SECTION 19(cc)(iv)
possessing more than one percent (1%) of the total combined voting power of all
stock of the Company or, in the case of an unincorporated business, any person
who owns more than one percent (1%) of the capital or profits interest in the
Company. In determining percentage ownership hereunder, employers that would
otherwise be aggregated under Code sections 414(b), (c), and (m) shall be
treated as separate employers. However, in determining whether an individual
has 415 Compensation of more than $150,000, 415 Compensation from each employer
required to be aggregated under Code sections 414(b), (c) and (m) shall be taken
into account.
(dd) "Non-Key Employee" means any employee or former employee of the
Affiliated Group (and her beneficiaries) who is not a Key Employee.
(ff) "Participant" means an Eligible Employee who has elected to
participate in the Plan as provided in Subsection 2(a) or who has transferred to
the Trust a "Qualified Total Distribution" under Subsection 3(g).
(gg) "Plan" means the UDLP Employees' Thrift and Stock Purchase Plan, as it
may be amended from time to time.
(hh) "Plan Benefit" means the aggregate of any distributions from a
Participant's Special Employee Contributions Account, Employee-Elected Company
Contributions Account, and Company Contributions Account, to which she becomes
entitled under Section 8(a) upon termination of employment or upon becoming
permanently and totally disabled.
(ii) "Plan Year" means a period of 12 consecutive months beginning on April
1.
Page 64
<PAGE>
SECTION 19(jj)
(jj) "Regular Compensation" means the Participant's total annual income for
the Year including base salary, overtime pay, administrative, discretionary and
sales bonuses, and sales commissions earned in such Year. Regular Compensation
does not include expatriate premiums, awards, moving expense allowances, or
other special payments.
(kk) "Special Employee Contributions" means employee contributions made
under Subsection 3(g).
(ll) "Special Employee Contributions Account" means an account maintained
for each Participant to which is credited all of her Special Employee
Contributions and any earnings, appreciation, or losses attributable thereto.
(mm) "Stock" means the common stock of FMC and Harsco.
(nn) "Stock Funds" means the FMC Stock Fund and the Harsco Stock Fund.
(oo) "Super Top Heavy Plan" means a plan described in Section 17(b)(2).
(pp) "Top Heavy Plan" means a plan described in Section 17(b)(1).
(qq) "Top Heavy Plan Year" means that, for a particular Plan Year
commencing after December 31, 1983, the Plan is a Top Heavy Plan.
(rr) "Trust" means the trust established by the Trust Agreement. "Trust
Agreement" means the trust agreement or agreements, as amended from time to
time, entered into by UDLP and the Trustee pursuant to Subsection 12(b).
"Trustee" means the trustee or trustees at any time appointed by UDLP pursuant
to Subsection 12(b). "Trust Fund" means the trust fund established and
maintained by the Trustee to hold all assets of the Plan pursuant to the Trust
Agreement.
(ss) "UDLP" means United Defense Limited Partnership
(tt) "Valuation Date" means the last business day of each calendar month.
Page 65
<PAGE>
SECTION 19(uu)
(uu) "Year" means a calendar year.
(vv) "Year of Service" means calendar months of employment by the
Affiliated Group (including any interruption of employment up to 12 months)
divided by 12. A partial month shall be counted as a whole month, and any
fractional Year of Service shall be ignored. "Year of Service" shall not include
(i) any period in excess of 12 months for which the individual does not receive
Earnings, including (without limitation) any leave of absence without pay or
(ii) any other interruption of employment in excess of 12 months.
"Year of Service" shall be determined taking into account any period
during which the individual was a leased employee within the meaning of Code
section 414(n)(2), unless during such period leased employees constitute less
than twenty percent (20%) of the Company's nonhighly compensated work force
within the meaning of Code section 414(n)(1)(C)(ii) and the individual is
covered by a plan described in Code section 414(n)(5).
Page 66
<PAGE>
SECTION 20
SECTION 20. EXECUTION.
-----------------------
To record the adoption of the Plan to read as set forth herein, United
Defense Limited Partnership has caused its authorized officer to execute the
same the ______ day of ________ 1995, but effective January 1, 1995.
UNITED DEFENSE LIMITED PARTNERSHIP
By: FMC CORPORATION its General Partner
By: /s/ Patrick J. Head
-------------------------------------------
Chairman, Employee Welfare Benefits
Plan Committee
Page 67
<PAGE>
EXHIBIT A
---------
Section 401(k)(3), Internal
---------------------------
Revenue Code of 1986
--------------------
(3) APPLICATION OF PARTICIPATION AND DISCRIMINATION STANDARDS. -
---------------------------------------------------------
(A) A cash or deferred arrangement shall not be treated as a qualified
cash or deferred arrangement unless -
(i) those employees eligible to benefit under the arrangement satisfy
the provisions of section 410(b)(1), and
(ii) the actual deferral percentage for eligible highly compensated
employees (as defined in paragraph (5) for such year bears a relationship to the
actual deferral percentage for all other eligible employees for such plan year
which meets either of the following tests:
(I) The actual deferral percentage for the group of eligible
highly compensated employees is not more than the actual deferral percentage of
all other eligible employees multiplied by 1.25.
(II) The excess of the actual deferral percentage for the group
of eligible highly compensated employees over that of all other eligible
employees is not more than 2 percentage points, and the actual deferral
percentage for the group of eligible highly compensated employees is not more
than the actual deferral percentage of all other eligible employees multiplied
by 2.
If 2 or more plans which include cash or deferred
arrangements are considered as 1 plan for purposes of section 401(a)(4) or
410(b), the cash or deferred arrangements included in such plans shall be
treated as 1 arrangement for purposes of this subparagraph.
Page 68
<PAGE>
If any highly compensated employee is a participant under 2
or more cash or deferred arrangements of the employer, for purposes of
determining the deferral percentage with respect to such employee, all such cash
or deferred arrangements shall be treated as 1 cash or deferred arrangement.
(B) For purposes of subparagraph (A), the actual deferral percentage for a
specified group of employees for a plan year shall be the average of the ratios
(calculated separately for each employee in such group) of -
(i) the amount of employer contributions actually paid over to the
trust on behalf of each such employee for such plan year, to
(ii) the employee's compensation for such plan year.
(C) A cash or deferred arrangement shall be treated as meeting the
requirements of subsection (a)(4) with respect to contributions if the
requirements of subparagraph (A)(ii) are met.
(D) For purposes of subparagraph (B), the employer contributions on behalf
of any employee -
(i) shall include any employer contributions made pursuant to the
employee's election under paragraph (2), and
(ii) under such rules as the Secretary may prescribe, may, at the
election of employer, include -
(I) matching contributions (as defined in section 401(m)(4)(A))
which meets the requirements of paragraph (2)(B) and (C), and
(II) qualified nonelective contributions (within the meaning of
section 401(m)(4)(C)).
Page 69
<PAGE>
EXHIBIT B
---------
Section 401(m), Internal
------------------------
Revenue Code of 1986
--------------------
(m) NONDISCRIMINATION TEST FOR MATCHING CONTRIBUTIONS AND EMPLOYEE
--------------------------------------------------------------
CONTRIBUTIONS. -
- -------------
(1) IN GENERAL - A defined contribution plan shall be treated as meeting
----------
the requirements of subsection (a)(4) with respect to the amount of any matching
contribution or employee contribution for any plan year only if the contribution
percentage requirement of paragraph (2) of this subsection is met for such plan
year.
(2) REQUIREMENTS.-
------------
(A) CONTRIBUTION PERCENTAGE REQUIREMENT. - A plan meets the
-----------------------------------
contribution percentage requirement of this paragraph for any plan year only if
the contribution percentage for eligible highly compensated employees does not
exceed the greater of -
(i) 125 percent of such percentage for all other eligible
employees, or
(ii) the lesser of 200 percent of such percentage for all other
eligible employees, or such percentage for all other eligible employees plus 2
percentage points.
(B) MULTIPLE PLANS TREATED AS A SINGLE PLAN. - If two or more plans
of an employer to which matching contributions, employee contributions, or
elective deferrals are made are treated as one plan for purposes of section
410(b), such plans shall be treated as one plan for purposes of this subsection.
If a highly compensated employee participates in two or more plans of an
employer to which contributions to which this subsection applies are made, all
such contributions shall be aggregated for purposes of this subsection.
Page 70
<PAGE>
(3) CONTRIBUTION PERCENTAGE. - For purposes of paragraph (2), the
-----------------------
contribution percentage for a specified group of employees for a plan year shall
be the average for the ratios (calculated separately for each employee in such
group) of -
(A) the sum of the matching contributions and employee contributions
paid under the plan on behalf of each such employee for such plan year, to,
(B) the employee's compensation (within the meaning of section
414(s)) for such plan year.
Under regulations, an employer may elect to take into account (in computing the
contribution percentage) elective deferrals and qualified nonelective
contributions under the plan or any other plan of the employer. If matching
contributions are taken into account for purposes of subsection (k)(3)(A)(ii)
for any plan year, such contributions shall not be taken into account under
subparagraph (A) for such year.
(4) DEFINITIONS. - For purposes of this subsection-
-----------
(A) MATCHING CONTRIBUTION - The term "matching contribution" means -
---------------------
(i) any employer contribution made to a defined contribution plan on
behalf of an employee on account of an employee contribution made by such
employee, and
(ii) any employer contribution made to a defined contribution
plan on behalf of an employee on account of an employee's elective deferral.
(B) ELECTIVE DEFERRAL - The term "elective deferral" means any
-----------------
employer contribution described in section 402(g)(3).
(C) QUALIFIED NONELECTIVE CONTRIBUTIONS - The term "qualified
-----------------------------------
nonelective contribution" means any employer contribution (other than a matching
contribution) with respect to which -
Page 71
<PAGE>
(i) the employee may not elect to have the contribution paid to
the employee in cash instead of being contributed to the plan, and
(ii) the requirements of subparagraphs (B) and (C) of subsection
(k)(2) are met.
(5) EMPLOYEES TAKEN INTO CONSIDERATION. -
----------------------------------
(A) IN GENERAL - Any employee who is eligible to make an employee
---------
contribution (or, if the employer takes elective contributions into account,
elective contributions) or to receive a matching contribution under the plan
being tested under paragraph (1) shall be considered an eligible employee for
purposes of this subsection.
(B) CERTAIN NONPARTICIPANTS - If an employee contribution is required
-----------------------
as a condition of participation in the plan, any employee who would be a
participant in the plan if such employee made such a contribution shall be
treated as an eligible employee on behalf of whom no employer contributions are
made.
(6) PLAN NOT DISQUALIFIED IF EXCESS AGGREGATE CONTRIBUTIONS DISTRIBUTED
-------------------------------------------------------------------
BEFORE END OF FOLLOWING PLAN YEAR -
- ---------------------------------
(A) IN GENERAL - A plan shall not be treated as failing to meet the
----------
requirements of paragraph (1) for any plan year if, before the close of the
following plan year, the amount of the excess aggregate contributions for such
plan year (and any income allocable to such contributions) is distributed (or,
if forfeitable, is forfeited). Such contributions (and such income) may be
distributed without regard to any other provision of law.
(B) EXCESS AGGREGATE CONTRIBUTIONS- For purposes of subparagraph (A)
------------------------------
the term "excess aggregate contributions" means, with respect to any plan year,
the excess of -
Page 72
<PAGE>
(i) the aggregate amount of the matching contributions and
employee contributions (and any qualified nonelective contribution or elective
contribution taken into account in computing the contribution percentage)
actually made on behalf of highly compensated employees for such plan year, over
(ii) the maximum amount of such contributions permitted under the
limitations of paragraph (2)(A) (determined by reducing contributions made on
behalf of highly compensated employees in order of their contribution
percentages beginning with the highest of such percentages).
(C) METHOD OF DISTRIBUTING EXCESS AGGREGATE CONTRIBUTIONS - Any
-----------------------------------------------------
distribution of the excess aggregate contributions for any plan year shall be
made to highly compensated employees on the basis of the respective portions of
such amounts attributable to each of such employees. Forfeitures of excess
aggregate contributions may not be allocated to participants whose contributions
are reduced under this paragraph.
(D) COORDINATION WITH SUBSECTION (k) AND 402(g) - The determination of
-------------------------------------------
the amount of excess aggregate contributions with respect to a plan shall be
made after -
(i) first determining the excess deferrals (within the meaning
of section 402(g), and
(ii) then determining the excess contributions under subsection
(k).
(7) TREATMENT OF DISTRIBUTIONS. -
--------------------------
(A) ADDITIONAL TAX OF SECTION 72(t) NOT APPLICABLE - No tax shall be
----------------------------------------------
imposed under section 72(t) on any amount required to be distributed under
paragraph (6).
Page 73
<PAGE>
(B) EXCLUSION OF EMPLOYEE CONTRIBUTIONS - Any distribution
-----------------------------------
attributable to employee contributions shall not be included in gross income
except to the extent attributable to income on such contributions.
(8) HIGHLY COMPENSATED EMPLOYEE - For purposes of this subsection, the
---------------------------
term "highly compensated employee" has the meaning given to such term by section
414(q).
(9) REGULATIONS - The Secretary shall prescribe such regulations as may be
-----------
necessary to carry out the purposes of this subsection and subsection (k)
including -
(A) such regulations as may be necessary to prevent the multiple use
of the alternative limitation with respect to any highly compensated employee,
and
(B) regulations permitting appropriate aggregation of plans and
contributions.
For purposes of the preceding sentence, the term "alternative limitation" means
the limitation of section 401(k)(3)(A)(ii)(II) and the limitation of paragraph
(2)(A)(ii) of this subsection.
Page 74
<PAGE>
Exhibit 4.9
AMENDMENT
TO THE
UNITED DEFENSE LIMITED PARTNERSHIP YORK PLAN
WHEREAS, United Defense, L.P. (the "Company") sponsors and maintains
the United Defense Limited Partnership York Plan (the "Plan") for the benefit of
its employees; and
WHEREAS, the Company deems it desirable to amend the Plan to provide
for additional investment fund options under the Plan and to make certain other
administrative changes.
NOW, THEREFORE, pursuant to the power of amendment contained in
Section 15(a) of the Plan, the Company hereby amends the Plan, effective the 7th
day of July, 1997, by amending the Plan in the following particulars:
1. By substituting the phrase "Investment Funds (as defined herein
in Section 13(e) of the Plan)" for the phrase "FMC Stock Fund, Harsco Stock
Fund, Equity Fund or Fixed Income Fund" where such latter phrase appears in
Section 2(b) of the Plan.
2. By substituting the following for the second sentence in Section
3(a)(ii) of the Plan:
"The Active Participation of any Participant who makes such an
election shall be suspended. Active Participation shall be resumed as soon
as administratively feasible following the Participant's election to resume
Employee-Elected Company Contribution is received by UDLP in the local
Human Resources office on the prescribed application form."
3. By substituting the following for Section 3(d) of the Plan:
"(d) Investment of Employee-Elected Company Contributions. At such
-----------------------------------------------------
time as UDLP establishes Investment Funds in accordance with Section 13(e),
UDLP shall establish uniform rules concerning Participants' investment
elections. In general, as of the date an employee becomes a Participant
and as of any change date thereafter, each Participant may elect, by giving
written notice to UDLP at least 30 days (or such other period as UDLP
requires) in advance, in accordance with uniform rules
<PAGE>
established by UDLP and on a form provided by it for this purpose, or by
authorized telephonic voice response, to have future contributions made by
such Participant or on the Participant's behalf (prior to any subsequent
election such Participant may make), other than Company Contributions,
invested in accordance with such Participant's election entirely in one of
the Investment Funds or partially in each of two or more of the Investment
Funds."
4. By substituting the following for Section 3(e) of the Plan:
"(e) Transfer of Funds. As of any change date, each Participant may
------------------
elect, by giving written notice to UDLP at least 30 days (or such other
period as UDLP requires) in advance, in accordance with uniform rules
established by UDLP and on a form provided by it for this purpose, or by
authorized telephonic voice response, to have such Participant's account
balances, other than his Company Contributions Account, as of that date
(after all adjustments as of that date have been made) invested in
accordance with such Participant's election entirely in one of the
Investment Funds or partially in each of two or more of the Investment
Funds; provided, however, that any such transfer must be in an amount at
least equal to the lesser of the aggregate balance of such accounts or
$250. Any investment election made by a Participant shall be deemed to be
a continuing election until changed. During any period for which a
Participant has not made either or both of the above elections, such
Participant will be considered to have elected to have the Participant's
account balances or future contributions, or both, as the case may be,
invested entirely in such fund as is prescribed by UDLP. UDLP shall from
time to time notify each Trustee or insurance company with custody of an
Investment Fund of the aggregate amounts to be invested in each Investment
Fund in accordance with Participants' elections. Notwithstanding anything
to the contrary, (i) Company Contributions shall be invested in the FMC
Stock Fund and no amount of Company Contributions shall be invested in any
other Investment Fund and (ii) only Participants who are at least age 55
may transfer funds out of the FMC Stock Fund and such Participants may only
do so annually."
5. By substituting the phrase "an Investment Fund selected by UDLP"
for the phrase "Fixed Income Fund" where such latter phrase appears in Sections
3(f) and 6(a) of the Plan.
6. By substituting the word "week" for the phrase "calendar month"
and the word "month" whereby such phrase or word appears in Section 4(a) and
4(b) of the Plan.
7. By substituting the following for the last sentence in Section
4(b) of the Plan:
"All Company Contributions allocated to Company Contributions
Accounts shall be invested in FMC stock as part of the FMC Stock Fund.
Forfeitures shall be invested in an Investment Fund selected by UDLP."
2
<PAGE>
8. By substituting the phrase "all or part of" for the words "his
entire" where it appears in the first sentence of Section 5(c) of the Plan.
9. By substituting the phrase "Investment Funds" for the phrase "FMC
Stock Fund, Harsco Stock Fund, Equity Fund or Fixed Income Fund" where such
latter phrase (or a similar phrase referring to all such investment funds)
appears in Sections 5(f), 9(a)(ii), 14(a), 14(b) of the Plan.
10. By substituting the following sentence for the fifth sentence of
Section 6(a) of the Plan:
"The period of repayment for any loan shall be from one (1) to
five (5) years in six-month increments."
11. By substituting the phrase "Investment Funds other than the FMC
Stock Fund and the Harsco Stock Fund" for the phrase "Fixed Income Fund and
Equity Fund" where such latter phrase appears in Section 9(a)(i) of the Plan.
12. By adding the following phrase at the end of the first sentence
in Section 9(b)(ii) of the Plan:
"or in such variable systematic withdrawal payments as may be
established in the uniform and nondiscriminatory basis by UDLP."
13. By substituting the following sentence for the second sentence in
Section 13(d):
"The trustee shall pay all expenses of the Plan out of the Trust
Fund, except that Participants shall be charged a participation fee in the
amount of $25.00 per year per Participant and a loan processing fee in the
amount of $75 per loan application, and UDLP shall pay expenses not covered
by the participation fee and that cannot be charged to the Trust under
applicable law."
14. By substituting the following for Section 13(e) of the Plan:
3
<PAGE>
"(e) Investment Funds. From time to time, UDLP may cause one or
-----------------
more investment funds ("Investment Funds") to be established within the
Trust for the investment of Participants' accounts, including a fund
consisting of qualifying employer securities (as defined in Section
407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")). UDLP may, in its discretion, establish pass through
voting procedures regarding the voting and tendering of qualifying employer
securities with respect to a fund of qualifying employer securities. The
Plan may invest in qualifying employer securities to the maximum extent
permitted by ERISA (up to 100% in common stock in the case of a profit
sharing plan). The continued availability of any Investment Fund is
necessarily conditioned upon the terms and conditions of the applicable
investment management agreements and the continued availability of
Investment Funds established cannot be assured on the same terms and
conditions as may apply from time to time. Participants will be informed
from time to time of the availability of Investment Funds as they are
established or superseded. Any Investment Fund may be partially or
entirely invested in any common, commingled or collective trust fund,
pooled investment fund or mutual fund which is invested in property of the
kind specified for that Investment Fund."
15. By substituting the phrase "Stock Fund Units" for the phrase
"Stock Credits" or "shares of Stock" and for the words "Stock" or "shares"
standing alone where any such phrases or words appear in Section 14(c)(i) and
(ii).
16. By deleting Sections 19(r) and 19(t) and redesignating Section
19(s) as Section 19(r), Sections 19(u) through 19(bb) as Sections 19(s) through
19(z).
17. By inserting the following new section as Section 19(aa) and by
redesignating Sections 19(cc) through 19(vv) as Sections 19(bb) through 19(uu):
"(aa) An 'Investment Fund' means an investment fund established
and maintained by the Trustee as part of the Trust Fund. Any contributions
to the Plan placed in Investment Funds shall be invested and reinvested in
property of the kind specified for that Investment Fund, including in any
common, commingled or collective trust fund, pooled investment fund or
mutual fund which is invested in property of the kind specified for that
Investment Fund."
18. By substituting the following as Section 19(hh):
"(hh) 'Plan Year' means the period of nine consecutive months
beginning on April 1, 1997 and ending on December 31, 1997 and each period
of 12 consecutive months beginning on January 1 thereafter."
4
<PAGE>
19. By substituting the following for Section 19(ss) of the Plan:
"(ss) 'Valuation Date' means any business day or any Valuation
Date otherwise prescribed for specific purposes in the Plan."
* * *
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of the effective date herein.
UNITED DEFENSE, L.P.
/s/ Michael J. Callahan
-----------------------------------------------
By: Michael J. Callahan
-------------------------------------------
Title: Chairman, FMC Corporation
----------------------------------------
Employee Welfare Benefits Plan Committee
5
<PAGE>
EXHIBIT 4.10
WRITTEN CONSENT OF THE MEMBERS OF
FMC CORPORATION
EMPLOYEE WELFARE BENEFITS PLAN COMMITTEE
The undersigned, being all of the members of the FMC Corporation Employee
Welfare Benefits Plan Committee, vote for, consent to, authorize, and adopt the
attached resolutions with the same force and effect as if the undersigned had
been present personally at a duly called and held meeting of said Committee, and
had voted for the same:
WHEREAS, the Board of Directors of FMC Corporation ("FMC") by resolution dated
December 12, 1975, delegated to this Committee fiduciary responsibilities and
authority with respect to the employee benefit plans of FMC to the extent
permissible under the Employee Retirement Income Security Act of 1974 ("ERISA")
and other applicable laws, including, without limitation, the authority on
behalf of FMC to establish and amend the plans and trusts, and delegate its
fiduciary responsibilities and authority to others;
WHEREAS, FMC Corporation ("FMC") established and currently maintains an
employee benefit plan for certain of its employees known as the FMC 401(k) Plan
for Employees Covered by a Collective Bargaining Agreement (the "Plan"); and
WHEREAS, FMC and United Defense Limited Partnership ("UDLP") have agreed
that UDLP shall withdraw as a participating employer from the Plan by means of
the adoption by UDLP of a plan and trust identical to the Plan and its related
trust;
RESOLVED, that effective as of August 1, 1997, as provided in Section
12.9.3 of the Plan, UDLP shall withdraw as a "Participating Employer" and is
deemed to have adopted a plan and trust identical to the Plan and its related
trust, except that all references to the "Company" shall be deemed to refer to
UDLP, and Benefit Schedules No. 1 (UDLP, Armaments Systems Division,
Minneapolis, Minnesota) and No. 16 (UDLP, Armament Systems Division, Louisville,
Kentucky) shall be the only applicable schedules. The UDLP plan shall be know as
the "UDLP 401(k) Plan for Employees Covered by a Collective Bargaining
Agreement";
FURTHER RESOLVED, that the members and Secretary of this Committee, the
Chairman of its Administration Subcommittee, and the Chairman
<PAGE>
of its Finance Subcommittee, each empowered to act alone, are hereby authorized
and directed to take such actions and to execute such documents (including,
without limitation, formal plan or trust amendments) as they consider necessary
and appropriate to carry out the intent and purpose of the foregoing resolution,
such authority to be conclusively evidenced by the execution and delivery by any
of said persons of documents relating to such purpose, and any such actions or
documents heretofore taken or executed are hereby ratified and confirmed.
Dated: August 4, 1997
/s/ Michael J. Callahan
- -----------------------------
M. J. Callahan
/s/ W. J. Kirby
- -----------------------------
W. J. Kirby
/s/ J. Paul McGrath
- -----------------------------
J. P. McGrath
<PAGE>
FMC CORPORATION
401(K) PLAN FOR EMPLOYEES COVERED BY
A COLLECTIVE BARGAINING AGREEMENT
(AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1989)
<PAGE>
BACKGROUND
----------
The Company established the FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement (the "Plan") as of April 1, 1987.
Effective January 1, 1989, except where otherwise specifically provided, the
Company amended and restated the Plan to reflect changes in the tax laws and the
issuance of final regulations under Code Section 401(k).
-i-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
BACKGROUND............................................................. i
ARTICLE I.............................................................. 1
DEFINITIONS........................................................ 1
Account....................................................... 1
Account Balance............................................... 1
Administrator................................................. 1
Affiliate..................................................... 1
Annuity Contract.............................................. 2
Beneficiary................................................... 2
Benefit Commencement Date..................................... 2
Benefit Schedule.............................................. 2
Board of Directors............................................ 2
Code.......................................................... 3
Company....................................................... 3
Compensation.................................................. 3
Direct Rollover............................................... 4
Disabled...................................................... 4
Distributee................................................... 5
Distribution Date............................................. 5
Early Retirement Date......................................... 5
Effective Date................................................ 5
Eligible Employee............................................. 5
Eligible Retirement Plan...................................... 5
Eligible Rollover Distribution................................ 6
Employee...................................................... 6
Employer...................................................... 6
Employment.................................................... 6
ERISA......................................................... 6
Family Member................................................. 6
Funding Agent................................................. 7
Highly Compensated Employee................................... 7
Hour of Service............................................... 8
Investment Fund............................................... 10
Investment Manager............................................ 11
Non-Highly Compensated Employee............................... 11
Normal Retirement Age......................................... 11
Normal Retirement Date........................................ 11
Participant................................................... 11
Participating Employer........................................ 11
Period of Service............................................. 11
Plan.......................................................... 12
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Plan Year............................................................... 12
Postponed Retirement Date............................................... 12
Rollover Contribution................................................... 12
Rollover Contribution Account........................................... 12
Salary Reduction Contributions.......................................... 13
Salary Reduction Contribution Account................................... 13
Salary Reduction Election............................................... 13
Surviving Spouse........................................................ 13
Trust................................................................... 13
Trust Fund.............................................................. 13
Trustee................................................................. 13
Valuation Date.......................................................... 13
ARTICLE II....................................................................... 14
PARTICIPATION................................................................ 14
-------------
2.1 ADMISSION AS A PARTICIPANT....................................... 14
--------------------------
2.2 PROVISION OF INFORMATION......................................... 15
------------------------
2.3 TERMINATION OF PARTICIPATION..................................... 15
----------------------------
2.4 ROLLOVER MEMBERSHIP.............................................. 15
-------------------
ARTICLE III...................................................................... 16
Contributions and Account Allocations........................................ 16
3.1 EMPLOYER CONTRIBUTIONS........................................... 16
----------------------
3.2 ROLLOVER CONTRIBUTIONS........................................... 17
----------------------
3.3 ESTABLISHING OF ACCOUNTS......................................... 18
------------------------
3.4 ALLOCATIONS TO SALARY REDUCTION CONTRIBUTION ACCOUNTS............ 18
-----------------------------------------------------
3.5 ALLOCATIONS TO ROLLOVER CONTRIBUTION ACCOUNTS.................... 18
---------------------------------------------
3.6 LIMITATION ON ANNUAL ADDITION TO ACCOUNTS........................ 18
-----------------------------------------
3.7 REDUCTION OF ANNUAL ADDITION..................................... 19
----------------------------
3.8 COMBINED PLAN FRACTION........................................... 19
----------------------
3.9 LIMITATIONS ON SALARY REDUCTION CONTRIBUTIONS.................... 19
---------------------------------------------
3.10 MAXIMUM AMOUNT OF SALARY REDUCTION CONTRIBUTIONS................. 20
------------------------------------------------
3.11 EXCESS SALARY REDUCTION CONTRIBUTIONS............................ 21
-------------------------------------
3.12 ACTUAL DEFERRAL PERCENTAGE TEST.................................. 22
-------------------------------
ARTICLE IV....................................................................... 25
Vesting...................................................................... 25
4.1 DETERMINATION OF VESTING......................................... 25
------------------------
ARTICLE V........................................................................ 26
Amount and Payment of Benefits to Participants............................... 26
5.1 SEPARATION....................................................... 26
----------
5.2 BENEFIT COMMENCEMENT DATE........................................ 26
-------------------------
5.3 WITHDRAWALS...................................................... 28
-----------
5.4 LOANS............................................................ 30
-----
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
5.5 ADDITIONAL DISTRIBUTION EVENTS................................... 32
------------------------------
ARTICLE VI....................................................................... 34
Form of Payment.............................................................. 34
6.1 ELECTION OF FORM OF BENEFIT...................................... 34
---------------------------
6.2 BENEFIT FORMS.................................................... 35
-------------
6.3 CHANGE IN FORM OR TIMING OF BENEFIT PAYMENT...................... 37
-------------------------------------------
6.4 CONSENT OF SPOUSE................................................ 38
-----------------
ARTICLE VII...................................................................... 39
Death Benefits............................................................... 39
7.1 PAYMENT OF ACCOUNT BALANCES...................................... 39
---------------------------
7.2 BENEFICIARIES.................................................... 41
-------------
7.3 QUALIFIED ELECTION............................................... 42
------------------
ARTICLE VIII..................................................................... 43
Fiduciaries.................................................................. 43
8.1 NAMED FIDUCIARIES................................................ 43
-----------------
8.2 EMPLOYMENT OF ADVISERS........................................... 43
----------------------
8.3 MULTIPLE FIDUCIARY CAPACITIES.................................... 44
-----------------------------
8.4 PAYMENT OF EXPENSES.............................................. 44
-------------------
8.5 INDEMNIFICATION.................................................. 44
---------------
ARTICLE IX....................................................................... 45
Plan Administration.......................................................... 45
9.1 POWERS, DUTIES, ETC. OF THE ADMINISTRATOR........................ 45
-----------------------------------------
9.2 INVESTMENT POWERS, DUTIES, ETC. OF THE ADMINISTRATOR............. 45
----------------------------------------------------
9.3 INVESTMENT OF ACCOUNTS........................................... 46
----------------------
9.4 VALUATION OF ACCOUNTS............................................ 47
---------------------
9.5 THE INSURANCE COMPANY............................................ 47
--------------------
9.6 THE INVESTMENT MANAGER........................................... 47
---------------------
9.7 COMPENSATION..................................................... 48
------------
9.8 DELEGATION OF RESPONSIBILITY..................................... 49
----------------------------
ARTICLE X........................................................................ 50
APPOINTMENT OF TRUSTEE....................................................... 50
----------------------
10.1 TRUSTEE.......................................................... 50
-------
ARTICLE XI....................................................................... 51
Plan Amendment or Termination................................................ 51
11.1 PLAN AMENDMENT OR TERMINATION.................................... 51
-----------------------------
11.2 LIMITATIONS ON PLAN AMENDMENT.................................... 51
-----------------------------
11.3 RIGHT TO TERMINATE PLAN OR DISCONTINUE CONTRIBUTIONS............. 51
----------------------------------------------------
11.4 BANKRUPTCY....................................................... 52
----------
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
ARTICLE XII...................................................................... 53
Miscellaneous Provisions..................................................... 53
12.1 EXCLUSIVE BENEFIT OF PARTICIPANTS................................ 53
---------------------------------
12.2 PLAN NOT A CONTRACT OF EMPLOYMENT................................ 53
---------------------------------
12.3 SOURCE OF BENEFITS............................................... 54
------------------
12.4 BENEFITS NOT ASSIGNABLE.......................................... 54
-----------------------
12.5 CLAIMS PROCEDURE................................................. 54
----------------
12.6 INCOME TAX WITHHOLDING........................................... 54
----------------------
12.7 BENEFITS PAYABLE TO MINORS, INCOMPETENTS AND OTHERS.............. 55
---------------------------------------------------
12.8 MERGER OR TRANSFER OF ASSETS..................................... 55
----------------------------
12.9 PARTICIPATION IN THE PLAN BY AN AFFILIATE........................ 56
-----------------------------------------
12.10 CONTROLLING LAW.................................................. 56
---------------
12.11 ACTION BY PARTICIPATING EMPLOYERS................................ 57
---------------------------------
12.12 DIVIDENDS........................................................ 57
---------
ARTICLE XIII..................................................................... 58
Direct Rollovers............................................................. 58
13.1 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS............... 58
--------------------------------------------------
BENEFIT SCHEDULE................................................................. 1
</TABLE>
-v-
<PAGE>
ARTICLE I
DEFINITIONS
-----------
The following terms shall have the following meanings for purposes of
this Plan and any amendments thereto:
ACCOUNT: The Salary Reduction Contribution Account and Rollover
-------
Contribution Account, if any, established on behalf of a Participant under the
Plan.
ACCOUNT BALANCE: The value of an Account determined as of any
---------------
Valuation Date.
ADMINISTRATOR: The FMC Employee Welfare Benefits Plan Committee
-------------
which shall have the responsibilities specified in Article IX of the Plan.
AFFILIATE: Any corporation, partnership, or other entity (other than
---------
the Company) which is:
(a) a member of a "controlled group of corporations" (as that
term is defined in Code (S) 414(b)) of which the Company is a member;
(b) a member of any trade or business under "common control" (as
that term is defined in Code (S) 414(c)) with the Company;
(c) a member of an "affiliated service group" (as that term is
defined in Code (S) 414(m)) which includes the Company;
(d) a "leasing organization" which "leases" (as those terms are
defined in Code (S) 414(n)) its employees to the Company and which
otherwise satisfies the requirements of Code (S)(S) 414(n)(1) through (4),
and which employees who are so leased to the Company are not covered by a
retirement plan described in Code (S) 414(n)(5), and/or if covered by a
retirement plan described in Code (S) 414(n)(5), constitute more
-1-
<PAGE>
than 20% of the Company's non-highly compensated workforce within the
meaning of Code (S) 414(n)(5)(C)(ii); or
(e) an entity required to be aggregated with the Company pursuant
to regulations promulgated under Code (S) 414(o).
ANNUITY CONTRACT: An individual or group annuity contract, issued by
----------------
an insurance company, providing periodic benefits, whether fixed, variable or
both, the benefits or value of which a Participant or Beneficiary cannot
transfer, sell, assign, discount, or pledge as collateral for a loan or as
security for the performance of an obligation or for any other purpose to any
person other than the issuer thereof. The terms of any Annuity Contract
purchased and distributed by the Plan to a Participant or Beneficiary shall
comply with the requirements of this Plan.
BENEFICIARY: Any person designated or deemed designated by a
-----------
Participant to receive any payment of Plan benefits due after the Participant's
death.
BENEFIT COMMENCEMENT DATE: The first day on which all events have
-------------------------
occurred which entitle a Participant or a Beneficiary to receive payment of his
or her benefit under the Plan. For purposes of Code (S) 402(f) and Code (S)
411(a)(11), the Benefit Commencement Date with respect to a single sum
distribution is the date the distribution is received.
BENEFIT SCHEDULE: A set of supplementary Plan provisions adopted by
----------------
the Company setting forth any special Plan provisions in effect for each
bargaining unit to which the Plan has been extended. The Benefit Schedule is an
integral part of the Plan.
BOARD OF DIRECTORS: The board of directors of the Company.
------------------
-2-
<PAGE>
BREAK IN SERVICE: A Period of Severance of at least 12 consecutive
----------------
months.
Anything contained herein to the contrary notwithstanding, a Period of
Severance shall not commence if the Participant is:
(a) on a leave of absence in excess of 12 months authorized by
an Employer in accordance with standard personnel policies applied in a
nondiscriminatory manner to all Employees similarly situated and returns to
active Employment immediately upon the expiration of such leave of absence;
(b) on military leave in excess of 12 months while such
Employee's reemployment rights are protected by law and returns to active
Employment within 90 days after his or her discharge or release (or such
longer period as may be prescribed by law); or
(c) on layoff in excess of 12 months and returns to work within
such period of time and in such a manner as to maintain seniority according
to the rules of an Employer in effect on the date of return.
CODE: The Internal Revenue Code of 1986, as may be amended from time
----
to time. Reference to a specific provision of the Code shall include such
provision and any valid regulation promulgated thereunder.
COMPANY: FMC Corporation and any successor thereto.
-------
COMPENSATION: The total compensation paid by the Company to an
------------
Employee with respect to each Plan Year which is currently includible in gross
income for federal income tax purposes, plus contributions to the Plan and to a
plan described in Code (S) 125, but excluding
-3-
<PAGE>
amounts received as deferred compensation, stock options and other distributions
that receive special tax benefits.
The Compensation of a Participant taken into account under the Plan
for any Plan Year beginning before January 1, 1994 shall be limited to $200,000,
such amount to be adjusted annually for increases in the cost-of-living in
accordance with Code (S)415(d).
Effective January 1, 1994, for purposes of the Plan, the annual amount
of Com pensation taken into account for a Participant shall not exceed $150,000
(as adjusted by the Internal Revenue Service for cost-of-living increases in
accordance with Code (S)401(a)(17)(B)).
In determining the Compensation of a Participant under the applicable
limitation, the family aggregation rules of Code (S) 414(q)(6) shall apply.
However, in applying those rules, "family" includes only the spouse of a
Participant and any lineal descendants of the Participant who have not attained
age nineteen (19) before the close of the year. If, by applying the family
aggregation rules, the applicable Compensation limit would be exceeded, then the
limitation is prorated among the affected individuals in proportion to each
individual's Compensation as determined before the application of the limit.
The determination of Compensation will be in accordance with records
maintained by the Company and shall be conclusive.
DIRECT ROLLOVER: Effective January 1, 1993, a payment by the Plan to
---------------
the Eligible Retirement Plan specified by the Distributee.
DISABLED: A Participant is Disabled if he or she has any medically
--------
determinable physical or mental impairment that causes the Participant to be
unable to engage in any substantial gainful activity and which can be expected
to result in death or be of long continued
-4-
<PAGE>
and indefinite duration or which has lasted or can be expected to last for a
continuous period not less than 12 months. Proof of the existence of the
disability shall be determined solely on the basis of the Participant's
eligibility for Social Security.
DISTRIBUTEE: Effective January 1, 1993, 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 under Code (S)
414(p), are Distributees with respect to the interest of such spouse or former
spouse.
DISTRIBUTION DATE: Subject to the terms of Section 5.2, the first
-----------------
day of the month nearest a Participant's Normal Retirement Date, Early
Retirement Date, Postponed Retirement Date or termination of Employment due to
Disability.
EARLY RETIREMENT DATE: The day a Participant actually retires after
---------------------
reaching age 55 but before reaching age 65.
EFFECTIVE DATE: April 1, 1987, provided, however, that
--------------
notwithstanding the foregoing, each Benefit Schedule shall have its own
Effective Date.
ELIGIBLE EMPLOYEE: Employees of a Participating Employer who are
-----------------
employees included in a bargaining unit covered by a collective bargaining
agreement with a Participating Employer that provides for participation in the
Plan.
ELIGIBLE RETIREMENT PLAN: Effective January 1, 1993, an individual
------------------------
retirement account described in Code (S) 408(a), an individual retirement
annuity described in Code (S) 408(b), an annuity plan described in Code (S)
403(a), or a plan described in Code (S) 401(a) that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible
-5-
<PAGE>
Rollover Distribution paid under the Plan to a Surviving Spouse, an Eligible
Retirement Plan is either an individual retirement account or individual
retirement annuity.
ELIGIBLE ROLLOVER DISTRIBUTION: Effective January 1, 1993, 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 (i)
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 and the Distributee's Beneficiary, or for a
specified period of 10 years or more; (ii) any distribution to the extent such
distribution is required under Code (S) 401(a)(9); or (iii) 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).
EMPLOYEE: Any person who is engaged in rendering personal services
--------
under the direction or control of an Employer, and including leased employees
within the meaning of Code (S) 414(n)(2).
EMPLOYER: Individually, the Company and each other entity which is
--------
an Affiliate, and any other business entity designated by the Company.
EMPLOYMENT: An Employee's employment with an Employer.
----------
ERISA: The Employee Retirement Income Security Act of 1974, as
-----
amended from time to time. Reference to a specific provision of ERISA shall
include such provision and any valid regulation promulgated thereunder.
FAMILY MEMBER: An individual described in Code (S) 414(q)(6)(B),
-------------
namely, the spouse of an Employee, the lineal ascendants of an Em-
-6-
<PAGE>
ployee, the lineal descendants of an Employee, the spouses of lineal ascendants
of the Employee, and the spouses of lineal descendants of the Employee.
FUNDING AGENT: Any legal reserve life insurance company or Trustee
-------------
selected by the Administrator to receive the contributions under the Plan and to
pay benefits under the Plan in accordance with the terms of the Plan.
HIGHLY COMPENSATED EMPLOYEE: An individual described in Code (S)
---------------------------
414(q), including both Highly Compensated active Employees and Highly
Compensated former Employees. A Highly Compensated active Employee is an
Employee who performs service for an Employer during the "Determination Year"
(as defined in Department of Treasury Regulation (S) 1.414(q)-1T(Q&A14)) and
who, during the "Look-Back Year" (as defined in Department of Treasury
Regulation (S) 1.414(q)-1T(Q&A14)) (i) received Compensation from an Employer in
excess of $75,000 (as adjusted under Code (S) 415(d)); (ii) received
Compensation from an Employer in excess of $50,000 (as adjusted under Code (S)
415(d)) and was a member of the top-paid group for that year; or (iii) was an
officer of an Employer and received Compensation during that year that is
greater than 50% of the dollar limitation in effect under Code (S) 415(b)(1)(A).
Highly Compensated active Employees also include (i) an Employee who is
described in the preceding sentence if the term "Determination Year" is
substituted for the term "Look-Back Year" and who is one of the 100 Employees
who received the most Compensation from an Employer during the Determination
Year; and (ii) an Employee who is a 5-percent owner at any time during the Look-
Back Year or Determination Year.
-7-
<PAGE>
The highest paid officer for a year is treated as a Highly Compensated
Employee if no officer has Compensation in excess of 50% of the dollar
limitation in effect under Code (S) 415(b)(1)(A) during either a Determination
Year or a Look-Back Year.
A Highly Compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) before the
Determination Year, performs no service for an Employer during the Determination
Year, and was a Highly Compensated active Employee for either the Determination
Year during which he or she separated from service (or was deemed to have
separated) or any Determination Year ending on or after the Employee's 55th
birthday.
The determination of who is a Highly Compensated Employee, including
the determination of the number and identity of the Employees in the top-paid
group, the top 100 Employees, the number of Employees treated as officers, and
the Compensation that is considered, will be made in accordance with Treasury
Regulation (S) 1.414(q)-IT.
HOUR OF SERVICE:
---------------
(a) Each hour of Employment for which:
(1) the Employee is paid, or entitled to payment, for the
performance of duties for an Employer;
(2) the Employee is paid, or entitled to payment, by an
Employer (regardless of whether such payment is made by or from an Employer
directly or indirectly through, among others, a trust fund, or insurer, to
which an Employer contributes or pays premiums) on account of a period of
time during which no duties are
-8-
<PAGE>
performed due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or leave of absence; and
(3) back pay, irrespective of mitigation of damages, is either
awarded or agreed to by an Employer.
(b) Anything in the preceding paragraphs (a)(2) and (a)(3) of this
definition to the contrary notwithstanding:
(1) no more than 501 Hours of Service shall be credited for any
single continuous period described in paragraph (a)(2) above (whether or
not such period occurs in a single Plan Year) and no more than 501 Hours of
Service shall be credited for payments of back pay described in paragraph
(a)(3) above, to the extent that such back pay is agreed to or awarded for
a period of time during which an Employee did not or would not have
performed duties;
(2) no Hours of Service shall be credited for payments made or
due under a plan maintained solely for the purpose of complying with
applicable workmen's com pensation or unemployment compensation or
disability insurance laws;
(3) no Hours of Service shall be credited for payments made
solely to reimburse an Employee for medical or medically related expenses
incurred by such Em ployee; and
(4) an Hour of Service to be credited under paragraph (a) of this
definition shall not be credited more than once.
(c) In cases where the Employee is paid or entitled to payment by an
Employer for reasons other than the performance of duty, the determination of
the number of
-9-
<PAGE>
Hours of Service to be credited to the Employee and the Plan Year or Plan Years
within which such Hours of Service are to be credited shall be made in
accordance with the provisions of Department of Labor Regulations (S)(S)
2530.200b-2(b) and (c).
(d) In cases where an Employer is unable to determine the actual
number of Hours of Service, an Employee shall be credited with 45 Hours of
Service for each week for which the Employee would be required to be credited
with at least 1 Hour of Service.
Solely for purposes of determining whether a Break in Service, as
hereinafter defined, has occurred for purposes of participation and vesting, a
Participant who is absent from work for maternity or paternity reasons, or
effective August 5, 1993 due to a leave under the Family and Medical Leave Act
of 1993, shall receive credit for the Hours of Service which would otherwise
have been credited to such Participant but for such absence or, in any case in
which such hours cannot be determined, 8 Hours of Service per day of such
absence. For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence (i) by reason of the pregnancy of the
individual; (iii) by reason of a birth of a child of the individual; (iii) by
reason of the placement of a child with the individual in connection with the
adoption of such child by such individual; or (iv) for purposes of caring for
such child for a period beginning immediately following such birth or placement.
The Hours of Service credited under this paragraph shall be credited (i) in the
Plan Year in which the absence or leave begins if such crediting is required to
prevent a Break in Service in such Plan Year; or (ii) in all other cases, in the
following Plan Year.
INVESTMENT FUND: An Investment Fund, if any, established or selected
----------------
by the Administrator pursuant to Section 9.4.
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INVESTMENT MANAGER: Any person appointed by the Administrator to
-------------------
serve as an Investment Manager in accordance with Section 9.7 of the Plan.
NON-HIGHLY COMPENSATED EMPLOYEE: An Employee who is neither a Highly
--------------------------------
Compensated Employee nor a Family Member of a Highly Compensated Employee.
NORMAL RETIREMENT AGE: The date on which a Participant attains age
----------------------
sixty-five (65).
NORMAL RETIREMENT DATE: The day a Participant attains Normal
-----------------------
Retirement Age.
PARTICIPANT: An Eligible Employee who has commenced, but not
------------
terminated, participation in the Plan pursuant to the provisions of Article II
of the Plan.
PARTICIPATING EMPLOYER: Individually, the Company and each other
-----------------------
Employer who employs Eligible Employees.
PERIOD OF SERVICE: The aggregate of all time periods commencing with
------------------
an Employee's first date of employment or reemployment and ending on the date a
Break in Service begins. The first day of employment or reemployment is the
first day the Employee performs an Hour of Service. An Employee will also
receive credit for any Period of Severance of less than 12 consecutive months.
Fractional periods of a year will be expressed in days.
PERIOD OF SEVERANCE: A continuous period of time during which the
--------------------
Employee is not employed by the Company. Such period begins on the date the
Employee retires, quits, or is discharged or if earlier, the 12 month
anniversary of the date on which the Employee was otherwise first absent from
service.
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<PAGE>
PLAN: FMC Corporation 401(k) Plan for Employees Covered by a
-----
Collective Bargaining Agreement, as amended and restated effective January 1,
1989. The Plan is a single employer plan.
PLAN YEAR: An initial short plan year from April 1, 1987 to
----------
December 31, 1987, and thereafter each 12 consecutive month period beginning on
January 1 and ending on December 31 during any part of which the Plan is in
effect.
POSTPONED RETIREMENT DATE: The day a Participant actually retires
--------------------------
after his Normal Retirement Date.
ROLLOVER CONTRIBUTION: An amount received from a deferred compensation
----------------------
plan which qualifies under Code (S) 401 or Code (S) 403(a) and which is rolled
over to the Plan pursuant to Code (S) 402(c). A Rollover Contribution can
include both Direct Rollovers and amounts distributed to a Participant and then
rolled over, and also includes a direct trust to trust transfer. In addition, if
an Employee had deposited a "qualified total distribution" within the meaning of
Code (S) 402(a)(5)(E) (as in effect prior to January 1, 1993) or an Eligible
Rollover Distribution into an individual retirement account as defined in Code
(S) 408, he or she may transfer the amount of the distribution plus earnings
from the individual retirement account to the Plan; provided, however, that the
rollover amount is deposited with the Trustee within 60 days after receipt from
the individual retirement account.
ROLLOVER CONTRIBUTION ACCOUNT: The Account under the Plan established
------------------------------
for a Participant pursuant to Section 3.3.2.
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<PAGE>
SALARY REDUCTION CONTRIBUTIONS: The amount that otherwise would have
-------------------------------
been paid as Compensation that is converted to a Participating Employer
contribution in accordance with Section 3.1.2.
SALARY REDUCTION CONTRIBUTION ACCOUNT: The Account under the Plan
--------------------------------------
established for a Participant pursuant to Section 3.3.1.
SALARY REDUCTION ELECTION: The election by a Participant make Salary
--------------------------
Reduction Contributions in accordance with Section 3.1.2.
SURVIVING SPOUSE: The person legally married to a Participant on the
-----------------
earlier of the date of his or her death or his or her Benefit Commencement Date.
TRUST: The Trust established under the Plan to which Plan
------
contributions are made and in which Plan assets are held.
TRUST FUND: The assets of the Trust held by or in the name of the
-----------
Trustee.
TRUSTEE: The person appointed as Trustee pursuant to, and having the
--------
responsibilities specified in, the provisions of Article X of the Plan, and any
successor Trustee.
VALUATION DATE: The first day of each calendar month or such other
---------------
day of the Plan Year as determined by the Administrator.
As used in this Plan, singular pronouns shall include the plural or
vice versa and any reference to an Article, Section or Paragraph shall mean the
Article, Section or Paragraph so delineated in this Plan.
Any headings used herein are included for ease of reference only, and
are not to be construed as to alter any of the terms hereof.
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<PAGE>
ARTICLE II
PARTICIPATION
-------------
2.1 ADMISSION AS A PARTICIPANT
--------------------------
2.1.1 An Eligible Employee shall become a Participant on the first
day of the month coincident with or following the date on which he or she
completes the eligibility requirements specified in the applicable Benefit
Schedule and files a form with the Administrator on which he or she makes his or
her Salary Reduction Election. If an Employee is not an Eligible Employee when
he or she completes the eligibility requirements specified in the applicable
Benefit Schedule, that Employee shall become a Participant on the first day of
the month on or following the date he or she becomes an Eligible Employee and
files a form with the Administrator on which he or she makes his or her Salary
Reduction Election.
2.1.2 After a Participant terminates employment with the Company and
is subsequently rehired, he or she shall become a Participant on the first day
of the month coincident with or next following the date on which he or she files
a form with the Administrator on which he or she makes his or her Salary
Reduction Election.
2.1.3 If an Eligible Employee who did not satisfy the requirements
for participation (other than completion of a Salary Reduction Election)
terminates employment with the Company and is subsequently rehired, prior to
incurring a five year Break in Service, then such service as the Employee had
earned shall not be disregarded.
2.1.4 If an Eligible Employee who did not satisfy the requirements
for participation (other than completion of a Salary Reduction Election)
terminates employment with
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the Company and is subsequently rehired, after incurring a five year Break in
Service, then such service as the Employee had earned shall be disregarded.
2.2 PROVISION OF INFORMATION
------------------------
Each Employee who becomes a Participant shall execute such forms as
are required by the Administrator and shall make available to the Administrator
any information reasonably requested. By virtue of his or her participation in
this Plan, an Employee agrees, on his or her own behalf and on behalf of all
persons who may have or claim any right by reason of the Employee's
participation in the Plan, to be bound by all provisions of the Plan and by any
agreement entered into pursuant thereto.
2.3 TERMINATION OF PARTICIPATION
----------------------------
A Participant shall cease to be a Participant:
(a) upon his or her death; or
(b) upon the payment to him or her of the entire Account Balance
credited to him or her under the Plan.
2.4 ROLLOVER MEMBERSHIP
-------------------
An Eligible Employee who makes a Rollover Contribution shall become a
Participant as of the date of such contribution even if he or she has not
previously become a Participant. Such an Eligible Employee shall, with respect
to Article III hereof, be a Participant only for the purposes of such Rollover
Contribution and shall not be eligible to make a Salary Reduction Contribution
Election until he or she has met the requirements of Section 2.1.
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<PAGE>
ARTICLE III
CONTRIBUTIONS AND ACCOUNT ALLOCATIONS
--------------------------------------
3.1 EMPLOYER CONTRIBUTIONS
----------------------
3.1.1 For each Plan Year, each Participating Employer shall
contribute to the Funding Agent an amount equal to the deferral percentage
elected by each Participant in its employ pursuant to his or her Salary
Reduction Election multiplied by each such Participant's Compensation for the
Plan Year.
3.1.2 The amount elected by a Participant pursuant to a Salary
Reduction Election cannot be less than 1% or greater than 15% (in 1% increments)
of the Participant's Compensation. The Salary Reduction Election shall be made
on a form provided by the Administrator, but no elec tion shall be effective
prior to approval by the Administrator. The Administrator may reduce the amount
of any Salary Reduction Election, or make such other modifications as necessary,
so that the Plan complies with the provisions of Code (S) 401(k). All
contributions pursuant to a Salary Reduction Election shall be made on a payroll
deduction basis and in accordance with rules and procedures established by the
Administrator.
A Participant may change his or her deferral percentage or discontinue
his or her deferrals, as frequently as provided for in the applicable Benefit
Schedule, by filing with the Administrator a Salary Reduction Election on the
form provided by the Administrator.
3.1.3 All contributions by the Participating Employer with respect to
any Plan Year shall be delivered to the Funding Agent as of the earliest date on
which such contributions are known and can reasonably be segregated from the
general assets of the Participating Employer.
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<PAGE>
3.1.4 Anything contained in this Section to the contrary
notwithstanding, the amount contributed by the Participating Employers shall not
exceed 15% of the total Compensation (reduced for this purpose by amounts
contributed pursuant to Salary Reduction Elections and elections under a Code
(S) 125 plan) for the Plan Year for those Participants employed by the
Participating Employers eligible for an allocation for that Plan Year. In
addition, the amount contributed by the Participating Employers to this Plan or
any other qualified plan maintained by the Employers pursuant to a Participant's
elective deferral shall in no event exceed $9,240 (limit for 1994) (or such
greater amount as subsequently determined under Code (S) 402(g)) per calendar
year.
3.2 ROLLOVER CONTRIBUTIONS
----------------------
With the approval of the Administrator, any Participant or Eligible
Employee who would be a Participant but for a failure to satisfy the
requirements of Article II may make a Rollover Contribution to the Plan. A
Rollover Contribution shall be in cash or in such other property as is ac
ceptable to the Funding Agent. In the event that an Employee makes a
contribution pursuant to this Section that was intended to be a Rollover
Contribution which the Funding Agent later discovers not to be a Rollover
Contribution, the Funding Agent shall distribute to such Participant as soon as
practicable after such discovery the Account Balance of his or her Rollover
Contribution Account determined as of the Valuation Date coincident with or
immediately preceding such discovery.
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<PAGE>
3.3 ESTABLISHING OF ACCOUNTS
------------------------
3.3.1 Each Participant for whom Participating Employer contributions
are made on account of a Salary Reduction Election shall have a Salary Reduction
Contribution Account to which the Funding Agent shall credit, or cause to be
credited, all amounts allocable to each such Participant pursuant to the Salary
Reduction Election.
3.3.2 Each Participant who makes a Rollover Contribution to the Plan
pursuant to Section 3.2 shall have a Rollover Contribution Account to which the
Funding Agent shall credit, or cause to be credited, all Rollover Contributions
made by the Participant.
3.4 ALLOCATIONS TO SALARY REDUCTION CONTRIBUTION ACCOUNTS
-----------------------------------------------------
No later than the time specified in Section 3.12, all contributions
made pursuant to a Salary Reduction Election shall be allocated to the Salary
Reduction Contribution Account of the electing Participant.
3.5 ALLOCATIONS TO ROLLOVER CONTRIBUTION ACCOUNTS
---------------------------------------------
No later than the first day of the month following the month in which
the contribution is made, all contributions to the Rollover Contribution
Account, if any, made by a Participant shall be allocated to the Rollover
Contribution Account of each such Participant.
3.6 LIMITATION ON ANNUAL ADDITION TO ACCOUNTS
-----------------------------------------
Notwithstanding any provision of the Plan to the contrary, the "annual
addition" (as defined in Code (S) 415(c)(2)) allocated to the Accounts of a
Participant for any Plan Year shall not exceed the limits described under Code
(S) 415(c)(1).
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<PAGE>
Excess Salary Reduction Contributions (as described in Section 3.9.5)
will not be treated as Annual Additions if they are distributed by April 15
following the year of deferral.
3.7 REDUCTION OF ANNUAL ADDITION
----------------------------
If the Annual Addition allocated to a Participant's Accounts for the
Plan Year exceeds the limitation described in Section 3.6, then, to the extent
the excess Annual Addition is attributable to a Salary Reduction Election, such
contribution, and the earnings attributable thereto, shall be returned to the
Participant.
3.8 COMBINED PLAN FRACTION
----------------------
With respect to a Plan Year, if a Participant is (or has been) a
participant in any defined benefit plan (whether or not terminated) maintained
by an Employer, the sum of the Par ticipant's defined benefit plan fraction (as
defined under Code (S) 415(e)(2)) and defined contribution plan fraction (as
defined under Code (S) 415(e)(3)) shall not exceed one (1). If such sum exceeds
one, the Participant's defined contribution plan fraction shall be reduced until
such sum equals one (1).
3.9 LIMITATIONS ON SALARY REDUCTION CONTRIBUTIONS
---------------------------------------------
These terms have the following meanings for purposes of the following
Sections 3.9 through 3.12 .
3.9.1 ACTUAL DEFERRAL PERCENTAGE means the ratio of Salary Reduction
Contributions on behalf of the Eligible Participant for the Plan Year to the
Eligible Participant's Compensation for the Plan Year. In calculating the
Actual Deferral Percentage, Salary Reduction Contributions include Excess Salary
Reduction Contributions for Highly Compensated Employees (whether they were made
under plans of unrelated employers or plans of the same or related employers)
but do not include Excess Salary Reduction Contributions for Non-Highly
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<PAGE>
Compensated Employees. The Actual Deferral Percentage of an Eligible
Participant who does not make a Salary Reduction Election is zero (0).
3.9.2 AVERAGE ACTUAL DEFERRAL PERCENTAGE means the average of the
Actual Deferral Percentages of the Eligible Participants in a group.
3.9.3 ELIGIBLE PARTICIPANT means, for purposes of determining the
Actual Deferral Percentage, any Employee who is eligible to make a Salary
Reduction Election anytime during the Plan Year.
3.9.4 EXCESS CONTRIBUTION means for any Plan Year, the excess of:
(a) the aggregate amount of Salary Reduction Contributions
actually made on behalf of Highly Compensated Employees for the Plan Year;
over
(b) the maximum amount of those contributions permitted under
the Actual Deferral Percentage Test in Section 3.12 (determined by reducing
contributions made on behalf of Highly Compensated Employees in the order
of their Actual Deferral Percentages beginning with the highest Actual
Deferral Percentage).
3.9.5 EXCESS SALARY REDUCTION CONTRIBUTION means the amount of Salary
Reduction Contributions for a calendar year that are includible in a
Participant's gross income under Code (S) 402(g) to the extent the Participant's
elective deferrals exceed the dollar limitation under Code (S) 402(g) as
determined under Section 3.10.
3.10 MAXIMUM AMOUNT OF SALARY REDUCTION CONTRIBUTIONS
------------------------------------------------
A Participant may not have Salary Reduction Contributions under this
Plan, or any other qualified plan of an Employer, during any taxable year in
excess of the dollar limitation in Code (S) 402(g) in effect at the beginning of
that taxable year.
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<PAGE>
3.11 EXCESS SALARY REDUCTION CONTRIBUTIONS
-------------------------------------
3.11.1 Excess Salary Reduction Contributions shall be distributed no
later than the first April 15 following the close of a Participant's taxable
year to Participants who claim allocable Excess Salary Reduction Contributions
for the preceding calendar year.
3.11.2 The Participant's claim must be written and submitted to the
Administrator no later than March 15. The claim must specify the amount of the
Participant's Excess Salary Reduction Contributions for the preceding calendar
year and must be accompanied by the Participant's written statement that if
those amounts are not distributed, the Excess Salary Reduction Contributions,
when added to amounts deferred under other plans or arrangements described in
Code (S)(S) 401(k), 402(h)(1)(B) or 403(b) exceeds the limit imposed on the
Participant by Code (S) 402(g) for the year in which the deferral occurred. The
written claim required under this Section 3.11.2 shall be deemed to have been
provided to the Administrator if the Administrator discovers that a Participant
has made Excess Salary Reduction Contributions under the Plan and other plans of
an Employer. In no event may the amount distributed exceed the Participant's
total Salary Reduction Contributions for the taxable year.
3.11.3 The Excess Salary Reduction Contributions distributed to a
Participant shall be adjusted for income or loss through the close of the Plan
Year in which the Excess Salary Reduction Contributions were made. Income and
loss allocable to Excess Salary Reduction Contributions for a Participant shall
be determined in a nondiscriminatory manner (within the meaning of Code (S)
401(a)(4)) consistent with the valuation of Participant Accounts under Section
9.5.
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<PAGE>
3.11.4 Excess Salary Reduction Contributions distributed prior to the
first April 15 following the close of the Participant's taxable year are not
treated as Annual Additions under Section 3.6 for the preceding Limitation Year.
3.11.5 Any Salary Reduction Contributions that are properly
distributed under Section 3.7 as excess Annual Additions are disregarded in
determining if there are Excess Salary Reduction Contributions.
3.12 ACTUAL DEFERRAL PERCENTAGE TEST
-------------------------------
3.12.1 The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for the Plan Year may not
exceed the greater of:
(a) the Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(b) the Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees for the Plan Year
multiplied by 2; provided that the Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees does not exceed
the Average Actual Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees by more than 2 percentage points.
3.12.2 The provisions of Code (S) 401(k)(3) and Department of Treasury
Regulation (S) 1.401(k)-1(b) are incorporated by reference.
3.12.3 If this Plan satisfies the requirements of Code (S)(S)
401(a)(4), 401(k), or 410(b) only if aggregated with one or more other plans, or
if one or more other plans satisfy the requirements of those Code Sections only
if aggregated with this Plan, then this Section 3.12 is
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<PAGE>
applied by determining the Actual Deferral Percentage of Eligible Participants
as if all the plans were a single plan.
3.12.4 The Administrator also may treat one or more plans as a single
plan with the Plan whether or not the aggregated plans must be aggregated to
satisfy Code (S)(S) 401(a)(4) and 410(b). However, those plans must then be
treated as one plan under Code (S)(S) 401(a)(4), 401(k), and 410(b). Plans may
be aggregated under this Section 3.12.4 only if they have the same plan year.
3.12.5 To determine the Actual Deferral Percentage of an Eligible
Participant who is a 5-percent owner or one of the 10 most highly-paid Highly
Compensated Employees, the Salary Reduction Contributions and Compensation of
such an Eligible Participant includes the Salary Reduction Contributions and
Compensation of Family Members. Family Members are disregarded as separate
employees in determining the Actual Deferral Percentage both for Eligible
Participants who are Non-Highly Compensated Employees and for Eligible
Participants who are Highly Com pensated Employees.
3.12.6 Salary Reduction Contributions are considered made for a Plan
Year if made no later than the end of the 12-month period beginning on the day
after the close of the Plan Year.
3.12.7 The determination and treatment of the Salary Reduction
Contributions and Actual Deferral Percentage of any Participant must satisfy
such other requirements as the Secretary of the Treasury may prescribe
including, without limitation, record retention requirements.
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<PAGE>
3.12.8 The failure of the Plan to satisfy the Actual Deferral
Percentage Test shall not cause it to be nondiscriminatory. However, for Plan
Years commencing on or after January 1, 1993, the failure of the Plan to satisfy
the Actual Deferral Percentage Test shall cause certain Highly Compensated
Employees to have an inclusion in income.
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<PAGE>
ARTICLE IV
VESTING
--------
4.1 DETERMINATION OF VESTING
------------------------
A Participant shall have a vested percentage of 100% in the Account
Balance of his or her Salary Reduction Contribution Account and Rollover
Contribution Account at all times.
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<PAGE>
ARTICLE V
AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS
-----------------------------------------------
5.1 SEPARATION
----------
5.1.1 A Participant's benefits upon his or her termination of
Employment for any reason shall be the Account Balance of all of his or her
Accounts determined as of the Valuation Date coincident with or immediately
succeeding the Participant's termination of Employment. Such Participant shall
be paid his or her benefits as soon as practicable after such Valuation Date;
provided, however, if such Participant's benefits exceed, or have ever exceeded,
$3,500, the Participant may elect to defer the distribution of his or her
benefits until his or her Normal Retirement Date, but may request in writing a
distribution at anytime between the date of deferral and such Normal Retirement
Date. Payment of a Participant's benefits which exceeds, or has ever exceeded,
$3,500 are subject to the consent requirements described under Section 7.3.
5.2 BENEFIT COMMENCEMENT DATE
-------------------------
5.2.1 Except as provided in Section 5.2.2, and subject to the consent
requirement contained in Section 6.4, unless a Participant otherwise elects,
payment of benefits shall be made as soon as practicable after the Participant's
termination of Employment but no later than the 60th day after the close of the
Plan Year in which the latest of the following events occurs:
(a) the Participant's Normal Retirement Date;
(b) the 10th anniversary of the year in which the Participant
commenced participation; or
(c) the Participant's termination of Employment.
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<PAGE>
If the amount of benefits payable to or in respect of a Participant cannot be
determined within this 60-day period, or if it is not possible to pay such
benefits within such period because the Administrator has been unable to locate
the Participant or the Participant's Beneficiary, as the case may be, after
making reasonable efforts to do so, then a payment, retroactive to such 60th
day, shall be made no later than 60 days after the earliest date on which the
amount of such benefits can be determined or the Participant can be located, as
the case may be.
5.2.2 Notwithstanding anything to the contrary in Section 5.2.1, a
Participant shall begin to receive his or her benefit no later than the first
day of April following the calendar year in which he or she attains age 70 1/2.
The amount that shall be so distributed each year will be the minimum amount
required to satisfy Code (S) 401(a)(9) and the regulations promulgated
thereunder, determined with no recalculation of life expectancy.
5.2.3 Notwithstanding any other provision of this Plan to the
contrary, any distribution hereunder will be made in accordance with Code (S)
401(a)(9), including Department of Treasury Regulation (S) 1.401(a)(9)-2. In
addition, the amount of benefit payments to be distributed to any Participant
shall satisfy the incidental death benefit provisions under Code (S)
401(a)(9)(G) and the regulations promulgated thereunder.
5.2.4 If the Participant dies after distribution of his or her
interest has commenced, the remaining portion of such interest will be payable
in accordance with Section 7.1 hereof; provided, however, that such interest
shall in any event continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's death.
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<PAGE>
5.2.5 If the Participant dies before distribution of his or her
interest commences, the Participant's entire interest will be distributed as
provided under Section 7.1 hereof, but in no event shall distribution commence
later than five (5) years after the Participant's death.
5.3 WITHDRAWALS
-----------
5.3.1 Each Participant, prior to termination of Employment, may elect
to withdraw all or any part of his or her Salary Reduction Contribution Account,
upon attainment of age 59 1/2, in accordance with such rules or procedures as
the Administrator may adopt.
5.3.2 If the applicable Benefit Schedule so provides, a Participant,
prior to age 59 1/2, may make a withdrawal from his or her Salary Reduction
Contribution Account only if he or she demonstrates to the Administrator that
the withdrawal is necessitated by an "immediate and heavy financial need" of the
Participant. Such withdrawals shall be limited to the contributions made
pursuant to the Salary Reduction Election and shall not include any earnings
thereon and shall be lim ited to the amount demonstrated by the Participant to
be necessary to meet the "immediate and heavy financial need" and not reasonably
available from other resources of the Participant. In addition, the minimum
amount of such withdrawals is $500, or the amount of Salary Reduction
Contributions, if lesser. Written procedures of the Administrator shall specify
the requirements for requesting and receiving distributions on account of an
"immediate and heavy financial need."
(a) "Immediate and heavy financial need" shall mean:
(i) medical expenses as described in Code (S) 213(d) incurred by
the Participant, his spouse or dependents;
(ii) the purchase of a principal residence for the participant
(excluding mortgage payments);
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<PAGE>
(iii) tuition payments including related education expenses for
the next twelve (12) months of post-secondary education of the
Participant, his spouse or dependents;
(iv) payments necessary to prevent either the Participant's
eviction from his principal residence, or the foreclosure of his
mortgage on such residence; or
(v) any other situation as determined, based on all relevant
facts and circumstances (such as, but not limited to, payment of a
family member's funeral expenses), by the Administrator to be an
"immediate and heavy financial need."
(b) A withdrawal will be permitted only if the Participant certifies
in writing to the Administrator that the "immediate and heavy financial
need" cannot be met from other resources reasonably available to the
Participant and the Participant further represents to the Administrator, in
such manner and form as the Administrator may require, and based on all
relevant facts and circumstances it is reasonable to rely on the
representation, that the need cannot be relieved:
(i) Through reimbursement or compensation by insurance or
otherwise;
(ii) By reasonable liquidation of the Participant assets, to
the extent such liquidation would not itself cause an immediate and
heavy financial need;
(iii) By cessation of Salary Reduction Contributions under the
Plan; or
(iv) By other distributions from plans maintained by an
Employer or any other employer, or by borrowing from commercial
sources on reasonable commercial terms.
(c) No amounts distributed under this Section 5.3.2 shall exceed the
amount required to relieve the financial need, including any amounts
necessary to pay any
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<PAGE>
federal, state, or local income taxes or penalties reasonably anticipated to
result from the distribution.
(d) A Participant who receives a distribution under this Section
5.3.2 shall be suspended from making any Salary Reduction Contributions for
six (6) months after receiving such distribution. A Participant can resume
his or her Salary Reduction Contributions on the first day of the month on
or after the expiration of the six (6) month suspension period.
5.3.3 Any withdrawal under Section 5.5.1 and/or 5.5.2 shall be as of
the Valuation Date next following the receipt of an election form by the
Administrator, and upon such notice as the Administrator may require.
5.3.4 The Account from which a withdrawal is made shall be charged
with the amount of any such withdrawal therefrom.
5.3.5 A Participant may elect to withdraw all or any part of his or
her Salary Reduction Contribution Account in accordance with such rules and
procedures as the Administration may adopt.
5.4 LOANS
-----
5.4.1 If the applicable Benefit Schedule so provides and subject to
any restrictions imposed by the terms of any group annuity contract held under
the Plan, a Participant, or Beneficiary, may submit an application to the
Administrator to borrow from his or her Accounts (on such terms and conditions
as the Administrator shall prescribe) an amount, when added to the amount of any
outstanding loan, not in excess of the lesser of (i) $50,000; or (ii) 50% of the
Participant's Accounts as of the Valuation Date coincident with or immediately
preceding the receipt of his or her loan application by the Administrator and
upon
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such notice as the Administrator may require. In calculating the $50,000 amount,
there shall be a reduction for the excess (if any) of the highest outstanding
balance of loans from the Plan during the 1-year period ending on the day before
the date on which such loan was made over the outstanding balance of loans from
the Plan on the dates on which such loan was made. For this purpose, all loans
from qualified plans of the Employers shall be aggregated. The Participant's
spouse must consent as described in Section 7.3 to any loan from the
Participant's Account.
5.4 If approved, each such loan shall comply with the following
conditions:
(a) it shall be evidenced by a negotiable promissory note;
(b) the rate of interest payable on the unpaid balance of such
loan shall be the rate of interest specified in the applicable Benefit
Schedule;
(c) the amount of the loan shall equal or exceed the minimum
loan amount provided for in the applicable Benefit Schedule;
(d) the loan, by its terms, must require repayment within 5
years; provided, however, that the loan repayment period shall not extend
beyond the Participant's Normal Retirement Date;
(e) the loan shall be secured by the Participant's interest in
the Account Balance of his or her Accounts, but not to exceed 50% of such
Account; and
(f) loans shall be repaid through payroll deduction.
5.4.3 If a Participant, or Beneficiary, is granted a loan, a
"Loan Account" shall be established for such Participant,or Beneficiary. All
Loan Accounts shall be held by the Funding Agent, as part of the Trust Fund. The
loan amount shall be transferred from a Participant's other Accounts and shall
be disbursed from the Loan Account. Subject to such ordering
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<PAGE>
rules as the Administrator may adopt, the Participant, or Beneficiary, may
specify in the loan request from which Investment Funds the loan amount is to be
transferred. The promissory note executed by the Participant shall be deposited
in his or her Loan Account.
5.4.4 Principal and interest payments of a loan shall be credited
initially to the Loan Account of the Participant, or Beneficiary, and shall be
transferred as soon as reasonably practicable thereafter to the other Accounts
of such Participant, or Beneficiary. Any loss caused by nonpayment or other
default on a loan obligations shall be borne solely by the Loan Account of such
Participant, or Beneficiary. Anything contained herein to the contrary
notwithstanding, in the event of a default, foreclosure on the promissory note
and attainment of security will not occur until a distributable event occurs in
the Plan.
5.4.5 Upon termination of Employment, a Participant who has an
outstanding loan under the Plan will have the option of repaying such loan.
5.4.6 All fees and expenses incurred in connection with a loan
obligation of a Participant, or Beneficiary, shall be borne solely by the Loan
Account of such Participant, or Beneficiary.
5.5 Additional Distribution Events
------------------------------
In addition to the other distribution events set forth in this
Article, a Participant is eligible to receive a lump sum distribution upon the
occurrence of the following events:
(a) termination of the Plan without the establishment of another
defined contribution plan other than an employee stock ownership plan (as
described in Code (S)4975(e) or Code (S)409) or a simplified employee pension
plan as defined in Code (S)408(k);
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(b) disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Code (S)409(d)(2)) used
in a trade or business of such corporation if such corporation continues to
maintain this Plan after the disposition, but only with respect to Employees who
continue employment with the corporation acquiring such assets; or
(c) disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of Code (S)409(d)(3))
if such corporation continues to maintain this Plan, but only with respect to
Employees who continue employment with such subsidiary.
For purposes of this Section 5.5, a lump sum distribution has the
meaning given by Code (S)402(d)(4), without regard to clauses (i), (ii), (iii)
and (iv) of subparagraph (A), Subparagraph (B), or Subparagraph (F) thereof.
In addition, for purposes of subsection (b) and (c), no distributions
shall be made unless the transferror continues to maintain the plan.
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ARTICLE VI
FORM OF PAYMENT
----------------
6.1 ELECTION OF FORM OF BENEFIT
---------------------------
6.1.1 Anything in the Plan to the contrary notwithstanding, a lump
sum payment shall be made without the Participant's consent if his or her
Account Balance has never exceeded $3,500; provided that payment is made prior
to the Benefit Commencement Date.
6.1.2 Not more than 90 nor less than 30 days prior to the
Participant's Benefit Commencement Date, the Administrator shall furnish the
Participant with a notice containing information regarding his or her election
of the form in which benefits are to be paid. Each Participant shall have an
election period before his or her Benefit Commencement Date to elect a form of
benefit. Such election period shall be the 90-day period terminating on the
Participant's Benefit Commencement Date; provided, however, that notwithstanding
the foregoing, no agreement entered into between the Participant and his or her
spouse prior to marriage shall be valid, even if within the applicable election
period.
6.1.3 If a married Participant elects to receive his benefit in a
form other than a joint and survivorship form providing for payments after his
or her death to his or her Surviving Spouse, the election shall not be effective
unless it is a Qualified Election as defined in Section 7.3.
6.1.4 The election period to waive the joint and survivor annuity
will be the 90-day period ending on the Benefit Commencement Date. If, at the
end of the election period, no election is in effect for a Participant, it will
be presumed that he or she elected the 50% Joint and Survivor -Ten Year Certain
Annuity, if at the time of the Distribution Date he has a
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spouse, otherwise a Period Certain Annuity of 120 months. The Participant's
spouse will be the Beneficiary under the 50% Joint and Survivor-Ten Year Certain
Annuity.
Any annuity elected by or in effect for a Participant pursuant to this
Section will be subject to any conditions or restrictions imposed on annuity
distributions.
Upon request of a Participant, but in no event later than (a) a date
which is approximately nine (9) months before the earliest date on which the
Participant could elect to receive a distribution of his Account Balance (other
than due to becoming disabled) or (b) if later, the date the Participant becomes
covered under the Plan, the Administrator will furnish the information necessary
to make the election described above, including a general explanation of the
relative financial effect on the Participant's benefit of his or her election
and a written explanation of the rights of the Participant's spouse.
6.2 BENEFIT FORMS
-------------
6.2.1 Except as otherwise provided herein, a Participant may elect to
have his or her benefit under this Plan payable in either: (a) a lump sum
distribution or (b) a Fixed Dollar Annuity purchased on behalf of the
Participant. A Fixed Dollar Annuity means a series of payments the amount of
which is the same each month and is fixed at the date payments commence.
6.2.2 If a Participant elects to have a Fixed Dollar Annuity
purchased on his behalf, he may select any of the following forms of annuity:
(a) Life Annuity-Ten Year Certain Annuity: The first payment under
this annuity will be made to the Participant on his Distribution Date, or the
date of purchase if later. Subsequent monthly payments will be made to the
Participant each month thereafter throughout his or her remaining lifetime,
terminating with the last monthly payment before his or her death.
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If the Participant's death occurs before 120 monthly payments have been made to
him or her, monthly payments will be continued to his or her Beneficiary until
120 monthly payments in all have been made to the Participant and his or her
Beneficiary;
(b) Joint and Survivor-Ten Year Certain Annuity: The first monthly
payment under this annuity will be made to the Participant on his Distribution
Date, or the date of purchase if later. Subsequent monthly payments will be
made to the Participant each month thereafter throughout his or her remaining
lifetime, terminating with the last monthly payment before the Participant's
death. Following the Participant's death, monthly payments will be continued to
the Participant's Beneficiary. The Beneficiary must be named at the time this
form is selected. The monthly payment payable to the Beneficiary before the
date 120 monthly payments have been made under this annuity form will be equal
to 100% of the monthly payment payable to the Participant. The monthly payment
payable to the Beneficiary thereafter will be equal to 100% or 50% of the
monthly payment payable to the Participant, as specified by the Participant in
his election. If the Participant and the Beneficiary die before 120 monthly
payments have been made to the Participant and Beneficiary, monthly payments
equal to the monthly payment payable to the Participant will be continued to the
Participant's contingent Beneficiary until 120 monthly payments have been made
under this annuity form;
(c) Period Certain Annuity: The first monthly payment under this
annuity will be made to the Participant on his Distribution Date, or the date of
purchase if later. Subsequent monthly payments will be made until the specified
number of monthly payments in all have been made to the Participant or, if his
or her death occurs before he has received the specified number of monthly
payments, to the Participant and his or her Beneficiary. The specified number
of monthly payments may be 60, 120 or 180, as elected by the Participant; and
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(d) Other: Any other alternative form of distribution provided for
by the Funding Agent .
6.2.3 Any annuity form must provide for payment to be made over
(a) the life of the Participant,
(b) the lives of the Participant and his or her spouse if payments
are to be made to the spouse, otherwise his or her Beneficiary,
(c) a period not extending beyond the Participant's life
expectancy, or
(d) a period not extending beyond the life expectancy of the
Participant and his or her spouse if applicable, otherwise his or her
Beneficiary .
A Participant may not elect any form of annuity providing monthly
payments to a Beneficiary who is other than his or her spouse, or to a
Beneficiary who is other than his or her spouse, unless the amount distributed
each year equals or exceeds the quotient obtained by dividing the Participant's
Account Balance by the divisor determined under Department of Treasury
Regulation (S)1.401(a)(9)-2. In no event, however, may the amount of each
monthly payment to a Beneficiary exceed that payable to the Participant.
A Participant may not elect any form of distribution providing only
for the payment of interest on his Account.
6.3 CHANGE IN FORM OR TIMING OF BENEFIT PAYMENT
-------------------------------------------
Any former Employee whose payments are being deferred may request
acceleration or other modification of the form of benefit distribution.
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6.4 CONSENT OF SPOUSE
-----------------
If in the opinion of the Administrator any spouse shall, by reason of
the law of any jurisdiction, appear to have any interest in any benefit that
might become payable to a Participant, the Administrator may, as a condition
precedent to the making of any election or distribution under this Plan, require
such written release or releases, or such other documents, as in its discretion
it shall determine to be necessary, desirable, or appropriate to prevent or
avoid any conflict or multiplicity of claims with respect to payment of any
benefits under the Plan.
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ARTICLE VII
DEATH BENEFITS
---------------
7.1 PAYMENT OF ACCOUNT BALANCES
---------------------------
7.1.1 The benefits payable to the Beneficiary of a Participant who
dies shall be the sum of the Account Balances of his or her Accounts as of the
Valuation Date coincident with or immediately preceding the date of his or her
death, and shall be payable within 90 days of the date the Administrator has
notice of the Participant's death.
7.1.2 Unless the Participant has selected another form of benefit
pursuant to a "Qualified Election" (as defined in Section 7.3) within the
"Election Period" (described in Section 7.1.3) then upon the death of such
Participant before his Distribution Date, 50% of his account will be applied to
purchase an annuity for the life of the Participant's Surviving Spouse, unless
such spouse elects a different form of benefit as provided in item (a)
following. The remaining 50% of the Participant's Accounts will be paid to the
Participant's Beneficiary in the manner described in item (b) following. A
Participant's Surviving Spouse may also be the Beneficiary if the Participant so
elects. If, however, the Participant's Account has never exceeded $3,500, the
Account shall be distributed in a single payment.
(a) If payment is due the Participant's Surviving Spouse, such
spouse may, unless the Participant has elected otherwise, elect to receive a
single payment or any of the forms of annuity described in Section 6.2.2 (except
form (b) Joint and Survivor - Ten Year Certain) subject to the following
conditions:
(1) the annuity form must provide for payment to be made over
the life of the Surviving Spouse (or over a period not exceeding the life
expectancy of the Surviving Spouse), and
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(2) the annuity must commence to the Surviving Spouse no later
than the date on which the Participant would have attained age 70 1/2.
(b) If payment is due a Beneficiary (other than the Surviving
Spouse), such Beneficiary may, unless the Participant has directed otherwise,
elect to receive a single payment or any of the forms of annuity described in
section 6.2.2 (except form (b) Joint and Survivor - Ten Year Certain) subject to
the following conditions:
(1) the annuity form must provide for payment to be made over
the life of the Beneficiary (or over a period not exceeding the life
expectancy of the Beneficiary), and
(2) the annuity must commence to the Beneficiary no later than
one (1) year following the death of the Participant.
Any payment to a Surviving Spouse or Beneficiary will be made within
five (5) years of the Participant's death except as provided in (a) and (b)
above.
7.1.3 The "Election Period" means the period which begins on the
first day of the Plan Year in which the Participant attains age 35 and ends on
the date of the Participant's death. If a Participant terminates his Employment
with the Employer before the first day of the Plan Year in which he attains age
35, the election period will begin on the date of his termination of Employment.
The Administrator will provide each Participant, within the period
beginning on the first day of the Plan Year in which he attains age 32 and
ending with the close of the Plan Year in which he attains age 35, a written
explanation of (a) the 50% preretirement life annuity payable to the
Participant's spouse, (b) the Participant's right to make, and the effect of, an
election to waive the annuity, (c) the rights of the Participant's spouse, and
(d) the right to
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make, and the effect of, a revocation of a previous election to waive the
annuity. If a Participant enters the Plan after the first day of the Plan Year
in which he attained age 32, the Administrator will provide notice no later than
the close of the second Plan Year after his entry into the Plan.
7.2 BENEFICIARIES
-------------
A Participant shall designate one or more Beneficiaries to whom
amounts due after the Participant's death shall be paid. In the event a
Participant fails to make such a designation, or in the event that no designated
Beneficiary survives the Participant, then such amount will be payable to the
estate of the last to die of the Participant or his or her Beneficiary. The
Administrator may, at its option, pay any amount which would otherwise be
payable to the estate of the Participant to any one or jointly to any number of
the following surviving relatives of the Participant who appear to the
Administrator to be equitably entitled to payment because of expenses incurred
in connection with the burial or last illness of the Participant: spouse,
children, parents, brothers and sisters.
If more than one Beneficiary of a Participant is concurrently entitled to
receive annuity payments, or if the monthly annuity payment to any Beneficiary
would be less than $50, or such other amount established from time to time by
the Administrator, then, at the option of the Administrator, the value, as
determined by the Administrator, of such annuity may be paid in a single sum,
but not if such single sum would exceed $3,500.
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<PAGE>
7.3 QUALIFIED ELECTION
------------------
7.3.1 The designation by a married Participant of a Beneficiary other
than the Participant's Surviving Spouse must be in writing and consented to by
the Participant's spouse (as defined below), and the spouse's consent to the
waiver must be witnessed by a notary public or the Administrator. Any
subsequent change of Beneficiary shall also require such spousal consent. In
addition, the distribution of a married Participant's Account prior to his or
her Benefit Commencement Date or in a form other than a joint and survivor
annuity must be consented to by the Participant's spouse in the same manner.
Notwithstanding this consent requirement, if the Par Participant establishes to
the satisfaction of a Plan representative that such written consent may not be
obtained because there is no spouse or the spouse cannot be located, the
election will be deemed effective. In addition, if the spouse is legally
incompetent to give consent, the spouse's legal guardian, even if the guardian
is the Participant, may give consent. Also, if a Participant is legally
separated or has been abandoned (within the meaning of the law of the
Participant's residence) and the Participant has a court order to that effect,
spousal consent is not required unless a qualified domestic relations order
provides otherwise. Any consent necessary under this provision will be valid
only with respect to the spouse who signs the consent, or in the event of a
deemed effective election, the designated spouse. Additionally, a revocation of
a prior waiver may be made by the Participant without the consent of the spouse
at any time before the commencement of benefits. The number of revocations shall
not be limited.
7.3.2 A Participant's spouse shall be the spouse or Surviving Spouse
of the Participant; provided that a former spouse will be treated as the spouse
or Surviving Spouse to the extent provided under a qualified domestic relations
order as described in Code (S) 414(p).
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ARTICLE VII
FIDUCIARIES
------------
8.1 NAMED FIDUCIARIES
-----------------
8.1.1 The Company as Administrator shall be a "named fiduciary" of
the Plan, as that term is defined in ERISA (S) 402(a)(2), with authority to
control and manage the operation and administration of the Plan, including the
authority to manage and control Plan assets in the manner and to the extent set
forth in the Plan. The Administrator shall also be the "administrator" and "plan
administrator" with respect to the Plan, as those terms are defined in ERISA (S)
3(16)(A) and in Code (S) 414(g), respectively.
8.1.2 The Trustee shall be a "named fiduciary" of the Plan, as that
term is defined in ERISA (S) 402(a)(2), with authority to manage and control all
Trust assets, except to the extent such authority is allocated under the Plan to
the Administrator or is delegated to an Investment Manager, an insurance
company, or the Plan Participants at the direction of the Administrator.
8.1.3 The Administrator and the Trustee are the only named
fiduciaries of the Plan.
8.2 EMPLOYMENT OF ADVISERS
----------------------
A named fiduciary, and any fiduciary appointed by a named fiduciary,
may employ one or more persons to render advice with regard to any
responsibility of such named fiduciary or fiduciary under the Plan.
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8.3 MULTIPLE FIDUCIARY CAPACITIES
-----------------------------
Any named fiduciary and any other fiduciary may serve in more than one
fiduciary capacity with respect to the Plan.
8.4 PAYMENT OF EXPENSES
-------------------
All Plan expenses, including expenses of the Administrator, the
Trustee, any Investment Manager and any insurance company, shall be paid by the
Trust Fund; provided, however, that an Employer may elect to pay any portion of
such expenses as it shall determine.
In addition, all or a portion of the recordkeeping costs or charges
imposed or incurred (if any) in the maintenance of the Plan shall be charged on
a per capita basis to the Account of each Participant. In addition, all charges
imposed or incurred (if any) for an Investment Fund or a transfer between
Investment Funds shall be charged to the Account of the Participant directing
such investment.
8.5 INDEMNIFICATION
---------------
To the extent not prohibited by state or Federal law, a Participating
Employer, agrees to, and shall, indemnify and save harmless any named fiduciary
or any other Employee, officer or director of an Employer, from all claims for
liability, loss, or damage (including payment of expenses in connection with
defense against any such claim) which result from any exercise or failure to
exercise any responsibilities with respect to the Plan, other than willful
misconduct or willful failure to act.
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ARTICLE IX
PLAN ADMINISTRATION
--------------------
9.1 POWERS, DUTIES, ETC. OF THE ADMINISTRATOR
-----------------------------------------
9.1.1 The Administrator shall have the full discretion and power to
construe the Plan and to determine all questions of fact or interpretation that
may arise thereunder, and any such construction or determination shall be
conclusively binding upon all persons interested in the Plan.
9.1.2 The Administrator shall have the power to promulgate such rules
and procedures, to maintain or cause to be maintained such records and to issue
such forms as it shall deem necessary and proper for the administration of the
Plan.
9.1.3 Subject to the terms of the Plan, the Administrator shall
determine the time and manner in which all elections authorized by the Plan
shall be made or revoked.
9.1.4 The Administrator shall have all the rights, powers, duties and
obligations granted or imposed upon it elsewhere in the Plan.
9.1.5 The Administrator shall exercise all of its responsibilities in
a uniform and nondiscriminatory manner.
9.2 INVESTMENT POWERS, DUTIES, ETC. OF THE ADMINISTRATOR
----------------------------------------------------
9.2.1 The Administrator shall have the power to make and deal with
any investment of the Trust, except assets, if any, subject to the direction and
control of Plan Participants as described in Section 9.4.2, in any manner
consistent with the Plan which it deems advisable.
9.2.2 The Administrator shall establish and carry out a funding
policy and method consistent with the objectives of the Plan and the
requirements of ERISA.
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9.2.3 The Administrator shall have the power to direct that assets of
the Trust be held in a master trust consisting of assets of plans maintained by
an Employer which are qualified under Code (S) 401(a).
9.2.4 The Administrator shall have the power to select Annuity
Contracts.
9.2.5 The Administrator shall have all the rights, powers, duties and
obligations granted or imposed upon it elsewhere in the Plan.
9.2.6 The Administrator shall exercise all of its responsibilities in
a uniform and nondiscriminatory manner.
9.3 INVESTMENT OF ACCOUNTS
----------------------
9.3.1 The Administrator may establish such different Investment Funds
as it shall from time to time determine for the investment of a Participant's
Accounts, including Investment Funds pursuant to which Accounts can be invested
in "qualifying employer securities" or "qualifying employer real property", as
such terms are defined in Part 4 of Title I of ERISA. Each such Invest
investment Fund shall have such investment objective or objectives as
established by the Administrator. Except to the extent investment responsibility
is expressly reserved in another person, the Administrator, in its sole
discretion, shall determine what percentage of the Plan assets are to be
invested in qualifying employer securities or qualifying employer real property.
The percentage designated by the Administrator can exceed 10% of the Plan's
assets, up to a maximum of 100% of the Plan's assets.
9.3.2 The Administrator may establish different Investment Funds. The
Administrator may, in its sole discretion, permit Participants to determine the
portion of their Accounts that shall be invested in each Investment Fund. The
frequency with which a
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Participant may change his or her investment election concerning future Salary
Reduction Contributions or his or her Account shall be governed by the
applicable Benefit Schedule.
9.4 VALUATION OF ACCOUNTS
---------------------
A Participant's Accounts shall be revalued at fair market value on
each Valuation Date.
On such date, the earnings and losses of the Trust shall be allocated
to each Participant's Accounts in the ratio that such Account Balance bears to
all Account Balances; provided, however, in the event that Investment Funds are
established pursuant to Section 9.3 hereof, the earnings and losses of the
particular Investment Funds shall be allocated in the ratio that the portion of
the Account Balance of a Participant invested in a particular Investment Fund
bears to the total amount invested in such fund. To the extent the rules of any
Investment Fund require a different method of valuation, such rules shall be
followed.
9.5 THE INSURANCE COMPANY
---------------------
The Administrator may appoint one or more insurance companies as
Funding Agents, and may purchase insurance contracts, Annuity Contracts or
policies from one or more insurance companies with assets of the Plan. The
Administrator shall not be liable for any act or omission of an insurance
company with respect to any duties delegated to any insurance company.
9.6 THE INVESTMENT MANAGER
----------------------
9.6.1 The Administrator may, by an instrument in writing, appoint one
or more persons as an Investment Manager and may, subject to any restrictions
upon investment imposed upon the Administrator in respect of investments by
ERISA or by any Treasury Department Regulation relating to the qualified status
of the Trust as tax exempt, delegate to an Investment
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Manager from time to time the power to manage and control, or to direct the
Administrator to manage and control, the investment of any Plan asset. Each
person so appointed shall be (i) an in vestment adviser registered under the
Investment Advisers Act of 1940; (ii) a bank as defined in that Act; or (iii) an
insurance company qualified to manage, acquire or dispose of any asset of the
Plan under the laws of more than one state.
9.6.2 Each Investment Manager shall acknowledge in writing that it is
a fiduciary with respect to the Plan. The Administrator shall enter into an
agreement with each Investment Manager specifying the duties and compensation of
such Investment Manager and the other terms and conditions under which such
Investment Manager shall be retained. The Administrator shall not be liable for
any act or omission of any Investment Manager, and shall not be liable for
following the advice of any Investment Manager, with respect to any duties
delegated to any Investment Manager.
9.6.3 The Administrator shall have the power to determine the Trust
assets to be invested pursuant to the direction of a designated Investment
Manager and to set investment objectives and guidelines for the Investment
Manager.
9.7 COMPENSATION
------------
Each insurance company, Investment Manager, and Trustee shall be paid
such reasonable compensation, in addition to their expenses, as shall from time
to time be agreed upon by the Board of Directors, as the case may be, and each
insurance company, Investment Manager, or Trustee; provided, however, that no
such compensation shall be paid to any person who is an Employee.
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9.8 DELEGATION OF RESPONSIBILITY
----------------------------
The Administrator may designate persons, including persons other than
named fiduciaries, to carry out the specified responsibilities of the
Administrator and shall not be liable for any act or omission of a person so
designated.
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ARTICLE X
APPOINTMENT OF TRUSTEE
----------------------
10.1 TRUSTEE
-------
10.1.1 The Trustee shall be appointed by the Board of Directors and
may be removed by the Board of Directors. The Trustee shall accept its
appointment by executing the Trust Agreement.
10.1.2 A Trustee shall be subject to direction by the Administrator
or an Investment Manager or any other Funding Agent or shall have such
discretion with respect to management and control of Plan assets as specified by
the Administrator. Neither the Administrator or any other Plan fiduciary shall
be liable for any act or omission of any Trustee with respect to any duties
delegated to any Trustee.
10.1.3 A Trustee who is also a Participant shall not vote or act
upon any matter relating to himself or herself.
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ARTICLE XI
PLAN AMENDMENT OR TERMINATION
-----------------------------
11.1 PLAN AMENDMENT OR TERMINATION
-----------------------------
The Company may amend, modify or terminate this Plan at any time by
resolution of its Board of Directors or by resolution of or other action
recorded in the minutes of the Administrator or its administration subcommittee.
The execution and delivery by the Chairman of the Board of Directors, the
President, or any Vice President of the Company of an amendment to the Plan,
shall be conclusive evidence of such amendment, modification or termination. No
such amendment shall have any of the effects specified in Sections 11.2.1 -
11.2.3.
11.2 LIMITATIONS ON PLAN AMENDMENT
-----------------------------
No Plan amendment shall:
11.2.1 authorize any part of the Trust Fund to be used for, or
diverted to, purposes other than for the exclusive benefit of Participants or
their Beneficiaries;
11.2.2 decrease the accrued benefits of any Participant or his or her
Beneficiary under the Plan; or
11.2.3 eliminate or reduce an early retirement benefit or retirement-
type subsidy (as defined in Code (S) 411) or an optional form of benefit with
respect to service prior to such amendment, except to the extent permitted by
law.
11.3 RIGHT TO TERMINATE PLAN OR DISCONTINUE CONTRIBUTIONS
----------------------------------------------------
The Participating Employers have the bona fide intention and
---- ----
expectation that from year to year it will be able to and will deem it advisable
to continue this Plan in effect and to make contributions as herein provided.
However, the Company reserves the right to
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terminate the Plan with respect to its Employees at any time in the manner set
forth in Section 11.1. In addition, each Participating Employer reserves the
right to completely discontinue its contributions to the Plan at anytime.
11.1 BANKRUPTCY
----------
In the event the Company shall at any time be judicially declared
bankrupt or insolvent without any provisions being made for the continuation of
this Plan, the Plan shall, to the extent permissible under federal bankruptcy
law, be completely terminated in accordance with Section 11.3.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
------------------------
12.1 EXCLUSIVE BENEFIT OF PARTICIPANTS
---------------------------------
Notwithstanding anything in the Plan to the contrary, it shall be
prohibited at any time for any part of the Trust Fund (other than such part as
is required to pay expenses) to be used for, or diverted to, purposes other than
for the exclusive benefit of Participants or their Beneficiaries, except that,
upon the direction of the Administrator:
12.1.1 any contribution made by a Participating Employer by a mistake
of fact shall be returned within one (1) year after the payment of the
contribution;
12.1.2 any contribution made by a Participating Employer that was
conditioned upon its deductibility shall be returned to the extent disallowed as
a deduction under Code (S) 404 within one (1) year after the disallowance of the
deduction; and
12.1.3 any contribution that was initially conditioned upon the
Plan's satisfying the requirements of Code (S) 401(a).
With respect to Sections 12.1.1 and 12.1.2, the amounts recovered
shall be reduced by the amount of any losses attributable thereto, but shall not
be increased by the amount of any earnings attributable thereto.
12.2 PLAN NOT A CONTRACT OF EMPLOYMENT
---------------------------------
The Plan is not a contract of Employment, and the terms of Employment
of any Employee shall not be affected in any way by the Plan or related
instruments except as specifically provided therein.
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12.3 SOURCE OF BENEFITS
------------------
Benefits under the Plan shall be paid or provided for solely from the
Trust as applicable insurance or Annuity Contracts, and Participating Employers
assume no liability therefor.
12.4 BENEFITS NOT ASSIGNABLE
-----------------------
12.4.1 Benefits provided under the Plan may not, to the extent
permissible by law; be assigned or alienated either voluntarily or
involuntarily, but nothing contained herein shall preclude a Participant's
pledging his or her Salary Reduction Account as security for a loan under
Section 5.6. The preceding shall also apply to the creation, assignment, or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to be a
qualified domestic relations order, as defined in Code (S) 414(p), or any
domestic relations order entered before January 1, 1985.
12.4.2 Any other provision of the Plan to the contrary
notwithstanding, the Funding Agent shall have all powers necessary with respect
to the Plan for the proper operation of Code (S) 414(p) with respect to
"qualified domestic relations orders" (or "domestic relations orders" treated as
such) referred to in subsection 12.4.1.
12.5 CLAIMS PROCEDURE
----------------
The Administrator shall establish a claims procedure.
12.6 INCOME TAX WITHHOLDING
----------------------
The Administrator may direct that such amounts be withheld from any
payment due under this Plan as required to conform with applicable income tax
law.
-54-
<PAGE>
12.7 BENEFITS PAYABLE TO MINORS, INCOMPETENTS AND OTHERS
---------------------------------------------------
In the event any benefit is payable to a minor or an incompetent or to
a person otherwise under a legal disability, or who, in the sole discretion of
the Administrator, is by reason of advanced age, illness, or other physical or
mental incapacity incapable of handling and disposing of his or her property, or
otherwise is in such position or condition that the Administrator believes that
he or she could not utilize the benefit for his or her support or welfare, the
Administrator shall have discretion to apply the whole or any part of such
benefit directly to the care, comfort, maintenance, support, education, or use
of such person, or pay the whole or any part of such benefit to the parent of
such person, the guardian, committee, conservator, or other legal
representative, wherever appointed, of such person, the person with whom such
person is residing, or to any other person having the care and control of such
person. The receipt by any such person to whom any such payment on behalf of
any Participant or Beneficiary is made shall be a sufficient discharge therefor.
12.8 MERGER OR TRANSFER OF ASSETS
----------------------------
12.8.1 The merger or consolidation of a Participating Employer with
any other person, or the transfer of the assets of a Participating Employer to
any other person, or the merger of the Plan with any other plan shall not
constitute a termination of the Plan.
12.8.2 The Plan may not merge or consolidate with, or transfer any
assets or liabilities to, any other plan, unless each Participant would (if the
Plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he or
she would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had then terminated).
-55-
<PAGE>
12.9 PARTICIPATION IN THE PLAN BY AN AFFILIATE
-----------------------------------------
12.9.1 With the consent of the Board of Directors, any Affiliate, by
appropriate action of its board of directors, a general partner or the sole
proprietor, as the case may be, may adopt the Plan. Such Affiliate shall
determine the classes of its Employees who are included in a bargaining unit
covered by a collective bargaining agreement who shall be Eligible Employees and
the amount of its contribution to the Plan on behalf of such Employees.
12.9.2 With the consent of the Board of Directors, a Participating
Employer, by appropriate action, may terminate its participation in the Plan.
12.9.3 With the consent of the Board of Directors, a Participating
Employer, by appropriate action, may withdraw from the Plan and the Trust. Such
withdrawal shall be deemed an adoption by such Participating Employer of a plan
and trust identical to the Plan and the Trust, except that all references to the
Company shall be deemed to refer to such Participating Employer. At such time
and in such manner as the Administrator directs, the assets of the Trust
allocable to Employees of such Participating Employer shall be transferred to
the trust deemed adopted by such Participating Employer.
12.9.4 A Participating Employer shall have no power with respect to
the Plan except as specifically provided herein.
12.10 CONTROLLING LAW
---------------
The Plan is intended to qualify under Code (S) 401(a) and to comply
with ERISA, and its terms shall be interpreted accordingly. If any Plan
provision is subject to more than one construction, the ambiguity will be
resolved in favor of that interpretation or construction which is consistent
with that intent. Similarly, the event of any conflict between any provisions
of the Plan or between any Plan provision and Beneficiary designation form or
other form submitted
-56-
<PAGE>
to the Administrator, the Plan provisions necessary to retain qualified status
under Code (S) 401(a) shall govern. Otherwise, to the extent not preempted by
ERISA or as expressly provided herein, the laws of the State of Illinois shall
control the interpretation and performance of the terms of the Plan (other than
its conflict of laws provisions).
12.11 ACTION BY PARTICIPATING EMPLOYERS
---------------------------------
Any action required by the Company or any other Participating Employer
pursuant to any of the provisions of this Plan shall, if required by the
Company, be evidenced in the manner set forth in Section 11.1, and, if required
by a Participating Employer be evidenced by a resolution of its board of
directors (or an authorized committee of such board) certified by its secretary
or assistant secretary under its corporate seal, or by written instrument
executed by any person or persons, authorized by its board of directors (or any
authorized committee of such board) or stockholders to take such action. A copy
of such written instrument shall be delivered to the secretary or assistant
secretary of the of the Company or Participating Employer, as the case may be.
12.12 DIVIDENDS
---------
Any dividends credited to a group Annuity Contract between the
Employer and the Funding Agent will be used to provide additional benefits under
the Plan.
-57-
<PAGE>
ARTICLE XII
DIRECT ROLLOVERS
----------------
13.1 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS
--------------------------------------------------
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Article, a Distributee may
elect, at the time and in the manner prescribed by the Administrator, to have
any portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover.
IN WITNESS WHEREOF, FMC CORPORATION has caused this Plan to be adopted
effective as of January 1, 1989, except as otherwise expressly provided for
hereunder.
FMC CORPORATION
By: /s/ P. J. Head
------------------------------------
-58-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 1
UDLP, ARMAMENT SYSTEMS DIVISION
MINNEAPOLIS, MINNESOTA
----------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the UDLP, Armament Systems
--------------------
Division, Minneapolis, Minnesota who are covered by the collective bargaining
agreement between a Participating Employer and the United Auto Workers, Local
683.
2. Effective Date: April 1, 1987.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: Eligible Employees under this Benefit Schedule
will be eligible to participant in the Plan upon completing one Year
of Service.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during a Plan
Year.
4.3 SECTION 5.3.2: Effective April 1, 1988, a Participant under this
Benefit Schedule may elect to receive a Hardship Distribution pursuant
to the terms of Section 5.3.2.
4.4 SECTION 5.4: Effective August 1, 1988, a Participant under this
Benefit Schedule may elect to receive a loan pursuant to the terms of
Section 5.4. The interest rate for a loan to a Participant covered by
this Benefit Schedule shall be a reasonable rate of interest. There
is no minimum loan amount for loans under this Benefit Schedule.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-1-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions once during each
calendar quarter.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-2-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 2
PHOSPHORUS CHEMICALS DIVISION
CARTERET, NEW JERSEY
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Phosphorus Chemicals Division,
--------------------
Carteret, New Jersey who are covered by the collective bargaining agreement
between a Participating Employer and the International Chemical Workers Union,
Local 144.
2. Effective Date: August 1, 1987.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will Eligible Employees and will participate in the Plan subject
to the terms and conditions stated in the Plan except as provided in paragraph
4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election once each month.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-3-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions once during each
month.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-4-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 3
PHOSPHORUS CHEMICALS DIVISION
POCATELLO, IDAHO
----------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Phosphorus Chemicals Division,
--------------------
Pocatelo, Idaho who are covered by the collective bargaining agreement between a
Participating Employer and the International Association of Machinists, Local
1933.
2. Effective Date: May 1, 1988.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon completing one Year
of Service.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during a Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution under Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current interest rate on the Guaranteed Interest
Account plus 2%. The minimum loan amount for loans under this Benefit
Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-5-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions once during a calendar
quarter.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-6-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 4
ALKALI CHEMICAL DIVISION
GREEN RIVER, WYOMING
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Alkali Chemical Division,
--------------------
Green River, Wyoming who are covered by the collective bargaining agreement
between a Participating Employer and the United Steel Workers, Local 33-13214.
2. Effective Date: August 1, 1988.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon his or her employment
as an Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during a Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current Prime Interest Rate plus 1%. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-7-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions quarterly.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-8-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 5
PHOSPHORUS CHEMICALS DIVISION
NITRO, WEST VIRGINIA
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Phosphorus Chemical Division,
--------------------
Nitro, West Virginia who are covered by the collective bargaining agreement
between a Participating Employer and the United Steel Workers, Local 23-12757.
2. Effective Date: September 1, 1988.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon his or her employment
as an Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election once during a Plan Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-9-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.1 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions once during a calendar
quarter.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-10-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 6
PHOSPHORUS CHEMICAL DIVISION
NEWARK, CALIFORNIA
------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Phosphorus Chemical Division,
--------------------
Newark, California who are covered by the collective bargaining agreement
between a Participating Employer and the International Chemical Workers Union,
Local 62.
2. Effective Date: August 1, 1988.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon completion of 90 days
of employment, provided the Eligible Employee has also completed his
or her probationary period.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-11-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as of any April 1st.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-12-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 7
PHARMACEUTICAL DIVISION
NEWARK, DELAWARE
----------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Pharmaceutical Division,
--------------------
Newark, Delaware who are covered by the collective bargaining agreement between
a Participating Employer and the United Steel Workers, Local 7-13028.
2. Effective Date: August 1, 1989
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 Section 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current Prime Interest Rate plus 1%. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-13-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as frequently as he or
she desires.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-14-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 8
PEROXYGEN CHEMICALS DIVISION
BUFFALO, NEW YORK
-----------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Peroxygen Chemicals Division,
--------------------
Buffalo, New York who are covered by the collective bargaining agreement between
a Participating Employer and the International Chemical Workers Union, Local 76.
2. Effective Date: February 1, 1989
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 Section 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the Prime Interest Rate plus 1%. The minimum loan
amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
(a) Money Market Fund,
-15-
<PAGE>
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as frequently as he or
she desires.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Tranfers must in increments of 25% of Account Value; and
. Only once each year, on April 1.
To FMC Common Stock:
--
. Only once each year, on April 1; and
. Maximum 20% of Account Balance in any calendar year.
-16-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 9
PEROXYGEN CHEMICALS DIVISION STEAM PLANT,
SOUTH CHARLESTON, WEST VIRGINIA
-------------------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Peroxygen Chemicals Division,
--------------------
Steam Plant, South Charleston, West Virginia who are covered by the collective
bargaining agreement between a Participating Employer and the United Steel
Workers, Local 23-12625.
2. Effective Date: July 1, 1989.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current interest rate on the Guaranteed Interest
Account plus 2%. The minimum loan amount for loans under this Benefit
Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-17-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as of each April 1st.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, only upon attaining 55 years of age. In
addition, transfers between any fund are permitted only once each
calendar year, as of April 1. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Tranfers must in increments of 25% of Account Value.
To FMC Common Stock:
--
. Maximum 20% of Account Balance in any calendar year.
-18-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 10
AGRICULTURAL CHEMICAL DIVISION
MIDDLEPORT, NEW YORK
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Agricultural Chemical
--------------------
Division, Middleport, New York who are covered by the collective bargaining
agreement between a Participating Employer and the International Association of
Machinists, Local 1180.
2. Effective Date: August 1, 1989.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon the completion of 90
days of employment, provided the Eligible Employee has completed his
or her probationary period.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election four times during any
Plan Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may not
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current interest rate on the Guaranteed Interest
Account plus 2%. The minimum loan amount for loans under this Benefit
Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
(a) Money Market Fund,
-19-
<PAGE>
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions four times during any
Plan Year.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, four
times during any Plan Year. With respect to the FMC Common Stock
Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Tranfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. Only once each year, on December 31; and
. Maximum 20% of Account Balance in any calendar year.
-20-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 11
PACKAGING SYSTEMS DIVISION
GREEN BAY, WISCONSIN
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Packaging Systems Division,
--------------------
Green Bay, Wisconsin who are covered by the collective bargaining agreement
between a Participating Employer and the United Steel Workers, Local 32-6050.
2. Effective Date: October 1, 1989.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2; provided, however, that such a distribution will be
available only for an immediate and heavy financial need as defined in
Section 5.3.2(a)(ii) or (iv).
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-21-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions each March.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, only upon attaining 56 years of age. In
addition, transfers between any fund can only take place during
the month of March. With respect to the FMC Common Stock Fund,
the transfer restrictions are as follows:
From FMC Common Stock:
----
. Tranfers must in increments of 25% of Account Value.
To FMC Common Stock:
--
. Maximum 20% of Account Balance in any calendar year.
-22-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 12
AGRICULTURAL CHEMICALS DIVISION
LAWRENCE, KANSAS
----------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Agricultural Chemicals
--------------------
Division, Lawrence, Kansas who are covered by the collective bargaining
agreement between a Participating Employer and the International Chemical
Workers Union, Local 605.
2. Effective Date: January 1, 1990.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon the completion of 60
days of employment, provided the Eligible Employee has completed his
or her probationary period.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election as of the start of any
payroll period.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be the current interest rate on the Guaranteed Interest
Account plus 2%. The minimum loan amount for loans under this Benefit
Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
(a) Money Market Fund,
-23-
<PAGE>
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as frequently as he or
she desires.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-24-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 13
AGRICULTURAL CHEMICAL GROUP
BALTIMORE, MARYLAND
-------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Agricultural Chemical Group,
--------------------
Baltimore, Maryland who are covered by the collective bargaining agreement
between a Participating Employer and the United Steel Workers, Local 8-12517.
2. Effective Date: January 1, 1990.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon the completion of 45
days of employment, provided the Eligible Employee has completed his
or her probationary period.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during any Plan
Year.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-25-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions twice during any Plan
Year.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, twice
during any Plan Year. With respect to the FMC Common Stock Fund,
the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-26-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 14
SKULL POINT MINE
KEMMERER, WYOMING
-----------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Skull Point Mine, Kemmerer,
--------------------
Wyoming who are covered by the collective bargaining agreement between a
Participating Employer and the United Mine Workers, Locals 1316 and 2386.
2. Effective Date: August 1, 1990.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election once in any six month
period.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $2,500.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-27-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as frequently as he or
she desires.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-28-
<PAGE>
FMC Corporation 401(k) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 15
JETWAY SYSTEMS
OGDEN, UTAH
-----------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the Jetway Systems, Ogden, Utah
--------------------
who are covered by the collective bargaining agreement between a Participating
Employer and the United Steel Workers, Local 6162.
2. Effective Date: January 1, 1995.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan except as provided in
paragraph 4.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: An Eligible Employee under this Benefit Schedule
will be eligible to participant in the Plan upon employment as an
Eligible Employee.
4.2 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election quarterly.
4.3 SECTION 5.3.2: A Participant under this Benefit Schedule may
elect to receive a Hardship Distribution pursuant to the provisions of
Section 5.3.2.
4.4 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the provisions of Section 5.4. The
interest rate for a loan to a Participant covered by this Benefit
Schedule shall be commensurate with prevailing market rates. The
minimum loan amount for loans under this Benefit Schedule is $1,000.
4.5 SECTION 9.3.2:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds, selected
from the Prudential Institutional Fund:
-29-
<PAGE>
(a) Money Market Fund,
(b) Income Fund,
(c) Balanced Fund,
(d) Active Balanced Fund,
(e) Stock Index Fund,
(f) Growth Stock Fund, and
(g) International Stock Fund.
In addition, Participants may invest in the FMC Common Stock
Fund, up to a maximum of 25% of their elected Salary Reduction Contributions.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary Reduction Contributions as frequently as he or
she desires.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds, except for the FMC Common Stock Fund, as
frequently as he or she desires. With respect to the FMC Common
Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
----
. Must be at least age 55;
. Transfers must be in increments of 25% of Account Value; and
. Only once each year, on December 31.
To FMC Common Stock:
--
. At any time; and
. Maximum 20% of Account Balance in any calendar year.
-30-
<PAGE>
FMC Corporation 401(K) Plan for Employees Covered By
A Collective Bargaining Agreement
BENEFIT SCHEDULE No. 16
UDLP, ARMAMENT SYSTEMS DIVISION
LOUISVILLE, KENTUCKY
--------------------
Pursuant to Article I, this Benefit Schedule is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Benefit
Schedule.
1. Participants Covered: Employees at the UDLP, Armament Systems
--------------------
Division, Louisville, Kentucky who are covered by the collective bargaining
agreement with a Participating Employer that provides for coverage by this Plan.
2. Effective Date: September 1, 1996.
--------------
3. Eligible Employees: As of the Effective Date, the Employees described
------------------
in Paragraph 1 will be Eligible Employees and will participate in the Plan
subject to the terms and conditions stated in the Plan.
4. Special Provisions:
------------------
4.1 SECTION 2.1.2: Eligible Employees under this Benefit Schedule will
be eligible to participate in the Plan upon employment as an Eligible
Employee.
4.2 SECTION 3.1.2: The amount elected by a Participant pursuant to a
Salary Reduction election cannot be less than 2% or greater than 20%
(in 1% increments) of the Participant's Compensation.
4.3 SECTION 3.1.3: A Participant under this Benefit Schedule may
change his or her Participant 401(k) Election twice during a Plan
Year.
4.4 SECTION 5.3.2: A Participant under this Benefit Schedule may elect
to receive a Hardship Distribution pursuant to the terms of Section
5.3.2.
4.5 SECTION 5.4: A Participant under this Benefit Schedule may elect
to receive a loan pursuant to the terms of Section 5.4. The interest
rate for a loan to a Participant covered by this Benefit Schedule
shall be the Fixed Income Fund rate or other reasonable rate of
interest. The minimum loan amount for loans under this Benefit
Schedule is $1,000.
<PAGE>
4.5 SECTION 9.3.2.:
4.5.1 Establishment of Investment Funds: The Administrator has
---------------------------------
established the following different Investment Funds for
Participants to determine the portion of their Accounts that
shall be invested from the following Investment Funds (in 25%
increments):
(a) Equity Fund
(b) Fixed Income Fund, and
(c) FMC Stock Fund
In addition, Participants may invest in the Harsco Common Stock
Fund until their investment in that fund (excluding Harsco stock
transferred into this Plan from a prior plan) exceeds 10% of
their total Account Balances.
4.5.2 Investment Election Changes: A Participant under this
---------------------------
Benefit Schedule may elect to change the investment of his or her
Participant Salary reduction Contributions as of any April 1st.
4.5.3 Transfer Between Funds: A Participant under this Benefit
----------------------
Schedule may transfer his or her Account Balance between
Investment Funds only upon attaining 55 years of age. In
addition, transfers between any funds are permitted only once
each calendar year, as of April 1, in multiples of 20%.
5. After-Tax Contributions: A Participant who has no currently effective
-----------------------
election of Salary Reduction Contributions or who has a currently
effective election of less than 20% of his Compensation may elect to
make after-tax "Special Contributions," at a rate, in whole
percentages of his Compensation, of up to a percentage that when
aggregated with the rate of his Salary Reduction Contributions will
equal 20% of his Compensation. A Participant may discontinue or
withdraw all or part of his Special Contributions at any time, but his
right to make future Special Contributions will be suspended for six
(6) months. A Participant may also change the rate of Special
Contributions at any time, but not more than twice during a Plan Year,
unless the Employer consents. A Participant's Special Contributions
shall be invested in the same manner as any current Salary Reduction
Contributions. If the Participant is not making any Salary Reduction
Contributions, he may elect to invest his Special Contributions in any
manner that he could have elected to invest Salary Reduction
Contributions.
<PAGE>
EXHIBIT 4.11
AMENDMENT
TO THE
UDLP 401(K) PLAN FOR EMPLOYEES
COVERED BY A COLLECTIVE BARGAINING AGREEMENT
WHEREAS, United Defense, L.P. (the "Company") sponsors and maintains
the UDLP 401(k) Plan for Employees Covered by a Collective Bargaining Agreement
(the "Plan") for the benefit of its employees; and
WHEREAS, the Company deems it desirable to amend the Plan.
NOW, THEREFORE, pursuant to the power of amendment contained in
Section 11.1 of the Plan, the Company hereby amends the Plan, effective the 7th
day of July, 1997, by amending the Plan in the following particulars:
1. By adding the following phrase at the end of Section 5.4.1 of the
Plan:
"provided, that such consent shall not be required with respect
to a loan by a Participant who becomes a Participant after the effective
date of this amendment.
2. By adding the following as a new Section 6.1.5:
"The provisions of Section 6.1.3 and 6.1.4 shall apply only for
Participants who are Participants on or before the effective date of this
amendment."
* * *
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of the effective date herein.
UNITED DEFENSE, L.P.
/s/ Michael J. Callahan
-----------------------------------------------
By: Michael J. Callahan
-------------------------------------------
Title: Chairman, FMC Corporation
----------------------------------------
Employee Welfare Benefits Plan Committee
2
<PAGE>
EXHIBIT 5
Charlotte M. Smith
Assistant Secretary and Associate General Counsel
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
September 30, 1997
FMC Corporation
200 E. Randolph Drive
Chicago, IL 60601
Ladies and Gentlemen:
Referring to the Registration Statement on Form S-8 being filed by FMC
Corporation (the "Company") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to the registration of shares
issuable under the United Defense Limited Partnership Salaried Employees' Plan,
the United Defense Limited Partnership York Plan and the United Defense Limited
Partnership 401(k) Plan for Employees Covered by a Collective Bargaining
Agreement (the "Plans"), I am of the opinion that:
1. The Company is a validly organized and existing corporation under the laws
of the State of Delaware.
2. All necessary corporate action has been duly taken to authorize the
establishment of the Plans.
3. The Plans have been validly created, and the interests of the participants
therein are and will be valid and subsisting in accordance with the terms
of the Plans.
4. Upon delivery of shares of Common Stock of the Company to participants in
the Plans in accordance with, and pursuant to the terms of, the Plans, such
shares will be legally issued, fully paid and nonassessable shares of the
Common Stock of the Company.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission in connection with the filing of the Registration Statement referred
to above.
Very truly yours,
/s/Charlotte M. Smith
CMS:bn
<PAGE>
[LETTERHEAD OF KMPG PEAT MARWICK LLP APPEARS HERE]
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
FMC Corporation:
We consent to the use of our report dated January 17, 1997, incorporated herein
by reference, with respect to the consolidated financial statements of FMC
Corporation and consolidated subsidiaries as of December 31, 1996 and 1995 and
for each of the years in the three-year period ended December 31, 1996 which
report is incorporated by reference in the December 31, 1996 annual report on
Form 10-K of FMC Corporation.
KPMG Peat Marwick LLP
Chicago, Illinois
September 25, 1997
<PAGE>
FMC CORPORATION EXHIBIT 24
Executive Offices
200 East Randolph Drive
Chicago Illinois 60601
312 861 6000
[LOGO OF FMC]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred to
as the "Company"), proposes to file with the Securities and Exchange Commission
a Registration Statement on Form S-8 and amendments thereto under the Securities
Act of 1933, as amended, with respect to shares of common stock of the Company
which may be issued pursuant to the United Defense Limited Partnership Salaried
Employees' Plan and/or the United Defense Limited Partnership York Plan; and
WHEREAS, the undersigned holds and may hereafter from time to time hold one
or more positions in the Corporation whether as an Officer, a Director, or both,
such that the undersigned may be required or permitted in such capacity or
capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints M.J.
Callahan, R.D. Mambu and R.L. Day, or any of them, his attorney for him and in
his name, place and stead, and in each of his offices and capacities in the
Company as may now or hereafter exist, to sign and file said Registration
Statement and any and all amendments, schedules and exhibits thereto, hereby
giving and granting to said attorneys full power and authority to do and perform
all and every act and thing whatsoever requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
if personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of February, 1996.
/s/ Robert N. Burt
-------------------------
Robert N. Burt
/s/ Jean A. Francois-Poncet
-------------------------
Jean A. Francois-Poncet
/s/ Clayton Yeutter
-------------------------
Clayton Yeutter
/s/ William F. Reilly
-------------------------
William F. Reilly
/s/ Patricia A. Buffler
-------------------------
Patricia A. Buffler
/s/ Edward C. Meyer
-------------------------
Edward C. Meyer
/s/ Albert J. Costello
-------------------------
Albert J. Costello
/s/ B.A Bridgewater, Jr.
-------------------------
B.A Bridgewater, Jr.
/s/ Larry D. Brady
-------------------------
Larry D. Brady
/s/ Pehr Gyllenhammar
-------------------------
Pehr Gyllenhammar
/s/ James R. Thompson
-------------------------
James R. Thompson
