<PAGE>
As filed with the Securities and Exchange Commission on September 1, 1998
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)
FMC CORPORATION 401(K) PLAN FOR EMPLOYEES COVERED BY A COLLECTIVE BARGAINING
AGREEMENT
(Full title of the plan)
Steven H. Shapiro
Associate General Counsel and Assistant Secretary
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 35,000 (2) $54.15625 $1,895,469 $559.16
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 August 28, 1998.
(2) Pursuant to Rule 416, this Registration Statement shall also be deemed to
cover any additional shares offered under the Plan 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 an indeterminate amount of interests in
the Plan 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, 1997.
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, 1997.
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.
- 2 -
<PAGE>
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
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.
Registrant undertakes to submit the plan and any amendment thereto to
the Internal Revenue Service ("IRS"), in a timely manner and will make all
changes required by the IRS in order to qualify the plan.
- 3 -
<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.
- 4 -
<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 31st day of August, 1998.
FMC CORPORATION
By: /s/ Michael J. Callahan
-------------------------------------
Michael J. Callahan
Executive Vice President-Finance and
Chief Financial Officer
(Principal Financial Officer)
- 5 -
<PAGE>
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael J. Callahan, Ronald D.
Mambu and J. Paul McGrath, and each or any of them, as his or her true and
lawful attorney-in-fact and agent, with full power of substitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign
any or all amendments or post-effective amendments to this Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents and each of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact or
agent, or his substitute may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------- -----
<S> <C>
/s/ Robert N. Burt Chairman of the Board, Chief
- ------------------------ Executive Officer and Director
ROBERT N. BURT (Principal Executive Officer) August 31, 1998
/s/ Larry D. Brady President and Director August 31, 1998
- ------------------------
LARRY D. BRADY
/s/ Michael J. Callahan Executive Vice President and Chief
- ------------------------ Financial Officer (Principal
MICHAEL J. CALLAHAN Financial Officer) August 31, 1998
/s/ Ronald D. Mambu Vice President and Controller
- ------------------------ (Principal Accounting Officer) August 31, 1998
RONALD D. MAMBU
/s/ B.A. Bridgewater, Jr. Director
- ------------------------ August 31, 1998
B.A. BRIDGEWATER, JR.
/s/ Patricia A. Buffler Director August 31, 1998
- ------------------------
PATRICIA A. BUFFLER
/s/ Albert J. Costello Director August 31, 1998
- ------------------------
ALBERT J. COSTELLO
/s/ Paul L. Davies, Jr. Director August 31, 1998
- ------------------------
PAUL L. DAVIES, JR.
/s/ Jean A. Francois-Poncet Director August 31, 1998
- ------------------------
JEAN A. FRANCOIS-PONCET
/s/ Edward C. Meyer Director August 31, 1998
- ------------------------
EDWARD C. MEYER
/s/ E.J. Mooney Director August 31, 1998
- ------------------------
E.J. MOONEY
/s/ William F. Reilly Director August 31, 1998
- ------------------------
WILLIAM F. REILLY
/s/ James R. Thompson Director August 31, 1998
- ------------------------
JAMES R. THOMPSON
/s/ Clayton Yeutter Director August 31, 1998
- ------------------------
CLAYTON YEUTTER
</TABLE>
- 6 -
<PAGE>
The Plan. Pursuant to the requirement of the Securities Act of 1933,
the Plan Administrator for the Plan has caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Chicago, State of Illinois, on September 1, 1998.
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
By: /s/ Michael J. Callahan
-----------------------------------------
Michael J. Callahan
Plan Administrative Committee
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
-7-
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
No.
- ------- ----------------------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated by
reference from Exhibit 4.1 to the Form S-3 filed on July 21, 1998)
4.2 Restated By-Laws of the Company, amended as of February 20, 1998,
(incorporated by reference from Exhibit 3.3 to the Form 10-K filed
March 18, 1998)
4.3 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)
4.4 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)
4.5 FMC Corporation 401(k) Plan for Employees Covered by a Collective
Bargaining Agreement
5 Opinion of Steven H. Shapiro on the legality of the Common Shares
5.1 Opinion of Kirkland & Ellis
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Kirkland & Ellis (contained in their opinion field as Item
5.1)
</TABLE>
- 8 -
<PAGE>
EXHIBIT 4.5
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).
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I - DEFINITIONS.......................................... 1
ACCOUNT..................................................... 1
ACCOUNT BALANCE............................................. 1
ADMINISTRATOR............................................... 1
AFFILIATE................................................... 1
ANNUITY CONTRACT............................................ 1
BENEFICIARY................................................. 1
BENEFIT COMMENCEMENT DATE................................... 1
BENEFIT SCHEDULE............................................ 1
BOARD OF DIRECTORS.......................................... 1
BREAK IN SERVICE............................................ 2
CODE........................................................ 2
COMPANY..................................................... 2
COMPENSATION................................................ 2
DIRECT ROLLOVER............................................. 2
DISABLED.................................................... 2
DISTRIBUTEE................................................. 3
DISTRIBUTION DATE........................................... 3
EARLY RETIREMENT DATE....................................... 3
EFFECTIVE DATE.............................................. 3
ELIGIBLE EMPLOYEE........................................... 3
ELIGIBLE RETIREMENT PLAN.................................... 3
ELIGIBLE ROLLOVER DISTRIBUTION.............................. 3
EMPLOYEE.................................................... 3
EMPLOYER.................................................... 3
EMPLOYMENT.................................................. 3
ERISA....................................................... 3
FAMILY MEMBER............................................... 3
FUNDING AGENT............................................... 3
HIGHLY COMPENSATED EMPLOYEE................................. 4
INVESTMENT FUND............................................. 5
INVESTMENT MANAGER.......................................... 5
NON-HIGHLY COMPENSATED EMPLOYEE............................. 5
NORMAL RETIREMENT AGE....................................... 5
NORMAL RETIREMENT DATE...................................... 5
PARTICIPANT................................................. 5
PARTICIPATING EMPLOYER...................................... 5
PERIOD OF SERVICE........................................... 5
PERIOD OF SEVERANCE......................................... 6
PLAN........................................................ 6
PLAN YEAR................................................... 6
POSTPONED RETIREMENT DATE................................... 6
ROLLOVER CONTRIBUTION....................................... 6
ROLLOVER CONTRIBUTION ACCOUNT............................... 6
SALARY REDUCTION CONTRIBUTIONS.............................. 6
SALARY REDUCTION CONTRIBUTION ACCOUNT....................... 6
SALARY REDUCTION ELECTION................................... 6
SURVIVING SPOUSE............................................ 6
TRUST....................................................... 6
TRUST FUND.................................................. 6
TRUSTEE..................................................... 6
VALUATION DATE.............................................. 6
ARTICLE II - PARTICIPATION........................................ 8
2.1 ADMISSION AS A PARTICIPANT........................... 8
2.2 PROVISION OF INFORMATION............................. 8
2.3 TERMINATION OF PARTICIPATION......................... 8
2.4 ROLLOVER MEMBERSHIP.................................. 8
ARTICLE III - CONTRIBUTIONS AND ACCOUNT ALLOCATIONS............... 9
3.1 EMPLOYER CONTRIBUTIONS............................... 9
3.2 ROLLOVER CONTRIBUTIONS............................... 9
3.3 ESTABLISHING OF ACCOUNTS............................. 9
3.4 ALLOCATIONS TO SALARY REDUCTION CONTRIBUTION ACCOUNTS 10
3.5 ALLOCATIONS TO ROLLOVER CONTRIBUTION ACCOUNTS........ 10
</TABLE>
- i -
<PAGE>
<TABLE>
<S> <C>
3.6 LIMITATION ON ANNUAL ADDITION TO ACCOUNTS............ 10
3.7 REDUCTION OF ANNUAL ADDITION......................... 10
3.8 COMBINED PLAN FRACTION............................... 10
3.9 LIMITATIONS ON SALARY REDUCTION CONTRIBUTIONS........ 10
3.10 MAXIMUM AMOUNT OF SALARY REDUCTION CONTRIBUTIONS..... 11
3.11 EXCESS SALARY REDUCTION CONTRIBUTIONS................ 11
3.12 ACTUAL DEFERRAL PERCENTAGE TEST...................... 12
ARTICLE IV - VESTING.............................................. 13
4.1 DETERMINATION OF VESTING............................. 13
ARTICLE V - AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS........ 14
5.1 SEPARATION........................................... 14
5.2 BENEFIT COMMENCEMENT DATE............................ 14
5.3 WITHDRAWALS.......................................... 15
5.4 LOANS................................................ 16
5.5 Additional Distribution Events....................... 17
ARTICLE VI - FORM OF PAYMENT...................................... 18
6.1 ELECTION OF FORM OF BENEFIT.......................... 18
6.2 BENEFIT FORMS........................................ 18
6.3 CHANGE IN FORM OR TIMING OF BENEFIT PAYMENT.......... 19
6.4 CONSENT OF SPOUSE.................................... 19
ARTICLE VII - DEATH BENEFITS...................................... 21
7.1 PAYMENT OF ACCOUNT BALANCES.......................... 21
7.2 BENEFICIARIES........................................ 22
7.3 QUALIFIED ELECTION................................... 22
ARTICLE VIII - FIDUCIARIES........................................ 23
8.1 NAMED FIDUCIARIES....................................... 23
8.2 EMPLOYMENT OF ADVISERS.................................. 23
8.3 MULTIPLE FIDUCIARY CAPACITIES........................... 23
8.4 PAYMENT OF EXPENSES..................................... 23
8.5 INDEMNIFICATION......................................... 23
ARTICLE IX - PLAN ADMINISTRATION.................................. 24
9.1 POWERS, DUTIES, ETC. OF THE ADMINISTRATOR............... 24
9.2 INVESTMENT POWERS, DUTIES, ETC. OF THE ADMINISTRATOR.... 24
9.3 INVESTMENT OF ACCOUNTS.................................. 24
9.4 VALUATION OF ACCOUNTS................................... 25
9.5 THE INSURANCE COMPANY................................... 25
9.6 THE INVESTMENT MANAGER.................................. 25
9.7 COMPENSATION............................................ 25
9.8 DELEGATION OF RESPONSIBILITY............................ 25
ARTICLE X - APPOINTMENT OF TRUSTEE................................ 27
10.1 TRUSTEE................................................ 27
ARTICLE XI - PLAN AMENDMENT OR TERMINATION........................ 28
11.1 PLAN AMENDMENT OR TERMINATION.......................... 28
11.2 LIMITATIONS ON PLAN AMENDMENT.......................... 28
11.3 RIGHT TO TERMINATE PLAN OR DISCONTINUE CONTRIBUTIONS... 28
11.4 BANKRUPTCY............................................. 28
ARTICLE XII - MISCELLANEOUS PROVISIONS............................ 29
12.1 EXCLUSIVE BENEFIT OF PARTICIPANTS..................... 29
12.2 PLAN NOT A CONTRACT OF EMPLOYMENT..................... 29
12.3 SOURCE OF BENEFITS.................................... 29
12.4 BENEFITS NOT ASSIGNABLE............................... 29
12.5 CLAIMS PROCEDURE...................................... 29
12.6 INCOME TAX WITHHOLDING................................ 29
12.7 BENEFITS PAYABLE TO MINORS, INCOMPETENTS AND OTHERS... 30
12.8 MERGER OR TRANSFER OF ASSETS.......................... 30
12.9 PARTICIPATION IN THE PLAN BY AN AFFILIATE............. 30
12.10 CONTROLLING LAW....................................... 30
12.11 ACTION BY PARTICIPATING EMPLOYERS..................... 31
12.12 DIVIDENDS............................................. 31
</TABLE>
- ii -
<PAGE>
ARTICLE XIII - DIRECT ROLLOVERS.............................................. 32
13.1 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS................ 32
-iii-
<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 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 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.
- 1 -
<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 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 Compensation 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 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.
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<PAGE>
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 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 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 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
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 Employee, 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.
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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.
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 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;
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(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 compensation 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 Employee; 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 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.
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
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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.
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 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.
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.
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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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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 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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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 election 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.
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
acceptable 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.
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.
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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).
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 Participant'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
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.
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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.
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.
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.
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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 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 Compensated 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.
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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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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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.
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.
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.
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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 limited 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);
(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 federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution.
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(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 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.
5.4.2 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 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.
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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);
(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 transferor 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 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
(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.
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
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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
(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 make, and the effect of, a revocation of a previous
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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.
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.
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.
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
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Investment Fund. The frequency with which a 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 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.
9.8 DELEGATION OF RESPONSIBILITY
The Administrator may designate persons, including persons other than
named fiduciaries, to carry out the specified responsibilities of the
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<PAGE>
Administrator and shall not be liable for any act or omission of a person so
designated.
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<PAGE>
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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<PAGE>
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 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.
11.4 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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<PAGE>
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.
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.
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<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).
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 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
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<PAGE>
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.
- 31 -
<PAGE>
ARTICLE XIII
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
------------------------------
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<PAGE>
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
BENEFIT SCHEDULE No. 1
UDLP, ARMAMENT SYSTEMS DIVISION
MINNEAPOLIS, MINNESOTA
INTENTIONALLY OMITTED
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<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:
(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
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<PAGE>
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.
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<PAGE>
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
BENEFIT SCHEDULE No. 3
PHOSPHORUS CHEMICALS DIVISION
POCATELLO, IDAHO
INTENTIONALLY OMITTED
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<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:
(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:
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<PAGE>
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.
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<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:
(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
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<PAGE>
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.
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<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:
(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
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<PAGE>
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.
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<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:
(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:
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<PAGE>
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.
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<PAGE>
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
BENEFIT SCHEDULE No. 8
PEROXYGEN CHEMICALS DIVISION
BUFFALO, NEW YORK
INTENTIONALLY OMITTED
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<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:
(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
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<PAGE>
respect to the FMC Common Stock Fund, the transfer restrictions are as follows:
From FMC Common Stock:
. Transfers must be in increments of 25% of Account Value.
To FMC Common Stock:
. Maximum 20% of Account Balance in any calendar year.
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<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,
(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.
- 48 -
<PAGE>
With respect to the FMC Common Stock Fund, the transfer restrictions are as
follows:
From FMC Common Stock:
. Transfers 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.
- 49 -
<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:
(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
- 50 -
<PAGE>
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:
. Transfers must in increments of 25% of Account Value.
To FMC Common Stock:
. Maximum 20% of Account Balance in any calendar year.
- 51 -
<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,
(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.
- 52 -
<PAGE>
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.
- 53 -
<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:
(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
- 54 -
<PAGE>
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.
- 55 -
<PAGE>
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
BENEFIT SCHEDULE No. 14
SKULL POINT MINE
KEMMERER, WYOMING
INTENTIONALLY OMITTED
- 56 -
<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:
(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:
- 57 -
<PAGE>
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.
- 58 -
<PAGE>
FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement
BENEFIT SCHEDULE No. 16
UDLP, ARMAMENT SYSTEMS DIVISION
LOUISVILLE, KENTUCKY
INTENTIONALLY OMITTED
- 59 -
<PAGE>
EXHIBIT 5
Steven H. Shapiro
Assistant Secretary and Associate General Counsel
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
August 31, 1998
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 FMC Corporation 401(k) Plan for Employees Covered by a
Collective Bargaining Agreement (the "Plans"), I am of the opinion that:
1. 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/Steven H. Shapiro
- 1 -
<PAGE>
EXHIBIT 5.1
To Call Writer Direct
312 861-2000
September 1, 1998
FMC Corporation
200 East Randolph Drive
Chicago, IL 60601
Ladies and Gentlemen:
We have acted as counsel to you (the "Company") in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") pertaining to the registration under the Securities Act of 1933 of
an offering of 35,000 shares of the Company's Common Stock, $0.10 par value (the
"Registered Shares") pursuant to the FMC Corporation 401(k) Plan for Employees
Covered by a Collective Bargaining Agreement (the "Plan").
Subject to the limitations stated in this letter, it is our opinion
that Registered Shares issued by the Company for purchase under the Plan will
upon such delivery and receipt by the Company of all consideration owed to the
Company under the terms of the Plan be validly issued, fully paid and
nonassessable.
We have relied without independent investigation upon an assurance
from the Company's Secretary that the number of shares which the Company is
authorized to issue in its Certificate of Incorporation exceeds the number of
shares outstanding and the number of shares which the Company is obligated to
issue (or had otherwise reserved for issuance) for any purposes other than
issuance in connection with options granted under the Plan by at least the
number of shares which may be issued in connection with the Plan, and we have
assumed that such condition will remain true at all future times relevant to
this opinion. We have assumed that the Company will cause certificates
representing Registered Shares issued in the future to be properly executed and
delivered and will take all other actions appropriate for the issuance of such
shares. We express no opinion regarding any shares reacquired by the Company
after initial issuance. Our opinion does not cover any law other than the
Delaware Corporation Law.
We do not find it necessary for the purposes of this opinion, and
accordingly do not purport to cover herein, the application of securities of
"Blue Sky" laws of the various states to the offer or sale of the Registered
Shares.
We consent to the filing of this letter as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Sincerely yours,
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP APPEARS HERE]
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
FMC Corporation:
We consent to the use of our report dated January 20, 1998, incorporated
herein by reference, with respect to the consolidated financial statements of
FMC Corporation and consolidated subsidiaries as of December 31, 1997 and 1996
and for each of the years in the three-year period ended December 31, 1997,
which report is incorporated by reference in the December 31, 1997 annual report
on Form 10-K of FMC Corporation.
KPMG Peat Marwick LLP
Chicago, Illinois
August 31, 1998
