<PAGE> 1
As filed with the Securities and Exchange Commission on September 30, 1996.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
MISSISSIPPI CHEMICAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MISSISSIPPI 64-0292638
------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
P.O. BOX 388
YAZOO CITY, MISSISSIPPI 39194
(601) 746-4131
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
--------------------
EDDY POTASH, INC. 401(K) PLAN FOR BARGAINING UNIT EMPLOYEES
(Full Title of Plan)
--------------------
ROBERT E. JONES COPY TO:
SENIOR VICE PRESIDENT AND GENERAL COUNSEL ALAN J. BOGDANOW, ESQ.
MISSISSIPPI CHEMICAL CORPORATION HUGHES & LUCE, L.L.P.
P.O. BOX 388 1717 MAIN STREET, SUITE 2800
YAZOO CITY, MISSISSIPPI 39194 DALLAS, TEXAS 75201
(601) 746-4131
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
OF SECURITIES TO BE PER SHARE2 OFFERING PRICE2 REGISTRATION
TO BE REGISTERED REGISTERED1 FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value
(including Rights 50,000 $22 5/8 $1,131,250 $391
to Purchase
Preferred Stock3)
=========================================================================================================
</TABLE>
(1) An indeterminate number of additional shares of Common Stock may be issued
if the anti-dilution adjustment provisions of the plan become operative.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of Common
Stock, as reported on the Nasdaq National Market on September 24, 1996, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended.
(3) Prior to the occurrence of certain events the Preferred Share Purchase
Rights will not be traded separately from the Common Stock.
(4) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of plan interests to be
offered or sold pursuant to the plan.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Mississippi Chemical Corporation (the
"Registrant") and Eddy Potash, Inc. 401(k) Plan for Bargaining Unit Employees
(the "Plan") are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended June 30,
1996, which contains audited financial statements of the Registrant for the
Registrant's last completed fiscal year (the "1996 Form 10-K").
(b) All reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the 1996 Form 10-K.
(c) The description of the Registrant's common stock, par value
$0.01 per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A, dated September 23, 1996 (File Number
1-22217), including any amendment or report filed for the purpose of updating
such description.
(d) The description of the Registrant's Preferred Stock Purchase
Rights contained in the Registrant's Registration Statement on Form 8-A, dated
September 23, 1996 (File Number 1-12217), including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant's Articles of Incorporation contain provisions eliminating
the personal liability of its directors for monetary damages resulting from
breaches of their fiduciary duty to the extent permitted by the Mississippi
Business Corporation Act. Each director will continue to be subject to
liability for the amount of financial benefit received by a director to which
he or she is not entitled, for any intentional infliction of harm on the
Registrant or its shareholders, for improper distributions to shareholders and
for intentional violations of criminal law. This provision does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Registrant has obtained a directors' and officers' liability and
corporation reimbursement policy which (subject to certain limits and
deductibles) (i) insures officers and directors of the Registrant against loss
arising from certain claims made against them by reason of their being such
directors or officers, and (ii) insures the Registrant against loss which it
may be required or permitted to pay as indemnification due its directors for
certain claims.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-6 of this Registration Statement, which Index is
incorporated herein by reference. With respect to Item 601(b)(5) of Regulation
S- K, the 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.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
II-2
<PAGE> 4
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the 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 the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 the Registration Statement.
(2) 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 to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The 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 the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, 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 by the Registrant 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.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Yazoo City, State of Mississippi, on September 30, 1996.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ Charles O. Dunn
---------------------------------
Charles O. Dunn
President, Chief Executive Officer
and Director (Principal Executive
Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Mississippi Chemical
Corporation, hereby severally constitute and appoint Charles O. Dunn and Robert
E. Jones, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
the Registration Statement, and generally to do all things in our name and
behalf in the capacities indicated below to enable Mississippi Chemical
Corporation to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements to the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Charles O. Dunn President, September 30, 1996
- ------------------------------ Chief Executive Officer and
Charles O. Dunn and Director
(Principal Executive Officer)
/s/ Timothy A. Dawson Vice President-Finance September 30, 1996
- ------------------------------ (Principal Financial Officer and
Timothy A. Dawson Principal Accounting Officer)
</TABLE>
II-4
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ Coley L. Bailey Chairman of the September 30, 1996
- ------------------------------ Board of Directors
Coley L. Bailey
/s/ John Sharp Howie Vice Chairman of the September 30, 1996
- ------------------------------ Board and Director
John Sharp Howie
/s/ John W. Anderson Director September 30, 1996
- ------------------------------
John W. Anderson
/s/ Frank R. Burnside, Jr. Director September 30, 1996
- ------------------------------
Frank R. Burnside, Jr.
/s/ Robert P. Dixon Director September 30, 1996
- ------------------------------
Robert P. Dixon
/s/ W. R. Dyess Director September 30, 1996
- ------------------------------
W. R. Dyess
/s/ Woods E. Eastland Director September 30, 1996
- ------------------------------
Woods E. Eastland
/s/ G. David Jobe Director September 30, 1996
- ------------------------------
G. David Jobe
/s/ George Penick Director September 30, 1996
- ------------------------------
George Penick
/s/ David M. Ratcliffe Director September 30, 1996
- ------------------------------
David M. Ratcliffe
/s/ Wayne Thames Director September 30, 1996
- ------------------------------
Wayne Thames
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- --------------------------------------------------------------------------------
<S> <C>
4.1(a) Articles of Incorporation filed as Exhibit 3.1 to the
Registrant's Amendment No. 1 to Form S-1 Registration Statement
filed August 2, 1994, Commission File No. 33-53119, and
incorporated herein by reference
4.1(b) Shareholders Rights Plan, filed as Exhibit 1 to the
Registrant's Registration Statement on Form 8-A filed September
23, 1996, Commission File No. 1-12217, and incorporated herein
by reference
4.2 Bylaws of the Registrant filed as Exhibit 3.2 to the
Registrant's Amendment No. 1 to Form S-1 Registration Statement
filed August 2, 1994, Commission File No. 33-53119, and
incorporated herein by reference
4.3 Eddy Potash, Inc. 401(k) Plan for Bargaining Unit Employees
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (Contained at page II-4)
</TABLE>
<PAGE> 1
EXHIBIT 4.3
EDDY POTASH, INC. 401(K) PLAN
FOR BARGAINING UNIT EMPLOYEES
Effective August 16, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
PARTICIPATION IN THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.01 Eligibility Date. . . . . . . . . . . . . . . . . . . . . . 2-1
2.02 Eligibility Determination. . . . . . . . . . . . . . . . . 2-1
2.03 Participation. . . . . . . . . . . . . . . . . . . . . . . 2-1
2.04 Participation Following Reemployment or Break in
Service. . . . . . . . . . . . . . . . . . . . . . . . . . 2-2
2.05 Participation Following Change in Classification. . . . . . 2-2
2.06 Portability. . . . . . . . . . . . . . . . . . . . . . . . 2-2
2.07 Absence in the Armed Services. . . . . . . . . . . . . . . 2-3
2.08 Family and Medical Leave Act Requirements. . . . . . . . . 2-3
CONTRIBUTIONS TO THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . 3-1
3.01 Employer Contributions. . . . . . . . . . . . . . . . . . . 3-1
3.02 Contributions By, or On Behalf of, Participants. . . . . . 3-2
3.03 Coverage and Discrimination Requirements. . . . . . . . . . 3-5
3.04 Discrimination Requirements for Other Contributions. . . . 3-8
3.05 Multiple Use of Alternative Limitation. . . . . . . . . . . 3-10
3.06 Medium of Financing the Plan. . . . . . . . . . . . . . . . 3-10
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . . . . 4-1
4.01 Allocation of Employer Contributions. . . . . . . . . . . . 4-1
4.02 Allocation of Income. . . . . . . . . . . . . . . . . . . . 4-1
4.03 Adjustment to Accounts. . . . . . . . . . . . . . . . . . . 4-2
4.04 Maximum Annual Additions to Participants' Accounts. . . . . 4-2
4.05 Separation of Forfeitures and Accounts by Employer. . . . . 4-5
4.06 Fair Market Value. . . . . . . . . . . . . . . . . . . . . 4-5
4.07 Interim Allocations. . . . . . . . . . . . . . . . . . . . 4-5
4.08 Election of Investment Fund. . . . . . . . . . . . . . . . 4-5
4.09 Units Accounting for Investment Fund. . . . . . . . . . . . 4-6
IN-SERVICE WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . 5-1
5.01 Withdrawals from Participants' Employer Accounts. . . . . . 5-1
5.02 Withdrawals from Participants' Personal Accounts. . . . . . 5-2
5.03 Loans to Participants. . . . . . . . . . . . . . . . . . . 5-4
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
GENERAL BENEFIT PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 6-1
6.01 Form of Benefit Payment. . . . . . . . . . . . . . . . . . 6-1
6.02 Commencement of Benefits Rule. . . . . . . . . . . . . . . 6-2
6.03 Special Commencement and Distribution of Benefits Rules. . 6-2
6.04 Limitations on Distribution of Salary Deferrals. . . . . . 6-6
6.05 Single Sum Distribution of Small Benefits. . . . . . . . . 6-6
6.06 Designation of Beneficiary. . . . . . . . . . . . . . . . . 6-7
6.07 Direct Rollover of Eligible Rollover Distributions. . . . . 6-7
RETIREMENT, DEATH AND DISABILITY BENEFITS . . . . . . . . . . . . . . . . 7-1
7.01 Benefits Upon Retirement. . . . . . . . . . . . . . . . . . 7-1
7.02 Death Benefits. . . . . . . . . . . . . . . . . . . . . . . 7-1
7.03 Disability Benefits. . . . . . . . . . . . . . . . . . . . 7-1
TERMINATION BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.01 Benefits Upon Termination of Service. . . . . . . . . . . . 8-1
8.02 Forfeitures. . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.03 Payment of Benefits. . . . . . . . . . . . . . . . . . . . 8-2
PLAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.01 Plan Administrator and Appointment of Committee. . . . . . 9-1
9.02 Powers and Duties of the Plan Administrator. . . . . . . . 9-1
9.03 Plan Administrator Procedures. . . . . . . . . . . . . . . 9-2
9.04 Committee Procedures. . . . . . . . . . . . . . . . . . . . 9-2
9.05 Claims and Review Procedures. . . . . . . . . . . . . . . . 9-2
THE TRUST AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.01 The Trust; General Duties of the Trustee. . . . . . . . . 10-1
10.02 General Powers. . . . . . . . . . . . . . . . . . . . . . 10-1
10.03 Reliance on Plan Administrator and Employer. . . . . . . . 10-4
10.04 Accounts and Reports. . . . . . . . . . . . . . . . . . . 10-4
10.05 Disbursements. . . . . . . . . . . . . . . . . . . . . . . 10-5
10.06 Payment in Kind. . . . . . . . . . . . . . . . . . . . . . 10-5
10.07 Authority of Trustee. . . . . . . . . . . . . . . . . . . 10-5
10.08 Removal or Resignation of Trustee. . . . . . . . . . . . . 10-6
10.09 Successor Trustee. . . . . . . . . . . . . . . . . . . . . 10-6
10.10 Trust Funding Policy; Parties in Interest. . . . . . . . . 10-6
10.11 Trustee to Trustee Transfers. . . . . . . . . . . . . . . 10-6
10.12 Investment Manager. . . . . . . . . . . . . . . . . . . . 10-7
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
AMENDMENT AND TERMINATION OF THE PLAN . . . . . . . . . . . . . . . . . . 11-1
11.01 Amendment of Plan. . . . . . . . . . . . . . . . . . . . . 11-1
11.02 Intent to Continue the Plan. . . . . . . . . . . . . . . . 11-2
11.03 Termination of the Plan by the Sponsor; Partial
Termination. . . . . . . . . . . . . . . . . . . . . . . 11-2
11.04 Termination of the Plan Upon Certain Events. . . . . . . . 11-2
11.05 Distribution of Trust Fund Upon Termination. . . . . . . . 11-2
11.06 Termination of Plan With Respect to an Adopting
Employer. . . . . . . . . . . . . . . . . . . . . . . . . 11-3
CERTAIN PROVISIONS AFFECTING THE EMPLOYER . . . . . . . . . . . . . . . . 12-1
12.01 Duties of the Employer. . . . . . . . . . . . . . . . . . 12-1
12.02 Right of Employer to Discharge Employees. . . . . . . . . 12-1
12.03 Information to be Furnished. . . . . . . . . . . . . . . . 12-1
12.04 Communications from Sponsor to Trustee. . . . . . . . . . 12-1
12.05 No Reversion to Employer. . . . . . . . . . . . . . . . . 12-2
12.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . 12-2
12.07 Adoption of Plan by Adopting Employers. . . . . . . . . . 12-2
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN . . . . . . . . . . . . . . . . 13-1
13.01 Top Heavy Plans. . . . . . . . . . . . . . . . . . . . . . 13-1
13.02 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.03 Minimum Allocations in Single Plan. . . . . . . . . . . . 13-4
13.04 Minimum Vesting Schedules. . . . . . . . . . . . . . . . . 13-5
13.05 Special Limitations and Allocation in Multiple Plans. . . 13-6
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 14-1
14.01 Allocation of Responsibility among Fiduciaries for Plan
and Trust Administration. . . . . . . . . . . . . . . . . 14-1
14.02 Alienation or Assignment of Benefits (QDRO's). . . . . . . 14-1
14.03 Headings. . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.04 Construction of the Plan. . . . . . . . . . . . . . . . . 14-2
14.05 Correction of Errors. . . . . . . . . . . . . . . . . . . 14-2
14.06 Legally Incompetent. . . . . . . . . . . . . . . . . . . . 14-2
14.07 Successor Organization. . . . . . . . . . . . . . . . . . 14-2
14.08 Minimum Benefit in Successor Plan. . . . . . . . . . . . . 14-3
14.09 Application of Plan Provisions. . . . . . . . . . . . . . 14-3
14.10 Qualification of the Plan. . . . . . . . . . . . . . . . . 14-3
14.11 Fiduciary Liability. . . . . . . . . . . . . . . . . . . . 14-4
14.12 Severability of Provisions. . . . . . . . . . . . . . . . 14-4
14.13 Applicable Law. . . . . . . . . . . . . . . . . . . . . . 14-4
14.14 Nonassignability of Duties. . . . . . . . . . . . . . . . 14-4
14.15 Entire Plan. . . . . . . . . . . . . . . . . . . . . . . . 14-4
</TABLE>
<PAGE> 5
INTRODUCTION
The Plan and incorporated Trust hereby established shall be entitled the
EDDY POTASH, INC. 401(k) PLAN FOR BARGAINING UNIT EMPLOYEES.
The purposes of the Plan are to provide the Employees who qualify to
participate in the Plan and their Beneficiaries certain benefits as stipulated
herein in the event of retirement, death or termination of Service prior to
retirement, and to provide such Employees the opportunity to save for such
events on a tax-deferred incentive basis pursuant to the provisions of section
401(k) of the Code. The Plan is intended to be qualified under section 401(a)
of the Code as a profit sharing plan and its incorporated Trust is intended to
qualify as a tax-exempt trust under section 501(a) of the Code.
Unless specifically otherwise provided in the Plan, the provisions of
the Plan shall apply only to Employees who have Service with the Employer on or
after August 16, 1996.
i
<PAGE> 6
ARTICLE 1
DEFINITIONS
The following terms when used herein, unless the context clearly
indicates otherwise, shall have the meanings set forth hereinafter.
1.01 "ACCOUNT" shall mean the Employer Account and the Personal Account
maintained on behalf of a Participant.
1.02 "ADOPTING EMPLOYER" shall mean any business organization or corporation
affiliated with the Sponsor through complete or partial ownership by the
Sponsor or by any owner therein, or which is otherwise cooperating with
the Sponsor for purposes of establishing and maintaining a qualified
plan, which is authorized by the Board of Directors of the Sponsor to
adopt the Plan, and which subsequently adopts the Plan.
The term shall also include any business organization or corporation
into which the Adopting Employer may be merged or consolidated or by
which it may be succeeded.
1.03 "ALLOCATION DATE" shall mean March 31, June 30, September 30 and
December 31 of each Plan Year, or such other date as of which assets are
valued for purposes of an interim allocation pursuant to the provisions
of Section 4.07 hereof.
1.04 "BENEFICIARY" shall mean the person, persons or legal entity last
designated in accordance with Section 6.06 hereof, who shall receive any
death benefits that may be payable under the Plan after the death of a
Participant or Retired Participant.
1.05 "BREAK IN SERVICE" shall mean a consecutive twelve (12) month period
during which the Employee does not perform more than five hundred (500)
Hours of Service. For purposes of determining eligibility to
participate in the Plan, pursuant to Article 2 hereof, the initial
twelve (12) month period shall commence on the date the Employee first
performs an Hour of Service, and each subsequent twelve (12) month
period shall be the Plan Year, beginning with the Plan Year which
commences prior to the end of the initial twelve (12) month period. For
purposes of determining Vesting Service, the consecutive twelve (12)
month period shall be the Plan Year.
For purposes of determining whether a Break in Service has occurred,
Hours of Service shall include any period in which the Employee is
absent from work for maternity or paternity reasons for any of the
following:
(a) by reason of the pregnancy of the Employee,
(b) by reason of the birth of a child of the Employee,
1 - 1
<PAGE> 7
(c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
Provided, however, that Hours of Service credited for such absence from
work shall not exceed the Hours which would normally have been credited
to such individual but for such absence. Such Hours of Service shall be
credited in the Plan Year in which the absence from work begins if an
Employee would be prevented from incurring a Break in Service in such
Plan Year solely because the period of absence is treated as Hours of
Service or, in any other case, in the immediately following Plan Year.
No credit for Hours of Service for absence by reason of such pregnancy
or placement shall be given hereunder unless an Employee furnishes to
the Committee such timely information as the Plan Administrator may
reasonably require to establish that the absence from work is for a
reason set forth in (a) through (d).
1.06 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and as in effect on the relevant date to be interpreted
hereunder.
1.07 "COMPENSATION" shall mean, except as otherwise provided, compensation
which is paid to the Employee by the Employer, as defined in (a) or (b)
below, subject to (c) and (d).
(a) Compensation means wages pursuant to Code section 3401(a) and all
other payments of compensation to an Employee by his Employer (in
the course of the Employer's trade or business) for which the
Employer is required to furnish the Employee a written statement
under Code sections 6041(d), 6051(a)(3), and 6052. Compensation
shall be determined without regard to any rules under Code
section 3401(a) that limit the remuneration included in wages
based on the nature or location of the employment or the services
performed. However, Compensation shall exclude amounts paid or
reimbursed by the Employer for moving expenses, automobile
allowance, imputed income from excess group term life insurance
and severance pay. Only Compensation for the portion of any Plan
year during which an Employee is a Participant shall be taken
into account for purposes of the Plan.
(b) For purposes of Section 1.17 and Sections 3.03 and 3.04 hereof,
Compensation shall mean the total compensation for Service by an
Employee for the Employer that is includable in gross income as
provided in section 414(s) of the Code for the period during the
Plan Year in which he is a Participant or for the entire Plan
Year, as determined by the Plan Administrator.
(c) Compensation shall include any contributions made by the Employer
on behalf of an Employee to a plan qualified under section 125 or
section 401(k) of the Code, but shall not include any other
contribution made by the Employer under this Plan or under any
pension plan or other employee benefit plan or insurance plan
maintained by the Employer for the benefit of such Employee.
1 - 2
<PAGE> 8
(d) Section 401(a)(17) Limitation. In addition to other applicable
limitations set forth in the Plan, and notwithstanding any other
provision of the Plan to the contrary, the annual compensation of
each Employee taken into account under the Plan shall not exceed
the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is one hundred fifty thousand dollars
($150,000), as adjusted by the Commissioner for increases in the
cost of living in accordance with section 401(a)(17)(B) of the
Internal Revenue Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding twelve
(12) months, over which compensation is determined (determination
period) beginning in such calendar year. If a determination
period consists of fewer than twelve (12) months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is twelve (12).
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the
current plan year, the compensation for that prior determination
period is subject to the OBRA '93 annual compensation limit in
effect for that prior determination period.
1.08 "CONTROLLED GROUP" shall mean, except as modified by section 415(h) of
the Code for purposes of determining limitations under section 415 of
the Code pursuant to Section 4.04 hereof, any corporation which is a
member of a controlled group of corporations (as defined by section
414(b) of the Code) of which the Employer is a member, any other trade
or business (whether or not incorporated) which is under common control
(as defined by section 414(c) of the Code) with respect to the Employer
or any organization which is a member of an affiliated service group (as
defined by section 414(m) of the Code) of which the Employer is a member
and any other entity required to be aggregated with the Employer
pursuant to regulations under section 414(o) of the Code, but only for
the period during which such other corporation, trade or business or
organization and the Employer are members of such controlled group of
corporations, are under such common control or are serving as members of
such an affiliated service group. All employees of members of a
Controlled Group shall be treated as employed by a single employer for
purposes of determining compliance with sections 401, 410, 411, 415 and
416 of the Code.
1.09 "DISABILITY" shall mean a Participant's total and permanent disability
as a result of disease or bodily injury so as to render the Participant
incapable of engaging in any substantial gainful activity by reason of
any medically determinable physical or mental impairment or impairments
that can be expected to result in death or that have lasted or can be
expected to last for a continuous period of not less than twelve (12)
months. The Thrift Committee shall have the exclusive right, power and
discretion of determining, from time to time, with the assistance of a
competent physician, whether a participant has
1 - 3
<PAGE> 9
suffered Disability, and a certificate to that effect executed by a duly
authorized officer of the Employer and supported by the affidavit of an
examining physician shall be sufficient evidence of such fact and may be
so accepted by the Trustee without further inquiry, provided that all
Participants under similar circumstances shall be treated alike.
1.10 "EFFECTIVE DATE" shall mean August 16, 1996, the date the Plan was
established; provided, however, that the term shall mean, for an
Employee, the effective date of adoption of the Plan by his Employer if
such date is later than August 16, 1996.
1.11 "EMPLOYEE" shall mean either (a) a person, other than an independent
contractor, who is receiving remuneration from the Employer for services
rendered to, or labor performed for, the Employer (or who would be
receiving such remuneration except for an authorized leave of absence),
or (b) a Leased Employee.
1.12 "EMPLOYER" shall mean the Sponsor or an Adopting Employer, or both, as
required by the context of this Plan; provided, however, that if an
Employee is simultaneously employed by the Sponsor and one (1) or more
Adopting Employers or by two (2) or more Adopting Employers, the term
shall mean all such employers.
1.13 "EMPLOYER ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the Participant's share of
Employer contributions, except those attributable to salary deferrals,
together with the Participant's share of the Income of the Trust Fund
allocable to this account.
For purposes of administrative convenience, each Participant's Employer
Account shall be divided into the following parts:
Part I attributable to Employer matching contributions made
pursuant to Section 3.01(a) hereof.
Part II attributable to Employer Non-Elective Contributions made
pursuant to Section 3.01(b) hereof.
1.14 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and as in effect on the relevant date to
be interpreted hereunder.
1.15 "FIDUCIARY" shall mean the Employer, the Committee, the Trustee, the
Investment Manager, if any, and any other business organization or
corporation designated by such a fiduciary to carry out fiduciary
responsibilities under the Plan, which accepts such designation, but
only with respect to the specific responsibilities for each such
fiduciary described herein.
1.16 "FORFEITURE" shall mean the portion of a Participant's Employer Account
which is forfeited before full vesting occurs or because of the
operation of Section 4.04 hereof.
1 - 4
<PAGE> 10
1.17 "HIGHLY COMPENSATED EMPLOYEE" shall mean a person who is either a
"highly compensated active employee" as defined in subsection (a) hereof
or a "highly compensated former employee" as defined in subsection (b)
hereof.
(a) A "highly compensated active employee" is any employee who
performs service for the Employer during the determination year
and who, during the look-back year:
(1) received compensation from the Employer in excess of
seventy-five thousand dollars ($75,000) (as adjusted
pursuant to section 415(d) of the Code);
(2) received compensation from the Employer in excess of fifty
thousand dollars ($50,000) (as adjusted pursuant to
section 415(d) of the Code) and was a member of the
top-paid group for such year; or
(3) was an officer of the Employer and received compensation
during such year that is greater than fifty percent (50%)
of the dollar limitation in effect under section
415(b)(1)(A) of the Code. The term "highly compensated
active employee" also includes:
(4) An employee (i) who is described in the preceding sentence
if the term "determination year" is substituted for the
term "look-back year" and (ii) who is one of the one
hundred (100) employees who received the most compensation
from the Employer during the determination year; and
(5) An employee who is a five percent (5%) owner at any time
during the look-back year or the determination year.
If no officer has satisfied the compensation requirement of (3)
above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly
Compensated Employee.
(b) A "highly compensated former employee" is any employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Employer
during the determination year, and was a highly compensated
active employee for either the separation year or any
determination year ending on or after the employee's fifty-fifth
(55th) birthday.
For purposes of this Section, the determination year would normally be
the Plan Year, and the look-back year would normally be the twelve
(12)-month period immediately preceding the determination year.
However, the Plan Administrator has elected to make the calendar year
calculation, provided in Section 1.414(q)-1T, Q&A 14(b), of the Treasury
Regulations, with respect to the Plan for all Plan Years. Pursuant to
this election and for this purpose, both the determination year and the
look-back year are the Plan Year.
1 - 5
<PAGE> 11
If an employee is, during a determination year or look-back year, a
family member of either a five percent (5%) owner who is an active or
former employee or a Highly Compensated Employee who is one of the ten
(10) most highly compensated employees ranked on the basis of
compensation paid by the Employer during such year, then the family
member and five percent (5%) owner or top ten (10) Highly Compensated
Employee shall be treated as a single employee receiving compensation
and Plan contributions or benefits equal to the sum of such compensation
and contributions or benefits of the family member and five (5%) percent
owner or top ten (10) Highly Compensated Employee. For purposes of this
section, family member includes the spouse, lineal ascendants and
descendants of the employee or former employee and the spouses of such
lineal ascendants and descendants.
In determining who is a Highly Compensated Employee, employees who are
non-resident aliens and who received no earned income (within the
meaning of Code section 911(d)(2)) from the Employer constituting United
States source income within the meaning of Code section 861(a)(3) shall
not be treated as Employees. Additionally, all employers in the
Controlled Group shall be taken into account as a single employer and
Leased Employees shall be considered employees unless such Leased
Employees are covered by a plan described in Code section 414(n)(5) and
are not covered in any qualified plan maintained by the Employer. The
exclusion of Leased Employees for this purpose shall be applied on a
uniform and consistent basis for all of the Employer's retirement plans.
Highly Compensated Former Employees shall be treated as Highly
Compensated Employees without regard to whether they performed services
during the determination year.
The determination of who is a Highly Compensated Employee, including but
not limited to the determinations of the number and identity of
Employees in the top-paid group, the top one hundred (100) Employees,
the number of Employees treated as officers and the compensation that is
considered, will be made in accordance with Section 414(q) of the Code
and the regulations thereunder. Such determination may also take into
account other rulings and pronouncements issued by the Secretary of the
Treasury or the Internal Revenue Service.
1.18 "HOURS OF SERVICE" shall mean the aggregate of the following:
(a) Hours of Service shall include each actual hour for which an
Employee is paid, or entitled to payment, for the performance of
duties for the Employer. These hours shall be credited to the
Employee for the Plan Year in which the duties are performed.
(b) Hours of Service shall include each hour for which an Employee is
paid, or entitled to payment, by the Employer on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or authorized leave of absence.
No more than five hundred
1 - 6
<PAGE> 12
and one (501) Hours of Service shall be credited under this
subsection for any single continuous period (whether or not such
period occurs in a single Plan Year). Hours under this
subsection shall be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations, which are
incorporated herein by this reference as if fully set forth.
(c) Hours of Service shall include each hour for which back pay,
irrespective of mitigation of damages, has been either awarded or
agreed to by the Employer. These hours shall be credited to the
Employee for the Plan Year to which the award or agreement
pertains rather than the Plan Year in which the award, agreement
or payment is made. Hours shall not be credited under both this
and either of the two (2) preceding subsections of this section.
(d) Hours of Service, however, shall not be credited for payments
made solely to comply with workers' or unemployment compensation
or disability insurance laws or as reimbursement for medical
expenses.
Hours of Service shall be credited for employment with other members of
a Controlled Group of which the Employer is a member. Hours of Service
shall also be credited for any individual considered an Employee for
purposes of the Plan under section 414(n) of the Code or section 414(o)
of the Code and the regulations thereunder.
1.19 "INCOME" shall mean the net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment
transactions, and expenses paid from the Trust Fund which are not
reimbursed by the Employer. In determining the Income of the Trust Fund
for any period, assets shall be valued on the basis of fair market
value.
If any portion of the Trust Fund is segregated into one (1) or more
separate accounts on behalf of a Participant, Income shall be determined
with respect to each such account.
1.20 "INVESTMENT MANAGER" shall mean any Fiduciary, other than the Trustee,
who
(a) has the power to manage, acquire, or dispose of any asset of the
Plan;
(b) (i) is registered as an investment advisor under the Investment
Advisers Act of 1940; (ii) is a bank, as defined in that Act; or
(iii) is an insurance company qualified to perform services
described in subsection (a) under the laws of more than one (1)
state; and
(c) has acknowledged in writing that he is a Fiduciary with respect
to the Plan.
1 - 7
<PAGE> 13
1.21 "LEASED EMPLOYEE" shall mean any person, other than a common law
employee of the Employer, who provides services for the Employer if the
following conditions are met:
(a) such services are provided pursuant to an agreement between the
Employer and a leasing organization,
(b) such person has performed services for the Employer (or the
Employer and a "related person" as that term is defined in
section 414(n)(6) of the Code) on a substantially full-time basis
for a period of at least one (1) year, and
(c) such services are of a type historically performed, in the
business field of the Employer, by employees.
Notwithstanding the foregoing, a Leased Employee shall not be considered
an Employee of the Employer as to services performed after December 31,
1986 if:
(d) such person is covered by a money purchase pension plan
providing:
(1) a nonintegrated employer contribution rate of at least ten
percent (10%) of compensation, as defined in section
415(c)(3) of the Code, but including amounts contributed
pursuant to a salary reduction agreement which are
excludable from the employee's gross income under a 401(k)
plan, a cafeteria plan pursuant to Code section 125, a
simplified employee pension (SEP) pursuant to Code section
402(h) or a tax sheltered annuity pursuant to Code section
403(b),
(2) immediate participation, and
(3) full and immediate vesting; and
(e) Leased Employees do not constitute more than twenty percent (20%)
of the recipient's nonhighly compensated workforce.
For purposes of this Plan, contributions or benefits provided to a
Leased Employee by the leasing organization which are attributable to
services performed for the Employer shall be treated as provided by the
Employer.
1.22 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean an Employee of the Employer
who is neither a Highly Compensated Employee nor a "family member" (as
defined in section 414(q)(6)(B) of the Code).
1.23 "NORMAL RETIREMENT AGE" shall mean for a Participant the date the
Participant attains sixty-five (65) years of age.
1.24 "NORMAL RETIREMENT DATE" shall mean for a Participant the first day of
the month coincident with or next following the date on which he attains
his Normal Retirement Age.
1 - 8
<PAGE> 14
1.25 "PARTICIPANT" shall mean an Employee participating in the Plan in
accordance with the provisions of Article 2 hereof.
1.26 "PERSONAL ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the amount of any salary deferral
contributions, voluntary Participant contributions, Participant rollover
contributions or trustee to trustee transfers, together with the
Participant's share of the Income of the Trust Fund allocable to this
account. For purposes of reference in this Plan, each Participant's
Personal Account shall be divided into the following parts:
Part I attributable to pre-tax salary deferral contributions, if
any, made pursuant to Section 3.02(a) hereof;
Part II attributable to after-tax voluntary Participant
contributions, if any, made pursuant to Section 3.02(b)
hereof.
Part III attributable to Participant rollover contributions, if
any, made pursuant to Section 3.02(c) hereof.
Part IV attributable to trustee to trustee transfers, if any, made
with respect to a Participant's benefits pursuant to
Section 10.11 hereof.
1.27 "PLAN" shall mean this Plan, entitled the "Eddy Potash, Inc. 401(k) Plan
for Bargaining Unit Employees," as it may be amended from time to time,
and as in effect on the relevant date to be interpreted hereunder.
1.28 "PLAN ADMINISTRATOR" shall mean Eddy Potash, Inc., the entity designated
as the Plan Administrator pursuant to Section 9.01 of the Plan to
administer the Plan.
1.29 "PLAN YEAR" shall mean the twelve (12) consecutive month period from
January 1 through the following December 31.
1.30 "PORTABILITY GROUP MEMBER" shall mean the Sponsor and any business
organization with which the Sponsor has agreed to recognize the
portability of either service or benefits, or both, with respect to
employees whose employment is transferred between such Portability Group
Members.
1.31 "RETIRED PARTICIPANT" shall mean a former Participant whose
participation in the Plan has terminated and who is entitled to receive
benefits provided by the Plan.
1.32 "SERVICE" shall mean employment of an Employee by the Employer and shall
be measured in Hours of Service. In determining Service for an
Employee, the following periods shall be considered employment with the
Employer:
(a) the Employee's employment with any members of a Controlled Group
while such employers are members of the Controlled Group;
1 - 9
<PAGE> 15
(b) the Employee's employment recognized by any Portability Group
Member;
(c) the Employee's employment with Eddy Potash, Inc. prior to August
31, 1996; and
(d) to the extent resolved by the governing body of the Sponsor, any
period of continuous employment of the Employee by any
predecessor organization to the Employer which ended on the date
the predecessor organization merged or consolidated into the
Employer.
In no event shall Service include any period of time during which the
Employee was not a common-law employee, but rather a partner or a
proprietor or an independent contractor. Furthermore, an Employee's
employment with a Controlled Group Member prior to its becoming a member
shall be considered Service for purposes of determining eligibility
under Section 2.01 of this Plan, except as otherwise provided in a
resolution pursuant to subsection (c) above.
1.33 "SPONSOR" shall mean Eddy Potash, Inc., a Mississippi corporation with
corporate offices in Yazoo City, Mississippi, and any business
organization or corporation into which Eddy Potash, Inc. may be merged
or consolidated or by which it may be succeeded.
1.34 "SPOUSE" shall mean the actual spouse or surviving spouse of a
Participant or a former spouse of a Participant, if and to the extent
such former spouse is to be treated as a spouse or surviving spouse of
the Participant under a qualified domestic relations order described in
section 414(p) of the Code.
1.35 "THRIFT COMMITTEE" OR "COMMITTEE" shall mean the committee as provided
in Article 9 hereof appointed with respect to the administration of the
Plan.
1.36 "TRUST" shall mean the trust continued pursuant to Article 10 hereof by
the Sponsor under which the Employer contributions and any contributions
by Participants shall be received, held, invested and disbursed by the
Trustee to, or for the benefit of, Participants, Retired Participants
and their Beneficiaries.
1.37 "TRUST FUND" OR "FUND" shall mean any and all cash, securities, real
estate and other property held by the Trustee pursuant to the terms of
the Plan.
1.38 "TRUSTEE" shall mean NationsBank of South Carolina, NA or any
individual, individuals or financial institution as shall have accepted
the appointment by the Sponsor as successor Trustee under the Plan.
1 - 10
<PAGE> 16
1.39 "VESTING SERVICE" shall mean the number of Plan Years during which an
Employee completes at least one thousand (1,000) Hours of Service.
Provided, however, that the following periods of Service shall be
disregarded in computing a Participant's period of Vesting Service under
the Plan:
(a) Service before the Effective Date to the extent that such Service
would have been disregarded under the rules of any predecessor
plan concerning disruptions in Service;
(b) Service rendered by an Employee prior to the original Effective
Date of this Plan.
1.40 "YEAR OF SERVICE" shall mean a twelve (12) consecutive month period of
Service during which an Employee completes at least one thousand (1,000)
Hours of Service. The initial twelve (12) consecutive month period
shall commence on the date the Employee first performs an Hour of
Service, and each subsequent twelve (12) month period shall be the Plan
Year, beginning with the Plan Year which commences prior to the end of
the initial twelve (12) month period.
1 - 11
<PAGE> 17
ARTICLE 2
PARTICIPATION IN THE PLAN
2.01 ELIGIBILITY DATE.
Each Employee on August 16, 1996, and each person who becomes an
Employee after August 16, 1996, shall, subject to the overriding
provisions of the following paragraphs, be eligible to become a
Participant on the first entry date coincident with or next following
the date which is ninety (90) days after such person first performs an
Hour of Service for the Employer, provided he is still an Employee on
such entry date. Entry dates are the Effective Date of the Plan, and
the first day of each calendar month thereafter.
Provided, however, that no Employee shall become a Participant prior to
the effective date of adoption of the Plan by the Employee's Employer.
Notwithstanding the above, Employees who are not represented by a
collective bargaining unit shall be considered as an excluded class for
purposes of the Plan, and Employees who are members of such class shall
not be eligible to participate in the plan.
2.02 ELIGIBILITY DETERMINATION.
Within a reasonable time prior to the date on which an Employee will
become eligible, if the Employee continues employment with the Employer,
to participate in the Plan, the Plan Administrator shall forward to the
Employee a salary deferral agreement and such application for
participation as the Plan Administrator shall require and shall notify
him of the requirements to become a Participant. Should any question
arise as to eligibility, the Plan Administrator shall decide such
question, and such determination, if made in good faith and in
accordance with the terms of the Plan, shall be final.
2.03 PARTICIPATION.
An Employee shall become a Participant on the first day on which he is
eligible to become a Participant and has filed with the Plan
Administrator such written application as the Plan Administrator may
require for participation in the Plan, in which the Employee has agreed
to abide by all the provisions hereof and has specified the amount of
the Employee's salary deferral, if any, pursuant to Section 3.02 hereof.
Once an Employee has become a Participant he shall continue to be a
Participant until his Service terminates or he dies, sustains
Disability, incurs a Break in Service or retires. In the event that a
Participant's Service terminates or he dies, sustains Disability, or
retires in accordance with the provisions of the Plan, he shall
thereupon cease to be a Participant.
2 - 1
<PAGE> 18
A Participant who ceases to be eligible for the Plan because of a change
in his classification of employment shall not be entitled to receive
benefits solely by reason of such change in classification, but rather
his eligibility for benefits shall be determined in accordance with the
provisions of the Plan; provided, however, that employment of the
Participant in such an excluded class shall be deemed Service for
participation and vesting purposes.
2.04 PARTICIPATION FOLLOWING REEMPLOYMENT OR BREAK IN SERVICE.
Except as otherwise provided in the following sentence, an individual
who has previously met the Plan's age and service requirements and whose
Service has terminated or who has incurred a Break in Service, shall be
eligible to participate immediately upon again being credited with
Service. Such an individual who is re-employed in an excluded class of
employees, as described in Section 2.01, shall not be eligible to
participate while in such excluded class.
2.05 PARTICIPATION FOLLOWING CHANGE IN CLASSIFICATION.
In the event a Participant becomes ineligible to participate because he
is no longer a member of an eligible class of Employees, but his Service
has not terminated, such Employee shall be eligible to participate
immediately upon his return to an eligible class of Employees. If such
participant's Service is terminated, his eligibility to participate
shall be determined as a former Participant pursuant to Section 2.04
hereof.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee then
shall participate immediately if such Employee has satisfied the minimum
age and Service requirements and would have previously become eligible
to participate had he been in the eligible class. If such an Employee
has not satisfied the minimum age and Service requirements when he
becomes a member of the eligible class, he shall participate as provided
in Section 2.03 hereof, and his employment in the excluded class shall
be treated as Service in determining his eligibility to participate.
2.06 PORTABILITY.
In the event that an individual is transferred to or from employment
covered by this Plan from or to employment covered by Another Plan, the
provisions of this Section 2.06 shall control in situations where the
provisions of this Section 2.06 are in conflict with any other Section
or Sections of the Plan. For purposes of this Section 2.06, "Another
Plan" or "Other Plan" shall mean a qualified defined contribution plan
of deferred compensation of either a member of the Controlled Group or a
Portability Group Member.
2 - 2
<PAGE> 19
In the event that an individual is transferred from employment covered
by Another Plan to employment covered by this Plan, employment of such
individual which is counted for eligibility, vesting and/or benefit
accrual under the Other Plan shall be counted as Service for the same
purpose under this Plan. Provided, however, that participation in this
Plan shall not commence prior to the date on which the transfer takes
place.
In the event that an individual is transferred from employment covered
by this Plan to employment covered by Another Plan, employment of such
individual which is counted for vesting purposes under the Other Plan
shall be counted as Service for vesting purposes under this Plan. The
individual's Accounts in this Plan shall be maintained on an inactive
basis and will continue to share in the allocation of investment
earnings pursuant to Section 4.02 hereof. Except as otherwise provided
in this paragraph, such individual will not share in the allocation of
Employer matching contributions under this Plan after the date of his
transfer to employment covered by Another Plan. In the Plan Year in
which such transfer occurs, such individual shall be entitled to share
in the Employer matching contributions under this Plan based on his
salary deferral contributions under this Plan prior to the date of
transfer. The individual shall not share in the allocation of Employer
matching contributions under this Plan after the Plan Year in which the
transfer occurs unless the individual is transferred back into
employment covered by this Plan, in which case the second paragraph of
this Section 2.06 shall apply. Payment of termination benefits under
this Plan may not occur prior to the date the individual's employment
covered by Another Plan terminates. The individual shall, however, be
permitted to make in-service withdrawals pursuant to the terms of
Article 5 and to transfer amounts between investment funds pursuant to
the terms of Section 4.08.
2.07 ABSENCE IN THE ARMED SERVICES.
In the case of an Employee or a Participant who leaves Service to enter
the Armed Services of the United States of America and who returns to
Service on or before the expiration of ninety (90) days after the date
on which he is entitled to be released from active duty in the Armed
Services (or at such other date as the law may specify as to
re-employment), such Service of an Employee or Participant, to the
extent required by law, shall be treated as continuous despite such
absence, and such period of absence shall be included, to the extent
required by law, in determining service for purposes of eligibility and
Vesting Service for purposes of the Plan.
2.08 FAMILY AND MEDICAL LEAVE ACT REQUIREMENTS.
Notwithstanding any other provisions of the Plan, in the case of an
Employee who takes family or medical leave as an eligible employee of a
covered employer under the provisions of the Family and Medical Leave
Act of 1993 (FMLA), any period of FMLA leave shall be treated as
continued service for purposes of eligibility to participate and Vesting
Service to the extent required by applicable law.
2 - 3
<PAGE> 20
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
3.01 EMPLOYER CONTRIBUTIONS.
Each Plan Year ending after the Effective Date and during the
continuance of the Plan, the Employer shall make contributions to the
Plan as described below.
(a) Employer Matching Contribution - The Employer shall contribute on
behalf of each Participant an amount equal to twenty-five percent
(25%) of such Participant's salary deferral contributions during
a payroll period, but not in excess of two percent (2%) of such
Participant's Compensation for the payroll period. Provided,
however, the Employer shall not contribute amounts which (i)
would, if allocated to the Employer Account of Highly Compensated
Employees pursuant to Section 4.01(b), create excess aggregate
contributions (as defined in Section 3.04) or (ii) are
attributable to contributions which pursuant to Sections 3.02(a),
3.03 or 3.04 are to be distributed to Employees. The Employer
matching contribution shall be subject to the vesting schedule
provided in Section 8.01 hereof and shall be credited to Part I
of the Participant's Employer Account.
(b) Qualified Non-Elective Contribution - The Employer shall
contribute a Qualified Non-Elective Contribution on behalf of
each eligible Participant in the amount of one percent (1%) of
the Participant's Compensation for the Plan Year. Qualified
Non-Elective Contributions shall be fully vested at all times,
shall be subject to the distribution provisions that are
applicable to salary deferral contributions and shall be credited
to Part II of the Participant's Employer Account.
Employer contributions shall be made as soon as practicable on or before
the due date (including extensions) for filing the federal income tax
return for the year for which such contributions are made.
Provided, however, that any Forfeitures arising with respect to an
Employer since the last day of the preceding Plan Year or otherwise
becoming available shall be applied to reduce that Employer's
contributions to the Plan for the current Plan Year, or as soon
thereafter as practicable.
In satisfaction of its contribution obligations under this Section 3.01,
the Employer may, at its option, deliver or cause to be delivered either
cash or such other property as is acceptable to the Trustee.
Contributions made to the Plan by the Employer shall be made on the
condition that they are deductible under section 404 of the Code.
3 - 1
<PAGE> 21
3.02 CONTRIBUTIONS BY, OR ON BEHALF OF, PARTICIPANTS.
A Participant may elect contributions to the Plan, as described below.
Such amounts shall be fully vested at all times.
(a) Salary Deferral Contributions. Effective with the first full
payroll period beginning on or after the date on which he becomes
a Participant, a Participant may voluntarily elect to enter into
a salary deferral agreement with the Employer. Such salary
deferral agreement shall serve to direct the Employer to
contribute to the Participant's Personal Account, as salary
deferral contributions, a percentage of the amount which would
otherwise be paid to the Participant as direct Compensation. The
amount of his Compensation which the Participant is to defer for
a Plan Year may not be more than seventeen and six-tenths percent
(17.6%). Provided, further, that such amount shall be subject
also to the limitations on annual additions for the limitation
year under Section 4.04 hereof.
A Participant's aggregate elective salary deferral contributions
in any taxable year of the Participant shall not be greater than
seven thousand dollars ($7,000), or such increased amount
pursuant to section 402(g) of the Code for any taxable year as
determined by the Commissioner of Internal Revenue and effective
on January 1 of the taxable year. Elective salary deferral
contributions in excess of the preceding limit occurring in any
Plan Year (together with any Income allocable to such amount)
shall be distributed not later than the first April 15th
following the close of the Plan Year in which such excess
deferral contributions occurred, to the Participant on whose
behalf the excess was contributed.
If the Participant makes "elective deferrals," as defined in
regulations issued pursuant to section 402(g) of the Code, to
more than one plan, which exceed the limit described above in the
aggregate, such Participant may elect a distribution of a part or
all of such excess amount which has been contributed to this
Plan. An election to receive a distribution of such excess
deferrals must be in writing and must include the Employee's
certification that the specified amount is an excess deferral.
Such election must be made not later than the first March 15th
following the close of the Plan Year in which such excess
deferrals occurred. Upon such election, the excess amount
specified by the Participant shall be distributed to the
Participant not later than the first April 15th following the
close of the Plan Year in which such excess deferrals occurred.
The amount of such excess to be distributed shall be reduced by
the amount of any excess contributions previously distributed
pursuant to Section 3.03 hereof for the Plan Year beginning
within the taxable year for which the excess under this Section
3.02 is distributed.
Such excess deferrals shall be adjusted for any Income allocable
to such excess deferrals up to the date of distribution. The
Income allocable to such excess deferrals shall be equal to the
sum of (i) Income allocable to Part I of the Participant's
Personal Account for the taxable year multiplied by a fraction,
the numerator of which is the
3 - 2
<PAGE> 22
excess deferrals for the Participant for the year and the
denominator of which is the total account balance of the Employee
attributable to elective salary deferrals without regard to any
Income occurring during the taxable year; and (ii) the Income
allocable to Part I of the Participant's Personal Account for the
period between the end of the taxable year and the distribution
date multiplied by a fraction determined under the method
described in (i) of this sentence.
The determination of whether a Participant's elective deferrals
with respect to any taxable year shall exceed the limitations of
Code section 402(g) shall be the sole responsibility of the
Participant, and neither the Employer, the Committee nor the
Trustee shall have any obligations with respect to such
determination.
Salary deferral contributions shall be made by payroll deduction
and shall be considered to be salary deferral contributions for
the Plan Year in which they are actually made.
The direction and agreement by the Participant to defer a portion
of his Compensation as a salary deferral contribution rather than
receive it as a cash benefit shall be in the form of a salary
deferral agreement as set forth in Section 2.03 hereof. A
Participant's salary deferral agreement may be prospectively
amended to change the percentage of the salary deferral, either
increasing, decreasing, starting or stopping the percentage of
salary deferral, as of any payroll period. Such change shall be
effective as of the first pay period following receipt by the
Committee of written notice of the change, provided such written
notice is received in time to allow normal processing of the
paperwork involved in instituting the change. The Committee may
establish additional procedures for the renewal, amendment,
termination, or revocation of salary deferral agreements which
shall be uniform and nondiscriminatory. Provided, however, that
the requirement of uniformity (but not nondiscrimination) may be
suspended, and such differences in procedure (provided such
differences are merely procedural) may be permitted between
Highly Compensated Employees and Non-highly Compensated Employees
as are necessary, proper and convenient in order to bring the
Plan into compliance with the coverage and discrimination
requirements of Section 3.03 and thereby preserve, or assure the
preservation of, the qualified status of the Plan. As a
condition precedent for accepting a Participant's salary deferral
agreement, the Employer also may, at any time, as of any time,
and from time to time, amend, terminate or revoke the salary
deferral agreement of a Participant who is a Highly Compensated
Employee in order to comply with the coverage and discrimination
requirements of Section 3.03 hereof, or for other reasons deemed
appropriate by the Thrift Committee.
The Employer shall contribute to Part I of the Personal Account
of each Participant an amount equal to the reduction in such
Participant's Compensation pursuant to his salary deferral
agreement. The contribution to be made as a result of such
reduction in Compensation shall be paid to the Trustee as soon as
practicable, but no later than the month following the month for
which the reduction in Compensation was made;
3 - 3
<PAGE> 23
provided, that if a Participant has executed a salary deferral
agreement pending the adoption of the Plan by the Employer or
pending a determination by the Committee whether contributions on
his behalf under such agreement would cause the Plan not to
qualify under section 401(k) of the Code, such contributions may
be paid to the Trustee during the month following the month in
which such adoption or determination is made, whichever is
applicable, but in no event later than thirty (30) days after the
end of the Plan Year. Such salary deferral contributions shall
be considered to be Employer contributions under the Plan and
shall be nonforfeitable when made.
If the Committee shall determine that the salary deferral
contributions provided for in this Section 3.02 would exceed the
limitations of Section 3.03 hereof, the Committee shall, before
the end of the Plan Year following the Plan Year during which
such excess contribution occurs, distribute the amount of such
excess to the Participant on whose behalf the contribution was
made.
(b) Voluntary After-Tax Contributions. Subject to the provisions of
Section 4.04 hereof, a Participant may voluntarily elect to make
after-tax contributions to the Plan. Such contributions must be
made by payroll deduction, shall be credited to Part II of the
Participant's Personal Account and, together with all Income
allocable to such Account, shall be fully vested at all times.
Election to make voluntary after-tax contributions shall be made
on forms provided by the Thrift Committee and shall be made and
administered in accordance with rules and procedures established
by the Thrift Committee.
(c) Rollover Contributions. Rollover contributions by a Participant
(or by an Employee expected to become a Participant) to his
Personal Account in cash or in other property acceptable to the
Trustee shall be allowed from individual retirement accounts,
within the meaning of section 408(a) of the Code, which have been
established as conduits for other qualified plan distributions
pursuant to section 402 or section 403 of the Code or from
another qualified plan; provided that no portion of any such
rollover is attributable to nondeductible employee contributions
and provided further that acceptance of such rollover
contributions shall be subject to any procedures governing
acceptance of such rollover contributions which may be
established by the Plan Administrator or Trustee. Direct
rollover of an eligible rollover contribution as described in
Code sections 401(a)(31) and 402 and regulations thereunder
elected by a Participant (or by an Employee expected to become a
Participant) shall be allowed from another qualified plan,
provided that such direct rollover shall be made only in cash or
its equivalent in cash or in other property acceptable to the
Trustee and provided further that acceptance of such rollover
contributions shall be subject to any procedures governing
acceptance of such rollover contributions which may be
established by the Plan Administrator or Trustee.
3 - 4
<PAGE> 24
Any such rollover contributions shall be remitted to the Trustee
as soon as practicable, shall be credited to Part III of the
Participant's Personal Account and shall be fully vested at all
times. Rollover contributions shall be treated in the same
manner as Participant voluntary after-tax contributions for
purposes of investment and allocation of Income, and shall be
withdrawable from the Participant's Personal Account to the
extent provided in Article 5 or otherwise shall be distributed as
provided in Articles 6, 7 and 8 hereof.
Rollover contributions shall not be considered (i) as
contributions by the Employer under Section 3.01 of this Plan,
(ii) in determining the maximum benefits permissible under the
Plan pursuant to Section 4.04 hereof or (iii) in determining the
Top Heavy Ratio in Section 13.02(j) hereof.
3.03 COVERAGE AND DISCRIMINATION REQUIREMENTS.
Salary deferral contributions for any Plan Year after December 31, 1986
shall satisfy one (1) of the following tests:
(a) the average deferral percentage for the Highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than the average deferral percentage
of the Non-highly Compensated Employees who are eligible to
participate in the Plan for the Plan Year multiplied by one and
twenty-five hundredths (1.25); or
(b) the excess of the average deferral percentage for the Highly
Compensated Employees who are eligible to participate in the Plan
for the Plan Year over that of the Non-highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than two percent (2%), nor shall the
average deferral percentage for such Highly Compensated Employees
be more than that of such Non-highly Compensated Employees
multiplied by two (2).
For purposes of this Section, the term "average deferral percentage" for
a group of Employees shall mean the average of the percentages,
calculated separately for each Employee in the group, of the amount of
salary deferral contributions and, if applicable, Qualified Non-Elective
Contributions and qualified matching contributions, made on behalf of
the Employee for a Plan Year, to the amount of the Employee's
Compensation for such Plan Year (the "deferral percentage"). Qualified
Non-Elective Contributions and qualified matching contributions may be
included in the calculation of deferral percentages only if the
conditions described in section 1.401(k)-1(b)(5) of the regulations are
satisfied. For purposes of calculating the average deferral percentage,
eligible Employees with no salary deferral contributions or, if
applicable, Qualified Non-Elective Contributions or qualified matching
contributions, shall be included in such calculation with deferral
percentages of zero percent (0%). For purposes of determining the
deferral percentage of a Participant who is a five percent (5%) owner of
the Employer or one of the top ten (10) highest paid Highly Compensated
Employees, the amount of contributions and Compensation of such
Participant shall include the contributions and
3 - 5
<PAGE> 25
Compensation of family members (as described in Code section
414(q)(6)(B)) to the extent required by regulations. Family members who
are required to be aggregated with respect to such Highly Compensated
Employees shall be disregarded as separate Employees in determining the
average deferral percentage both for eligible Employees who are Highly
Compensated Employees and for eligible Employees who are Non-highly
Compensated Employees. For purposes of this Section, the following
rules, relating to aggregation of plans, shall apply:
(c) All salary deferral contributions that are made under this Plan
and any other plan that is aggregated with this Plan for purposes
of sections 401(a)(4) and 410(b) (other than section
410(b)(2)(A)(ii)) of the Code shall be treated as made under a
single plan.
(d) If this Plan is permissively aggregated with any other plan or
plans for purposes of section 401(k) of the Code, such aggregated
plans must satisfy sections 401(a)(4) and 410(b) of the Code as
though they were a single plan.
(e) The deferral percentage for any eligible Employee who is a Highly
Compensated Employee and who is eligible to make salary deferral
contributions under this Plan and any other plan maintained by
the Employer (other than plans that may be permissively
aggregated) shall be determined as if all such plans were a
single plan.
A salary deferral contribution shall be considered to have been made
with respect to a Plan Year if it (i) is allocated to the account of a
Participant as of any date within that Plan Year and (ii) relates to
Compensation that either would have been received by the Participant in
the Plan Year but for the Participant's election to defer under the
arrangement, or is attributable to services performed by the Participant
in the Plan Year and, but for the Participant's election to defer, would
have been received by the Participant within two and one-half (2-1/2)
months after the close of the Plan Year. A contribution shall be
considered allocated as of any date within a Plan Year if the following
conditions are met:
(f) such allocation is not dependent upon participation in the Plan
as of any date subsequent to the allocation date,
(g) the Employer contributions in addition to those attributable to
salary deferral contributions are actually made to the Plan no
later than the end of the period described in Code section
404(a)(6) applicable to the taxable year with or within which the
Plan Year ends, and
(h) the Employer contributions attributable to salary deferrals are
actually made to the Plan no later than the end of the twelve
(12) month period immediately following the end of the Plan Year
to which the contribution relates.
3 - 6
<PAGE> 26
Excess contributions shall mean, with respect to any Plan Year, the
excess of:
(i) The aggregate amount of contributions actually taken into account
in computing the average deferral percentage of Highly
Compensated Employees for such Plan Year as described above, over
(j) The maximum amount of such contributions permitted by the average
deferral percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of the
average deferral percentages, beginning with the highest of such
percentages).
Provided, that the amount of any such excess contributions to be
distributed pursuant to this Section 3.03 with respect to a Participant
for a Plan Year shall be reduced by any salary deferral contributions in
excess of the dollar limit specified in Section 3.02(a) hereof which are
previously distributed to such Participant for his taxable year ending
with or within such Plan Year. In addition, the amount of such excess
contribution of a Highly Compensated Employee whose average deferral
percentage is determined under the family aggregation rules, shall be
allocated among the family members in proportion to the salary deferral
contributions of each family member that are combined to determine the
combined average deferral percentage.
Excess contributions shall be adjusted for any Income up to the date of
distribution. The Income allocable to such excess contribution shall be
equal to the sum of (i) the allocable Income for the Plan Year and (ii)
the allocable Income for the period between the end of the Plan Year and
the date of distribution. The Income allocable to excess contributions
for such periods is determined in a manner analogous to the above
allocation of Income to excess deferrals, but basing the allocation on
excess contributions and the Income allocable to salary deferral
contributions.
If, for any Plan Year, salary deferral contributions are made with
respect to the Highly Compensated Employees in excess of that
permissible under subsections (a) and (b) of this Section 3.03, the
Committee shall, before the end of the Plan Year following the Plan Year
during which such excess contribution occurs, distribute the amount of
such excess to the Participant on whose behalf the contribution was
made.
Any distributions made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner permitted
under section 401(k) of the Code, the regulations thereunder and any
other related rulings or pronouncements issued by the Secretary of the
Treasury or the Internal Revenue Service.
3 - 7
<PAGE> 27
3.04 DISCRIMINATION REQUIREMENTS FOR OTHER CONTRIBUTIONS.
The Plan must satisfy the nondiscrimination requirements of section
401(m) of the Code and the regulations issued thereunder, which are
incorporated herein by reference. The Plan shall satisfy such
requirements if, with respect to any Plan Year, either of the following
alternative conditions are met:
(a) the average contribution percentage for eligible Highly
Compensated Employees is not greater than the average
contribution percentage for eligible Non-highly Compensated
Employees, multiplied by one and twenty-five hundredths (1.25).
(b) the excess of the average contribution percentage for eligible
Highly Compensated Employees over that of eligible Non-highly
Compensated Employees is not more than two percent (2%), nor is
the average contribution percentage for such Highly Compensated
Employees more than that of such Non-highly Compensated
Employees, multiplied by two (2).
For purposes of this Section, "Eligible Employee" shall mean any
Employee who is eligible to make or be credited with contribution
percentage amounts. Contribution percentage amounts shall mean Employer
matching contributions, voluntary after-tax contributions and (subject
to the conditions hereinafter enumerated and to the extent taken into
account in the calculation of average contribution percentages) salary
deferral contributions, Qualified Non-Elective Contributions and
qualified matching contributions. The Employer may elect to include
salary deferral contributions and Qualified Non-Elective Contributions,
and must include qualified matching contribution, to the extent such
contributions are not included in the tests described in Section 3.03
hereof. Salary deferral contribution and Qualified Non-Elective
Contributions may be included only if the conditions described in
section 1.401(m)-1(b)(5) of the regulations are satisfied. The term
"average contribution percentage" for a group of Eligible Employees
shall mean the average of the ratios, calculated separately for each
Eligible Employee in the group, of the contribution percentage amounts
made on behalf of an Eligible Employee during the Plan Year to that
Eligible Employee's Compensation for such Plan Year (the "contribution
percentage"). For purposes of calculating the average contribution
percentage, Eligible Employees with no contribution percentage amounts
shall be included in such calculation with contribution percentages of
zero percent (0%). For purposes of determining the contribution
percentage of a Participant who is a five percent (5%) owner of the
Employer or one of the top ten (10) highest paid Highly Compensated
Employees, the amount of voluntary after-tax contributions, Employer
matching contributions and Compensation of such Participant shall
include the voluntary after-tax contributions, Employer matching
contributions and Compensation of family members (as described in Code
section 414(q)(6)(B)). Family members, with respect to Highly
Compensated Employees, shall be disregarded as separate Employees in
determining the contribution percentage both for Eligible Employees who
are Non-highly Compensated Employees and for Eligible Employees who are
Highly Compensated
3 - 8
<PAGE> 28
Employees. For purposes of this Section, the following rules, relating
to aggregation of plan, shall apply:
(c) All contribution percentage amounts that are made under this Plan
and any other plan that is aggregated with this Plan for purposes
of sections 401(a)(4) and 410(b) (other than section
410(b)(2)(A)(ii)) of the Code shall be treated as made under a
single plan.
(d) If this Plan is permissively aggregated with any other plan or
plans for purposes of section 401(m) of the Code, such aggregated
plans must satisfy sections 401(a)(4) and 410(b) of the Code as
though they were a single plan.
(e) The contribution percentage for any Eligible Employee who is a
Highly Compensated Employee and who is eligible to have
contribution percentage amounts credited to him under this Plan
and any other plan maintained by the Employer (other than plans
that may not be permissively aggregated) shall be determined as
if all such plans were a single plan.
"Excess aggregate contributions", plus any Income allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to Participants to whose
accounts such excess aggregate contributions were allocated for the
preceding Plan Year. Excess aggregate contributions shall be allocated
to Participants who are subject to the family member aggregation rules
of section 414(q)(6) of the Code in proportion to the Employee matching
contributions of each family member that are combined to determine the
combined average contribution percentage. Excess aggregate
contributions shall be treated as annual additions, as defined in
Section 4.04, hereof.
"Excess aggregate contributions" shall mean, with respect to any Plan
Year, the excess of:
(f) The aggregate contribution percentage amounts taken into account
in computing the numerator of the contribution percentage
actually made on behalf of Highly Compensated Employees for such
Plan Year, over
(g) The maximum contribution percentage amounts permitted by the
average contribution percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees in
order of their contribution percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining excess elective
deferrals pursuant to Section 3.02 and then determining excess
contributions pursuant to Section 3.03 hereof.
Excess aggregate contributions shall be adjusted for any Income up to
the date of distribution. The Income allocable to excess aggregate
contributions for such period is determined in a manner analogous to the
above allocation of Income to excess deferrals,
3 - 9
<PAGE> 29
but basing the allocation on excess aggregate contributions and the
Income allocable to Employer matching contributions and Employee
voluntary after-tax contributions.
Forfeitures of excess aggregate contributions shall be applied to reduce
Employer contributions.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner permitted
under section 401(m) of the Code, the regulations thereunder and any
other related rulings or pronouncements issued by the Secretary of the
Treasury or the Internal Revenue Service.
3.05 MULTIPLE USE OF ALTERNATIVE LIMITATION.
Compliance with Section 3.03 and Section 3.04 shall not be achieved by
the use of both the limitation in Section 3.03(b) and the limitation in
Section 3.04(b) for the same Plan Year. The determination and
correction of such a multiple use shall be governed by the rules set
forth in section 401(m) of the Code and in regulations, rulings or other
pronouncements interpreting such section, which are incorporated herein
by reference; provided, however, that the multiple use shall be
corrected through reduction of the average contribution percentage of
all Highly Compensated Employees.
3.06 MEDIUM OF FINANCING THE PLAN.
Investment of all contributions made in accordance with the Plan and
provision for payment of benefits to Retired Participants and
Beneficiaries shall be accomplished by a Trust, as it may be amended
from time to time, which shall constitute a part of the Plan.
3 - 10
<PAGE> 30
ARTICLE 4
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.01 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
Employer contributions for each Plan Year shall be allocated as follows:
(a) Salary Deferrals. Salary deferral contributions pursuant to
Section 3.02(a) hereof shall be allocated as of each Allocation
Date to Part I of the Personal Account of each Participant on
whose behalf such contributions were made.
(b) Employer Matching Contributions. Employer matching contributions
pursuant to Section 3.01(a) hereof shall be allocated to Part I
of the respective Employer Accounts of Participants on whose
behalf such contributions were made.
(c) Qualified Non-Elective Contributions. Qualified Non-Elective
Contributions pursuant to Section 3.01(b) hereof shall be
allocated as of the last day of the Plan Year to Part II of the
respective Employer Accounts of Participants on whose behalf such
contributions were made. Participants who complete at least one
(1) Hour of Service during the Plan Year shall be eligible to
share in the allocation of Qualified Non-Elective Contributions.
Participant contributions pursuant to Section 3.02 hereof shall be
allocated to the respective Personal Accounts of Participants who
contributed such amounts or on whose behalf such contributions were
made.
4.02 ALLOCATION OF INCOME.
As of each Allocation Date, Income received on investments held by the
Trustee shall be allocated to each Participant's Employer Account and
Personal Account.
The Income of the Trust Fund for the period ending with such Allocation
Date shall be determined as the change in the fair market value of the
Trust Fund since the last Allocation Date, after eliminating the effect
of all non-investment transactions.
Income shall be allocated as of each such Allocation Date as provided
hereunder. Income shall be allocated to each Participant's accounts in
the ratio that the value of each such account as of the last Allocation
Date bears to the total value of the Employer Accounts and Personal
Accounts for all such persons as of the last Allocation Date. These
account values shall not include any accounts terminated or amounts
withdrawn since the last Allocation Date. Income on segregated account
balances shall be allocated as received on the investment of assets of
such accounts.
4 - 1
<PAGE> 31
For purposes of this section only, the term "Participants" shall include
Retired Participants, present and former Employees and Beneficiaries who
have account balances, but who would not otherwise be considered to be
Participants under the Plan.
Should the Plan Administrator determine that the strict application of
the foregoing allocation procedures will not result in an equitable and
non-discriminatory allocation among the accounts of Participants, it
may modify its procedures for the purpose of achieving an equitable and
non-discriminatory allocation in accordance with the general concepts
of the Plan and the provisions of this article.
4.03 ADJUSTMENT TO ACCOUNTS.
As soon as practicable after each Allocation Date, the value of each
Employer Account and each Personal Account shall be determined as
follows:
(a) Each Employer Account shall be equal to the value of such account
as of the last Allocation Date, less any payment or Forfeiture
from the account since the last Allocation Date to, or on behalf
of, such Participant, plus the allocations of Employer
contributions and Income specified in this article and any other
adjustments made to the Account since the last Allocation Date.
(b) Each Personal Account shall be equal to the value of such account
as of the last Allocation Date, plus any contributions made on
behalf of the Participant to the Plan (including Participant
salary deferral contributions) and less any withdrawals or
payments to or on behalf of such Participant from such account
since the last Allocation Date, plus the allocation of Income
specified in this article and any other adjustments made to the
Account since the last Allocation Date.
4.04 MAXIMUM ANNUAL ADDITIONS TO PARTICIPANTS' ACCOUNTS.
The annual addition to any Participant's accounts for any Plan Year
shall not exceed the lesser of (i) thirty thousand dollars ($30,000),
or, if greater, one-fourth of the defined benefit dollar limitation set
forth in section 415(b)(1) of the Code as in effect for the limitation
year, and (ii) twenty-five percent (25%) of such Participant's total
cash compensation for the Plan Year.
For purposes of this section and of Article 13 hereof, the term
"compensation" shall mean wages within the meaning of Code section
3401(a) and all other payments of compensation to an Employee by his
Employer (in the course of the employer's trade or business) for which
the Employer is required to furnish the Employee a written statement
under Code sections 6041(d), 6051(a)(3), and 6052. Compensation shall
be determined without regard to any rules under Code section 3401(a)
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Code section 3401(a)(2)).
For any self-employed individual, "Compensation" will mean earned
income.
4 - 2
<PAGE> 32
For limitation years beginning after December 31, 1991, for purposes of
applying the limitations of this section, compensation for a limitation
year is the compensation actually paid or made available during such
limitation year.
The term "annual addition" for a Participant means the sum of the
following for the Plan Year:
(a) contributions made by the Employer on behalf of the Participant
(including salary deferral contributions made pursuant to Section
3.02(a) hereof); and
(b) Forfeitures allocated to a Participant's Employer Account, if
any;
(c) contributions made by the Participant, if any;
(d) amounts allocated to an individual medical account which is part
of a defined benefit plan, as described in Code section
415(l)(2); and
(e) amounts attributable to post-retirement medical benefits
allocated to a separate account of a key employee under a welfare
benefit fund as described in Code section 419A(d)(2).
If a Participant is, or was, a participant at any time in both a
qualified defined benefit pension plan and a qualified defined
contribution plan ever maintained by the same employer, the sum of the
defined benefit fraction and the defined contribution fraction in any
limitation year may not exceed one (1).
The term "defined benefit fraction" shall mean, for any Plan Year, a
fraction the numerator of which is the projected annual benefit of the
Participant under all qualified defined benefit pension plans maintained
by the Employer (determined as of the close of the Plan Year), if any,
and the denominator of which is the lesser of the following:
(i) one and four tenths (1.4) multiplied by one hundred percent
(100%) of the Participant's average total cash compensation for
the three (3) consecutive limitation years in which he received
the highest aggregate total cash compensation; and
(ii) one and twenty-five hundredths (1.25) multiplied by ninety
thousand dollars ($90,000) (or such greater amount as may be
determined by the Secretary of the Treasury).
The term "defined contribution fraction" shall mean, for any Plan Year,
a fraction the numerator of which is the sum of the annual additions to
the Participant's accounts under all qualified defined contribution
plans maintained by the Employer (determined as of the close of the Plan
Year) and the denominator of which is the sum of the lesser of the
following amounts determined for such year and for each prior year of
service with the Employer:
4 - 3
<PAGE> 33
(i) 1.25, multiplied by the dollar limitation in effect under Code
section 415(c)(1)(A) for such year (determined without regard to
Code section 415(c)(6)), or
(ii) 1.4, multiplied by the amount which may be taken into account
under Code section 415(c)(1)(B) (or Code section 415(c)(7), if
applicable) with respect to such individual under such plan for
such year.
For purposes of determining annual additions, the limitation year shall
be the Plan Year.
All qualified defined benefit pension plans (whether or not terminated)
of an employer shall be treated as one (1) qualified defined benefit
pension plan for purposes of applying the limitations of section 415(b),
(c) and (e) of the Code.
All qualified defined contribution plans (whether or not terminated) of
an employer shall be treated as one (1) qualified defined contribution
plan for purposes of applying the limitations of section 415(b), (c) and
(e) of the Code.
In the case of a group of employers which constitutes a Controlled
Group, all such employers shall be considered a single employer for
purposes of applying the limitations of section 415 of the Code.
If as a result of the allocation of Forfeitures, a reasonable error in
estimating the compensation of a Participant, a reasonable error in
determining the amount of elective deferral contributions (within the
meaning of Code section 402(g)(3)) that may be made with respect to any
individual under the limits of Code section 415, or other facts and
circumstances allowed by regulation, the annual additions limitation is
exceeded in any Plan Year, the excess annual addition shall be charged
against the Participant's accounts in the following order of priority by
the amount required to insure compliance with this Section:
(i) voluntary after-tax contributions;
(ii) salary deferral contributions which are not matchable salary
deferrals pursuant to Section 3.01(b);
(iii) matchable salary deferral contributions pursuant to Section
3.01(b) and Employer matching contributions, on a pro rata basis;
(iv) all other Employer contributions.
The portion of such excess which consists of voluntary after-tax
contributions and salary deferral contributions shall be returned to the
Participant. The portion of such excess attributable to Employer
contributions shall be treated as a Forfeiture for the Plan Year and
shall be allocated to, and maintained as, a suspense account under the
Plan to which Income is not allocated and which will be used to reduce
Employer contributions along with other Plan Forfeitures as of the next
date on which Employer contributions are
4 - 4
<PAGE> 34
allocated. In addition, no Employer or Employee contributions may be
made to the Plan until any excess maintained in a suspense account is
exhausted.
Notwithstanding any provision of the Plan to the contrary, if, in any
limitation year, the sum of the defined benefit fraction and the defined
contribution fraction exceed one (1.0), then the rate of the annual
addition for any Participant shall be automatically reduced to the level
necessary to prevent the limitations of this section from being exceeded
with respect to such Participant.
4.05 SEPARATION OF FORFEITURES AND ACCOUNTS BY EMPLOYER.
The accounts of Participants who are Employees of each Employer shall be
administered separately from those of any other Employer for purposes of
allocating Employer contributions and applying Forfeitures, except that
Forfeitures attributable to an Employer which is unable to apply such
Forfeitures shall be allocated among the Employers which are members of
a Controlled Group for application in proportion to such Employers'
contributions to the Plan for the most recent Plan Year.
Provided, however, that a single Trust Fund may be used for the
investment of the funds of the Plan.
4.06 FAIR MARKET VALUE.
The Plan Administrator shall cause to be determined the fair market
value of all assets held by the Trustee in the Trust hereunder as of
each Allocation Date.
4.07 INTERIM ALLOCATIONS.
The Plan Administrator may direct a special allocation date in order to
avoid prejudice either to continuing Participants or terminating
Participants. Such special allocation date shall be deemed equivalent
to a regular Allocation Date, except that the allocations under Section
4.01 may be deferred until the next following regular Allocation Date.
Interim allocations, if any, shall be made on a nondiscriminatory basis.
4.08 ELECTION OF INVESTMENT FUND.
The Plan Administrator may direct the Trustee to establish, and the
Trustee at such direction shall establish, any number of separate
investment funds. If such separate investment funds are created, then
each participant may direct the investment of the funds in such
Participant's Account among the available investment funds, in
accordance with rules established by the Thrift Committee. Such
investment funds shall remain a part of the Trust Fund, but shall be
separately invested, with all investment income on such investments
credited to the investment funds and all disbursements to, or on behalf
of, the Participant charged thereto. The Plan Administrator may, at its
election, designate one of the investment funds at the MCC Stock Fund.
Such investment fund, if established, shall
4 - 5
<PAGE> 35
be for the purpose of investing primarily in the common stock of
Mississippi Chemical Corporation.
Each Participant shall elect to have his Participant contributions and
Employer contributions invested in the available investment funds in any
combination of whole percentages that totals one hundred percent (100%).
Provided, however, that the maximum percentage of contributions that may
be invested in the MCC Stock Fund shall be twenty percent (20%).
All elections hereunder shall be effective for the entire amount of both
his Participant contributions and Employer contributions. The form and
manner of all elections under this section shall be prescribed by the
Thrift Committee.
A Participant may make or revoke such election for the future investment
of contributions made under this Plan provided for under this Section
4.08 as of the first day of any future pay period, provided sufficient
notice is provided to allow the modification to be made. Such election
shall remain effective for all subsequent contributions allocated on
behalf of the Participant to the investment funds until the election is
effectively modified or revoked.
The transfer of existing balances in the Accounts of Participants
between investment funds shall be permitted once each calendar month.
Such election shall be made on forms provided by the Thrift Committee,
shall be in accordance with rules and procedures established by the
Thrift Committee, and shall become effective on the first day of the
calendar month immediately following the data of election; all other
elections shall be void. Notwithstanding the foregoing, the election by
a Participant to transfer between the investment funds shall be
restricted as provided below, subject to the rules and procedures
established by the Thrift Committee:
o limits or restrictions imposed by mutual fund or other companies
responsible for the respective investment funds shall be adhered
to;
o no transfer shall be permitted which would, as a result of the
transfer, produce a balance in the Participant's MCC Stock Fund
which represented more than twenty percent (20%) of the
Participant's total Account, determined under rules established
by the Thrift Committee.
4.09 UNITS ACCOUNTING FOR INVESTMENT FUND.
The Committee may choose to maintain accounting of one or more of the
investment funds on a "units" basis, wherein the market value of the
assets in the fund are represented by units. As of any date, the market
value of a units fund will exactly equal the product of the number of
units in the fund on that date and the value of each unit on that date.
Each Participant's Accounts with respect to such a fund will be
maintained in units, and all additions to and subtractions from such
Accounts will be in terms of units and will be based on the unit value
as of the date of the transaction. Investment earnings
4 - 6
<PAGE> 36
of the fund shall be accounted for based on the market value of the fund
units, and the provisions of the Plan regarding the allocation of
investment earnings shall not apply to a fund being maintained on a
units basis. The provisions of this Section shall automatically
supersede any conflicting provisions in the Plan.
4 - 7
<PAGE> 37
ARTICLE 5
IN-SERVICE WITHDRAWALS
5.01 WITHDRAWALS FROM PARTICIPANTS' EMPLOYER ACCOUNTS.
The Participant may make a withdrawal from his Employer Account equal to
the lesser of the amount requested and the value of his vested interest
in his Employer Account as of the date of his application. Withdrawals
under this Section 5.01 shall be permitted under the following
circumstances:
(a) Two-year/Five-year Rule - The Participant may withdraw vested
amounts which have been allocated to Part I of his Employer
Account for at least two (2) years, or the entire vested portion
of Part I of his Employer Account if he has been a Participant
for five (5) or more years, whichever is greater. Any withdrawal
under this Two-year/Five-year rule will result in the suspension
of Employer matching contributions on behalf of the Participant
for the two (2) whole calendar month periods following such
withdrawal.
(b) Withdrawal of vested amounts from Parts I or II of the
Participant's Employer Account shall be permitted at any time
after attainment of age 59-1/2 by the Participant.
(c) Withdrawal of vested amounts from Part I of the Participant's
Employer Account shall be permitted on account of the
Participant's financial need or hardship, as defined in this
Section 5.01.
The existence of financial need or hardship for purposes of this Section
5.01 shall be determined by the Committee in a uniform and
non-discriminatory manner with respect to all Participants similarly
situated, on the basis of positive written evidence submitted to the
Committee by the Participant demonstrating that he is confronted with
financial necessity, hardship, or impending financial ruin arising from:
(d) fires or disaster due to natural causes;
(e) educational, medical or emergency expenses for the Participant or
his family;
(f) the purchase of or improvements to a Participant's primary
residence; or
(g) such other unexpected causes as may occur that are deemed by the
Committee to constitute true financial need or hardship.
5 - 1
<PAGE> 38
If a withdrawal is made under this subsection from a Participant's
Employer Account at a time when the Participant has a nonforfeitable
right to less than one hundred percent (100%) of such Employer Account,
then the portion of the Participant's Employer Account which he did not
receive as a withdrawal shall be subject to the special vesting rules
described herein. For purposes of these rules, such portion shall be
described as the "separate account." At any later relevant time, the
amount to which the Participant shall be entitled from the "separate
account" shall be computed according to the following formula:
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, "P" is his vested percentage at the relevant
time, "AB" is his Account balance at the relevant time, "R" is the ratio
of his Account balance at the relevant time to his Account balance
immediately after the distribution, and "D" is the amount of the
distribution. Provided, however, that a separate account is not
required to be established so long as account balances are maintained
under a method that has the same effect as the method described above.
5.02 WITHDRAWALS FROM PARTICIPANTS' PERSONAL ACCOUNTS.
While a Participant or a former Participant is in the Service of the
Employer, he may apply to the Plan Administrator to withdraw all or a
part of the amount attributed to Part I of his Personal Account. Such a
request shall be granted only if the Participant has demonstrated an
immediate and heavy financial need arising from a hardship situation or
has attained fifty nine and one half (59-1/2) years of age. The
Committee shall determine whether an emergency financial hardship has
been proven by the Participant in accordance with regulations issued by
the Secretary of the Treasury pursuant to section 401(k) of the Code and
the Secretary of the U.S. Department of Labor pursuant to ERISA section
408.
The determination of whether a Participant or a former Participant has
an immediate and heavy financial need and no other resources available
to satisfy such need shall be made in accordance with the following
conditions.
(a) Financial Need Test. The immediate and heavy financial needs for
which a hardship withdrawal may be granted shall be limited to
the following:
(1) Expenses for medical care described in Code section 213(d)
previously incurred by the Participant, the Participant's
spouse, or any dependents of the Participant (as defined
in Code section 152) or necessary for these persons to
obtain medical care described in Code section 213(d);
(2) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage
payments);
5 - 2
<PAGE> 39
(3) Payment of tuition and related education fees for the next
twelve (12) months of post-secondary education for the
Participant, or the Participant's spouse, children, or
dependents (as defined in Code section 152);
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal residence or
foreclosure on the mortgage on that residence; or
(5) Other expenses which the Commissioner of the Internal
Revenue Service indicates will be deemed to be made on
account of such need.
The amount of any hardship withdrawal granted pursuant to this
Section 5.02(a) shall be limited to the lesser of:
(6) the actual amount of the salary deferral contributions
made on behalf of the Participant or former Participant,
without regard to Income allocable thereto, less the
amount of salary deferral contributions previously
withdrawn; and
(7) the amount required to relieve the financial need plus
amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to result
from the hardship distribution.
(b) Resources Test. To qualify for a hardship withdrawal pursuant to
Section 5.02(a), the Participant or former Participant must
certify that the financial need giving rise to the hardship
cannot be met from other resources that are reasonably available
to the participant, such as:
(i) insurance reimbursement;
(ii) liquidation of assets, including those of the spouse and
minor children of the Participant;
(iii) cessation of contributions to the Plan;
(iv) other plan distributions or commercial loans.
The Committee shall establish uniform and nondiscriminatory withdrawal
rules which shall apply to Parts II, III and IV of each Participant's
Personal Account. Such withdrawals may be made at the discretion of the
Participant but no more frequently than once each calendar month, at the
end of the month.
5 - 3
<PAGE> 40
5.03 LOANS TO PARTICIPANTS.
Loans to Participants and Beneficiaries may be made upon written
application of the Participant or Beneficiary to the Thrift Committee,
provided loans are available to all Participants and Beneficiaries on a
reasonably equivalent basis; are not available to highly paid employees,
officers or shareholders in an amount greater than the amount made
available to other employees; bear a reasonable rate of interest; and
are adequately secured. The Thrift Committee shall develop
nondiscriminatory rules and procedures to implement and administer the
loan program consistent with the requirements set forth above.
5 - 4
<PAGE> 41
ARTICLE 6
GENERAL BENEFIT PROVISIONS
6.01 FORM OF BENEFIT PAYMENT.
The normal form of payment shall be a single lump sum. In lieu of this
normal form of payment, a Participant may elect to have his benefit paid
in accordance with the optional forms of payments described hereinafter.
A Retired Participant may elect to receive his Personal Account in a
single sum as soon as practicable after his termination of Service. If
no such election is made, his Personal Account shall be paid or applied
in the same manner as his Employer Account.
The Retired Participant may elect to have his Employer Account paid or
applied in accordance with one (1) or more of the following options:
(a) paid in a single sum; or
(b) paid or applied as a combination of single sums, on the dates and
in the amounts selected by the Participant, subject to a minimum
for any single distribution of five hundred dollars ($500).
Such election must be in writing, in such form as the Committee shall
uniformly and nondiscriminatorily require, and may be submitted at any
time during the ninety (90) day period preceding the first day of the
first period for which an amount is paid as a benefit and following the
date which the Participant is provided with information concerning the
optional forms of benefit and the Participant's right, if any, to defer
payment of his benefit. Such notice shall be provided at least thirty
(30) and no more than ninety (90) days before the first day of the
period described in the preceding sentence. If a distribution is one to
which sections 401(a)(11) and 417 of the Internal Revenue Code do not
apply, such distribution may commence less than thirty (30) days after
the notice required under section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(1) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least thirty (30) days
after receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(2) the Participant, after receiving the notice, affirmatively elects
a distribution.
6 - 1
<PAGE> 42
If the Retired Participant does not elect an option, such benefits shall
be paid or applied in accordance with the option described in (a) above.
6.02 COMMENCEMENT OF BENEFITS RULE.
Notwithstanding any other provisions of the Plan, but in addition to
such provisions (as applicable), unless the Participant elects otherwise
in writing, distribution of benefits shall begin no later than the
sixtieth (60th) day after the close of the Plan Year in which the latest
of the following events occurs:
(a) the date the Participant attains sixty-five (65) years of age;
(b) the date which is the tenth (10th) anniversary of the first (1st)
day of the Plan Year in which the Participant commenced
participation in the Plan; or
(c) the date the Participant terminates Service with the Employer.
Notwithstanding the above, a Participant whose Service has terminated
shall have the right to elect to defer receipt of his benefits until 30
days after the end of the Plan Year in which the Participant attains age
69, at which time the entire Accounts of the Participant must be
distributed. Such a Participant who reaches age 65 without having
elected to withdraw his Accounts will be deemed to have elected to leave
his Accounts in the Plan until 30 days after the end of the Plan Year in
which the Participant attains age 69. Such participant shall have the
right to elect payment of his Accounts at any time before the above
mandatory distribution date, and payment shall be made as soon as
administratively feasible after such election.
If the amount of the payment required to commence on the date determined
under this section cannot be ascertained by such date, or if it is not
possible to make such payment on such date because the Committee has
been unable to locate the Participant after making reasonable efforts to
do so, then a payment retroactive to such date may be made no later than
sixty (60) days after the earliest date on which the amount can be
ascertained under the Plan or the date on which the Participant is
located (whichever is applicable).
6.03 SPECIAL COMMENCEMENT AND DISTRIBUTION OF BENEFITS RULES.
(a) General Rules.
(1) The requirements of this section shall apply to any
distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan.
(2) All distributions required under this section shall be
determined and made in accordance with the proposed
regulations under section 401(a)(9) of the Code, including
the minimum distribution incidental benefit requirement of
section 1.401(a)(9)-2 of the proposed regulations.
6 - 2
<PAGE> 43
(b) Required Beginning Date. The entire interest of a Participant
must be distributed or begin to be distributed no later than the
Participant's required beginning date. The consent of the
Participant or of the Participant's Spouse or Beneficiary shall
not be required to make a distribution required under this
section.
"Required beginning date" shall mean the first day of April of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2) subject,
however, to the following transition rules.
(1) Transitional rules. The required beginning date of a
Participant who attains age seventy and one-half (70-1/2)
before January 1, 1988, shall be determined in accordance
with (i) and (ii) below:
(i) Non-five-percent (5%) owners. The required
beginning date of a Participant who is not a
"five-percent (5%) owner" (as defined in (2) below)
is the first day of April of the calendar year
following the calendar year in which the later of
retirement and attainment of age seventy and
one-half (70-1/2) occurs.
(ii) Five-percent (5%) owners. The required beginning
date of a Participant who is a five-percent (5%)
owner during any year beginning after December 31,
1979, is the first day of April following the later
of:
(A) the calendar year in which the Participant
attains age seventy and one-half (70-1/2),
and
(B) the earlier of the calendar year with or
within which ends the Plan Year in which the
Participant becomes a five-percent (5%)
owner, and the calendar year in which the
Participant retires.
The required beginning date of a Participant who is
not a five-percent (5%) owner who attains age
seventy and one-half (70-1/2) during 1988 and who
has not retired as of January 1, 1989, is April 1,
1990.
(2) Five-percent (5%) owner. A Participant is treated as a
five-percent (5%) owner for purposes of this subsection
(b) if such Participant is a five-percent (5%) owner as
defined in section 416(i) of the Code (determined in
accordance with section 416 but without regard to whether
the Plan is top-heavy) at any time during the Plan Year
ending with or within the calendar year in which such
owner attains age sixty-six and one-half (66-1/2) or any
subsequent Plan Year.
(3) Once distributions have begun to a five-percent (5%) owner
under this section, those distributions must continue even
if the Participant ceases to be a five-percent (5%) owner
in a subsequent year.
6 - 3
<PAGE> 44
(c) Duration of Benefits. Benefits to a Participant shall be
distributed, beginning not later than the required beginning date
set forth in subsection (b) in accordance with regulations, for a
period not exceeding the life of such Participant or, if
applicable, the joint lives of such Participant and his
Beneficiary, or over the life expectancy of such Participant or,
if applicable, the joint life expectancies of the Participant and
his Beneficiary. For purposes of this section, "life expectancy"
shall mean the life expectancy (or joint and last survivor
expectancy) calculated using the attained age of the Participant
(or designated Beneficiary) as of the Participant's (or
designated Beneficiary's) birthday in the applicable calendar
year, reduced by one (1) for each calendar year which has elapsed
since the date life expectancy was first calculated. If life
expectancy is being recalculated, the applicable life expectancy
shall be the life expectancy as so recalculated. The applicable
calendar year shall be the first distribution calendar year, and
if life expectancy is being recalculated such succeeding calendar
year. If annuity payments commence before the required beginning
date, the applicable calendar year is the year such payments
commence. Life expectancy and joint and last survivor expectancy
are computed by use of the expected return multiples in Tables V
and VI of section 1.72-9 of the Treasury Regulations.
(d) Minimum Amount to be Distributed Each Year. If the Participant's
interest is to be distributed in other than a single sum, the
following distribution rules shall apply on or after the required
beginning date.
(1) The amount to be distributed each year, beginning with
distributions for the first distribution calendar year
shall not be less than the quotient obtained by dividing
the Participant's benefit by the lesser of (i) the
applicable life expectancy as described in Section 6.04(c)
or (ii) if the Participant's Spouse is not the designated
Beneficiary, the applicable divisor determined from the
table set forth in Q&A-4 of section 1.401(a)(9)-2 of the
proposed regulations.
(2) The minimum distribution required for the Participant's
first distribution calendar year must be made on or before
the Participant's required beginning date. The minimum
distribution for other calendar years, including the
minimum distribution for the distribution calendar year in
which the employee's required beginning date occurs, must
be made on or before December 31 of that distribution
calendar year.
(3) Distribution calendar year. For purposes of this section,
the term "distribution calendar year" means a calendar
year for which a minimum distribution is required. For
distributions beginning before the Participant's death,
the first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the
Participant's required beginning date. For distributions
beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to section
6.04(e) below.
6 - 4
<PAGE> 45
(e) Death distribution provisions.
(1) Distribution Beginning Before Death. If the Participant
dies after distribution of his or her interest has begun,
the remaining portion of such interest will continue to be
distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(2) Distribution Beginning After Death. If the Participant
dies before distribution of his or her interest begins,
distribution of the Participant's entire interest shall be
completed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death except to
the extent that an election is made to receive
distributions in accordance with (i) or (ii) below:
(i) if any portion of the Participant's interest is
payable to a designated Beneficiary, distributions
may be made over the life or over a period certain
not greater than the life expectancy of the
designated Beneficiary commencing on or before
December 31 of the calendar year immediately
following the calendar year in which the
Participant died;
(ii) if the designated Beneficiary is the Participant's
surviving spouse, the date distributions are
required to begin in accordance with (i) above
shall not be earlier than the later of (1) December
31 of the calendar year immediately following the
calendar year in which the Participant died and (2)
December 31 of the calendar year in which the
Participant would have attained age 70 1/2.
If the Participant has not made an election pursuant to
this subsection (e)(2) by the time of his or her death,
the Participant's designated Beneficiary must elect the
method of distribution no later than the earlier of (1)
December 31 of the calendar year in which distributions
would be required to begin under this section, or (2)
December 31 of the calendar year which contains the fifth
anniversary of the date of death of the Participant. If
the Participant has no designated Beneficiary, or if the
designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire
interest must be completed by December 31 of the calendar
year containing the fifth anniversary of the Participant's
death.
(3) For purposes of subsection (e)(2) above, if the surviving
Spouse dies after the Participant, but before payments to
such Spouse begin, the provisions of subsection (e)(2),
with the exception of paragraph (ii) therein, shall be
applied as if the surviving Spouse were the Participant.
6 - 5
<PAGE> 46
(4) For the purposes of this subsection (e), distributions of
a Participant's interest is considered to begin on the
Participant's required beginning date (or, if subsection
(e)(3) above is applicable, the date distribution is
required to begin to the surviving Spouse pursuant to
subsection (e)(2) above). If distribution in the form of
an annuity irrevocably commences to the Participant before
the required beginning date, the date distribution is
considered to begin is the date distribution actually
commences.
6.04 LIMITATIONS ON DISTRIBUTION OF SALARY DEFERRALS.
Except as otherwise provided in this section, amounts attributable to
elective salary deferrals pursuant to Section 3.02(a) hereof shall not
be distributed earlier than upon the occurrence of one of the following
events:
(a) the employee's retirement, death, Disability or termination of
Service;
(b) attainment of age fifty-nine and one-half (59-1/2);
(c) the termination of the Plan without the establishment of a
successor plan;
(d) the date of the sale or other disposition by the Employer of
substantially all of the assets used by such corporation in a
trade or business of the Employer with respect to an Employee who
continues employment with the corporation acquiring such assets;
(e) with regard to an Employee who continues employment with such
subsidiary, the date of the sale or other disposition by the
Employer of such corporation's interest in a subsidiary;
(f) with regard to distributions of elective salary deferrals only,
the Participant's or former Participant's hardship, as defined in
Section 5.02 hereof.
This Section 6.04 shall be interpreted in accordance with section
1.401(k)- 1(d) of the Treasury Regulations.
6.05 SINGLE SUM DISTRIBUTION OF SMALL BENEFITS.
In the event that a Retired Participant or Beneficiary shall become
entitled to receive any benefit under the Plan, and the value of the
nonforfeitable benefit is not greater than (or at the time of any prior
distribution was not greater than) one hundred dollars ($100), the
benefit shall be paid to such person in a single sum before the end of
the second Plan Year following the Plan Year during which the
Participant ceases to participate in the Plan. Provided, however, that
for distributions made on or after January 1, 1993, the foregoing shall
be subject to the provisions of Section 6.07 hereof regarding direct
rollover of eligible rollover distributions as provided therein.
6 - 6
<PAGE> 47
Payment under this section shall be in lieu of the form of benefit
otherwise payable under any provision of this Plan.
6.06 DESIGNATION OF BENEFICIARY.
Subject to the rights of a surviving Spouse described herein, each
Participant or Retired Participant shall have the right to designate the
Beneficiary to receive the death benefit on his behalf, and to revoke
any such designation. Each such designation, or revocation thereof,
shall be evidenced by a written instrument filed with the Committee and
signed by the Participant or Retired Participant. Unless the conditions
which follow for the designation of a Beneficiary other than the Spouse
are satisfied, the Beneficiary of a Participant or Retired Participant
shall be the surviving Spouse, if any, whether or not so designated in
the written instrument filed with the Committee and even if no such
instrument is filed. Designation of a Beneficiary other than the Spouse
shall be valid only if either:
(a) the Spouse consents in writing to such designation, acknowledging
the effect thereof, witnessed by a notary public or Plan
representative;
(b) the Retired Participant or Participant, although married at the
time of the designation, is ultimately not survived by his
Spouse; or
(c) the surviving Spouse cannot be located.
Such spousal consent obtained pursuant to (a) shall be irrevocable. If
the Participant or Retired Participant is survived by a Spouse other
than the Spouse who consented to designation of another as Beneficiary,
the consent of the former Spouse shall be ineffective.
If no designation of Beneficiary is on file with the Plan Administrator
at the time of the death of a Participant or Retired Participant, or if
such designation is not effective for any reason, and if there is no
surviving Spouse, the death benefit shall be payable to the estate of
the Participant or Retired Participant (which shall be conclusively
deemed to be the Beneficiary designated to receive such death benefit).
6.07 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.
(a) This Section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this
Section, a distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct
rollover. Provided, however, that direct rollovers are not
permitted for amounts under two hundred dollars ($200).
6 - 7
<PAGE> 48
(b) Definitions
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any
distribution that is one of a series of substantially
equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to
the exclusion for net unrealized appreciation with respect
to employer securities).
(2) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in section
408(a) of the Code, an individual retirement annuity
described in section 408(b) of the Code, an annuity plan
described in section 403(a) of the Code, or a qualified
trust described in section 401(a) of the Code, that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee: A distributee includes an Employee or former
employee. In addition, the Employee's or former
employee's surviving spouse and the Employee's or former
employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as
defined in section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former
spouse.
(4) Direct rollover: A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
6 - 8
<PAGE> 49
ARTICLE 7
RETIREMENT, DEATH AND DISABILITY BENEFITS
7.01 BENEFITS UPON RETIREMENT.
Upon attainment of Normal Retirement Age, a Participant shall be one
hundred percent (100%) vested in his Accounts. Upon retirement
following attainment of his Normal Retirement Age, a Participant shall
be entitled to receive as the value of his retirement benefit hereunder
the amounts in his Accounts determined on the Allocation Date coincident
with or immediately preceding his retirement, increased by any Employer
and Participant contributions allocated after such Allocation Date,
reduced by any payments and withdrawals made from such accounts since
such Allocation Date and adjusted for any Income allocated after such
Allocation Date.
7.02 DEATH BENEFITS.
In the event of the death of a Participant or Retired Participant prior
to the complete distribution of his accounts, the amount of the death
benefit on his behalf shall be one hundred percent (100%) of both his
Employer Account and Personal Account, determined on the Allocation Date
coincident with or immediately preceding the date of his death,
increased by any Employer and Participant contributions allocated after
such Allocation Date, reduced by any payments and withdrawals made from
such accounts since such preceding Allocation Date and adjusted for any
Income allocated after such Allocation Date. Provided, however, that
the death benefit to be distributed from the Employer Account of a
Retired Participant whose participation in the Plan terminated before
the date of his death (other than a disabled Participant pursuant to
Section 7.03 hereof) shall be determined by application of the vested
percentage described in Section 8.01 hereof.
The death benefit shall be subject to the general benefit provisions of
Article 6 hereof. The benefit shall be paid in a single sum, or in such
other optional form as may be elected by the Participant or Beneficiary,
as the case may be, under Section 6.01 hereof, to the designated
Beneficiary of the deceased Participant as soon as practicable after
such death occurs. Provided, however, that the Beneficiary may elect to
defer receipt of the death benefit, but not beyond the last day of the
Plan Year following the Plan Year in which the Participant died.
7.03 DISABILITY BENEFITS.
In the event the Committee determines that a Participant incurs
Disability while still an Employee, such Participant shall be entitled
to one hundred percent (100%) of both his Employer Account and Personal
Account, determined on the Allocation Date coincident
7 - 1
<PAGE> 50
with or immediately preceding the date of his Disability, increased by
any Employer and Participant contributions allocated after such
Allocation Date, reduced by any payments and withdrawals made from his
accounts since such preceding Allocation Date and adjusted for any
Income allocated after such Allocation Date.
The Disability benefit shall be paid to the disabled Participant as soon
as practicable after his Disability has been confirmed by the Committee,
but in no event later than the close of the calendar year following the
calendar year during which Disability occurred in accordance with an
optional form of payment as provided in Section 6.01, unless later
payment is requested in writing by the disabled Participant and approved
by the Committee. Such optional form of payment of the disability
benefit shall be determined in accordance with the provisions of that
section, subject to the general benefit provisions of Article 6 hereof.
In the event of the death of the Participant subsequent to the date his
Disability occurred and prior to the commencement of his disability
benefits hereunder, the amount payable on behalf of such Participant
shall be paid as a death benefit as provided otherwise in this article.
7 - 2
<PAGE> 51
ARTICLE 8
TERMINATION BENEFITS
8.01 BENEFITS UPON TERMINATION OF SERVICE.
A Participant whose Service terminates for reasons other than retirement
on or after his Normal Retirement Date, death or Disability shall be
entitled to a vested percentage, determined at the date his Service
terminates, of Part I of his Employer Account, and one hundred percent
(100%) of Part II of his Employer Account and his Personal Account.
Such accounts will be determined as of the Allocation Date coincident
with or immediately preceding the date the Participant's Service
terminates, increased by any Employer and Participant contributions
allocated to such accounts after such Allocation Date, reduced by any
payments and withdrawals from the accounts since such preceding
Allocation Date and adjusted for any Income allocated after such
Allocation Date.
The vested percentage of Part I of a Participant's Employer Account
shall be determined from the following schedule:
<TABLE>
<CAPTION>
Years of Vested
Vesting Service Percentage
--------------- ----------
<S> <C>
any number 100%
</TABLE>
Provided, however, that the vested percentage shall be one hundred
percent (100%) for a Participant on and after his Normal Retirement Age.
8.02 FORFEITURES.
The portion of an Employer Account to which a former Participant is not
entitled, as provided in Section 8.01 hereof, shall be a Forfeiture as
of the last day of the Plan Year in which occurs the earlier of the
following dates:
(a) the date the former Participant is paid the entire vested amount
of his Accounts, and
(b) the date the former Participant incurs five (5) consecutive
Breaks in Service.
For purposes of this Section, if the value of an Employee's vested
account balance is zero, the former Participant shall be deemed to have
received a distribution of such vested account balance and the Employer
Account shall be treated as a Forfeiture as of the date such Employee
terminates Service.
8 - 1
<PAGE> 52
If a former Participant receives or is deemed to have received a
distribution from his Employer Account due to termination of
participation in the Plan, no later than the close of the second Plan
Year following the Plan Year during which he ceases to be a Participant,
which distribution is:
(c) equal to his vested Employer Account, but less than one hundred
percent (100%) of such account, and
(d) in an amount not exceeding one hundred dollars ($100) or, if
greater, which the Participant elected to receive,
and he subsequently resumes Service before he incurs five (5)
consecutive Breaks in Service, he may repay such distribution to the
Plan. Such repayment must be made before the earlier of the date the
Participant incurs five (5) consecutive Breaks in Service and the fifth
anniversary of the date of the Participant's resumption of Service
following the Break in Service. In the event of such repayment, the
amount of the Participant's Employer Account at the date of the
distribution shall be reestablished.
If a benefit cannot be paid to a Retired Participant or his Beneficiary
because he cannot be found, such benefit (subject to overruling law)
shall be treated as a Forfeiture but, if treated as a Forfeiture, shall
be reinstated if a claim is made by that Participant or his Beneficiary.
Such reinstatement shall be made from then available Forfeitures arising
from the Accounts of other Retired Participants. If the amount of
available Forfeitures is insufficient for such reinstatement, then the
Employer shall contribute an amount to complete the reinstatement.
Any Forfeitures remaining after the reinstatements described above shall
be applied during the Plan Year in which, or immediately following the
Plan Year in which, such Forfeitures occur as a credit against the
Employer matching contributions otherwise due for such Plan Year.
8.03 PAYMENT OF BENEFITS.
Any amounts due pursuant to this article to a Participant whose Service
has terminated shall be paid or applied for his benefit in accordance
with the general benefit provisions of Article 6 hereof; provided,
however, that the commencement date of any benefits payable to a
terminated Participant may be before his Normal Retirement Date at the
election of the terminated Participant.
In the event of the death of the Participant subsequent to the date his
Service terminates and prior to the commencement of his benefits, the
amount payable on behalf of such Participant shall be paid as provided
in Article 7 hereof.
8 - 2
<PAGE> 53
ARTICLE 9
PLAN ADMINISTRATION
9.01 PLAN ADMINISTRATOR AND APPOINTMENT OF COMMITTEE.
The Sponsor shall be the Plan Administrator of the Plan. The Board of
Directors of the Sponsor may appoint a Thrift Committee consisting of
not less than three (3) and not more than twelve (12) persons to assist
the Plan Administrator and to carry out the day to day administrative
functions of the Plan as the Plan Administrator may delegate to the
Committee.
Members of the Committee shall serve without compensation, but the
reasonable expenses of the Committee in discharging its responsibilities
shall be borne by the Sponsor.
The Sponsor will notify the Trustee in writing of the names of the
members of the Committee and of any changes in Committee membership that
may transpire from time to time.
9.02 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR.
The Plan Administrator shall administer and supervise the operation of
the Plan in accordance with the terms and provisions of the Plan.
The Plan Administrator shall have all power and authority (including
discretion with respect to the exercise of that power and authority)
necessary, properly advisable, desirable or convenient for the
performance of its duties, which duties shall include, but not be
limited to, the following:
(a) to construe the Plan in good faith;
(b) to determine eligibility of Employees for participation in the
Plan, and to notify Employees of their eligibility and the
requirements for such participation;
(c) to determine and certify eligibility for benefits under the Plan,
and to direct the Trustee concerning the amount, manner and time
of the payment of such benefits and any annuity contracts to be
purchased on behalf of Participants, Retired Participants and
Beneficiaries;
(d) to prepare and distribute, in such manner as the Plan
Administrator determines to be appropriate, information
explaining the Plan;
9 - 1
<PAGE> 54
(e) to require a Participant to complete and file with the Plan
Administrator an application for a benefit and all other forms
approved by the Plan Administrator, and to require that the
Participant furnish all pertinent information requested by the
Plan Administrator, which information may be relied upon by the
Plan Administrator;
(f) to cause the allocations of contributions to the Plan and
investment earnings (or losses) to be made as of each Allocation
Date;
(g) to adopt such rules as it deems necessary, desirable or
appropriate for the administration of the Plan, provided such
rules are consistent with the terms and provisions of the Plan;
all rules and decisions of the Plan Administrator shall be
uniformly and consistently applied to all Participants in similar
circumstances;
(h) to appoint such agents as it may need in the performance of its
duties; and
(i) to receive and review the reports from the Trustee and other
agents.
9.03 PLAN ADMINISTRATOR PROCEDURES.
The Plan Administrator may adopt such procedures and regulations as it
deems desirable for the administration of the Plan. Such procedures and
regulations shall be nondiscriminatory and shall to the extent feasible
be maintained in writing.
9.04 COMMITTEE PROCEDURES.
The Committee may act at a meeting or in writing without a meeting. The
Committee shall elect one (1) of its members as chairman, appoint a
secretary, who may or may not be a Committee member, and the Trustee
shall be advised in writing of such actions. The secretary shall
forward all necessary communications to the Sponsor and the Trustee.
The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs. All decisions of the
Committee shall be made by majority vote.
A dissenting Committee member who, within a reasonable time after he has
knowledge of any action or failure to act by the majority, registers his
dissent in writing delivered to the other Committee members, the Sponsor
and the Trustee, shall not be responsible for any such action or failure
to act.
9.05 CLAIMS AND REVIEW PROCEDURES.
The Plan Administrator shall establish reasonable procedures concerning
the filing of claims for benefits hereunder and shall administer such
procedures uniformly. If a claim is wholly or partially denied, the
Plan Administrator shall furnish the claimant, within a reasonable
period of time after receipt of the claim by the Plan Administrator, a
notice of such denial, setting forth at least the following information
in language calculated to be understood by the claimant:
(a) the specific reason or reasons for the denial;
9 - 2
<PAGE> 55
(b) specific reference to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and
(d) an explanation of the claims review procedure in the Plan.
Upon receipt of such a notice of denial, or if such a notice is not
furnished but the claim has not been granted within sixty (60) days of
its filing, the claimant or his duly authorized representative may
appeal to the Plan Administrator for a full and fair review.
In submitting a request for review, the claimant or his duly authorized
representative may request a review upon written application to the Plan
Administrator, may review pertinent documents, and may submit comments
in writing. Such request for review must be made within sixty (60) days
of the receipt by the claimant of the notice of denial (or within sixty
(60) days of the expire of the sixty (60) day period beginning with the
date of the filing of the claim, if no such notice is received during
such period).
The Plan Administrator shall respond promptly to a request for review
and shall deliver a written decision which shall include, in a manner
calculated to be understood by the claimant, the decision itself,
specific reasons therefor and specific references to the pertinent Plan
provisions on which the decision is based. The decision shall be made
not later than one hundred twenty (120) days after receipt of a request
for review.
Any decision by the Plan Administrator shall be conclusive and binding
upon all persons, subject to the claims review procedure described in
this Section 9.05 and subject to judicial review where it is shown by
clear and convincing evidence that the Plan Administrator acted in an
arbitrary and capricious manner.
9 - 3
<PAGE> 56
ARTICLE 10
THE TRUST AND THE TRUSTEE
10.01 THE TRUST; GENERAL DUTIES OF THE TRUSTEE.
The Sponsor hereby continues the Trust previously established with the
Trustee pursuant to the terms of the Plan. The Trustee shall hold all
property received by it hereunder, which, together with the income and
gains therefrom and additions thereto, shall constitute the Trust Fund.
The Trustee shall manage, invest and reinvest the Trust Fund, collect
the income thereof, and make payments therefrom, all as provided in this
Plan and Trust.
The Trustee shall be responsible only for the property actually received
by it hereunder. It shall have no duty or authority to compute any
amount to be paid to it by the Employer or to bring any action or
proceeding to enforce the collection from the Employer of any
contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held
hereunder by the Trustee, shall be and remain in the Trustee, and no
Participant, Retired Participant or Beneficiary shall have any legal or
equitable right or interest in the Trust Fund except to the extent that
such rights or interests are expressly granted under the provisions of
the Plan.
The Trust Fund may not be used or diverted for purposes other than the
exclusive benefit of Participants, Retired Participants and
Beneficiaries for the proper satisfaction of liabilities to such persons
covered by the Trust.
10.02 GENERAL POWERS.
The Trustee shall have all the powers necessary for the performance of
its duties as Trustee. The Trustee shall have the following powers and
immunities and be subject to the following duties:
(a) The Trustee shall receive all contributions hereunder and apply
such contributions as hereinafter set forth. The Trustee shall
have the custody of and safely keep all cash, securities,
property and investments, including any insurance company
contracts, received or purchased in accordance with the terms
hereof.
(b) Subject to any limitations that may be contained elsewhere in the
Plan, the Trustee shall take control and management of the Trust
Fund and shall hold, sell, buy, exchange, invest and reinvest the
corpus and income of the Trust Fund. All contributions paid to
the Trustee under the Plan shall be held and administered by
10 - 1
<PAGE> 57
the Trustee as a single Trust Fund, and the Trustee shall not be
required to segregate and invest separately any part of the Trust
Fund representing accruals or interests of individual
Participants in the Plan, except as otherwise provided in the
Plan.
(c) The Trustee may invest and reinvest the funds of the Trust Fund
in any property, real, personal or mixed, wherever situate, and
whether or not productive of income or consisting of wasting
assets, including, without limitation, common and preferred
stock, bonds, notes, debentures, leaseholds, mortgages (including
without limitation, any collective or part interest in any bond
and mortgage or note and mortgage), certificates of deposit, and
oil, mineral or gas properties, royalties, interests or rights
(including equipment pertaining thereto), without being limited
to the classes of property in which trustees are authorized by
law or any rule of court to invest trust funds and without regard
to the proportion any such property may bear to the entire amount
of the Trust Fund.
The Trustee may invest and reinvest all or any portion of the
Trust Fund collectively with funds of other retirement plan
trusts exempt from tax under section 501(a) of the Code,
including, without limitation, power to invest collectively with
such other funds through the medium of one (1) or more common,
collective or commingled trust funds which have been or may
hereafter be established and maintained by the Trustee, the
instrument or instruments establishing such trust fund or funds,
as amended from time to time, being made part of this Trust by
reference so long as any portion of the Trust Fund shall be
invested through the medium thereof.
The Trustee is expressly authorized to invest all or part of the
Trust Fund in savings accounts, time deposits, certificates of
deposit, money market accounts, repurchase agreements and any
other interest-bearing accounts which bear a reasonable interest
rate (regardless of the term of such deposits or investments),
issued by the Trustee or any of its affiliates. The Trustee is
further expressly authorized to utilize the discount brokerage
operation, if any, offered by the Trustee or its affiliates.
(d) The Trustee may sell or exchange any property or asset of the
Trust Fund at public or private sale, with or without
advertisement, upon terms acceptable to the Trustee and in such
manner as the Trustee may deem wise and proper. The proceeds of
any such sale or exchange may be reinvested as is provided
hereunder. The purchaser of any such property from the Trustee
shall not be required to look to the application of the proceeds
of any such sale or exchange by the Trustee.
(e) The Trustee shall have full power to mortgage, pledge, lease or
otherwise dispose of the property of the Trust Fund without
securing any order of court therefor, without advertisement, and
to execute any instrument containing any provisions which the
Trustee may deem proper in order to carry out such actions. Any
such lease so made by the Trustee shall be binding,
notwithstanding the fact that the term of the lease may extend
beyond the termination of the Plan.
10 - 2
<PAGE> 58
(f) The Trustee shall have the power to borrow money upon terms
agreeable to the Trustee and pay interest thereon at rates
agreeable to the Trustee, and to repay any debts so created.
(g) The Trustee may participate in the reorganization,
recapitalization, merger or consolidation of any corporation
wherein the Trustee may own stock or securities and may deposit
such stock or other securities in any voting trust or protective
committee or like committee or trustee, or with the depositories
designated thereby, and may exercise any subscription rights or
conversion privileges, and generally may exercise any of the
powers of any owner with respect to any stock or other securities
or property comprising the Trust Fund.
(h) Except as otherwise provided herein, the Trustee may, through any
duly authorized officer or proxy, vote any share of stock which
the Trustee may own from time to time. Each Participant or
Beneficiary shall be entitled to direct the Trustee to vote the
shares of stock of the Sponsor in his or her Account. If the
records of the Plan are maintained in a manner such that the
number of shares of such stock is not readily identifiable, then
the number of shares to be voted shall be determined in
accordance with the following formula: multiply the total number
of shares of such stock held by the Trustee by a fraction, the
numerator of which is the Account balance of such Participant or
Beneficiary invested in the MCC Stock Fund, and the denominator
of which is the total Account balances of all Participants and
Beneficiaries invested in the MCC Stock Fund.
(i) The Trustee shall retain in cash and keep unproductive of income
such funds as from time to time it may deem advisable. The
Trustee shall not be required to pay interest on any such cash in
its hands pending investment, nor shall the Trustee be
responsible for the adequacy of the Trust Fund to discharge any
and all payments under the Plan. All persons dealing with the
Trustee are released from inquiry into the decision or authority
of the Trustee to act.
(j) The Trustee may hold stocks, bonds, or other securities in its
own name as Trustee, with or without the designation of said
trust estate, or in the name of a nominee selected by it for the
purpose, but said Trustee shall nevertheless be obligated to
account for all securities received by it as part of the corpus
of the trust estate herein created, notwithstanding the name in
which the same may be held.
(k) The Trustee may consult with legal counsel (who may be of counsel
to the Employer or the Plan Administrator) concerning any
questions which may arise with reference to the construction of
this Plan, its duties hereunder, or any action which it proposes
to take or omit.
(l) The Trustee may employ such counsel, accountants and other agents
as it shall deem advisable. The Trustee may charge the
compensation of such counsel, accountants and other agents and
the Trustee's compensation for its services in such amounts as
may be agreed upon from time to time by the Employer and the
Trustee,
10 - 3
<PAGE> 59
and any other expenses necessary in the administration of this
Plan against the Trust Fund to the extent they are not paid by
the Employer. However, only those fees and expenses which
constitute reasonable expenses of administering the Plan may be
charged to the Trust.
(m) The Trustee shall have the power to designate a bank or trust
company as depository of the funds or property of the Trust and
also to retain investment counsel, and the Trustee may deposit
funds in its commercial banking department (if any) without
making bond.
(n) Without diminution or restriction of the powers vested by law or
elsewhere in this Plan, but subject to all the provisions of the
Plan, the Trustee, without the necessity of procuring any
judicial authorization therefor or approval thereof, shall be
vested with and, in the application of its best judgment and
discretion on behalf of the beneficiaries of this Plan, shall be
authorized to exercise all or any of the powers specifically
permitted by statute or judicial decision in, or with respect to,
the state in which the Trustee principally does business.
(o) The Trustee may invest up to one hundred percent (100%) of the
Trust Fund in Qualifying Employer Securities. For purposes of
this section, the term Qualifying Employer Securities shall mean
Employer securities (or securities of a member of the Controlled
Group of the Employer) which are stock or marketable obligations,
such as bonds, debentures, notes or certificates, or other
evidence of indebtedness, as defined in section 401(d)(5) of
ERISA.
10.03 RELIANCE ON PLAN ADMINISTRATOR AND EMPLOYER.
Until notified pursuant to Article 9 hereof that any person authorized
to act for the Plan Administrator (such as a Committee member) has
ceased to act or is no longer authorized to act for the Plan
Administrator, the Trustee may continue to rely on the authority of such
person. The Trustee may rely upon any certificate, notice or direction
purporting to have been signed on behalf of the Plan Administrator which
the Trustee believes to have been signed by or on behalf of the Plan
Administrator. The Trustee may rely upon any certificate, notice or
direction of the Employer which the Trustee believes to have been signed
by a duly authorized officer, principal or agent of the Employer. The
Trustee may request instructions in writing from the Plan Administrator
on other matters and may rely and act thereon.
10.04 ACCOUNTS AND REPORTS.
The Trustee shall keep an accurate record of its administration of the
Trust Fund, including a detailed account of all investments, receipts
and disbursements, and other transactions hereunder. All accounts,
books and records relating hereto shall be open for inspection to any
person designated by the Committee or the Sponsor at all reasonable
times. Within sixty (60) days following the close of each Plan Year,
the Trustee shall file with the Plan Administrator a written report
setting forth all investments, receipts and
10 - 4
<PAGE> 60
disbursements and other transactions during the Plan Year, and such
report shall contain an exact description of all securities purchased,
exchanged or sold, the cost or net proceeds of sale, and shall show the
securities and investments held at the end of such Plan Year, and the
cost and fair market value of each item thereof, as carried on the books
of the Trustee.
The Trustee shall also provide the Plan Administrator with such other
information in its possession as may be necessary for the Plan
Administrator to comply with the reporting and disclosure requirements
of ERISA.
10.05 DISBURSEMENTS.
The Trustee, upon written instructions from the Plan Administrator,
shall make distributions or payments, or both, including monthly
payments, to the Participants, Retired Participants, and Beneficiaries
who qualify for such benefits. The Trustee shall have no liability to
the Employer, the Plan Administrator or any other person in making such
distributions or payments. The Trustee shall not be required to
determine or make any investigation to determine the identity or mailing
address of any person entitled to benefits under the Plan and shall have
discharged its obligation in that respect when it shall have sent checks
and other papers by ordinary mail to such person or persons at such
addresses as may be certified to it in writing by the Plan
Administrator.
10.06 PAYMENT IN KIND.
Whenever the Trustee is empowered hereunder to make any payment or
distribution, the Trustee shall have the power, in its sole discretion,
to make such payment in cash or in kind, or partly in cash and partly in
kind. In no event shall any payment in kind be made in the form of a
life annuity. The assets of the Trust Fund shall be valued, for the
purposes of making, or of computing the amount of, such payment or
distribution, at their fair market value at the dates of such payment or
distributions.
10.07 AUTHORITY OF TRUSTEE.
At no time during the administration of the Trust Fund shall the Trustee
be required to obtain any court approval of any act required of it in
connection with the performance of its duties or in the performance of
any act required of it in the administration of its duties as Trustee.
The Trustee shall have full authority to exercise its judgment in all
matters and at all times without court approval of such decisions;
provided, however, that if any application to, or proceeding or action
in, the courts is made, only the Sponsor and the Trustee shall be
necessary parties, and no Participant in the Plan or other person having
an interest in the Trust Fund shall be entitled to any notice or service
of process. Any judgment entered in such proceeding or action shall be
conclusive upon all persons claiming an interest under the Trust Fund.
10 - 5
<PAGE> 61
10.08 REMOVAL OR RESIGNATION OF TRUSTEE.
The Trustee may at any time be removed as Trustee of the Plan by action
of the Board of Directors of the Sponsor and written notice to the
Trustee, such removal to be effective sixty (60) days after such notice
is given.
The Trustee may resign as Trustee of the Plan upon written notice to the
Sponsor, such resignation to be effective sixty (60) days after such
notice is given.
Upon mutual, written agreement by the Sponsor and the Trustee, the sixty
(60) day period in this section may be waived or a shorter period
substituted.
10.09 SUCCESSOR TRUSTEE.
In the event of the resignation or removal of the Trustee, the Sponsor
shall appoint a successor trustee in place of the resigned or removed
Trustee on or before the effective date of such resignation or removal.
In the absence of such action, the Sponsor shall be deemed to have
terminated the Plan, and the termination provisions of Article 11 shall
apply.
On or before the effective date of the removal or resignation, the
Trustee shall file with the Sponsor a written report setting forth all
investments, receipts and disbursements and other transactions effected
by it since the end of the preceding Plan Year. Such report shall be in
the same form and be subject to the same requirements as the annual
report.
The Trustee, if not paid by the Sponsor, is authorized to reserve such
sum of money or to liquidate such property and reserve the proceeds
thereof as it may deem advisable for the payment of its expenses or
charges in connection with the settlement of its account or otherwise,
and any such balance of such reserve remaining after the payment of such
expenses and charges shall be paid over to the successor trustee or
trustees, or to the Participants in the event of termination.
10.10 TRUST FUNDING POLICY; PARTIES IN INTEREST.
From time to time the Plan Administrator shall communicate to the
Trustee the current funding policy and method that have been established
to carry out the objectives of the Plan.
Upon the written request of the Trustee, the Sponsor shall file with the
Trustee a roster of the names of all persons, corporations,
partnerships, organizations and entities which are "parties in interest"
with respect to the Plan, as that term is defined in ERISA.
10.11 TRUSTEE TO TRUSTEE TRANSFERS.
The Plan Administrator shall have the power to authorize the acceptance
of a direct transfer to this Plan of plan assets attributable to a
Participant's participation in another qualified profit sharing plan
which did not provide for any life annuity form of payment
10 - 6
<PAGE> 62
from such plan by that plan's trustee; provided, however, that any
restrictions on distributions of such transferred assets under such
other plan shall be maintained under this Plan with respect to such
assets. Likewise, the Plan Administrator shall have the power to
authorize the Trustee to make such a direct transfer of assets from this
Plan attributable to a Participant's participation in this Plan to
another qualified pension, profit sharing or stock bonus plan.
A separate bookkeeping subaccount for his transfers shall be established
on behalf of a Participant under his Personal Account, and such
transfers shall be treated as Participant contributions for purposes of
investment and allocation of Income. Likewise, for purposes of the
withdrawal and distribution of benefits pursuant to Articles 5, 6, 7 and
8 hereof, the subaccount shall be treated as part of the Personal
Account, subject to any additional restrictions required by the
preceding paragraph. The balance of each such account shall be fully
vested at all times.
Such direct trustee to trustee transfers shall not be considered (i) as
contributions by the Employer under Section 3.01 of this Plan, (ii) in
determining the maximum benefits permissible under the Plan pursuant to
Section 4.04 hereof or (iii) in determining the Top Heavy Ratio in
Section 13.02(j) hereof, provided they are transfers initiated by the
Employee and made from a plan maintained by an employer which is not in
the Controlled Group.
10.12 INVESTMENT MANAGER.
The Sponsor may appoint in writing an Investment Manager or Investment
Managers to manage all or any portion of the assets of the Plan and may
revoke any such appointment previously made. While such an appointment
is in effect, the relations among the Plan Administrator, Sponsor,
Investment Manager, and Trustee shall be governed by the following
provisions:
(a) The Sponsor shall certify to the Trustee the name or names of any
Investment Manager appointed by it to manage the investment or
reinvestment of all or any portion of the Trust Fund. Such
certificate shall also state that the Investment Manager has
acknowledged his Fiduciary status with respect to the Plan in
writing.
(b) The Trustee shall segregate any portion of the Trust Fund held by
it which will be subject to the management of an Investment
Manager into one or more separate accounts to be known as
investment manager accounts and shall charge any expenses related
to investments directed by an Investment Manager against such
accounts. Each Investment Manager shall have the right and power
to manage the investment and reinvestment of his investment
manager account. The Trustee shall follow the directions of the
Investment Manager with respect to the account of such Investment
Manager and shall not be obligated to invest or otherwise manage
any such investment manager account. All directions given by an
Investment Manager to the Trustee shall be in writing, signed by
an officer or a partner of the Investment Manager or by such
other person or persons as may be designated by such officer or
10 - 7
<PAGE> 63
partner. Subject to such conditions as may be approved by the
Sponsor and Trustee, the Investment Manager may place direct
orders for the purchase or sale of securities or other property
for its investment manager account, provided, that the Trustee
shall nevertheless retain custody of the assets comprising said
account.
(c) If the Sponsor, by written notice to the Trustee, terminates the
authority of an Investment Manager but does not appoint a
successor to manage the investment and reinvestment of the
account of such Investment Manager, the portion of the Fund then
held in such investment manager account shall return to the
unsegregated portion of the Fund and the Trustee shall have
authority to manage the investment and reinvestment of such
account. Until receipt of a written notice terminating the
authority of an Investment Manager, the Trustee shall be fully
protected in relying upon the latest prior written notice of
appointment of an Investment Manager.
(d) Any Investment Manager may, in writing, authorize the Trustee to
invest any portion of his investment manager account in
short-term investments. The Trustee, in its sole discretion, may
make such investments either directly or by investment
collectively with other assets, including but not limited to
investment in any common, commingled, collective, mutual or
pooled trust fund established and maintained by the Trustee or
any affiliate of the Trustee for the investment of funds
administered in a fiduciary capacity.
(e) The Trustee shall not be responsible for any loss caused by its
acting upon any notice, direction or certification of any
Investment Manager appointed by the Sponsor which the Trustee
reasonably believes to be genuine. The Trustee shall have no
duty to question any direction, action or inaction of any
Investment Manager taken as provided in this section. The
Trustee shall have no duty to review the securities or other
property held in any investment manager account or to make any
suggestions to any Investment Manager or to the Employer with
respect to the investment, reinvestment, or disposition of
investments in any investment manager account. The Trustee shall
not be responsible for the results arising from the Trustee's
compliance with the instructions of any Investment Manager.
(f) The Trustee shall not be responsible for determining the
reasonableness of any compensation paid to or agreed to be paid
to an Investment Manager. Any such compensation to an Investment
Manager shall be paid from the Trust Fund, if the Plan
Administrator so directs.
(g) With respect to any share of stock in the investment manager
account, the Trustee may, through any duly authorized officer or
proxy, vote any such stock.
10 - 8
<PAGE> 64
ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
11.01 AMENDMENT OF PLAN.
The Board of Directors of the Sponsor shall have the right at any time,
and from time to time, to modify, alter or amend the Plan in whole or in
part by instrument in writing duly executed.
Provided, however, that the Plan shall not be amended in the following
respects:
(a) the duties, powers and responsibilities of the Trustee shall not
be increased without the written consent of the Trustee;
(b) subject to Section 12.05 hereof, no amendment may be made to
permit any part of the funds of the Trust to be used for or
diverted to purposes other than for the exclusive benefit of
Participants, Retired Participants and their Beneficiaries or for
administration expenses of the Plan;
(c) no amendment may be made, unless it is necessary to meet the
requirements of any federal law or regulation, which shall reduce
the benefits which have accrued or the nonforfeitable percentage
applicable to any Participant, Retired Participant or Beneficiary
prior to the later of the date of adoption or the effective date
of such amendment, nor shall any amendment to the Plan eliminate
an optional form of distribution provided under Section 6.01
hereof except as may be permitted by federal law or regulation;
and
(d) no amendment to the vesting provision in Section 8.01 hereof
shall become effective with respect to a Participant who has
completed three (3) or more years of Service as of the expiration
of the election period described below, unless such Participant
is given the opportunity to elect irrevocably to have his
nonforfeitable benefits computed without regard to such
amendment. The election period shall be a period of sixty (60)
days after the latest of:
(i) the date of adoption of the amendment,
(ii) the effective date of the amendment, and
(iii) the date written notification of the amendment is
furnished such Participant.
An executed copy of any amendment to the Plan shall be furnished
the Trustee as soon as practicable after the date of adoption
thereof.
11 - 1
<PAGE> 65
11.02 INTENT TO CONTINUE THE PLAN.
The Employer has established the Plan with the bona fide intention and
expectation that from year to year it will make contributions as herein
provided. However, the Employer realizes that it may become inadvisable
to continue such contributions. The Employer shall have the right to
modify, suspend or discontinue contributions to the Plan at any time and
from time to time, and such action shall not be deemed to be a
termination of the Plan unless it constitutes a complete discontinuance
of Employer contributions to the Plan.
11.03 TERMINATION OF THE PLAN BY THE SPONSOR; PARTIAL TERMINATION.
In the event the Sponsor concludes that it is impossible or inadvisable
to continue the Plan, the Board of Directors of the Sponsor shall have
the right to terminate the Plan by an appropriate action which shall
specify the date of termination. A certified copy of a writing
reflecting such action shall be delivered to the Committee and to the
Trustee, and as soon as possible thereafter the Committee shall send or
deliver to each then Participant a notice of such action.
If a determination is made that the Plan has experienced a partial
termination, then the rights of the affected Participants, Retired
Participants and Beneficiaries to benefits accrued to the date of such
partial termination shall be nonforfeitable.
11.04 TERMINATION OF THE PLAN UPON CERTAIN EVENTS.
The Plan shall automatically terminate upon the occurrence of any of the
following events:
(a) discontinuance or liquidation of the Sponsor's business;
(b) the merger or consolidation of the Sponsor into any other entity,
unincorporated business organization or corporation, or the sale
by the Sponsor of substantially all of its assets to any entity,
unincorporated business organization, or corporation which shall
fail to adopt and continue the Plan within ninety (90) days from
the effective date of such consolidation, merger or sale of
assets; or
(c) failure of the Sponsor to appoint a successor trustee in place of
a Trustee who has resigned or been removed on or before the
effective date of such resignation or removal as provided in
Section 9.09.
11.05 DISTRIBUTION OF TRUST FUND UPON TERMINATION.
Upon complete termination of the Plan, or upon discontinuance of
Employer contributions to the Plan, the balance in each Participant's or
Retired Participant's accounts (after payment of all expenses and
proportional adjustment of Participants' accounts to reflect such
expenses, investment gains or losses and reallocations to the date
11 - 2
<PAGE> 66
of termination) shall become nonforfeitable and each Participant,
Retired Participant or Beneficiary shall be entitled to receive any
amounts then credited to his accounts in the Trust Fund.
The Trustee shall make payment of such amounts in a single sum. Upon
the distribution of all of the Trust Fund as aforesaid, the Trustee
shall be discharged from all obligations under the Trust and no
Participant, Retired Participant or Beneficiary shall have any further
rights or claim therein.
11.06 TERMINATION OF PLAN WITH RESPECT TO AN ADOPTING EMPLOYER.
Each Adopting Employer reserves the right to terminate the Plan at any
time with respect to Employees of the Adopting Employer by action of its
Board of Directors. The Adopting Employer shall also have the right to
suspend contributions to the Plan from time to time, and such suspension
of contributions shall not be deemed to be a termination of the Plan
with respect to the Employees of the Adopting Employer unless it
constitutes a complete discontinuance of Employer contributions to the
Plan.
In the event of termination of the Plan only with respect to the
Employees of the Adopting Employer, the Plan Administrator shall direct
that the portion of the Trust Fund attributable to Employees of the
Adopting Employer be segregated by the Trustee into a separate fund.
The portion of the Trust Fund which is so segregated shall be retained
in a separate trust fund and applied in one of the following methods, at
the discretion of the Committee.
(a) If the Adopting Employer shall demonstrate conclusively, within
the one hundred eighty (180) day period immediately following
termination of the Plan with respect to its Employees, that it
has established a successor retirement plan and trust for the
benefit of its Employees which is qualified under sections 401(a)
and 501(a), respectively, of the Code, then such assets shall be
transferred to the successor trustee.
(b) If the Adopting Employer shall fail, within the one hundred
eighty (180) day period immediately following termination of the
Plan with respect to its Employees, to establish a successor
retirement plan and trust which is qualified under sections
401(a) and 501(a), respectively, of the Code, then such assets
shall be distributed for the benefit of the Employees of the
Adopting Employer in accordance with the method described in
Section 11.05 hereof.
At the discretion of the Plan Administrator, the one hundred eighty
(180) day period may be extended.
11 - 3
<PAGE> 67
ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
12.01 DUTIES OF THE EMPLOYER.
The Sponsor shall furnish the Trustee with the information required
herein. Each Employer shall make its contributions as the same may be
appropriated by due action, which contributions may be in cash or in
other property acceptable to the Trustee. The Employer shall keep
accurate books and records with respect to its Employees and their
compensation.
12.02 RIGHT OF EMPLOYER TO DISCHARGE EMPLOYEES.
The adoption and maintenance of the Plan shall not be deemed to
constitute a contract between the Employer and any Employee, or to be a
consideration for, or an inducement or condition of, the employment of
any person.
12.03 INFORMATION TO BE FURNISHED.
As soon as practicable after the close of each Plan Year, each Employer
shall deliver to the Plan Administrator a full and complete list of all
Employees entitled to participate in the Plan during such Plan Year,
together with the information required to perform the allocations
described in Article 4 hereof with respect to such Plan Year.
As soon as possible after the execution of the Plan, and from time to
time thereafter, the Sponsor and the Plan Administrator shall certify to
the Trustee the names and specimen signatures of any representatives who
have authority to act on behalf of the Sponsor with respect to the Plan.
12.04 COMMUNICATIONS FROM SPONSOR TO TRUSTEE.
The Trustee may rely upon and shall be protected in acting upon any
information furnished to it by the Sponsor in writing subscribed by a
duly authorized agent of the Sponsor. Any certification by the Sponsor
of the information required or permitted to be certified to the Trustee
pursuant to the provisions of the Plan, shall, for all purposes of the
Plan, be binding upon all parties in interest.
12 - 1
<PAGE> 68
12.05 NO REVERSION TO EMPLOYER.
The Employer has no beneficial interest in the Trust Fund, and no part
of the Trust Fund shall ever revert or be repaid to the Employer,
directly or indirectly, except, if, and to the extent, permitted by the
Code and applicable regulations thereunder for the following:
(a) upon initial non-qualification pursuant to Section 14.10 hereof;
(b) in the event that the deduction of an Employer contribution to
the Plan under section 404 of the Code is disallowed, in which
case the contribution (to the extent disallowed) shall be
returned to the Employer, upon the request of the Employer within
one (1) year after the disallowance of the deduction; or
(c) in the event that the Employer contribution is made by mistake of
fact, in which case the amount of such mistaken contribution
shall be returned to the Employer provided no more than one (1)
year has elapsed since the date of payment by the Employer of the
mistaken contribution.
12.06 INDEMNIFICATION.
To the extent permitted by law and except in cases of willful misconduct
or gross negligence, the Sponsor shall indemnify from any loss or
expense the Plan Administrator or any individual member of the
Committee, in connection with the good faith discharge of duties under
the Plan.
12.07 ADOPTION OF PLAN BY ADOPTING EMPLOYERS.
Notwithstanding anything herein to the contrary, with the authorization
of the Board of Directors of the Sponsor any corporation or entity
affiliated with the Sponsor through complete or partial ownership by the
Sponsor or by any owner thereof or which is otherwise cooperating with
the Sponsor for purposes of establishing a retirement plan may adopt the
Plan as an Adopting Employer in a manner satisfactory to the Board of
Directors of the Sponsor. As part of its adoption of the Plan, each
Adopting Employer shall designate, subject to the agreement and approval
of the Sponsor and the provisions of Code section 413(c), whether or not
its participation in the Plan shall constitute a single plan, within the
meaning of the regulations under section 414(l) of the Code, with the
participation in the Plan of the Sponsor and/or other Adopting
Employers. Such designation may be amended by the Adopting Employer at
any subsequent date.
For purposes of the payment of benefits due a Participant from the Plan:
(a) if the Participant is an Employee of an Employer which has
elected to maintain a plan which is not such a single plan, only
that part of the Trust Fund attributable to the Employer shall be
available;
12 - 2
<PAGE> 69
(b) if the Participant is an Employee of an Employer which has
elected to maintain such a single plan, that part of the Trust
Fund attributable to all Employers maintaining the single plan
shall be available.
An Adopting Employer may terminate participation in the Plan at any time
with respect to Employees of the Adopting Employer by action of its
Board of Directors as provided in Section 11.06 hereof, subject to the
applicable provisions therein depending on whether or not the Adopting
Employer has elected to maintain a single plan with the Sponsor and/or
other Adopting Employers.
All Employers which are Adopting Employers as of January 1, 1994, shall
be deemed to have elected to maintain a single plan with the plan of the
Sponsor.
12 - 3
<PAGE> 70
ARTICLE 13
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN
13.01 TOP HEAVY PLANS.
The provisions of this article are designed to meet the requirements of
section 416 of the Code and shall automatically supersede any
conflicting provisions in the Plan in every Plan Year in which this Plan
is or becomes a Top Heavy Plan. Provided, however, that if the
provisions of this article are in conflict with final regulations issued
by the Secretary of the Treasury with respect to Top Heavy Plans, then
such final regulations shall supersede the provisions of this article to
the extent not otherwise specifically prohibited by law.
13.02 DEFINITIONS.
For purposes of this article, and only this article, unless a term
defined in this article is the subject of explicit reference elsewhere
in the Plan, the following terms when used herein, unless the context
clearly indicates otherwise, shall have the meanings set forth
hereinafter:
(a) "Compensation" shall mean, for each Employee, Compensation as
that term is defined in Section 4.04 of the Plan, plus amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludible from the employee's gross income
under section 125, section 402(a)(8), section 402(h) or section
403(b) of the Code. However, "Compensation" shall not include
compensation in excess of the applicable dollar limits in Section
1.07(d) and 1.07(e).
(b) "Determination Date" shall mean, with respect to any Plan Year
subsequent to the first Plan Year, the last day of the preceding
Plan Year. For the first Plan Year of the Plan, the
Determination Date shall be the last day of such Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee) who, at any time during the
determination period, was (i) an officer of the Employer having
an annual Compensation greater than fifty percent (50%) of the
maximum dollar limitation in effect under section 415(b)(1)(A) of
the Code for any such Plan Year, (ii) an owner of one (1) of the
ten (10) largest interests in the Employer if such interest is
greater than one-half percent (1/2%) and such individual's
Compensation exceeds the maximum dollar limitation under section
415(c)(1)(A) of the Code, (iii) a five percent (5%) or more owner
of the Employer or (iv) a one percent (1%) or more owner of the
Employer who has an annual Compensation of more than one hundred
and fifty thousand dollars ($150,000). The term "determination
period" shall mean the Plan Year containing the Determination
13 - 1
<PAGE> 71
Date and the four (4) preceding Plan Years. The determination of
who is a Key Employee shall be made in accordance with section
416(i)(1) of the Code and regulations thereunder. For purposes
hereof, the term "officer" shall mean an administrative executive
who is in regular and continued service. An Employee who merely
has the title of an officer, but not the authority of an officer,
is not to be considered an officer hereunder. Furthermore, for
purposes hereof, at any time during a determination period, no
more than fifty (50) Employees of all members of a Controlled
Group, or, if lesser, the greater of three (3) individuals or ten
percent (10%) of such Employees, shall be treated as officers
hereunder. The officers subject to these preceding limitations
shall be comprised of the individual officers selected from the
group of all individuals who were officers in the current Plan
Year of the determination period or any of the four (4) preceding
Plan Years in the determination period, who had the largest
average annual compensation throughout the total of those five
(5) Plan Years in the determination period. For purposes of (ii)
herein, if two (2) employees have the same interest in the
Employer, the Employee having the greater annual Compensation
(without regard to the dollar limitation of Section 13.02(a)
hereof) from the Employer shall be treated as having a larger
interest. Likewise, for purposes hereof, the term "owner" shall
mean an individual considered to be an owner within the meaning
of section 318 of the Code; provided, however, that subparagraph
(c) of section 318(a)(2) shall be applied by substituting "5
percent" for "50 percent".
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of the
Employer, as selected by the Employer, which, when considered as
a group with the Required Aggregation Group, would continue to
satisfy the requirements of sections 401(a)(4) and 410 of the
Code.
(f) "Present Value" shall mean, if the Employer also now or ever
maintains a qualified defined benefit pension plan, the present
value of a benefit based only on the interest and mortality rates
specified in that plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least one
(1) Key Employee participates or participated at any time
during the determination period (regardless of whether or
not the plan terminated), and
(2) any other qualified plan of the Employer which enables a
plan described in the preceding subsection (1) to meet the
requirements of sections 401(a)(4) or 410 of the Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year, the Plan if
it would be a Top Heavy Plan under subsection 13.02(i) hereof if
the words "ninety percent
13 - 2
<PAGE> 72
(90%)" were substituted for the words "sixty percent (60%)" in
subsection 13.02(i) hereof.
(i) "Top Heavy Plan" shall mean, for any Plan Year, the Plan if any
of the following conditions exists.
(1) If the Top Heavy Ratio for this Plan exceeds sixty percent
(60%) and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans.
(2) If this Plan is a part of a Required Aggregation Group of
plans, but not part of a Permissive Aggregation Group, and
the Top Heavy Ratio for the Required Aggregation Group of
plans exceeds sixty percent (60%).
(3) If this Plan is a part of a Required Aggregation Group and
also is a part of a Permissive Aggregation Group of plans,
and the Top Heavy Ratio for the Permissive Aggregation
Group exceeds sixty percent (60%).
(j) "Top Heavy Ratio" shall mean as follows.
(1) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and the
Employer has never maintained any defined benefit plan
which has covered or could cover a Participant in this
Plan, then the Top Heavy Ratio is a fraction, the
numerator of which is the sum of the account balances of
all Key Employees as of the Determination Date (including
any part of any account balance distributed in the five
(5) year period ending on the Determination Date), and the
denominator of which is the sum of all account balances
(including any part of any account balance distributed in
the five (5) year period ending on the Determination Date)
of all Participants as of the Determination Date. Both
the numerator and denominator of the Top Heavy Ratio are
adjusted to reflect any contribution which is due but
unpaid as of the Determination Date.
(2) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and the
Employer maintains or has maintained one (1) or more
defined benefit pension plans which have covered or could
cover a Participant in this Plan, then the Top Heavy Ratio
is a fraction, the numerator of which is the sum of
account balances under the defined contribution plans for
all Key Employees and the present value of accrued
benefits under the defined benefit pension plans for all
Key Employees, and the denominator of which is the sum of
the account balances under the defined contribution plans
for all Participants and the present value of accrued
benefits under the defined benefit pension plans for all
Participants. Both the numerator and denominator of the
Top Heavy Ratio are adjusted for any distribution of an
account balance or an accrued benefit made in the five (5)
year
13 - 3
<PAGE> 73
period ending on the Determination Date and any
contribution due, but unpaid, as of the Determination
Date.
(3) For purposes of the preceding subsections (1) and (2), the
value of account balances and the present value of accrued
benefits shall be determined as of the most recent Top
Heavy Valuation Date that falls within or ends with the
twelve (12) month period ending on the Determination Date.
The account balances and accrued benefits of a Participant
who is a Non-Key Employee, but who was a Key Employee in a
prior year, or who has not been credited with at least one
(1) Hour of Service with any Employer maintaining the Plan
at any time during the preceding five (5) year period
ending on the Determination Date, shall be disregarded.
The calculation of the Top Heavy Ratio, and the extent to
which distributions, rollovers and transfers are taken
into account shall be made in accordance with section 416
of the Code and the regulations thereunder. Distributions
shall include distributions under a terminated plan which
if it had not been terminated would have been included in
the Required Aggregation Group. When aggregating plans,
the value of account balances and accrued benefits shall
be calculated with reference to the determination dates
that fall within the same calendar year.
(k) "Top Heavy Valuation Date" shall mean, with respect to any Plan
Year, for this Plan, the Determination Date, and shall mean with
respect to any Plan Year for a defined benefit pension plan
maintained by the Employer, if any, the day within the twelve
(12) month period ending on the determination date for such
defined benefit pension plan as of which the actuarial
determination of the minimum funding standard is calculated.
13.03 MINIMUM ALLOCATIONS IN SINGLE PLAN.
Notwithstanding the provisions of Section 4.01 hereof, and before any
contributions are allocated thereunder, minimum Employer Contributions
shall be made and allocated pursuant to this section in a Plan Year in
which the Plan is a Top Heavy Plan.
(a) The minimum Employer contribution for a Participant who is a
Non-Key Employee for any Plan Year in which the Plan is a Top
Heavy Plan shall not be less than the lesser of (i) three percent
(3%) of his Compensation or (ii) the percentage at which Employer
contributions (including salary deferral contributions and
Employer matching contributions) are made for the Plan Year in
respect of the Key Employee for whom such percentage is the
highest for the Plan Year, taking into account such Key
Employee's Compensation.
This minimum allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise be entitled
to receive an allocation, or would have received a lesser
allocation for the Plan Year because of the following:
(1) the Participant's failure to complete one thousand (1,000)
hours of Service.
13 - 4
<PAGE> 74
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in the
Plan; or
(3) the Participant's Compensation was less than any stated
required amount.
This subsection shall not apply, however, to any Participant who
was not employed by the Employer on the last day of the Plan
Year.
In determining Employer contributions under this section,
contributions or benefits under Chapter 2 of the Code (relating
to taxes on self-employed income), Chapter 21 of the Code
(relating to the Federal Insurance Contribution Act) or any other
Federal or State laws (including Title II of the Social Security
Act) shall not be taken into account. In determining Employer
contributions under this section for a Non-Key Employee, salary
deferral contributions and Employer matching contributions needed
to satisfy the actual contribution percentage nondiscrimination
test pursuant to Section 3.04 or the actual deferral percentage
nondiscrimination test pursuant to Section 3.03 shall not be
taken into account.
The minimum allocations required hereunder (to the extent
required to be nonforfeitable under section 416(b) of the Code)
shall not be forfeitable under sections 411(a)(3)(B) (regarding
the suspension of benefits upon reemployment of a retiree) or
411(a)(3)(D) (regarding withdrawal of mandatory contributions) of
the Code.
(b) Any Employer contributions and Forfeitures remaining unallocated
shall be allocated pursuant to the provisions of Section 4.01
hereof; provided, however, that all allocations under the Plan
pursuant to Section 4.01 shall be determined with respect to
Compensation as that term is defined in Section 1.07 hereof, but
subject to the dollar limitation set forth in subsection 13.02(a)
hereof.
13.04 MINIMUM VESTING SCHEDULES.
Notwithstanding the provisions of Section 8.01 hereof, the
nonforfeitable interest of each Participant in his Employer Account in a
Plan Year in which this Plan is a Top Heavy Plan shall be the vested
percentage set forth in the following table (or the vested percentage
determined in accordance with Section 8.01, if greater):
<TABLE>
<CAPTION>
Years of Vested
Vesting Service Percentage
--------------- ----------
<S> <C>
Less than 3 0%
3 or more 100%
</TABLE>
If the vesting schedules under the Plan shift in or out of the preceding
schedule for any Plan Year because of a change in the Plan's Top Heavy
status, then such shift shall be
13 - 5
<PAGE> 75
considered an amendment to the relevant vesting schedule and the
election rule for Participants with three (3) or more years of Service
set forth in Section 11.01(d) hereof shall apply. Furthermore, any
contributions that become nonforfeitable under this minimum vesting
schedule for a Top Heavy Plan shall remain nonforfeitable if the Plan
shifts out of Top Heavy status.
The minimum vesting schedule applies to all benefits within the meaning
of section 411(a)(7)(A) of the Code (except those attributable to
voluntary Participant contributions, if any), including benefits accrued
before the effective date of section 416 of the Code and benefits
accrued before the Plan became a Top Heavy Plan. Further, no reduction
in nonforfeitable benefits may occur in the event the Plan's status as a
Top Heavy Plan changes for any Plan Year. However, this section does
not apply to the account balances of any Participant who does not have
an hour of Service after the Plan has initially become a Top Heavy Plan,
and the nonforfeitable percentage and such Participant's Employer
Account shall be determined without regard to this section.
13.05 SPECIAL LIMITATIONS AND ALLOCATION IN MULTIPLE PLANS.
If for any Plan Year the Plan is a Top Heavy Plan, and the Employer
maintains, or has ever maintained, a qualified defined benefit pension
plan which is part of a Required or Permissive Aggregation Group, as
appropriate, then the provisions of this section shall apply.
If none of the Employer's plans are considered a Super Top Heavy Plan,
then the Employer shall provide each Participant who would receive an
allocation under Section 13.03 hereof and who is a participant also in
the qualified defined benefit pension plan an allocation pursuant only
to Section 13.03 hereof in lieu of accruing a benefit that year under
the pension plan, but substituting in subsection 13.03(a) hereof the
term "seven and one-half percent (7-1/2%)" for the term "three percent
(3%)". The Employer shall provide each Participant who would receive an
allocation under Section 13.03 hereof, but who is not a participant also
in the qualified defined benefit pension plan, an allocation pursuant to
Section 13.03 hereof, but substituting in subsection (a) thereof the
term "four percent (4%)" for the term "three percent (3%)".
If any of the Employer's plans are considered a Super Top Heavy Plan,
then in applying the limitations of Section 4.04 hereof, the term "one
(1)" shall be substituted for the term "one and twenty-five hundredths
(1.25)" in both the defined benefit fraction and the defined
contribution fraction, as such terms are defined in Section 4.04 hereof.
Furthermore, the Employer shall provide each Participant who would
receive an allocation under Section 13.03 hereof and who is a
participant also in the defined benefit pension plan an allocation
pursuant only to Section 13.03 hereof in lieu of accruing a benefit that
year under the pension plan, but substituting in subsection 13.03(a)
hereof the term "five percent (5%)" for the term "three percent (3%)".
The Employer shall provide each Participant who would receive an
allocation under Section 13.03 hereof, but who is
13 - 6
<PAGE> 76
not a participant also in the defined benefit pension plan, an
allocation only pursuant to Section 13.03 hereof.
13 - 7
<PAGE> 77
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.01 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST
ADMINISTRATION.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under the
Plan. Each Fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the
provisions of the Plan authorizing or providing for such direction,
information or action. Furthermore, each Fiduciary may rely upon any
such direction, information or action of any other Fiduciary as being
proper under the Plan and is not required to inquire into the propriety
of any such direction, information or action. It is intended that each
Fiduciary shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under the Plan and
shall not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
Each Fiduciary shall discharge its duties set forth in the Plan solely
in the interests of the Participants, Retired Participants and their
Beneficiaries:
(a) for the exclusive purpose of:
(1) providing benefits to such persons; and
(2) defraying reasonable expenses of administering the Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims.
14.02 ALIENATION OR ASSIGNMENT OF BENEFITS (QDRO'S).
The right of any Participant, Retired Participant or Beneficiary in any
benefit or to any payment hereunder or to any segregated account may not
be anticipated, conveyed, assigned, mortgaged or encumbered either by
voluntary or involuntary action or by operation of law nor shall any
such right or interest be in any manner subject to levy, attachment,
execution, garnishment or any other seizure under legal, equitable or
other process, except pursuant to a qualified domestic relations order,
as defined in section 414(p) of the Code, or pursuant to a domestic
relations order entered before January 1, 1985, under which payment of
benefits under that order has commenced as of January 1, 1985.
Otherwise, such interest in this Plan shall be payable only in
accordance with the
14-1
<PAGE> 78
provisions hereof; provided, however, that distributions pursuant to a
qualified domestic relations order may be made without regard to the age
or employment status of the Participant.
In the event that a Participant's benefits are garnished or attached by
a court order which the Plan Administrator does not find to constitute
such an order, the Plan Administrator may bring an action for
declaratory judgment in a court of competent jurisdiction to determine
the proper recipient of Plan benefits; during the pendency of such
action, any benefits payable on behalf of the Participant may be paid
into the court for distribution to the proper recipient pursuant to the
judgment of the court.
14.03 HEADINGS.
The headings and sub-headings of articles and sections are included
solely for convenience of reference, and if there be any conflict
between such headings and the text of the Plan, the text shall control.
14.04 CONSTRUCTION OF THE PLAN.
In the construction of the Plan, the masculine gender shall include the
feminine, the feminine gender shall include the masculine, and the
singular shall include the plural, unless the context clearly indicates
otherwise.
14.05 CORRECTION OF ERRORS.
If any error or change in records results in any Participant, Retired
Participant or Beneficiary receiving from the Plan more or less than he
would have been entitled to receive had the records been correct or had
the error not been made, the Plan Administrator, upon discovery of such
error, shall correct the error by adjusting, as far as practicable, the
payments in such a manner that the benefits to which such person was
correctly entitled shall be paid.
14.06 LEGALLY INCOMPETENT.
If any Participant, Retired Participant or Beneficiary is a minor or is
otherwise legally incapable of personally receiving and giving a valid
receipt for any payment due him hereunder, the Plan Administrator shall
direct that such payment be made to the guardian or conservator of such
person duly appointed by a court of competent jurisdiction. Any payment
so made shall be, to the extent of the payment, a complete discharge to
the Employer and Trustee of any liabilities under the Plan.
14.07 SUCCESSOR ORGANIZATION.
In the event of a merger or consolidation of any Employer into, or
transfer of all or substantially all of its assets to, any legal entity,
unincorporated business organization or corporation, provision may be
made by such successor legal entity, unincorporated
14-2
<PAGE> 79
business organization or corporation for its election of the continuance
of this Plan as to such successor entity. Such successor shall, upon
its election to continue this Plan, be substituted in place of the
transferor Employer by an instrument duly authorizing such substitution
and duly executed by such Employer and its successor. Upon notice of
such substitution, accompanied by a certified copy of the resolutions or
other appropriate written instrument of the governing body of such
Employer and its successor authorizing such substitution and delivered
to the Trustee, the Trustee shall be authorized to recognize such
successor in place of the transferor Employer.
14.08 MINIMUM BENEFIT IN SUCCESSOR PLAN.
In the event of any merger or consolidation of the Plan with, or the
transfer of assets or liabilities of the Plan to, any other qualified
plan or trust, each Participant, Retired Participant and Beneficiary
shall be entitled upon termination of the successor plan or trust
immediately after the merger, consolidation or transfer to a benefit in
an amount not less than he would have been entitled to receive if the
Plan had terminated immediately before the merger, consolidation or
transfer.
14.09 APPLICATION OF PLAN PROVISIONS.
The provisions of the Plan shall apply only to Employees who terminate
Service, or incur Breaks in Service, on or after the Effective Date.
Any retirement plan rights and benefits of former Employees shall be
determined in accordance with the provisions of any predecessor plan as
in effect on the respective dates of termination of Service or Break in
Service of such former Employees. However, unless specifically
otherwise stated in the Plan, the provisions of this amendment,
restatement and continuation of the Plan shall apply only to Employees
who have Service with the Employer on or after the effective date of
this amendment, restatement and continuation of the Plan.
14.10 QUALIFICATION OF THE PLAN.
The adoption of the Plan by each Employer is contingent on the receipt
of a written, initial determination letter by the Internal Revenue
Service that the Plan and Trust, with any modifications or amendments
thereto requested by the Internal Revenue Service and agreed to by the
Sponsor, constitute a qualified plan and trust under sections 401(a) and
501(a), respectively, of the Code. In the event no such determination
letter is received, no Participant, Retired Participant or Beneficiary
shall have any right or claim to the assets of the Trust Fund or to any
benefit under the Plan, all contributions made by the Employer and
Participants in accordance with the terms of the Plan shall be returned
to the respective parties, the Plan and Trust shall be terminated
forthwith with respect to such Employer, and the Trustee shall be
discharged from all obligation pursuant to adoption of the Plan by the
Employer.
14-3
<PAGE> 80
14.11 FIDUCIARY LIABILITY.
Effective January 1, 1994 this Plan is an ERISA Section 404(c) Plan,
meaning that it is intended to utilize the fiduciary liability
protections offered by Section 404(c) of the Employee Retirement Income
Security Act of 1974 ("ERISA"). To the extent that the Plan is actually
administered within the requirements of Department of Labor Regulations
Section 2550.404c-1, the following provisions shall apply: (a) a
Participant exercising control over the assets in his account shall not
be deemed a fiduciary by virtue of his exercise of such control; and (b)
no person who is otherwise a fiduciary shall be liable for any loss, or
by reason of any breach, which results from such exercise of control.
14.12 SEVERABILITY OF PROVISIONS.
The provisions of this Plan are several, and should any provision be
ruled illegal, unenforceable or void, all other provisions not so ruled
shall remain in full force and effect.
14.13 APPLICABLE LAW.
The provisions of the Plan shall be interpreted and construed according
to the laws of the state of Mississippi, unless federal law is
exclusively controlling, and the parties hereto expressedly submit
themselves to the jurisdiction of the courts of the state of Mississippi
and the federal district courts for that state, with respect to any
action instituted either in law or in equity arising out of or related
to the breach or enforcement, or both, of the terms and conditions set
forth in the Plan.
14.14 NONASSIGNABILITY OF DUTIES.
Unless provided herein, the duties and responsibilities of the
Fiduciaries of the Plan shall be nonassignable.
14.15 ENTIRE PLAN.
This Plan constitutes the entire qualified profit sharing plan of the
Sponsor, and no modifications or alterations to this Plan shall be
enforceable unless properly and validly made pursuant to the amendment
provisions of Article 11 hereof.
14-4
<PAGE> 81
IN WITNESS WHEREOF, the Sponsor and the Trustee have each caused this
Plan and Trust to be executed by its duly authorized representative on this
______ day of ______________, 1996.
SPONSOR:
Eddy Potash, Inc.
-----------------
Attest:
-------------------------------
By:
-----------------------------------
Title:
--------------------------------
TRUSTEE:
NationsBank of South Carolina, NA
---------------------------------
Attest:
-------------------------------
By:
-----------------------------------
Title (if appropriate):
---------------
The Plan may be executed in several counterparts, each of which shall be deemed
an original.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
July 29, 1996 included in Mississippi Chemical Corporation's Annual Report on
Form 10-K for the year ended June 30, 1996 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Memphis, Tennessee
September 30, 1996
