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_______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ARCHER-DANIELS-MIDLAND COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 41-0129150
(State or other jurisdiction (I.R.S.
Employer
of incorporation or organization)
Identification No.)
4666 Faries Parkway
Decatur, Illinois 62526
(Address of Principal Executive Offices)
ADM SAVINGS AND INVESTMENT PLAN FOR SALARIED
EMPLOYEES
ADM SAVINGS AND INVESTMENT PLAN FOR HOURLY
EMPLOYEES
(Full title of plans)
D. J. Smith
Vice President, Secretary and General Counsel
Archer-Daniels-Midland Company
4666 Faries Parkway
Decatur, Illinois 62526
217/424-5200
(Name, address and telephone number of agent for
service)
CALCULATION OF REGISTRATION FEE
Title of Securities Amount Proposed Maximum Proposed Maximum
Amount of
to be to be Offering Price Aggregate
Registration
Registered Registered Per Share (2) Offering
Price(2) Fee
Common Stock
(without par 2,700,000
value) shares (1) $21.81 $58,887,000
$17,845
(1) Includes 2,000,000 shares of Common Stock to be issued
pursuant to the Registrant's ADM Savings and Investment
Plan for Salaried Employees and 700,000 shares of Common
Stock to be issued pursuant to the Registrant's ADM
Savings and Investment Plan for Hourly Employees.
(2) Estimated solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457,
on the basis of the average of the high and low reported
sale prices of the Registrant's Common Stock on the New
York Stock Exchange, Inc. Composite Tape on October 27,
1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with
the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act") are incorporated in and made a part of this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for
the year ended June 30, 1997 (which incorporates by
reference certain portions of the Registrant's 1997 Annual
Report to Shareholders, including financial statements and
notes thereto, and certain portions of the Registrant's
Definitive Notice and Proxy Statement for the Registrant's
Annual Meeting of Shareholders held on October 16, 1997).
(b) The description of the Registrant's Common Stock
included in registration statements and reports filed
under the Exchange Act.
All reports and any definitive proxy or information
statements filed by the Registrant with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of
such documents.
Any statement contained in a document incorporated or
deemed to be incorporated herein by reference 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 document which also is or is
deemed to be incorporated herein by reference 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Delaware law, a corporation may indemnify any
person who was or is a party or is threatened to be made a
party to an action (other than an action by or in the right of
the corporation) by reason of his service as a director,
officer, employee or agent of the corporation, or his service,
at the corporation's request, as a director, officer, employee
or agent of another corporation or other enterprise, against
expenses (including attorneys' fees) that are actually and
reasonably incurred by him ("Expenses"), and judgments, fines
and amounts paid in settlement that are actually and reasonably
incurred by him, in connection with the defense or settlement
of such action, provided that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
corporation's
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best interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct
was unlawful. Although Delaware law permits a corporation to
indemnify any person referred to above against Expenses in
connection with the defense or settlement of an action by or in
the right of the corporation, provided that he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, if such person has
been judged liable to the corporation, indemnification is only
permitted to the extent that the Court of Chancery (or the
court in which the action was brought) determines that, despite
the adjudication of liability, such person is entitled to
indemnity for such Expenses as the court deems proper. The
General Corporation Law of the State of Delaware also provides
for mandatory indemnification of any director, officer,
employee or agent against Expenses to the extent such person
has been successful in any proceeding covered by the statute.
In addition, the General Corporation Law of the State of
Delaware permits (i) Delaware corporations to include a
provision in their certificates of incorporation limiting or
eliminating the personal liability of a director to a
corporation or its stockholders, under certain circumstances,
for monetary damages or breach of fiduciary duty as a director
and (ii) the general authorization of advancement of a
director's or officer's litigation expenses, including by means
of a mandatory charter or bylaw provision to that effect, in
lieu of requiring the authorization of such advancement by the
board of directors in specific cases. In addition, the General
Corporation Law of the State of Delaware provides that
indemnification and advancement of expenses provided by the
statute shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement or otherwise.
Article Fourteenth of the Certificate of
Incorporation of the Registrant and Article X of the bylaws of
the Registrant each provide for the broad indemnification of
the directors and officers of the Registrant and limit the
personal monetary liability of directors of the Registrant to
the fullest extent permitted by current Delaware law. The
Registrant has also entered into indemnification contracts with
certain of its directors and officers. The Registrant also
maintains insurance coverage relating to certain liabilities of
its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4(a) - Restated Articles of Incorporation of the
Registrant, as amended. (Incorporated by reference to
Exhibit 3(a) to Post-Effective Amendment No. 1 to
Registration Statement No. 33-6721.)
4(b) - ByLaws of the Registrant, as amended.
(Incorporated by reference to Exhibit 3(b) to Post-
Effective Amendment No. 1 to Registration Statement
No. 33-6721.)
4(c) - ADM Savings and Investment Plan for Salaried
Employees
4(d) - ADM Savings and Investment Plan for Hourly
Employees
5 - Opinion and Consent of D. J. Smith.
23 - Consent of Ernst & Young LLP.
24 - Powers of Attorney.
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Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(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)(i) and (a)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company 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 relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) 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 Section 15(d) of the Exchange
Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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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 the City of
Decatur, State of Illinois, on November 5, 1997.
ARCHER-DANIELS-MIDLAND COMPANY
/s/ D. J. Smith
D. J. Smith
Vice President, Secretary
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on November 5, 1997, by the
following persons in the capacities indicated.
G. A. Andreas*, President and Chief Executive Officer and
Director
(Principal Executive Officer)
/s/D. J. Schmalz
D. J. Schmalz Vice President and Chief Financial
Officer (Principal Financial Officer)
/s/S. R. Mills
S. R. Mills Controller (Principal Accounting Officer)
D. O. Andreas*, Chairman of the Board of Directors
S. M. Archer, Jr.*, Director
J. R. Block *, Director
R. R. Burt *, Director
Mrs. M. H. Carter*, Director
G. O. Coan*, Director
F. R. Johnson*, Director
M. B. Mulroney*, Director
R. S. Strauss*, Director
J. K. Vanier*, Director
O. G. Webb*, Director
A. Young*, Director
* D. J. Smith, by signing his name hereto, does hereby sign this
document on behalf of each of the above-named officers and
directors of the Registrant pursuant to powers of attorney
duly executed by such persons.
/s/ D. J. Smith
D. J. Smith
5 Attorney-in-fact
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EXHIBIT INDEX
Exhibit
No. Exhibit Form of Filing
4(a) Restated Articles of Incorporation of the
Registrant, as amended. (Incorporated by
reference to Exhibit 3(a) to Post-Effective
Amendment No. 1 to Registration Statement
No. 33-6721.)
4(b) ByLaws of the Registrant, as amended.
(Incorporated by reference to Exhibit 3(b)
to Post-Effective Amendment No. 1 to
Registration Statement No. 33-6721.)
4(c) ADM Savings and Investment Plan for
Electronic
Salaried Employees. Transmission
4(d) ADM Savings and Investment Plan for
Electronic
Hourly Employees.
Transmission
5 Opinion and Consent of D. J. Smith.
Electronic
Transmission
23 Consent of Ernst & Young LLP.
Electronic
Transmission
24 Powers of Attorney. Electronic
Transmission
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EXHIBIT 5
October 31, 1997
Archer-Daniels-Midland Company
4666 Faries Parkway
Decatur, Illinois 62526
Gentlemen:
In connection with the proposed registration under the
Securities Act of 1933, as amended, by Archer-Daniels-Midland
Company, a Delaware corporation (the "Company"), of 2,700,000
shares of Common Stock of the Company, without par value (the
"Shares"), proposed to be issued by the Employees and the ADM
Savings and Investment Plan for Hourly Employees (collectively,
the "Plans"), I have examined such corporate records and other
documents, including the Registration Statement of the Company
on Form S-8 to which this opinion is an exhibit relating to the
Shares (the "Registration Statement"), and have reviewed such
matters of law as I have deemed necessary for this opinion, and
I advise you that in my opinion:
1. The Company is a corporation duly organized and
existing under the laws of the State of Delaware.
2. All necessary corporate action on the part of the
Company has been taken to authorize the issuance and sale of
the Shares and that, when issued, delivered and paid for as
contemplated in the Registration Statement and the Plans, the
Shares will be legally and validly issued and fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ D. J. Smith
D. J. Smith
Vice President, Secretary
and General Counsel
Archer-Daniels-Midland
Company
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EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement on Form S-8 and related prospectus of
Archer-Daniels-Midland Company for the registration of
2,700,000 shares of its common stock pertaining to the ADM
Savings and Investment Plan for Salaried Employees and the ADM
Savings and Investment Plan for Hourly Employees of Archer-
Daniels-Midland Company of our report dated July 31, 1997 with
respect to the consolidated financial statements of Archer-
Daniels-Midland Company incorporated by reference in its Annual
Report (Form 10-K) for the year ended June 30, 1997, filed with
the Securities and Exchange Commission.
/s/ERNST & YOUNG, LLP
ERNST & YOUNG, LLP
Minneapolis, Minnesota
October 31, 1997
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Dwayne O. Andreas
Dwayne O. Andreas
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ G. Allen Andreas
G. Allen Andreas
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Shreve M. Archer, Jr.
Shreve M. Archer, Jr.
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ John R. Block
John R. Block
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Richard R. Burt
Richard R. Burt
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Mollie H. Carter
Mollie H. Carter
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Gaylord O. Coan
Gaylord O. Coan
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ F. Ross Johnson
F. Ross Johnson
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ M. Brian Mulroney
M. Brian Mulroney
9
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ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Robert S. Strauss
Robert S. Strauss
10
PAGE 11
ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ John K. Vanier
John K. Vanier
11
PAGE 12
ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ O. Glen Webb
O. Glenn Webb
12
PAGE 13
ARCHER-DANIELS-MIDLAND COMPANY
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
and/or officer of ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation, does hereby make, constitute and appoint DWAYNE O.
ANDREAS, G. ALLEN ANDREAS, D. J. SCHMALZ, and D. J. SMITH, and each
or any one of them, the undersigned's true and lawful attorneys-in-
fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the
undersigned's name as such director and/or officer of said Company
to a Registration Statement or Registration Statements, on Form S-8
or other applicable form, and all amendments, including post-
effective amendments, thereto, to be filed by said Company with the
Securities and Exchange Commission, Washington, D.C., in connection
with the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of said Company proposed to be issued in
connection with the ADM Savings and Investment Plan for Salaried
Employees and/or the ADM Savings and Investment Plan for Hourly
Employees, and to all amendments thereto, and to file the same,
with all exhibits thereto and other supporting documents, with said
Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the
powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set
the undersigned's hand this 16th day of October, 1997.
/s/ Andrew Young
Andrew Young
13
PAGE 1
EXHIBIT 4(C)
ARTICLE I
GENERAL
Sec. 1.1 Name of Plan. The name of the stock bonus plan
set forth herein is the "ADM Savings and Investment Plan for
Salaried Employees". It is sometimes herein referred to as the
"Plan". Prior to April 19, 1984, the Plan was known as "Archer
Daniels Midland Tax Reduction Act Stock Ownership Plan."
Sec. 1.2 Purpose. The Plan has been established to
provide eligible employees of the Participating Employers with a
means to adopt a regular savings program, a supplement to their
retirement income, and an ownership interest in the Company.
Sec. 1.3 Effective Date. The "Effective Date" of the
Plan, the date as of which the Plan was established, is
January 1, 1976.
Sec. 1.4 Company. The "Company" is
Archer-Daniels-Midland Company, a Delaware corporation, and any
Successor Employer thereof.
Sec. 1.5 Participating Employers. The Company is a
Participating Employer in the Plan. With the consent of the
Company, any other employer may also become a Participating
Employer in the Plan effective as of the date specified by it in
its adoption of the Plan. The Company shall maintain a "List of
Participating Employers" for the Plan indicating the date on
which an employer becomes a Participating Employer and the date
on which an employer ceases to be a Participating Employer.
Sec. 1.6 Construction and Applicable Law. The Plan is
intended to meet the requirements for qualification under section
401(a) of the Code and the requirements applicable to qualified
cash or deferred arrangements under section 401(k) of the Code.
The portion of the Plan consisting of Tax Credit Accounts is also
intended to meet the requirements for a tax credit employee stock
ownership plan under section 409 of the Code. The Plan is also
intended to be in full compliance with applicable requirements of
ERISA. The Plan shall be administered and construed consistent
with said intent. It shall also be construed and administered
according to the laws of the State of Illinois to the extent that
such laws are not preempted by the laws of the United States of
America. All controversies, disputes, and claims arising
hereunder shall be submitted to the United States District Court
for the Central District of Illinois, except as otherwise
provided in any trust agreement entered into with a Trustee.
Sec. 1.7 Benefits Determined Under Provisions in Effect
at Termination of Employment. Except as may be specifically
provided herein to the contrary, benefits under the Plan
attributable to service prior to a Participant's Termination of
Employment shall be determined and paid in accordance with the
provisions of the Plan as in effect as of the date the
Termination of Employment occurred unless he or she becomes an
Active Participant after that date and such active participation
causes a contrary result under the provisions hereof. However,
the provisions of this document shall apply to any such
Participant to the extent necessary to maintain the qualified
status of the Plan under Code section 401(a) or to comply with
the requirements of ERISA.
Sec. 1.8 Effective Date of Document. Unless a different
date is specified for some purpose in this document, the
provisions of this Plan document are generally effective as of
January 1, 1987. However, any provision necessary to comply with
a requirement of the Tax Reform Act of 1986, other federal
legislation, or a Treasury regulation which requirement has an
effective date later than 1987 shall not be effective until the
date required by the applicable law or regulation unless a
different effective date is specifically stated in this document.
Notwithstanding the general effective date of this document, this
document shall supersede any amendment of the Plan which was
adopted prior to the date this document was adopted, but which
was effective on or after the effective date of this document.
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ARTICLE II
MISCELLANEOUS DEFINITIONS
Sec. 2.1 Account. "Account" means a Participant's or
Beneficiary's interest in the Fund of any of the types described
in Sec. 7.1.
Sec. 2.2 Active Participant. An employee is an "Active
Participant" only while he or she is both a Participant and a
Qualified Employee.
Sec. 2.3 ADM Stock. "ADM Stock" means common stock of
the Company.
Sec. 2.4 Affiliate. "Affiliate" means any trade or
business entity under Common Control with a Participating
Employer, or under Common Control with a Predecessor Employer
while it is such.
Sec. 2.5 Before Tax Contributions. "Before Tax
Contributions" are amounts contributed by a Participating
Employer under Sec. 5.1 at the direction of individual
Participants.
Sec. 2.6 Beneficiary. "Beneficiary" means the person or
persons designated as such pursuant to the provisions of
Article VIII.
Sec. 2.7 Board. The "Board" is the board of directors
of the Company, and includes any executive committee thereof
authorized to act for said board of directors.
Sec. 2.8 Certified Earnings. "Certified Earnings" of a
Participant from a Participating Employer for a Plan Year means
the amount determined by the Participating Employer and reported
to the Company to be the total compensation paid to the
Participant by the Participating Employer during such Plan Year
for service as an Active Participant, subject to the following:
(a)Bonuses shall not be included in Certified Earnings.
However, lump sum payments made in lieu of pay increases
shall be included in Certified Earnings.
(b)Commissions shall be included in Certified Earnings
when paid.
(c)Sick pay or short term disability pay paid directly
by a Participating Employer shall be included in
Certified Earnings.
(d)Certified Earnings include Before Tax Contributions
to this Plan and any contributions made by salary
reduction to any other plan which meets the requirements
of Code sections 125 or 401(k), whether or not such
contributions are actually excludable from the
Participant's gross income for federal income tax
purposes. Certified Earnings do not include Matching
Contributions to this Plan.
(e)Allowances or reimbursements for expenses, severance
pay, payments or contributions to or for the benefit of
the employee under any other deferred compensation,
pension, profit sharing, insurance, or other employee
benefit plan, stock options, stock appreciation rights or
cash payments in lieu thereof, merchandise or service
discounts, non-cash employee awards, benefits in the form
of property or the use of property, earnings payable in a
form other than cash, or other similar fringe benefits
shall not be included in computing Certified Earnings,
except as provided in subsections (c) and (d) or to the
extent such amounts are required to be included in
determining the employee's regular rate of pay under the
Federal Fair Labor Standards Act for purposes of
computing overtime pay thereunder.
(f)For employees working outside the United States,
Certified Earnings is limited to base compensation and
does not include extra or added compensation due to the
foreign assignment (such as relocation allowance,
education allowance, or other reimbursements or
allowances).
(g)Code Section 401(a)(17) Limit. Amounts in excess of
$160,000 (or such greater amount as may be in effect
under Code section 401(a)(17)) will be disregarded in
determining Certified Earnings.
Sec. 2.9 Code. "Code" means the Internal Revenue Code
of 1986 as from time to time amended.
Sec. 2.10 Common Control. A trade or business entity
(whether a corporation, partnership, sole proprietorship or
otherwise) is under "Common Control" with another trade or
business entity (i) if both entities are corporations which are
members of a controlled group of corporations as defined in Code
section 414(b), or (ii) if both entities are trades or businesses
(whether or not incorporated) which are under common control as
defined in Code section 414(c), or (iii) if both entities are
members of an affiliated service group as defined in Code section
414(m), or (iv) if both entities are required to be aggregated
pursuant to regulations under Code section 414(o). Service for
all entities under Common Control shall be treated as service for
a single employer to the extent required by the Code; provided,
however, that an individual shall not be a Qualified Employee by
reason of this section. In applying the first sentence of this
section for purposes of Article VI, the provisions of subsections
(b) and (c) of section 414 of the Code are deemed to be modified
as provided in Code section 415(h).
Sec. 2.11 ERISA. "ERISA" means the Employee Retirement
Income Security Act of 1974 as from time to time amended.
Sec. 2.12 [Intentionally omitted.]
Sec. 2.13 Fund. "Fund" means the aggregate of assets
described in Sec. 11.1.
Sec. 2.14 Funding Agency. "Funding Agency" is a trustee
or trustees or an insurance company appointed and acting from
time to time in accordance with the provisions of Sec. 11.2 for
the purpose of holding, investing, and disbursing all or a part
of the Fund.
2
PAGE 3
Sec. 2.15 Highly Compensated Employee. "Highly
Compensated Employee" means any individual defined as such under
Code section 414(q) (for purposes of applying this definition,
the Company is permitted to make any or all elections, and apply
any or all options, permitted in the regulations under Code
section 414(q)).
Sec. 2.16 Leased Employee. "Leased Employee" means any
individual defined as such under Code section 414(n).
Sec. 2.17 Matching Contribution. A "Matching
Contribution" is an amount contributed by a Participating
Employer under Sec. 5.2.
Sec. 2.18 Named Fiduciary. The Company is a "Named
Fiduciary" for purposes of ERISA with authority to control or
manage the operation and administration of the Plan, including
control or management of the assets of the Plan. Other persons
are also Named Fiduciaries under ERISA if so provided thereunder
or if so identified by the Company, by action of the Board. Such
other person or persons shall have such authority to control or
manage the operation and administration of the Plan, including
control or management of the assets of the Plan, as may be
provided by ERISA or as may be allocated by the Company, by
action of the Board.
Sec. 2.19 Non-Highly Compensated Employee. "Non-
Highly Compensated Employee" means an employee of the Company or
an Affiliate who is not a Highly Compensated Employee.
Sec. 2.20 Normal Retirement Age. "Normal Retirement
Age" is age 65.
Sec. 2.21 Participant. A "Participant" is an
individual described as such in Article IV.
Sec. 2.22 Plan Year. A "Plan Year" is the
12-consecutive-month period commencing on January 1.
Sec. 2.23 Predecessor Employer. A "Predecessor
Employer" is any corporation, partnership, firm, or individual,
an integral portion of whose assets and business has been
acquired by a Participating Employer or from whose employment an
integral group or unit of employees has been transferred to
employment by a Participating Employer and service for which the
Company grants credit for eligibility purposes under this Plan.
Any other employer shall be a Predecessor Employer if so required
by regulations prescribed by the Secretary of the Treasury. The
Company shall maintain a "List of Predecessor Employers" for the
Plan, indicating the date on which the employer becomes a
Predecessor Employer and the group or unit of employees with
respect to which the employer is a Predecessor Employer. Prior
service credit shall be granted in a manner that does not produce
discrimination in favor of Highly Compensated Employees.
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PAGE 4
Sec. 2.24 Qualified Employee. "Qualified Employee"
means the following:
(a)General Rule. Qualified Employee means an employee of
the Company or an Affiliate who satisfies the following
criteria:
(i) The employee is paid on a regular stated salary
basis, a drawing account plus commission basis or
wholly on a commission basis, or is employed in an
office clerical position.
(ii) The employee is employed with a Participating
Employer (while the Participating Employer is a
Participating Employer).
(iii) The employee is not excluded under any one of the
following categories:
(A)Any individual who is compensated on a salary
basis by who is nevertheless classified as an
hourly wage employee by the Company, and who is
eligible to participate in the ADM Savings and
Investment Plan for Hourly Employees.
(B)Any individual who is classified as a probationary
or temporary employee by the Company.
(C)Any individual who is classified as an independent
contractor by the Company (regardless of whether
such individual is subsequently determined to be a
common-law employee or an employee for any
purpose).
(D)Any individual who is a citizen or resident of a
foreign country, including any such individual who
is working in the United States.
(E)Any individual who is a Leased Employee with
respect to the Company or an Affiliate or who is
treated as an employee of the Company or an
Affiliate under Code Sec. 414(o).
(b)Collective Bargaining Employees. An employee who is in a
collective bargaining unit is not a Qualified Employee
during any period he/she is covered by a collective
bargaining agreement unless that agreement expressly
provides that he/she is eligible to participate in this
Plan. For this purpose a collective bargaining agreement
will be deemed to continue after its formal expiration
and during collective bargaining negotiations until the
parties have negotiated to "impasse" as determined by the
Company, and thereafter the status of an employee as a
Qualified Employee will be determined in accordance with
the impasse proposal of the Company.
(c)Periods of Absence/Disability. A Qualified Employee will
continue as a Qualified Employee during any period of
absence from active service, including a period during
which the employee is receiving payments under any long-
term disability program sponsored by the Company or an
Affiliate, until his/her Termination of Employment.
Sec. 2.25 Successor Employer. A "Successor Employer"
is any entity that succeeds to the business of a Participating
Employer through merger, consolidation, acquisition of all or
substantially all of its assets, or any other means and which
elects before or within a reasonable time after such succession,
by appropriate action evidenced in writing, to continue the Plan;
provided, however, that in the case of such succession with
respect to any Participating Employer other than the Company, the
acquiring entity shall be a Successor Employer only if consent
thereto is granted by the Company, by action of the Board or a
duly authorized officer.
Sec. 2.26 Tax Credit Contribution. A "Tax Credit
Contribution" is an amount contributed by a Participating
Employer under the plan as in effect prior to January 1, 1983 or
under Sec. 4.6 of the Plan as in effect prior to January 1, 1987.
No Tax Credit Contributions are made with respect to Plan Years
commencing after 1986.
Sec. 2.27 Top-Heavy Plan. "Top-Heavy Plan" is defined
in Sec. 14.2(a).
Sec. 2.28 Trustee. The "Trustee" is a trustee or
trustees appointed and acting from time to time in accordance
with the provisions of Sec. 11.2 for the purpose of holding,
investing, and disbursing ADM Stock and all or any part of the
other assets of the Fund.
Sec. 2.29 Valuation Date. "Valuation Date" means each
business day.
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PAGE 5
ARTICLE III
SERVICE PROVISIONS
Sec. 3.1 Employment Commencement Date. "Employment
Commencement Date" means the date on which an employee first
performs an Hour of Service for a Participating Employer (whether
before or after the Participating Employer becomes such), an
Affiliate, or a Predecessor Employer. The date on which an
employee first performs an Hour of Service after a 1-Year Break
in Service is also an "Employment Commencement Date".
Sec. 3.2 Termination of Employment. The "Termination of
Employment" of an employee for purposes of the Plan shall be
deemed to occur upon resignation, discharge, retirement, death,
failure to return to active work at the end of an authorized
leave of absence or the authorized extension or extensions
thereof, failure to return to work when duly called following a
temporary layoff, or upon the happening of any other event or
circumstance which, under the policy of a Participating Employer,
Affiliate, or Predecessor Employer as in effect from time to
time, results in the termination of the employer-employee
relationship; provided, however, that a Termination of Employment
shall not be deemed to occur upon a transfer between any
combination of Participating Employers, Affiliates, and
Predecessor Employers. Notwithstanding the foregoing, a
Termination of Employment shall be deemed not to have occurred
for purposes of entitling a Participant to a distribution if the
Participant has not had a" "separation from service" or
"disability" as defined in applicable regulations (although a
distribution may be permitted under Sec. 10.11).
Sec. 3.3 Hours of Service. "Hours of Service" are
determined according to the following subsections with respect to
each applicable computation period. The Company may round up the
number of Hours of Service at the end of each computation period
or more frequently as long as a uniform practice is followed with
respect to all employees determined by the Company to be
similarly situated for compensation, payroll, and recordkeeping
purposes.
(a)Hours of Service are computed only with respect to
service with Participating Employers (for service both
before and after the Participating Employer becomes
such), Affiliates, and Predecessor Employers and are
aggregated for service with all such employers. However,
no Hours of Service shall be credited with a
Participating Employer or an Affiliate prior to the
earliest date said entity is under Common Control with an
entity which is then a Participating Employer.
(b)For any portion of a computation period during which
a record of hours is maintained for an employee, Hours of
Service shall be credited as follows:
(1)Each hour for which the employee is paid, or
entitled to payment, for the performance of duties
for his or her employer during the applicable
computation period is an Hour of Service.
5
PAGE 6
(2)Each hour for which the employee is paid, or
entitled to payment, by his or her employer on
account of a period of time during which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability),
layoff, jury duty, military duty, or leave of
absence, is an Hour of Service. No more than 501
Hours of Service shall be credited under this
paragraph for any single continuous period (whether
or not such period occurs in a single computation
period). Hours of Service shall not be credited
under this paragraph with respect to payments under a
plan maintained solely for the purpose of complying
with applicable workers' compensation, unemployment
compensation, or disability insurance laws or with
respect to a payment which solely reimburses the
individual for medical or medically related expenses
incurred by the employee.
(3)Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to
by the employer is an Hour of Service. Such Hours of
Service shall be credited to the computation period
or periods to which the award or agreement for back
pay pertains, rather than to the computation period
in which the award, agreement, or payment is made.
Crediting of Hours of Service for back pay awarded or
agreed to with respect to periods described in
paragraph (2) shall be subject to the limitations set
forth therein.
(4)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.
(5)The Company may use any records to determine
Hours of Service which it considers an accurate
reflection of the actual facts.
(c)For any portion of a computation period during which
an employee is within a classification for which a record
of hours for the performance of duties is not maintained,
the employee shall be credited with 190 Hours of Service
for each month for which he or she would otherwise be
credited with at least one Hour of Service under
subsection (b).
(d)Nothing in this section shall be construed as denying
an employee credit for an Hour of Service if credit is
required by any federal law other than ERISA. The nature
and extent of such credit shall be determined under such
other law.
(e)In no event shall duplicate credit as an Hour of
Service be given for the same hour.
(f)This subsection shall apply to an individual who has
service as (i) either a common law employee or a Leased
Employee of (ii) either a Participating Employer or
Affiliate. For purposes of determining Hours of Service,
such an individual shall be considered an employee of the
Participating Employer or Affiliate during any period he
or she would have been a Leased Employee of such
Participating Employer or Affiliate but for the
requirement that he or she must have performed services
for such Participating Employer or Affiliate on a
substantially full-time basis for a period of at least
one year. If this Plan is a multiple employer plan as
defined in section 2530.210 of the Department of Labor
Regulations, service as a leased individual with more
than one legal entity shall be aggregated only in
accordance with the rules set forth in said section.
Sec. 3.4 Eligibility Computation Period. An employee's
first Eligibility Computation Period is the 12-consecutive-month
period beginning on his or her Employment Commencement Date. The
second Eligibility Computation Period is the Plan Year commencing
in said 12-consecutive-month period. Each subsequent Plan Year
prior to the end of the Plan Year in which the employee has a
1-Year Break In Service is an Eligibility Computation Period. If
subsequent to a 1-Year Break In Service the employee has another
Employment Commencement Date, Eligibility Computation Periods for
the period beginning on such date shall be computed as though
such date were the employee's first Employment Commencement Date.
Sec. 3.5 Year of Eligibility Service. "Year of
Eligibility Service" means an Eligibility Computation Period
during which an employee has at least 1,000 Hours of Service.
Sec. 3.6 1-Year Break In Service. "1-Year Break In
Service" means a Plan Year in which the employee has 500 or fewer
Hours of Service. The 1-Year Break In Service shall be
recognized as such on the last day of such Plan Year.
(a)Notwithstanding the provisions of Sec. 3.3, for
purposes of determining whether a 1-Year Break In Service
has occurred with respect to a Plan Year beginning after
1984, an individual who is absent from work for maternity
or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to
such individual but for such absence, or in any case in
which such hours cannot be determined, 8 Hours of Service
per day of such absence; provided, however, that the
total number of Hours of Service recognized under this
subsection shall not exceed 501 hours. The Hours of
Service credited under this subsection shall be credited
in the Plan Year in which the absence begins if the
crediting is necessary to prevent a 1-Year Break In
Service in that Plan Year or, in all other cases, in the
following Plan Year.
(b)For purposes of subsection (a), an absence from work
for maternity or paternity reasons means an absence that
started during a Plan Year beginning after 1984 (i) by
reason of the pregnancy of the individual, (ii) by reason
of the birth of a child of the individual, (iii) by
reason of the placement of a child with the individual in
connection with the adoption of such child by such
individual, or (iv) for purposes of caring for such child
for a period beginning immediately following such birth
or placement.
Sec. 3.7 Periods of Military Service. Notwithstanding
any provision of this Plan to the contrary, contributions,
benefits and service credit with respect to qualified military
service will be provided in accordance with Code section 414(u).
6
PAGE 7
ARTICLE IV
PLAN PARTICIPATION
Sec. 4.1 Entry Date. "Entry Date" means January 1 and
July 1 of each Plan Year.
Sec. 4.2 Eligibility for Participation. Eligibility to
participate in the Plan shall be determined as follows:
(a)An employee of a Participating Employer shall become
a Participant in the Plan on the earliest Entry Date (on
or after the date the Plan becomes effective with respect
to his or her Participating Employer) on which both of
the following requirements are met:
(1)The employee is a Qualified Employee.
(2)The employee has completed one Year of
Eligibility Service during an Eligibility Computation
Period that ended prior to the Entry Date.
(b)If a former Participant is reemployed and meets the
requirements of subsection (a) on the date of rehire, the
employee will become a Participant again on that date.
(c)If a former employee who was not previously a
Participant is reemployed as a Qualified Employee, if the
employee meets the requirements of subsection (a) on the
date of rehire, and if the employee would have met the
requirements of subsection (a) on the immediately
preceding Entry Date if he or she had been a Qualified
Employee on that Entry Date, the employee shall become a
Participant on the date of rehire.
(d)If an employee of a Participating Employer or an
Affiliate who is neither a Participant nor a Qualified
Employee is transferred to a position in which he or she
is a Qualified Employee, and if the employee would have
met the eligibility requirements of subsection (a) on the
Entry Date preceding the transfer had he or she been a
Qualified Employee on that Entry Date, the employee shall
become a Participant on the date of transfer.
Sec. 4.3 Duration of Participation. A Participant
shall continue to be such until the later of:
(a)The Participant's Termination of Employment.
(b)The date all benefits, if any, to which the
Participant is entitled hereunder have been distributed
from the Fund.
Sec. 4.4 Participation of U.S. Citizens Employed by
Foreign Subsidiaries. A citizen or resident of the United States
who is employed by an eligible foreign subsidiary (as defined
below) of a Participating Employer shall be treated as an
employee of that Participating Employer for the period of his/her
employment with the eligible foreign subsidiary if (i) the
Participating Employer has entered into an agreement under Code
section 3121(l) that applies to the eligible foreign subsidiary,
and (ii) the employee does not receive contributions under any
funded plan of deferred compensation with respect to remuneration
received from the eligible foreign subsidiary. For purposes of
this section, an "eligible foreign subsidiary" is any corporation
organized outside of the United States, its territories or the
District of Columbia 10% or more of the voting stock of which is
owned by the Participating Employer. If this section applies to
an employee, his/her compensation for purposes of the Plan shall
be determined under Code section 406(b).
Sec. 4.5 No Guarantee of Employment. Participation in
the Plan does not constitute a guarantee or contract of
employment with the Participating Employers. Such participation
shall in no way interfere with any rights the Participating
Employers would have in the absence of such participation to
determine the duration of an employee's employment.
7
PAGE 8
ARTICLE V
CONTRIBUTIONS
Sec. 5.1 Before Tax Contributions. Each Active
Participant may elect to have his or her Participating Employer
make Before Tax Contributions on his or her behalf, subject to
the following:
(a)The Participant may elect to have his or her current
earnings reduced by any whole percent the Participant may
designate, but not exceeding 10% of Certified Earnings.
This election may only be made pursuant to a written
salary reduction agreement. The agreement shall be in
such form and executed subject to such rules as the
Company may prescribe. Each election shall apply only to
earnings which become payable after the election is filed
with the Company. Each election shall continue in effect
until a new election is filed pursuant to this section.
(b)Each Participating Employer will make a Before Tax
Contribution with respect to each Participant in its
employ who elects to have earnings for that period
reduced pursuant to this section. The amount of the
contribution, to be made in the manner described in
Sec. 5.3, will be equal to the amount by which the
Participant's earnings were reduced.
(c)The salary reduction agreement may be effective as of
the date on which the employee becomes a Participant or
any following January 1 or July 1; provided that the
employee has filed the agreement with the Company at
least 15 days prior to the effective date. If an
employee who becomes a Participant pursuant to
Sec. 4.2(d) was an Active Participant under the ADM
Savings and Investment Plan for Hourly Employees (the
"Hourly Plan") immediately before becoming a Participant
in this Plan, the Participant shall be deemed to have
made a salary reduction agreement for purposes of this
Plan identical to the agreement in effect for purposes of
the Hourly Plan, unless the participant enters into a new
agreement pursuant to this subsection. Notwithstanding
the foregoing, an employee who becomes a Participant
pursuant to Sec. 4.2(a), (b), (c), or (d) may file a
salary reduction agreement with the Company during the
15-day period following the date he or she becomes a
Participant, which shall be effective as of the first day
of the pay period following the date the agreement is
filed.
(d)An Active Participant may amend his or her salary
reduction agreement to increase or decrease the
contribution rate effective as of any January 1 or July 1
by filing an approved amendment form with the Company at
least 15 days prior to the effective date.
(e)An Active Participant may discontinue making Before
Tax Contributions at any time by filing a written
election with the Company. That election shall be
effective as soon as administratively feasible after it
is filed with the Company. The Participant may
thereafter resume Before Tax Contributions as of any
January 1 or July 1 which is at least six months after
the date contributions were discontinued, by filing a new
salary reduction agreement at least 15 days prior to the
effective date.
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PAGE 9
(f)All Before Tax Contributions by a Participant shall
cease when the Participant ceases to be a Qualified
Employee.
(g)Effective January 1, 1987, Before Tax Contributions
by a Participant for any calendar year may not exceed
$7,000, and shall cease at the point that limit is
reached during the year. The $7,000 limit in the
previous sentence shall be adjusted after 1987 for any
cost of living increases provided for any calendar year
in accordance with regulations issued by the Secretary of
the Treasury.
(h)Notwithstanding the foregoing provisions, effective
for Plan Years commencing after 1988, if the Participant
has received a hardship distribution from this Plan in
accordance with Sec. 9.3(a) or from any other plan
maintained by a Participating Employer or an Affiliate,
no Before Tax Contributions shall be made to this Plan on
behalf of such Participant for 12 months following the
date on which the hardship distribution was made.
Furthermore, the limit under subsection (g) for the
calendar year following the year in which the hardship
withdrawal is made shall be reduced by the amount of
Before Tax Contributions (and any elective contributions
to any other plan maintained by the employer) for the
calendar year in which the hardship withdrawal was made.
(i)If a Participant's Before Tax Contributions are
suspended under subsection (h), the Participant may elect
to recommence Before Tax Contributions effective as of
any January 1 or July 1 following the end of the 12-month
suspension period by filing a new election form with the
Company at least 15 days prior to the effective date.
Sec. 5.2 Matching Contributions. A Matching
Contribution will be made for each month on behalf of each Active
Participant who receives a Before-Tax Contribution for any
payroll period ending within such month. The amount of the
Matching Contribution will be based on the amount of the Before
Tax Contributions received by the Participant as determined under
the following schedule:
I. II.
For Before Tax The Matching
Contributions Contribution will be
representing the the Following
Following Percent of the
Percentages of the Participant's Before
Participant's Tax Contributions
Certified Earnings
The first 4% 100%
The next 2% 50%
Above None
6%
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PAGE 10
No Matching Contributions shall be made on any Before Tax
Contributions returned to the Participant under Sec. 5.4, 5.5 or
5.7. Any Matching Contributions made before the return of such
Before Tax Contributions will be forfeited and will be applied as
a credit against future Matching Contributions.
Sec. 5.3 Form of Contribution. Before Tax and
Matching Contributions shall be paid to the Fund as soon as
practicable following the close of each month in cash or shares
of ADM Stock, as determined at the sole discretion of the
Company. If paid in shares of ADM Stock, such shares shall be
valued at the closing price of a share of ADM Stock on the New
York Stock Exchange for the business day immediately preceding
the day the Company directs its transfer agent to issue such
shares to the Fund (as reported in The Wall Street Journal
published for the next following business day).
Sec. 5.4 Adjustment of Contributions Required by Code
Section 401(k). If necessary to satisfy the requirements of Code
section 401(k), Before Tax Contributions shall be adjusted in
accordance with the following:
(a)Each Plan Year, the "deferral percentage" will be
calculated for each Active Participant. Each
Participant's deferral percentage is calculated by
dividing the amount referred to in paragraph (1) by the
amount referred to in paragraph (2):
(1)The total Before Tax Contributions (including
Excess Deferrals of Highly Compensated Employees
distributed under Sec. 5.5 but excluding Excess
Deferrals of Non-Highly Compensated Employees that
arise solely from contributions made under plans of
the Participating Employers or Affiliates), if any,
allocated to the Participant's Accounts with respect
to the Plan Year. The Company may also elect to
include all or part of the Matching Contributions to
be allocated to the Participant's Accounts with
respect to that Plan Year, provided that the
provisions of Treasury Regulation Sec. 1.401(k)-1(b)
are satisfied.
(2)The Participant's Compensation with respect to
the Plan Year. For purposes of this section, a
Participant's "Compensation" for the Plan Year means
compensation determined according to a definition
selected by the Company for that year which satisfies
the requirements of Code section 414(s). The same
definition of compensation shall be used for all
Participants for a particular Plan Year, but
different definitions may be used for different Plan
Years. Compensation shall be subject to the limit
provided under Sec. 2.8(g).
(b)Each Plan Year, the average deferral percentage for
Active Participants who are Highly Compensated Employees
and the average deferral percentage for Active
Participants who are Non-Highly Compensated Employees
will be calculated. In each case, the average is the
average of the percentages calculated under subsection
(a) for each of the employees in the particular group.
Effective for Plan Years commencing after 1988, the
deferral percentage for each Participant and the average
deferral percentage for a particular group of employees
shall be calculated to the nearest one-hundredth of one
percent. For Plan Years commencing after 1996, the
average deferral percentage for Active Participants who
are Non-Highly Compensated Employees that is used in
applying this section for a particular Plan Year will be
the percentage determined for the preceding Plan Year,
unless the Company elects to use the percentage for the
current Plan Year in accordance with applicable
regulations. If an election is made under the previous
sentence to use the percentage for the current Plan Year,
it may not be changed for later Plan Years except as
provided in applicable regulations (subject to the
transition rule for the 1997 Plan Year contained in IRS
Notice 97-2).
(c)If the requirements of either paragraph (1) or (2)
are satisfied, then no further action is needed under
this section:
(1)The average deferral percentage for
Participants who are Highly Compensated Employees is
not more than 1.25 times the average deferral
percentage for Participants who are Non-Highly
Compensated Employees.
(2)The excess of the average deferral percentage
for Participants who are Highly Compensated Employees
over the average deferral percentage for Participants
who are Non-Highly Compensated Employees is not more
than two percentage points, and the average deferral
percentage for such Highly Compensated Employees is
not more than 2 times the average deferral percentage
for such Non-Highly Compensated Employees.
(d)If neither of the requirements of subsection (c) is
satisfied, then the Before Tax Contributions with respect
to Highly Compensated Employees will be reduced,
beginning with the contributions representing the
greatest dollar amount per Participant, to the extent
necessary to make the aggregate dollar amount of such
reductions equal to the amount by which the Before Tax
Contributions (prior to such reduction) had exceeded the
requirements of subsection (c)(1) or (c)(2), whichever is
less. Such reduction will be made in accordance with the
methodology prescribed at the time of the reduction by
the Internal Revenue Service under Notice 97-2 or other
applicable Notices or Treasury Regulations.
(e)At any time during the Plan Year, the Company may
make an estimate of the amount of Before Tax
Contributions by Highly Compensated Employees that will
be permitted under this section for the year and may
reduce the percent specified in Sec. 5.1(a) for such
Participants to the extent the Company determines in its
sole discretion to be necessary to satisfy at least one
of the requirements in subsection (c).
(f)If Before Tax Contributions with respect to a Highly
Compensated Employee are reduced pursuant to subsection
(d), the Excess Before Tax Contributions shall be
distributed, subject to the following:
(1)For purposes of this subsection, "Excess
Before tax Contributions" mean the amount by which
Before Tax Contributions for Highly Compensated
Employees have been reduced under subsection (d).
(2)Excess Before Tax Contributions (adjusted for
income or losses allocable thereto as specified in
paragraph (3), if any) shall be distributed to
Participants on whose behalf such excess
contributions were made for the Plan Year no later
than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3)Income or losses allocable to Excess Salary
Reduction Contributions which were contributed for
Plan Years beginning before 1988 shall be determined
based on a reasonable method as determined by the
Company. Income or losses allocable to Excess Before
Tax Contributions which were contributed for Plan
Years beginning after 1987 shall be equal to the
amount of income or loss allocable to such excess
amount for the Plan Year pursuant to Sec. 7.2 and
Sec. 7.3; provided, however, that for Plan Years
beginning prior to 1992, such income or loss may be
determined under any alternative method selected by
the Company for that Plan Year which is permitted
under applicable Treasury regulations.
(4)The amount of Excess Before Tax Contributions
and income or losses allocable thereto which would
otherwise be distributed pursuant to this subsection
shall be reduced, in accordance with regulations, by
the amount of Excess Deferrals and income or losses
allocable thereto previously distributed to the
Participant pursuant to Sec. 5.5 for the calendar
year ending with or within the Plan Year.
(g)Family aggregation rules cease to apply to this
Plan effective January 1, 1997.
(h)The deferral percentage for any Participant who is a
Highly Compensated Employee for the Plan Year, and who is
eligible to participate in two or more plans with cash or
deferred arrangements described in Code section 401(k) to
which any Participating Employer or Affiliate
contributes, shall be determined as if all employer
contributions were made under a single arrangement unless
mandatorily disaggregated pursuant to regulations under
Code section 401(k). For Plan Years commencing after
1988, this subsection shall be applied by treating all
cash or deferred arrangements with Plan Years ending
within the same calendar year as a single arrangement.
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PAGE 11
(i)If two or more plans which include cash or deferred
arrangements are considered as one plan for purposes of
Code section 401(a)(4) or Code section 410(b), the cash
or deferred arrangements shall be treated as one for the
purposes of applying the provisions of this section
unless mandatorily disaggregated pursuant to regulations
under Code section 401(k).
(j)If the entire Account balance of a Highly Compensated
Employee has been distributed during the Plan Year in
which an excess arose, the distribution shall be deemed
to have been a corrective distribution of the excess and
income attributable thereto to the extent that a
corrective distribution would otherwise have been
required under subsection (f) of this section, Sec. 5.5
or Sec. 5.6(f).
(k)A corrective distribution of excess contributions
under subsection (f) of this section, Excess Aggregate
Contributions under Sec. 5.6(f), or Excess Deferrals
under Sec. 5.5 may be made without regard to any notice
or Participant or spousal consent required under Article
VIII or X.
(l)In the event of a complete termination of the Plan
during the Plan Year in which an excess arose, any
corrective distribution under subsection (f) of this
section or Sec. 5.6(f) shall be made as soon as
administratively feasible after the termination, but in
no event later than 12 months after the date of
termination.
(m)For Plan Years beginning prior to 1992, the Plan may
be restructured into component plans pursuant to Treasury
Regulations Sec. 1.401(k)-1(h)(3)(iii) and Sec.
1.401(m)-1(g)(5)(ii) for purposes of applying the
requirements of this section and Sec. 5.6. This
subsection (m) shall not apply to Plan Years beginning in
1992 or later.
Sec. 5.5 Distribution of Excess Deferrals.
Notwithstanding any other provisions of the Plan, Excess
Deferrals for a calendar year and income or losses allocable
thereto shall be distributed no later than the following April 15
to Participants who claim such Excess Deferrals, subject to the
following:
(a)For purposes of this section, "Excess Deferrals"
means the amount of Before Tax Contributions for a
calendar year that the Participant claims pursuant to the
procedure set forth in subsection (b) because the total
amount deferred for the calendar year exceeds $7,000 for
1987 (indexed for inflation for subsequent calendar
years) or such other limit imposed on the Participant for
that year under Code section 402(g).
(b)The Participant's written claim, specifying the
amount of the Participant's Excess Deferral for any
calendar year, shall be submitted to the Company no later
than the March 1 following such calendar year. The claim
shall include the Participant's written statement that if
such amounts are not distributed, such Excess Deferrals,
when added to amounts deferred under other plans or
arrangements described in Code section 401(k), 403(b), or
408(k), exceed the limit imposed on the Participant by
Code section 402(g) for the year in which the deferral
occurred. A Participant shall be deemed to have
submitted such a claim to the extent the Participant has
Excess Deferrals for the calendar year taking into
account only contributions under this Plan and any other
plan maintained by a Participating Employer or an
Affiliate.
(c)Excess Deferrals distributed to a Participant with
respect to a calendar year shall be adjusted to include
income or losses allocable thereto using the same method
specified for Excess Before Tax Contributions under
Sec. 5.4(f)(3).
(d)The amount of Excess Deferrals and income allocable
thereto which would otherwise be distributed pursuant to
this section shall be reduced, in accordance with
applicable regulations, by the amount of Excess Before
Tax Contributions and income allocable thereto previously
distributed to the Participant pursuant to Sec. 5.4 for
the Plan Year beginning with or within such calendar
year, and by the amount of any deferrals properly
distributed as excess annual additions under Sec. 6.1.
Sec. 5.6 Adjustment of Contributions Required by Code
Section 401(m). After the provisions of Sec. 5.4 and Sec. 5.5
have been satisfied, the requirements set forth in this section
must also be met. If necessary to satisfy the requirements of
Code section 401(m), Matching Contributions shall be adjusted in
accordance with the following:
(a)Each Plan Year, the "contribution percentage" will be
calculated for each Active Participant. Each
Participant's contribution percentage is calculated by
dividing the amount referred to in paragraph (1) by the
amount referred to in paragraph (2):
(1)The total Matching Contributions under
Sec. 5.2 (other than amounts included under
Sec. 5.4(a)(1)), if any, allocated to the
Participant's Accounts with respect to the Plan Year.
The Company may also elect to include all or part of
the Before Tax Contributions to be allocated to the
Participant's Accounts with respect to that Plan
Year, provided that the requirements of Treasury
Regulation Sec. 1.401(m)-1(b) are satisfied and
provided that the requirements of Sec. 5.4 are met
before such contributions are used under this section
and continue to be met after the exclusion for
purposes of Sec. 5.4 of those contributions that are
used to satisfy the requirements of this section.
However, any Matching Contributions that are
forfeited because the contributions to which they
relate are Excess Before Tax Contributions under
Sec. 5.4 or Excess Deferrals under Sec. 5.5 shall be
disregarded.
(2)The Participant's Compensation with respect to
the Plan Year. For purposes of this section,
"Compensation" has the same meaning as provided in
Sec. 5.4(a)(2).
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PAGE 12
(b)Each Plan Year, the average contribution percentage
of Active Participants who are Highly Compensated
Employees and the average contribution percentage for
Active Participants who are Non-Highly Compensated
Employees will be calculated. In each case, the average
is the average of the percentages calculated under
subsection (a) for each of the employees in the
particular group. Effective for each Plan Year
commencing after 1988, the contribution percentage for
each Participant and the average contribution percentage
for a particular group of employees shall be calculated
to the nearest one-hundredth of one percent. For Plan
Years commencing after 1996, the average contribution
percentage for Active Participants who are Non-Highly
Compensated Employees that is used in applying this
section for a particular Plan Year will be the percentage
determined for the preceding Plan Year, unless the
Company elects to use the percentage for the current Plan
Year in accordance with applicable regulations. If an
election is made under the previous sentence to use the
percentage for the current Plan Year, it may not be
changed for later Plan Years except as provided in
applicable regulations (subject to the transition rule
for the 1997 Plan Year contained in IRS Notice 97-2).
(c)If the requirements of either paragraph (1) or (2)
are satisfied, then no further action is needed under
this section:
(1)The average contribution percentage for
Participants who are Highly Compensated Employees is
not more than 1.25 times the average contribution
percentage for Participants who are Non-Highly
Compensated Employees.
(2)The excess of the average contribution
percentage for Participants who are Highly
Compensated Employees over the average contribution
percentage for Participants who are Non-Highly
Compensated Employees is not more than two percentage
points, and the average contribution percentage for
such Highly Compensated Employees is not more than 2
times the average contribution percentage for such
Non-Highly Compensated Employees.
(d)If neither of the requirements of subsection (c) is
satisfied, then the Matching Contributions with respect
to Highly Compensated Employees will be reduced,
beginning with the contributions representing the
greatest dollar amount per Participant, to the extent
necessary to make the aggregate dollar amount of such
reductions equal to the amount by which the Matching
Contributions (prior to such reduction) had exceeded the
requirements of subsection (c)(1) or (c)(2), whichever is
less. Such reduction will be made in accordance with the
methodology prescribed at the time of the reduction by
the Internal Revenue Service under Notice 97-2 or other
applicable Notices or Treasury Regulations.
(e)At any time during the Plan Year, the Company may
make an estimate of the amount of Matching Contributions
on behalf of Highly Compensated Employees that will be
permitted under this section for the year. If the
Company determines in its sole discretion that reductions
are necessary to assure that at least one of the
requirements in subsection (c) are satisfied, the Company
may take written action amending Sec. 5.2 to reduce or
eliminate Matching Contributions for Highly Compensated
Employees with respect to Certified Earnings to be paid
from the date such action is adopted to the end of the
Plan Year.
(f)If contributions with respect to a Highly Compensated
Employee are reduced pursuant to subsection (d), the
Excess Aggregate Contributions shall be treated as
follows:
(1)For purposes of this subsection, "Excess
Aggregate Contributions" mean the amount by which
Matching Contributions must be reduced under
subsection (d).
(2)Excess Matching Contributions (adjusted for
income or losses allocable thereto) shall be
distributed to Participants on whose behalf such
excess contributions were made for the Plan Year no
later than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3)Income or losses allocable to Excess Aggregate
Contributions shall be determined in the same manner
specified for Excess Before Tax Contributions under
Sec. 5.4(f)(3).
(g)Family aggregation rules cease to apply to this Plan
effective January 1, 1997.
(h)The contribution percentage for any Participant who
is a Highly Compensated Employee for the Plan Year, and
who is eligible to make nondeductible employee
contributions or to receive matching contributions under
two or more plans described in Code section 401(a) that
are maintained by the Participating Employers or any
Affiliate, shall be determined as if all such
contributions were made under a single arrangement unless
mandatorily disaggregated pursuant to regulations under
Code section 401(m).
(i)If two or more plans maintained by the Participating
Employers or Affiliates are treated as one plan for
purposes of satisfying the eligibility requirements of
Code section 410(b), those plans must be treated as one
plan for purposes of applying the provisions of this
section unless mandatorily disaggregated pursuant to
regulations under Code section 401(m).
(j)Notwithstanding the foregoing, for Plan Years
commencing after 1988, if neither subparagraph (c)(1) of
this section nor Sec. 5.4(c)(1) was satisfied, the
requirements set forth in Sec. 5.7 must also be
satisfied.
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PAGE 13
Sec. 5.7 Multiple Use of the Alternative Limitations.
Effective for Plan Years commencing after 1988, if neither
Sec. 5.4(c)(1) nor Sec. 5.6(c)(1) was satisfied, the following
additional requirements must also be satisfied:
(a)The sum of the following two amounts must not exceed
the greater of the limit determined under subsection (b)
or the limit determined under subsection (c):
(1)The average deferral percentage for Highly
Compensated Employees (determined under Sec. 5.4(b)
following any adjustments required by Sec. 5.4).
(2)The average contribution percentage for Highly
Compensated Employees (determined under Sec. 5.6(b)
following any adjustments required by Sec. 5.6).
(b)The limit under this subsection is the sum of the
following amounts:
(1)1.25 multiplied by the greater of:
(A)The average deferral percentage for
Non-Highly Compensated Employees (determined under
Sec. 5.4(b) following any adjustments required by
Sec. 5.4), or
(B)The average contribution percentage
for Non-Highly Compensated Employees (determined
under Sec. 5.6(b) following any adjustments
required by Sec. 5.6).
(2)Two percentage points plus the lesser of:
(A)The average deferral percentage for
Non-Highly Compensated Employees, or
(B)The average contribution percentage
for Non-Highly Compensated Employees.
Notwithstanding the foregoing, the amount
under this paragraph (2) cannot exceed the lesser of
(A) or (B) above, multiplied by two, or such other
limit as may be prescribed by Treasury Regulations.
(c)The limit under this subsection (c) is the amount
that would be determined under subsection (b) by:
(1)Substituting "lesser" for "greater" in
paragraph (1) of subsection (b), and
(2)Substituting "greater" for "lesser" each place
that word appears in paragraph (2) of subsection (b).
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PAGE 14
(d)If the amount determined under subsection (a) exceeds
the greater of the limits determined under subsections
(b) and (c), an additional amount must be treated as
Excess Before Tax Contributions and distributed under
Sec. 5.4. In addition, any Matching Contributions
attributable to those Before Tax Contributions shall be
treated as forfeited and shall be applied as a credit
against future contributions from the Participating
Employers. Appropriate adjustments under this subsection
must be made pursuant to Treasury regulations until the
sum of the average deferral percentage and average
contribution percentage for Highly Compensated Employees
is equal to the greater of the limits determined under
subsections (b) and (c).
(e)For Plan Years commencing after 1996, this section
will be applied in accordance with the provisions of IRS
Notice 97-2 or other applicable Notices or Treasury
Regulations.
Sec. 5.8 Time of Contributions. In addition to the
requirements of Sec. 5.3, Before Tax Contributions and Matching
contributions by a Participating Employer for a Plan Year shall
be paid to the Trustee no later than the time (including
extensions thereof) prescribed by law for filing the employer's
federal income tax return for the tax year in which the Plan Year
ends. Before Tax Contributions and any other contributions taken
into account under Sec. 5.4(a)(1) shall be paid to the Trustee no
later than 12 months following the end of the Plan Year, if
earlier. In addition, Before Tax Contributions or Matching
Contributions shall be paid to the Trustee by any earlier date
that may be specified in Treasury or Department of Labor
regulations.
Sec. 5.9 Limitations on Contributions. In no event
shall the amount of a Participating Employer's contribution under
this Article for any Plan Year exceed the lesser of:
(a)The maximum amount allowable as a deduction in
computing its taxable income for that Plan Year for
federal income tax purposes.
(b)The aggregate amount of the contributions by such
Participating Employer that may be allocated to Accounts
of Participants under the provisions of Article VI.
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PAGE 15
ARTICLE VI
LIMITATION ON ALLOCATIONS
Sec. 6.1 Limitation on Allocations. Notwithstanding
any provisions of the Plan to the contrary, allocations to
Participants under the Plan shall not exceed the maximum amount
permitted under Code section 415. For purposes of the preceding
sentence, the following rules shall apply unless otherwise
provided in Code section 415:
(a)The Annual Additions with respect to a Participant
for any Plan Year shall not exceed the lesser of:
(1)$30,000 (or such greater or lesser amount as
is in effect under Code section 415(c)(1)(A) for such
Plan Year).
(2)25% of the Compensation of such Participant
for such Plan Year.
(b)If a Participant is also a participant in one or more
other defined contribution plans maintained by a
Participating Employer or an Affiliate, and if the amount
of employer contributions and forfeitures otherwise
allocated to the Participant for a Plan Year must be
reduced to comply with the limitations under Code section
415, such allocations under this Plan and each of such
other plans shall be reduced pro rata in the sequence
specified in subsection (c), and pro rata within each
category within that sequence, to the extent necessary to
comply with said limitations, except that reductions to
the extent necessary shall be made in allocations under
profit sharing plans and stock bonus plans before any
reductions are made under money purchase plans.
(c)If for any Plan Year the limitation described in
subsection (a) would otherwise be exceeded by
contributions to this Plan with respect to any
Participant (after application of subsection (b)), the
Participant's Annual Additions shall be adjusted in the
following sequence, but only to the extent necessary to
reduce Annual Additions to the level permitted in
subsection (a):
(1)The Participant's after-tax voluntary employee
contributions for the Plan Year, if any, shall be
refunded to the Participant during the Plan Year or
as soon as reasonably possible following the end of
the Plan Year.
(2)The Participant's Before Tax Contributions for
the Plan Year, if any, shall be reduced, and that
amount shall be refunded to the Participant.
(3)If, after the adjustments in paragraphs (1)
and (2) there is an excess amount with respect to a
Participant for a Plan Year, such excess amount shall
be held unallocated in a suspense account. The
suspense account will be applied to reduce future
employer contributions for all Participants in the
current Plan Year, the next Plan Year, and in each
succeeding Plan Year, if necessary. The suspense
account will participate in the allocation of the
investment gains and losses of the Fund and the value
of such account will be considered in valuing other
Accounts under the Plan.
(4)Any amounts refunded under paragraphs (1) or
(2) shall be disregarded for purposes of applying the
limits under Sec. 5.4, Sec. 5.5 and Sec. 5.6.
(d)If the Participant is also a participant in one or
more defined benefit plans maintained by a Participating
Employer or an Affiliate, the sum of the Participant's
defined benefit plan fraction and defined contribution
plan fraction, determined according to Code section
415(e), for any Plan Year may not exceed 1.0. If the sum
of a Participant's defined benefit fraction and defined
contribution fraction would otherwise exceed 1.0 for any
Plan Year, the benefits provided under the defined
benefit plan or plans shall be reduced to the extent
necessary to reduce the sum of the fractions to 1.0. For
purposes of this subsection, Annual Additions for Plan
Years beginning before 1987 shall not be recomputed to
treat all employee contributions as Annual Additions, and
the defined contribution plan fraction shall be adjusted
as provided in Section 1106(i) of the Tax Reform Act of
1986.
(e)For purposes of this section, "Annual Additions"
means the sum of the following amounts allocated to a
Participant for a Plan Year under this Plan and all other
defined contribution plans maintained by a Participating
Employer or an Affiliate in which he or she participates:
(1)Employer contributions, including Before Tax
Contributions made under this Plan. Excess Before
Tax Contributions, and Excess Aggregate Contributions
which are distributed under the provisions of Article
V are included in Annual Additions, but Excess
Deferrals which are distributed under Sec. 5.5 are
not included in Annual Additions.
(2)Forfeitures, if any.
(3)Voluntary non-deductible contributions, if
any.
(4)Amounts attributable to medical benefits as
described in Code sections 415(1)(2) and 419A(d)(2).
An Annual Addition with respect to a Participant's
Accounts shall be deemed credited thereto with respect to
a Plan Year if it is allocated to the Participant's
Accounts under the terms of the Plan as of any date
within such Plan Year.
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(f)For purposes of this section, "Compensation" means an
employee's earned income, wages, salaries, fees for
professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of
employment with the Participating Employers and
Affiliates to the extent that the amounts are includable
in gross income (including, but not limited to,
commissions, compensation for services on the basis of a
percentage of profits, tips, bonuses, fringe benefits,
and reimbursements or other expense allowances under a
nonaccountable plan described in Treasury Regulation Sec.
1.62-2(c)), subject to the following:
(1)Compensation excludes the Before Tax
Contributions to this Plan, any elective salary
reduction contributions to any other plan which are
not includable in the gross income of the employee
under Code sections 125, 401(k), 402(h)(1)(B) or
403(b), any other employer contributions to a plan of
deferred compensation which are not includable in the
employee's gross income for the taxable year in which
contributed, any distributions from a plan of
deferred compensation, and any other amounts which
receive special tax benefits. However, any amounts
received by an employee pursuant to an unfunded
non-qualified plan of deferred compensation may be
considered as Compensation in the year such amounts
are includable in the employee's gross income.
Notwithstanding the foregoing, for Plan Years
commencing on or after January 1, 1998, Compensation
includes the Before Tax Contributions to this Plan
and any other elective deferrals which are not
includible in the gross income of the employee under
Code sections 125, 401(k), 402(h)(1)(B), 403(b) or
457.
(2)Compensation excludes amounts realized from
the exercise of a non-qualified stock option, or when
restricted stock (or property) either becomes
transferable or is no longer subject to a substantial
risk of forfeiture.
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ARTICLE VII
INDIVIDUAL ACCOUNTS
Sec. 7.1 Accounts for Participants. The following
Accounts may be established under the Plan for a Participant:
(a)A Before Tax Account shall be established for each
Participant to which Before Tax Contributions shall be
credited.
(b)A Matching Account shall be established for each
Participant to which Matching Contributions shall be
credited.
(c)A Tax Credit Account shall be established for each
Participant for whom a Tax Credit Contribution was made,
to which shall be credited Tax Credit Contributions and
amounts derived from employee contributions for Plan
Years prior to 1983. No additional contributions shall
be credited to a Tax Credit Account with respect to Plan
Years commencing after 1986.
(d)A Rollover Account shall be established for each
Participant who makes a Rollover Contribution, as
provided by Sec. 7.7.
(e)A Predecessor Plan Account shall be established for
each Participant with respect to whom a transfer is
received from a Predecessor Plan as provided in Article
XVI.
More than one of any of the above types of Accounts may be
established if required by the Plan or if considered advisable by
the Company in the administration of the Plan. If the Company
elects to include any Matching Contributions in the calculation
of the deferral percentage under Sec. 5.4(a)(1), separate
Matching Accounts must be established for such contributions.
Except as expressly provided herein to the contrary, the Fund
shall be held and invested on a commingled basis, Accounts shall
be for bookkeeping purposes only, and the establishment of
Accounts shall not require any segregation of Fund assets.
Sec. 7.2 Investment of Accounts. Accounts shall be
invested in shares of ADM Stock; except that, cash contributions,
cash dividends, cash repayments on a participant loan and other
cash amounts received by the Fund may be held in cash or short
term investments pending investment in shares of ADM Stock, all
or a portion of an Account may be invested in a participant loan
to the extent so provided in the participant loan program, and
Predecessor Plan Accounts shall be invested in accordance with
Article XVI.
Sec. 7.3 Adjustment of Accounts. Accounts (other than
Predecessor Plan Accounts) will be adjusted from time to time as
follows:
(a)Contributions. Contributions made with respect to a
Participant will be added to the balance of the
appropriate Account as of the date the contributions are
received by the Fund.
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PAGE 18
(b)Cash Dividends. Cash dividends paid on shares of ADM
Stock held by the Fund as of the record date of such
dividend will be allocated among the Accounts and portion
allocated to each Account will be added to balance of the
Account as of the payable date of the dividend. The
portion of the cash dividends allocated to each Account
will be determined by multiplying the total cash
dividends by a fraction, the numerator of which is the
number of shares of ADM Stock credited to the Account as
of the payable date of the dividend and the denominator
of which is the total number of shares of ADM Stock held
by the Fund as of the payable date of the dividend.
(c)Stock Dividends and Splits. Stock dividends paid on
shares of ADM Stock credited to an Account as of the
record date of such dividend, and stock splits or reverse
stock splits with respect to shares of ADM Stock credited
to an Account as of the record date of such split, will
be added to the balance of the Account as of the payable
date of such stock dividend, stock split or reverse stock
split.
(d)Loan Interest Payments. Interest payments received on a
participant loan will be added to the balance of the
appropriate Account as of the date the interest payments
are received by the Fund. Interest accrued by [BUT]
unpaid on a participant loan as of the date of any
distribution from an Account against with [WHICH] the
loan is to be offset will be added to the balance of the
Account prior to such offset.
(e)Withdrawals and Distributions. Withdrawals and
distributions made from an Account will be subtracted
from the balance of the Account as of the date the
withdrawal or distribution is made from the Fund.
(f)Other Items of Income/Expenses. Items of income,
gain/loss or expense not provided for under the above
provisions will be allocated among the Accounts and the
portion allocated to each will be added to or subtracted
from the Account as of the date established by the
Company. The portion of any such item of income,
gain/loss or expense allocated to each Account will be
determined in accordance with rules established for this
purpose by the Company.
Predecessor Plan Accounts will be adjusted as of each Valuation
Date as provided in Article XVI.
Sec. 7.4 Certificates. The Company may cause to be
issued from time to time benefit statements advising Participants
of the status of their interests in the Fund, but shall not be
required to do so and the issuance of such benefit statements
shall not in any way alter or affect the rights of Participants
with respect to the Fund.
Sec. 7.5 Voting and Other Rights Regarding ADM Stock.
Not less than 30 days prior to any meeting of shareholders of the
Company, the Company shall cause to be sent to Participants who
have shares of ADM Stock credited to their Accounts the proxy
materials which are sent to shareholders of record of the
Company. Each such Participant shall have the right to instruct
the Trustee as to the method of voting on the propositions
submitted to shareholders, in accordance with the following:
(a)Each such Participant shall have a number of votes
equal to the number of full and fractional shares
credited to his Accounts as of the date the notice is
given. To be effective, the Participant's instructions
must be received by the Trustee by a deadline established
in advance by the Trustee. The Trustee shall tabulate
the instructions by the deadline and shall determine the
number of votes for and against each proposal. The
Trustee shall then vote the shares allocated to
Participants' Accounts in accordance with the directions
received. In cases where instructions are received with
respect to voting of fractional shares, the Trustee shall
vote the combined fractional shares to the extent
possible to reflect the direction of Participants holding
fractional shares.
(b)If a Participant does not direct the Trustee in whole
or in part with respect to voting of ADM Stock credited
to the Participant's Accounts, such voting rights shall
be exercised by the Trustee.
(c)Participants shall have no right to direct voting of
or exercise of other rights with respect to unallocated
shares of ADM Stock. Such shares shall be voted by the
Trustee.
Sec. 7.6 Tender or Exchange Offers Regarding ADM Stock.
As soon as practicable after the commencement of a tender or
exchange offer (an "Offer") for shares of ADM Stock, the Company
shall use its best efforts to cause each Participant to be
advised in writing of the terms of the Offer, and to be provided
with forms by which the Participant may instruct the Trustee, or
revoke such instruction, to tender shares of ADM Stock credited
to his Accounts, to the extent permitted under the terms of such
Offer. The Trustee shall follow the directions of each
Participant. The Trustee shall decide whether or not to tender
shares for which no instructions are received. In advising
participants of the terms of the Offer, the Company may include
statements from the Board setting forth its position with respect
to the Offer. The giving of instructions by a Participant to the
Trustee to tender shares and the tender thereof shall not be
deemed a withdrawal or suspension from the Plan or a forfeiture
of any portion of such Participant's interest in the Plan solely
by reason of the giving of such instructions and the Trustee's
compliance therewith. Any securities received by the Trustee as
a result of a tender of shares of ADM Stock shall be held, and
any cash so received shall be invested in short-term investments,
for the account of the Participant with respect to whom shares
were tendered pending any reinvestment by the Trustee, as it may
deem appropriate, consistent with the purposes of the Plan.
Sec. 7.7 Rollover Accounts. A Qualified Employee who
receives a distribution from a plan described in subsection (a)
below may transfer to the Fund an amount that constitutes a
Rollover Contribution. Notwithstanding any provisions of the
Plan to the contrary, the following shall apply with respect to a
Rollover Contribution:
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PAGE 19
(a)If (i) the Company or an Affiliate acquires the
assets of another employer and certain employees of that
employer become Qualified Employees hereunder, and (ii)
said Qualified Employees receive a total distribution
from a qualified plan described in Code section 401(a)
maintained by the previous employer because of a complete
or partial termination of said plan with respect to the
Qualified Employees, then any such Qualified Employee may
elect to make a Rollover Contribution of such
distribution if the previous employer is listed in this
subsection (a). The plans from which a Rollover
Contribution has been allowed as of January 1, 1995, are
the Dennis E. Roby & Associates, Inc. Thrift and Savings
Plan and the Employees' Stock Bonus Plan of Valley Grain
Products, Inc.
(b)No Rollover Contribution shall be accepted by the
Fund unless made no later than ten working days after the
plan distribution was received by the Qualified Employee.
(c)A Rollover Account shall be established for each
employee who makes a Rollover Contribution. From the
date the assets of the Rollover Contribution are
transferred to the Fund through the first Valuation Date
following such transfer, the Rollover Account shall be
valued at the fair market value of said assets on the
date of such transfer.
(d)A Rollover Account shall be treated in all respects
the same as a Before Tax Account except as provided in
(c) above, and any references in the Plan to a Before Tax
Account shall apply equally to a Rollover Account, except
that no employer or employee contributions shall ever be
added to a Rollover Account.
(e)The employee shall be treated the same as a
Participant hereunder from the time of the transfer, but
shall not actually be a Participant and shall not be
eligible to receive an allocation of employer
contributions or to make employee contributions until he
or she has satisfied the requirements of Article IV.
(f)For purposes of this section, "Rollover Contribution"
means a contribution of an amount which may be rolled
over to this Plan pursuant to Code sections 402(a)(5),
403(a)(4), 408(d)(3), or any other provision of the Code
which may permit rollovers to this Plan from time to
time.
Sec. 7.8 Transfers to/from Hourly Plan. If a
Participant transfers into a class of employment such that he or
she becomes a participant in the ADM Savings and Investment Plan
for Hourly Employees ("Hourly Plan"), his or her Accounts under
this Plan shall be transferred to the Hourly Plan, to be
administered and paid thereunder. If a participant in the Hourly
Plan transfers into a class of employment such that he or she
becomes a Participant in this Plan, this Plan shall accept a
transfer of his or her Accounts from the Hourly Plan, and each
such Account shall be added to the corresponding Account under
this Plan.
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ARTICLE VIII
DESIGNATION OF BENEFICIARY
Sec. 8.1 Persons Eligible to Designate. Any
Participant may designate a Beneficiary to receive any amount
payable from the Fund as a result of the Participant's death,
provided that the Beneficiary survives the Participant. The
Beneficiary may be one or more persons, natural or otherwise. By
way of illustration, but not by way of limitation, the
Beneficiary may be an individual, trustee, executor, or
administrator. A Participant may also change or revoke a
designation previously made, without the consent of any
Beneficiary named therein.
Sec. 8.2 Special Requirements for Married Participants.
Notwithstanding the provisions of Sec. 8.1, if a Participant is
married at the time of his or her death, the Beneficiary shall be
the Participant's spouse unless the spouse has consented in
writing to the designation of a different Beneficiary, the
spouse's consent acknowledges the effect of such designation, and
the spouse's consent is witnessed by a representative of the Plan
or a notary public. Such consent shall be deemed to have been
obtained if it is established to the satisfaction of the Company
that such consent cannot be obtained because there is no spouse,
because the spouse cannot be located, or because of such other
circumstances as may be prescribed by federal regulations. Any
consent by a spouse shall be irrevocable. Any designation of a
Beneficiary which has received spousal consent may be changed
(other than by being revoked) without spousal consent only if the
consent by the spouse expressly permits subsequent designations
by the Participant without any requirement for further consent by
the spouse. Any such consent shall be valid only with respect to
the spouse who signed the consent, or in the case of a deemed
consent, the designated spouse. The provisions of this section
shall apply only to Participants who have at least one Hour of
Service on or after August 23, 1984.
Sec. 8.3 Form and Method of Designation. Any
designation or a revocation of a prior designation of Beneficiary
shall be in writing on a form acceptable to the Company and shall
be filed with the Company. The Company and all other parties
involved in making payment to a Beneficiary may rely on the
latest Beneficiary designation on file with the Company at the
time of payment or may make payment pursuant to Sec. 8.4 if an
effective designation is not on file, shall be fully protected in
doing so, and shall have no liability whatsoever to any person
making claim for such payment under a subsequently filed
designation of Beneficiary or for any other reason.
Sec. 8.4 No Effective Designation. If there is not on
file with the Company an effective designation of Beneficiary by
a deceased Participant, the Beneficiary shall be the person or
persons surviving the Participant in the first of the following
classes in which there is a survivor, share and share alike:
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PAGE 21
(a)The Participant's spouse.
(b)The Participant's children, except that if any of the
Participant's children predecease the Participant but
leave issue surviving the Participant, such issue shall
take by right of representation the share their parent
would have taken if living.
(c)The Participant's parents.
(d)The Participant's brothers and sisters.
(e)The Participant's estate.
Determination of the identity of the Beneficiary in each case
shall be made by the Company.
Sec. 8.5 Successor Beneficiary. If a Beneficiary who
survives the Participant subsequently dies before receiving all
payments to which the Beneficiary was entitled, the successor
Beneficiary, determined in accordance with the provisions of this
section, shall be entitled to the balance of any remaining
payments due. A Beneficiary who is not the surviving spouse of
the Participant may not designate a successor Beneficiary. A
Beneficiary who is the surviving spouse may designate a successor
Beneficiary only if the Participant specifically authorized such
designations on the Participant's Beneficiary designation form.
If a Beneficiary is permitted to designate a successor
Beneficiary, each such designation shall be made according to the
same rules (other than Sec. 8.2) applicable to designations by
Participants. If a Beneficiary is not permitted to designate a
successor Beneficiary, or is permitted to do so but fails to make
such a designation, the balance of any payments remaining due
will be payable to a contingent Beneficiary if the Participant's
Beneficiary designation so specifies, and otherwise to the
personal representative (executor or administrator) of the
deceased Beneficiary.
Sec. 8.6 Insurance Contract. Notwithstanding the
foregoing provisions of this Article VIII, as to benefits payable
under a contract issued by an insurance company, said contract
shall govern the designation of Beneficiary entitled to benefits
thereunder except to the extent the contract is inconsistent with
the provisions of Sec. 8.2 or Sec. 10.1.
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ARTICLE IX
BENEFIT REQUIREMENTS
Sec. 9.1 Benefit on Termination of Employment. If a
Participant's Termination of Employment occurs for any reason
other than death, the Participant will be fully vested and will
be entitled to a benefit equal to the number of shares of ADM
Stock credited to his/her Accounts (including any additional
shares credited to his/her Accounts following Termination of
Employment), plus the cash balance of his/her Accounts (including
Predecessor Plan Accounts) as of the date on which such benefit
is paid. The benefit will be paid at the time and in the manner
determined under Article X.
Sec. 9.2 Death. If a Participant's Termination of
Employment occurs as a result of death (or if the Participant's
death occurs after his/her Termination of Employment but before
distribution of his/her benefit), the Participant's Beneficiary
will be entitled to a benefit equal to the number of shares of
ADM Stock credited to his/her Accounts (including any additional
shares credited to his/her Accounts following death), plus the
cash balance of his/her Accounts (including Predecessor Plan
Accounts) as of the date on which such benefit is paid. The
benefit will be paid at the time and in the manner determined
under Article X.
Sec. 9.3 Withdrawals Before Termination of Employment.
A Participant may request a cash withdrawal from his or her
Before Tax Account, Matching Account, Tax Credit Account,
Rollover Account, and Transfer Account at any time prior to the
date benefits first become payable to the Participant under
Sec. 9.1 pursuant to the following:
(a)Until the Participant reaches age 59 1/2, a withdrawal
may be made from such Accounts only to meet a financial
hardship; provided, however, that no hardship withdrawals
can be made from a Matching Account.
(1)A hardship withdrawal will be permitted only
if the Company determines that both of the following
requirements are met:
(A)The distribution must be made on
account of one of the following reasons:
(i)Expenses for medical care described in
section 213(d) of the Code incurred by the
Participant, the Participant's spouse, or any
dependents of the Participant, as defined in
section 152 of the Code, or expenses necessary
for any of those persons to obtain such
medical care.
(ii) Costs directly related to the purchase
of the principal residence of the Participant
(excluding mortgage payments).
(iii)Payment of tuition, related educational
fees and room and board expenses for the next
semester or quarter of post-secondary
education for the Participant or the spouse,
child, or dependent of the Participant.
(iv) The need to prevent the eviction of
the Participant from his or her principal
residence or foreclosure on the mortgage of
the Participant's principal residence.
(v)Any other immediate and heavy financial
need which the Company determines satisfies
the requirements of Treasury Regulation Sec.
1.401(k)-1(d)(2), and which the Company
describes in objective and nondiscriminatory
terms set forth in a writing that is deemed to
form a part of this Plan.
(B)All of the following requirements must
be satisfied:
(i)The amount of the distribution cannot
exceed the amount of the immediate and heavy
financial need of the Participant. The
Company may reasonably rely on the
Participant's representation as to that
amount. However, the amount of the
distribution may include any amounts
determined by the Company to be necessary to
pay any federal, state or local income taxes
or penalties reasonably expected to result
from the distribution.
(ii) The Participant must have obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available under all plans maintained
by the Participating Employers or any
Affiliate.
(iii) The Participant's elective
contributions and employee contributions under
the Plan and all other qualified and
nonqualified plans of deferred compensation
maintained by the Participating Employers or
any Affiliate will be suspended pursuant to
the terms of the plan or an otherwise legally
enforceable agreement for at least 12 months
after the receipt of the hardship
distribution.
(iv) For the calendar year immediately
following the calendar year of the hardship
distribution, the Participant may not make
contributions under all plans maintained by
the Participating Employers or any Affiliate
in excess of the applicable limit under
section 402(g) of the Code for such next
calendar year less the amount of the
Participant's elective contributions for the
calendar year of the hardship distribution.
(v)Notwithstanding the foregoing provisions
of this subparagraph (B), this subparagraph
(B) will be satisfied if the IRS issues a
revenue ruling, notice, or other document of
general applicability which establishes an
alternative method under which distributions
will be deemed to be necessary to satisfy an
immediate and heavy financial need and all of
the requirements of such alternative method
are met.
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(2)With respect to any such hardship withdrawal
from a Participant's Before Tax Account, earnings
credited to the Before Tax Account after December 31,
1988 cannot be withdrawn under this subsection (a).
(b)After the Participant reaches age 59 1/2, a withdrawal
may be made from any of the Accounts (including a
Matching Account) for any reason.
(c)With respect to any withdrawal from a Participant's
Tax Credit Account under either subsection (a) or
subsection (b), no withdrawal shall be made with respect
to shares of ADM Stock attributable to Tax Credit
Contributions until at least 84 months after the close of
the Plan Year in which such shares were credited to the
Account.
(d)No withdrawal may be made in an amount having a value
less than the lesser of (i) $1,000 or (ii) the total
amount available for such withdrawals, if less than
$1,000.
(e)Requests for withdrawals under this section shall be
made pursuant to applicable rules and regulations adopted
by the Company which are uniform and non-discriminatory
as to all Participants and shall be submitted in writing
to the Company on such form as the Company prescribes for
this purpose. The Company shall determine whether the
requirements of this section have been met.
(f)Withdrawals shall be permitted from a Predecessor
Plan Account as provided in Article XVI.
Sec. 9.4 Distribution to Satisfy Diversification Rules.
A Participant who has attained age 55 and completed 10 or more
years of participation in the Plan may request that all or any
number of his/her "diversification shares" (as defined below) be
converted to cash and distributed from his/her Tax Credit
Account. This option shall be available only if the fair market
value of his/her diversification shares (measured as of the first
day of the first calendar year in which a distribution is
available under this section) exceeds $500. A distribution under
this section shall be available only once each calendar year
during the first 90 days of the calendar year. The first
calendar year in which a distribution is available under this
section is the calendar year after the age and participation
requirements specified above both have been met. A distribution
request must be made in accordance with such procedures and by
filing such form as may be prescribed by the Company. For
purposes of this section, "diversification shares" are those
shares of ADM Stock credited to a Tax Credit Account after
December 31, 1986, as a result of cash or stock dividends paid
after such date to the Plan.
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ARTICLE X
DISTRIBUTION OF BENEFITS
Sec. 10.1 Time and Method of Payment. The benefit to
which a Participant or Beneficiary becomes entitled under
Article IX shall be paid as follows:
(a)Time of Payment.
(1)Normal Payment Date. Payments shall be made
or commence as soon as administratively practicable
after the Participant (or his/her Beneficiary in the
event of death) files a request for distribution with
the Company, but not before the end of the calendar
quarter in which the Participant's Termination of
Employment occurs.
(2)Latest Payment Date. Payments shall be made
or commence to a Participant not later than the 60th
day after the close of the Plan Year in which he/she
reaches Normal Retirement Age or in which his/her
Termination of Employment occurs, whichever is later,
unless the Participant elects to defer payment (and
for this purpose, the failure to request payment
shall be deemed to be an election to defer payment).
(b)Method of Payment.
(1)Payments to Participant. Payment to
a Participant shall be in the following form:
(A)Retirements. If the Participant's
Termination of Employment is a Normal Retirement
or an Early Retirement under the ADM Retirement
Plan (or if the Participant is receiving
disability payments under the ADM Long-Term
Disability Plan), payment shall be made in either
of the following forms at the election of the
Participant:
(i)A single-sum
distribution of the full benefit
payable to the Participant, or
(ii) Partial distributions each
of which consists of not less than 100 shares
of ADM stock (or the cash equivalent thereof)
or such other minimum amount as may be
necessary to comply with the minimum
distribution rules described in subsection (c)
below.
(B)Vested Terminations. If the
Participant's Termination of Employment is neither
a Normal Retirement nor an Early Retirement under
the ADM Retirement Plan (and the Participant is
not receiving disability payments under the ADM
Long-Term Disability Plan), payment to the
Participant shall be in the form of a single-sum
distribution of the full benefit payable to the
Participant (partial distributions are not
permitted). Such payment shall be made not later
than the April 1 of the calendar year following
the calendar year in which the Participant attains
age 70 1/2.
(2)Payments to Beneficiary. Payment to a
Beneficiary shall be in either of the following forms
at the election of the Beneficiary:
(A)A single-sum distribution of
the full benefit payable to the
Beneficiary, or
(B)Partial distributions each of which
consists of not less than 100 shares of ADM stock
(or the cash equivalent thereof) or such other
minimum amount as may be necessary to comply with
the minimum distribution rules described in
subsection (c) below.
In any event, payment of the full
benefit payable to a Beneficiary shall be made not
later than the December 31 of the calendar year
containing the fifth anniversary of the
Participant's death.
(c)Minimum Distribution Rules. Notwithstanding any
contrary provision of the Plan, payments shall be made as
necessary to comply with the minimum distribution rules
of Code section 401(a)(9) (including the incidental death
benefit rules of Code section 401(a)(9)(G)) and the
regulations thereunder. The following rules shall apply:
(1)The full benefit payable to a Participant will
be distributed (or minimum distributions will
commence) by the required beginning date of the
Participant. The "required beginning date" of a
Participant is April 1 of the calendar year following
the later of (i) the calendar year in which he/she
attains age 70 1/2, or (ii) the calendar year of his/her
Termination of Employment. However, clause (ii) of
the previous sentence does not apply to any
Participant who is a more than 5 - percent owner (as
defined in Code section 416) of the Company or any
Affiliate with respect to the calendar year in which
he/she attains age 70 1/2.
(2)Minimum distributions during the life of the
Participant shall be paid no less rapidly than by
reference to a period-certain equal to the joint life
and last survivor expectancy of the Participant and
his/her Beneficiary. However, if the Beneficiary is
not the Participant's spouse, minimum distributions
during the life of the Participant shall be paid no
less rapidly than by reference to the maximum period
permitted under the incidental death benefit rules of
Code section 401(a)(9)(G).
(3)If a Participant dies on or after his/her
required beginning date, minimum distributions after
the death of the Participant shall be made to his/her
Beneficiary at least as rapidly as under the minimum
distribution method being used prior to death. In
addition, the Participant's entire remaining benefit
shall be distributed to his/her Beneficiary not later
than December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(4)If a Participant dies before his/her required
beginning date, his/her entire remaining benefit
shall be distributed to his/her Beneficiary not later
than December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(5)The minimum distribution for each calendar
year for which a minimum distribution is required
shall be equal to the quotient obtained by dividing
the entire balance of the Participant's Accounts as
of the most recent Valuation Date preceding the
calendar year (as adjusted as may be required by
Treasury regulations) by the lesser of (i) the number
of years of life expectancy that remain, or (ii) in
the case of distributions to a Participant with a
Beneficiary other than his or her spouse, the
applicable divisor prescribed in regulations under
the incidental death benefit rules of Code section
401(a)(9)(G). For purposes of determining the amount
which must be distributed in any year, Excess Salary
Reduction Contributions, Excess Aggregate
Contributions and Excess Deferrals distributed in
accordance with Article V (including income on such
amounts) shall be disregarded.
(6)For purposes of calculating minimum
distributions, life expectancies shall be determined
by using the expected return multiples in Tables V
and VI of Treas. Reg. Sec. 1.72-9, in accordance
with regulations under Code section 401(a)(9). Life
expectancies shall be calculated based on the
Participant's (and the Beneficiary's) age as of the
birthday in the calendar year in which the
Participant attains 70 1/2. For purposes of calculating
the minimum distribution for each succeeding calendar
year, the initial life expectancy (or joint life and
last survivor expectancy) shall be reduced by one for
each subsequent calendar year.
(d)Cash-Out of Small Benefits. Notwithstanding the
above, if the aggregate value of a Participant's Accounts
is $3,500 or less as of the last day of the calendar
quarter in which his/her Termination of Employment or
death occurs, a single-sum distribution shall be made to
the Participant (or his/her Beneficiary in the event of
death) as soon as administratively practicable
thereafter. The preceding sentence shall not apply,
however, if the aggregate value of the Participant's
Accounts exceeded $3,500 immediately prior to any
previous distribution to the Participant.
(e)Multiple Beneficiaries. If more than one Beneficiary
is entitled to benefits following the Participant's
death, the interest of each shall be segregated into a
separate Account for purposes of applying this Section
(other than subsection (d)).
Sec. 10.2 Form of Distribution. Distributions shall be
made in accordance with the following:
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PAGE 25
(a)Distributions under Sec. 9.1, 9.2, 9.3, 10.11 or 16.6
shall be made in the following form at the election of
the recipient:
(1)Fully in cash.
(2)Fully in whole shares of ADM Stock with
any fractional share in cash.
(3)Partly in cash and partly in whole shares
of ADM Stock.
Any distribution that is required even in the absence
of an affirmative election by the recipient shall be made
fully in whole shares of ADM Stock with any fractional
share in cash if the recipient does not timely file an
affirmative election to the contrary.
(b)Distributions under Sec. 5.4, 5.5, 5.6, 5.7, 6.1
or 9.4 shall be in cash.
(c)Distributions to a Participant, to the surviving
spouse of a deceased Participant, or to an alternate
payee under a qualified domestic relations order (as
defined in Code section 414(p)) who is the spouse or
former spouse of a Participant may be in the form of a
direct rollover for the benefit of the recipient to an
individual retirement account or annuity described in
Code section 408 or, except in the case of a recipient
who is the surviving spouse of a deceased Participant, to
another qualified plan described in Code section 401(a).
However, no such direct rollover shall be allowed if the
distribution is part of a series of installments payable
over a period of ten years or more, or if the
distribution is required under Code section 401(a)(9).
The recipient shall provide the Trustee with the
information necessary to accomplish the direct rollover
in such form as the Company or the Trustee may require.
Direct rollovers made in accordance with such
instructions shall constitute full settlement of the
Plan's liability with respect to the amount rolled over,
and the Plan, the Trustee, and the Company shall have no
further liability with respect to such amounts.
Transfers under this subsection shall be made in
accordance with Code section 401(a)(31) and the
regulations thereunder.
Any distribution in cash (other than a distribution of cash
in lieu of a fractional share) shall be reduced to reflect
any broker fees incurred on the sale of ADM Stock.
Sec. 10.3 Accounting Following Termination of
Employment. If distribution of all or any part of an Account is
deferred or delayed for any reason, the Account shall continue to
be revalued in accordance with the terms of the Plan.
Distribution of such Account shall be made as soon as
administratively practicable following the end of the calendar
quarter in which the Participant (or his/her Beneficiary in the
event of death) files the distribution request with the Company.
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PAGE 26
Sec. 10.4 Reemployment. Except where distributions are
required under Sec. 10.1(h), entitlement to a distribution from
the Fund pursuant to Sec. 9.1 shall cease upon reemployment of a
Participant in a regular position by a Participating Employer,
and shall recommence in accordance with the provisions of this
Article upon the Participant's subsequent Termination of
Employment.
Sec. 10.5 Source of Benefits. All benefits to which
persons become entitled hereunder shall be provided only out of
the Fund and only to the extent that the Fund is adequate
therefor. No benefits are provided under the Plan except those
expressly described herein. Each Participant and Beneficiary
assumes all risk connected with any decrease in the market value
of any assets held under the Plan. The Participating Employers
do not in any way guarantee the Fund against any loss or
depreciation, or the payment of any amount, that may be or become
due to any person from the Fund.
Sec. 10.6 Incompetent Payee. If in the opinion of the
Company a person entitled to payments hereunder is disabled from
caring for his or her affairs because of mental or physical
condition, or age, payment due such person may be made to such
person's guardian, conservator, or other legal personal
representative upon furnishing the Company with evidence
satisfactory to the Company of such status. Prior to the
furnishing of such evidence, the Company may cause payments due
the person under disability to be made, for such person's use and
benefit, to any person or institution then in the opinion of the
Company caring for or maintaining the person under disability.
The Company shall have no liability with respect to payments so
made. The Company shall have no duty to make inquiry as to the
competence of any person entitled to receive payments hereunder.
Sec. 10.7 Benefits May Not Be Assigned or Alienated.
Except as otherwise expressly permitted by the Plan or required
by law, the interests of persons entitled to benefits under the
Plan may not in any manner whatsoever be assigned or alienated,
whether voluntarily or involuntarily, or directly or indirectly.
However, the Plan shall comply with the provisions of any court
order which the Company determines is a qualified domestic
relations order as defined in Code section 414(p).
Notwithstanding any provisions in the Plan to the contrary, an
individual who is entitled to payments from the Plan as an
"alternate payee" pursuant to a qualified domestic relations
order may receive a lump sum payment from the Plan as soon as
administratively feasible after the Company determines that the
order is a qualified domestic relations order, unless the order
specifically provides for payment to be made at a later time;
provided, however, that if the order assigns an interest in a
Predecessor Plan Account invested in an Investment Fund pursuant
to Article XVI, payment may be delayed until after the Valuation
Date coincident with or next following the date of the Company's
determination with respect to the order.
Sec. 10.8 Payment of Taxes. The Trustee may pay any
estate, inheritance, income, or other tax, charge, or assessment
attributable to any benefit payable hereunder which in the
Trustee's opinion it shall be or may be required to pay out of
such benefit. The Trustee may require, before making any
payment, such release or other document from any taxing authority
and such indemnity from the intended payee as the Trustee shall
deem necessary for its protection.
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PAGE 27
Sec. 10.9 Conditions Precedent. No person shall be
entitled to a benefit hereunder until his or her right thereto
has been finally determined by the Company nor until the person
has submitted to the Company relevant data reasonably requested
by the Company, including, but not limited to, proof of birth or
death.
Sec. 10.10 Company Directions to Trustee. The Company
shall issue such written directions to the Trustee as are
necessary to accomplish distributions to the Participants and
Beneficiaries in accordance with the provisions of the Plan.
Sec. 10.11 Special Distribution Events. Notwithstanding
anything herein to the contrary, if the agreement between the
buyer and the seller in one of the following types of transaction
provides that distributions are to be made to affected
Participants, each such Participant shall receive a distribution
of his or her Account balance as soon as administratively
feasible after either of the following events:
(a)The disposition by a Participating Employer to an
unrelated corporation of substantially all of the assets
(within the meaning of Code section 409(d)(2)) used in a
trade or business of such Participating Employer if such
Participating Employer continues to maintain this Plan
after the disposition, but only with respect to employees
who continue employment with the corporation acquiring
such assets.
(b)The disposition by a Participating Employer or by an
Affiliate to an unrelated entity of such corporation's
interest in a subsidiary (within the meaning of Code
section 409(d)(3)) which was a Participating Employer if
such corporation continues to maintain this Plan, but
only with respect to employees who continue employment
with such subsidiary.
All distributions under this section are subject to any
applicable consent requirements under Sec. 10.1. Distributions
under this section shall be made in a single distribution of
whole shares of ADM Stock, with the remaining balance of
fractional shares, if any, paid in cash.
Sec. 10.12 Delay of Distribution in Event of Stock
Dividend or Split. No withdrawal, distribution or participant
loan will be processed between the ex-date and the record date of
any stock dividend. In the case of a stock split or reverse
stock split, or in the case of any stock dividend where the ex-
date is after the record date, no withdrawal, distribution or
participant loan will be processed between the date three
business days prior to the record date and the ex-date of such
stock split, reverse stock split or stock dividend.
Sec. 10.13 Participant Loan Program. The Company may
establish a participant loan program in accordance with ERISA
section 408(b)(1), the terms and conditions of which shall be
determined by the Company and set forth in written rules and
regulations. The rules and regulations shall apply on a uniform
basis to all Participants, and shall not allow for deemed
distributions upon default of a loan prior to the date
distributions are permitted under Sec. 9.1, 9.2, 9.3, or 10.11.
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PAGE 28
ARTICLE XI
FUND
Sec. 11.1 Composition. All sums of money and all
securities and other property received by the Trustee for
purposes of the Plan, together with all investments made
therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining
shall constitute the "Fund". The Company may cause the Fund to
be divided into any number of parts for investment purposes or
any other purposes necessary or advisable for the proper
administration of the Plan.
Sec. 11.2 Funding Agency. The Fund may be held and
invested as one fund or may be divided into any number of parts
for investment purposes. Each part of the Fund, or the entire
Fund if it is not divided into parts for investment purposes,
shall be held and invested by one or more Trustees or by an
insurance company. The portion of the Fund invested in ADM Stock
shall be held under a trust agreement between the Company and
National City Bank of Minneapolis, as Trustee, or any successor
Trustee duly appointed by the Board. The trustee or trustees or
the insurance company so acting with respect to any part of the
Fund is referred to herein as the Funding Agency with respect to
such part of the Fund. (References herein to the Trustee shall
also apply to any insurance company acting as a Funding Agency
with respect to such part of the Fund as is held by the insurance
company.) The selection and appointment of each Funding Agency
shall be made by the Company. The Company shall have the right
at any time to remove a Funding Agency and appoint a successor
thereto, subject only to the terms of any applicable trust
agreement or group annuity contract. The Company shall have the
right to determine the form and substance of each trust agreement
and group annuity contract under which any part of the Fund is
held, subject only to the requirement that they are not
inconsistent with the provisions of the Plan. Any such trust
agreement may contain provisions pursuant to which the Trustee
will make investments on direction of a third party.
Sec. 11.3 Compensation and Expenses of Trustee. The
Trustee shall be entitled to receive such reasonable compensation
for its services as may be agreed upon with the Company. The
Trustee shall also be entitled to reimbursement for all
reasonable and necessary costs, expenses, and disbursements
incurred by it in the performance of its services. Such
compensation and reimbursements shall be paid from the Fund if
not paid directly by the Participating Employers in such
proportions as the Company shall determine.
Sec. 11.4 Funding Policy. The Company shall adopt a
procedure, and revise it from time to time as it shall consider
advisable, for establishing and carrying out a funding policy and
method consistent with the objectives of the Plan and the
requirements of ERISA. It shall advise each Trustee of the
funding policy in effect from time to time.
Sec. 11.5 Share Registration. Shares of ADM Stock
purchased for the Fund from the Company shall be registered on
the applicable SEC registration form. The number of shares so
registered shall be appropriately adjusted to reflect any stock
dividends, stock splits, or other similar changes.
Sec. 11.6 No Diversion. The Fund shall be for the
exclusive purpose of providing benefits to Participants under the
Plan and their beneficiaries and defraying reasonable expenses of
administering the Plan. Such expenses may include premiums for
the bonding of Plan officials required by ERISA. No part of the
corpus or income of the Fund may be used for, or diverted to,
purposes other than for the exclusive benefit of employees of the
Participating Employers or their beneficiaries. Notwithstanding
the foregoing:
(a)If any contribution or portion thereof is made by a
Participating Employer by a mistake of fact, the Trustee
shall, upon written request of the Company, return such
contribution or portion thereof to the Participating
Employer within one year after the payment of the
contribution to the Trustee; however, earnings
attributable to such contribution or portion thereof
shall not be returned to the Participating Employer but
shall remain in the Fund, and the amount returned to the
Participating Employer shall be reduced by any losses
attributable to such contribution or portion thereof.
(b)Contributions by the Participating Employers are
conditioned upon the deductibility of each contribution
under Code section 404. To the extent the deduction is
disallowed, the Trustee shall return such contribution to
the Participating Employer within one year after the
disallowance of the deduction; however, earnings
attributable to such contribution (or disallowed portion
thereof) shall not be returned to the Participating
Employer but shall remain in the Fund, and the amount
returned to the Participating Employer shall be reduced
by any losses attributable to such contribution (or
disallowed portion thereof).
In the case of any such return of contribution the Company shall
cause such adjustments to be made to the Accounts of Participants
as it considers fair and equitable under the circumstances
resulting in the return of such contribution.
Sec. 11.7 Conversion of ADM Stock to Cash. If it is
necessary to convert shares of ADM Stock held in the Fund to cash
to provide for a distribution or participant loan, or for any
other reason required under the Plan, conversion may be made by
exchanging such shares for cash (if any) then held in the Fund
and credited to Accounts (other than Predecessor Plan Accounts),
or by selling such shares on the open market or to the Company.
If shares are exchanged for cash then held in the Fund or sold to
the Company, the exchange or sale shall be made at the closing
price of a share of ADM Stock on the New York Stock Exchange for
the business day immediately preceding the transaction (as
reported in The Wall Street Journal published for the next
following business day).
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PAGE 29
ARTICLE XII
ADMINISTRATION OF PLAN
Sec. 12.1 Administration by Company. The Company is the
"administrator" of the Plan for purposes of ERISA with authority
to control and manage the operation and administration of the
Plan and make all decisions and determinations incident thereto.
Action on behalf of the Company may be taken by any of the
following:
(a)The Board of Directors of the Company (or the committee
thereof).
(b)The Chief Executive Officer of the Company.
(c)The Benefit Plans Committee.
(d)Any entity, person or committee to whom responsibility
for operation and administration is allocated by action
of one of the above.
Sec. 12.2 Certain Fiduciary Provisions. For purposes
of the Plan:
(a)Any person or group of persons may serve in more than
one fiduciary capacity with respect to the Plan.
(b)A Named Fiduciary, or a fiduciary designated by a
Named Fiduciary pursuant to the provisions of the Plan,
may employ one or more persons to render advice with
regard to any responsibility such fiduciary has under the
Plan.
(c)To the extent permitted by any applicable trust
agreement or group annuity contract a Named Fiduciary
with respect to control or management of the assets of
the Plan may appoint an investment manager or managers,
as defined in ERISA, to manage (including the power to
acquire and dispose of) any assets of the Plan.
(d)At any time the Plan has more than one Named
Fiduciary, if pursuant to the Plan provisions fiduciary
responsibilities are not already allocated among such
Named Fiduciaries, the Company, by action of the Board or
its chief executive officer, may provide for such
allocation; except that such allocation shall not include
any responsibility, if any, in a trust agreement to
manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment
manager as defined in ERISA.
(e)Unless expressly prohibited in the appointment of a
Named Fiduciary which is not the Company acting as
provided in Sec. 12.1, such Named Fiduciary by written
instrument may designate a person or persons other than
such Named Fiduciary to carry out any or all of the
fiduciary responsibilities under the Plan of such Named
Fiduciary; except that such designation shall not include
any responsibility, if any, in a trust agreement to
manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment
manager as defined in ERISA.
(f)A person who is a fiduciary with respect to the Plan,
including a Named Fiduciary, shall be recognized and
treated as a fiduciary only with respect to the
particular fiduciary functions as to which such person
has responsibility.
Each Named Fiduciary (other than the Company), each other
fiduciary, each person employed pursuant to (b) above, and each
investment manager shall be entitled to receive reasonable
compensation for services rendered, or for the reimbursement of
expenses properly and actually incurred in the performance of
their duties with the Plan and to payment therefor from the Fund
if not paid directly by the Participating Employers in such
proportions as the Company shall determine. Notwithstanding the
foregoing, no person so serving who already receives full-time
pay from any employer or association of employers whose employees
are Participants, or from an employee organization whose members
are Participants, shall receive compensation from the Plan,
except for reimbursement of expenses properly and actually
incurred.
Sec. 12.3 Discrimination Prohibited. No person or
persons in exercising discretion in the operation and
administration of the Plan shall discriminate in favor of Highly
Compensated Employees.
Sec. 12.4 Evidence. The Company (including any body
or person acting on behalf of the Company), the Trustee, the
recordkeeper and any other person who has authority with respect
to the management or administration of the Plan may exercise that
authority in its or in his/her full discretion, subject only to
the duties imposed under ERISA. This discretionary authority
includes, but is not limited to, the authority to make any and
all factual determinations and interpret any and all terms and
provisions of the Plan that it or he/she considers to be relevant
to the issue under consideration. The exercise of authority will
be binding upon all persons; will be given deference in all
courts of law to the greatest extent allowed under law; and will
not be overturned or set aside by any court of law unless found
to be arbitrary and capricious or made in bad faith.
Sec. 12.5 Correction of Errors. It is recognized that
in the operation and administration of the Plan certain
mathematical and accounting errors may be made or mistakes may
arise by reason of factual errors in information supplied to the
Company or Trustee. The Company shall have power to cause such
equitable adjustments to be made to correct for such errors as
the Company in its discretion considers appropriate. Such
adjustments shall be final and binding on all persons. Any
return of a contribution due to a mistake in fact will be subject
to Sec. 11.6.
Sec. 12.6 Records. Each Participating Employer, each
fiduciary with respect to the Plan, and each other person
performing any functions in the operation or administration of
the Plan or the management or control of the assets of the Plan
shall keep such records as may be necessary or appropriate in the
discharge of their respective functions hereunder, including
records required by ERISA or any other applicable law. Records
shall be retained as long as necessary for the proper
administration of the Plan and at least for any period required
by ERISA or other applicable law.
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PAGE 30
Sec. 12.7 General Fiduciary Standard. Each fiduciary
shall discharge its duties with respect to the Plan solely in the
interests of Participants and their beneficiaries and with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person 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.
Sec. 12.8 Prohibited Transactions. A fiduciary with
respect to the Plan shall not cause the Plan to engage in any
prohibited transaction within the meaning of ERISA.
Sec. 12.9 Claims Procedure. The Company shall establish
a claims procedure consistent with the requirements of ERISA.
Such claims procedure shall provide adequate notice in writing to
any Participant or beneficiary whose claim for benefits under the
Plan has been denied, setting forth the specific reasons for such
denial, written in a manner calculated to be understood by the
claimant and shall afford a reasonable opportunity to a claimant
whose claim for benefits has been denied for a full and fair
review by the appropriate Named Fiduciary of the decision denying
the claim.
Sec. 12.10 Bonding. Plan personnel shall be bonded to
the extent required by ERISA. Premiums for such bonding may, in
the sole discretion of the Company, be paid in whole or in part
from the Fund. Such premiums may also be paid in whole or in
part by the Participating Employers in such proportions as the
Company shall determine. The Company may provide by agreement
with any person that the premium for required bonding shall be
paid by such person.
Sec. 12.11 Waiver of Notice. Any notice required
hereunder may be waived by the person entitled thereto.
Sec. 12.12 Agent For Legal Process. The Company shall be
the agent for service of legal process with respect to any matter
concerning the Plan, unless and until the Company designates some
other person as such agent.
Sec. 12.13 Indemnification. In addition to any other
applicable provisions for indemnification, the Participating
Employers jointly and severally agree to indemnify and hold
harmless, to the extent permitted by law, each director, officer,
and employee of the Participating Employers against any and all
liabilities, losses, costs, or expenses (including legal fees) of
whatsoever kind and nature which may be imposed on, incurred by,
or asserted against such person at any time by reason of such
person's services as a fiduciary in connection with the Plan, but
only if such person did not act dishonestly, or in bad faith, or
in willful violation of the law or regulations under which such
liability, loss, cost, or expense arises.
Sec. 12.14 Exercise of Authority. The Company (including
any body or person acting on behalf of the Company), the Trustee,
the recordkeeper and any other person who has authority with
respect to the management or administration of the Plan may
exercise that authority in its or in his/her full discretion,
subject only to the duties imposed under ERISA. This
discretionary authority includes, but is not limited to, the
authority to make any and all factual determinations and
interpret any and all terms and provisions of the Plan that it or
he/she considers to be relevant to the issue under consideration.
The exercise of authority will be binding upon all persons; will
be given deference in all courts of law to the greatest extent
allowed under law; and will not be overturned or set aside by any
court of law unless found to be arbitrary and capricious or made
in bad faith.
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ARTICLE XIII
AMENDMENT, TERMINATION, MERGER
Sec. 13.1 Amendment. The Company may amend the Plan at
any time and from time to time by action of the Board or by
written action of a person to whom, or committee to which,
amendment authority has been delegated by the Board. No action
by a person or committee with amendment authority shall
constitute an amendment to the Plan unless the action is in
writing and the writing specifically states that it is an
amendment to the Plan. No amendment shall have the effect of
changing the rights, duties and liabilities of any Funding Agency
without its written consent. Also, no amendment shall cause a
decrease in any accrued benefit or the elimination of any
optional form of benefit except to the extent permitted under
Code section 411(d)(6).
Sec. 13.2 Permanent Discontinuance of Contributions.
The Company may completely discontinue contributions in support
of the Plan by all Participating Employers. In such event,
notwithstanding any provisions of the Plan to the contrary, (i)
no employee shall become a Participant after such discontinuance,
and (ii) the Accounts of each Participant in the employ of the
Participating Employers at the time of such discontinuance shall
be nonforfeitable. Subject to the foregoing, all of the
provisions of the Plan shall continue in effect, and upon
entitlement thereto distributions shall be made in accordance
with the provisions of Article X.
Sec. 13.3 Termination. The Company may terminate the
Plan as applicable to all Participating Employers and their
employees. After such termination no employee shall become a
Participant, and no further contributions shall be made. The
Accounts of each Participant in the employ of the Participating
Employers at the time of such termination shall be
nonforfeitable, the Participant shall be entitled to a benefit
equal to the value of those Accounts determined as of the
Valuation Date coincident with or next following the termination
of the Plan, distributions shall be made to Participants and
Beneficiaries promptly after the termination of the Plan, but not
before the earliest date permitted under the Code and applicable
regulations, and the Plan and any related trust agreement or
group annuity contract shall continue in force for the purpose of
making such distributions.
Sec. 13.4 Partial Termination. If there is a partial
termination of the Plan, either by operation of law, by amendment
of the Plan, or for any other reason, which partial termination
shall be confirmed by the Company, the Accounts of each
Participant with respect to whom the partial termination applies
shall be nonforfeitable. Subject to the foregoing, all of the
provisions of the Plan shall continue in effect as to each such
Participant, and upon entitlement thereto distributions shall be
made in accordance with the provisions of Article X.
Sec. 13.5 Merger, Consolidation, or Transfer of Plan
Assets. In the case of any merger or consolidation of the Plan
with any other plan, or in the case of the transfer of assets or
liabilities of the Plan to any other plan, provision shall be
made so that each Participant and Beneficiary would (if such
other plan then terminated) receive a benefit immediately after
the merger, consolidation, or transfer which is equal to or
greater than the benefit he or she would have been entitled to
receive immediately before the merger, consolidation, or transfer
(if the Plan had then terminated). No such merger,
consolidation, or transfer shall be effected until such
statements with respect thereto, if any, required by ERISA to be
filed in advance thereof have been filed.
Sec. 13.6 Deferral of Distributions. Notwithstanding
any provisions of the Plan to the contrary, in the case of a
complete discontinuance of contributions to the Plan or of a
complete or partial termination of the Plan, the Company or the
Trustee may defer any distribution of benefit payments to
Participants and Beneficiaries with respect to which such
discontinuance or termination applies (except for distributions
which are required to be made under Sec. 10.1(h)) until after the
following have occurred:
(a)Receipt of a final determination from the Treasury
Department or any court of competent jurisdiction
regarding the effect of such discontinuance or
termination on the qualified status of the Plan under
Code section 401(a).
(b)Appropriate adjustment of Accounts to reflect taxes,
costs, and expenses, if any, incident to such
discontinuance or termination.
Sec. 13.7 Reorganization of Participating Employers. In
the event two or more Participating Employers are consolidated or
merged or in the event one or more Participating Employers
acquires the assets of another Participating Employer, the Plan
shall be deemed to have continued, without termination and
without a complete discontinuance of contributions, as to all the
Participating Employers involved in such reorganization and their
employees. In such event, in administering the Plan the
corporation resulting from the consolidation, the surviving
corporation in the merger, or the employer acquiring the assets
shall be considered as a continuation of all of the Participating
Employers involved in the reorganization.
Sec. 13.8 Discontinuance of Joint Participation of a
Participating Employer. The Company may discontinue the joint
participation in the Plan by another Participating Employer. A
Participating Employer which is not under Common Control with the
Company may discontinue its joint participation in the Plan with
the other Participating Employers by action of its board of
directors and on appropriate written notice to the Company and
each Trustee then acting.
(a)If the Company determines in its sole discretion to
spin off the portion of the Plan attributable to the
withdrawing employer, the Company shall cause a
determination to be made of the equitable part of the
Fund assets held on account of Participants of the
withdrawing employer and their Beneficiaries. The
Company shall direct the Trustee or Funding Agencies to
transfer assets representing such equitable part to a
separate fund for the plan of the withdrawing employer.
Such withdrawing employer may thereafter exercise, with
respect to such separate fund, all the rights and powers
reserved to the Company with respect to the Fund. The
plan of the withdrawing employer shall, until amended by
the withdrawing employer, continue with the same terms as
the Plan herein, except that with respect to the separate
plan of the withdrawing employer the words "Participating
Employer", "Participating Employers", and "Company" shall
thereafter be considered to refer only to the withdrawing
employer. Any such spinoff shall be effected in such
manner that each Participant or Beneficiary would (if the
Plan and the plan of the withdrawing employer then
immediately terminated) receive a benefit which is equal
to or greater than the benefit the individual would have
been entitled to receive immediately before such spinoff
if the Plan had then terminated. No transfer of assets
pursuant to this section shall be effected until such
statements with respect thereto, if any, required by
ERISA to be filed in advance thereof have been filed.
(b)If subsection (a) does not apply, the Accounts of
Participants of the withdrawing employer and their
Beneficiaries shall continue to be held in the Plan for
distribution in accordance with the provisions hereof.
Sec. 13.9 Participating Employers Not Under Common
Control. If a Participating Employer is not under Common Control
with the Company, the provisions of the Plan (other than this
Article XIII) shall be applied as though a separate plan is being
maintained for that Participating Employer to the extent required
by Code section 413(c).
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ARTICLE XIV
TOP-HEAVY PLAN PROVISIONS
Sec. 14.1 Key Employee Defined. "Key Employee" means
any employee or former employee of the employer who at any time
during the determination period was an officer of the employer or
is deemed to have had an ownership interest in the employer and
who is within the definition of key employee in Code section
416(i). "Non-Key Employee" means any employee who is not a Key
Employee.
Sec. 14.2 Determination of Top-Heavy Status. The
top-heavy status of the Plan shall be determined according to
Code section 416 and the regulations thereunder, using the
following standards and definitions:
(a)The Plan is a Top-Heavy Plan for a Plan Year if
either of the following applies:
(1)If this Plan is not part of a required
aggregation group and the top-heavy ratio for this
Plan exceeds 60 percent.
(2)If this Plan is part of a required aggregation
group of plans and the top-heavy ratio for the group
of plans exceeds 60 percent.
Notwithstanding paragraphs (1) and (2) above, the
Plan is not a Top-Heavy Plan with respect to a Plan Year
if it is part of a permissive aggregation group of plans
for which the top-heavy ratio does not exceed 60 percent.
(b)The "top-heavy ratio" shall be determined as follows:
(1)If the employer maintains one or more defined
contribution plans (including any simplified employee
pension plan) and has not maintained any defined
benefit plan which during the 5-year period ending on
the determination date has or has had accrued
benefits, the top-heavy ratio for this Plan or for
the required or permissive aggregation group (as
appropriate) is a fraction, the numerator of which is
the sum of the account balances of all Key Employees
under the Plan or plans as of the determination date
(including any part of any account balance
distributed in the five-year period ending on the
determination date), and the denominator of which is
the sum of the account balances (including any part
of any account balance distributed in the five-year
period ending on the determination date) of all
employees under the Plan or plans as of the
determination date. Both the numerator and
denominator of the top-heavy ratio shall be increased
to reflect any contribution not actually made as of
the determination date but which is required to be
taken into account on that date under Code section
416 and the regulations thereunder.
32
PAGE 33
(2)If the employer maintains one or more defined
contribution plans (including any simplified employee
pension plan) and maintains or has maintained one or
more defined benefit plans which during the 5-year
period ending on the determination date has or has
had any accrued benefits, the top-heavy ratio for any
required or permissive aggregation group (as
appropriate), is a fraction, the numerator of which
is the sum of the account balances of all Key
Employees under the aggregated defined contribution
plan or plans, determined according to paragraph (1)
above, and the present value of accrued benefits of
all Key Employees under the defined benefit plan or
plans as of the determination date, and the
denominator of which is the sum of such account
balances of all employees under the aggregated
defined contribution plan or plans and the present
value of accrued benefits of all employees under the
defined benefit plan or plans as of the determination
date. The account balances and accrued benefits in
both the numerator and denominator of the top-heavy
ratio shall be adjusted to reflect any distributions
made in the five-year period ending on the
determination date and any contributions due but
unpaid as of the determination date.
(3)For purposes of paragraphs (1) and (2), the
value of account balances and the present value of
accrued benefits will be determined as of the most
recent valuation date that falls within the 12-month
period ending on the determination date, except as
provided in Code section 416 and the regulations
thereunder for the first and second plan years of a
defined benefit plan. The account balances and
accrued benefits of an employee (i) who is not a Key
Employee but who was a Key Employee in a prior year,
or (ii) who has not been credited with at least one
hour of service with any employer maintaining the
Plan at any time during the 5-year period ending on
the determination date, will be disregarded. The
calculation of the top-heavy ratio and the extent to
which distributions, rollovers, and transfers are
taken into account will be made in accordance with
Code section 416 and the regulations thereunder.
When aggregating plans, the value of account balances
and accrued benefits will be calculated with
reference to the determination dates that fall within
the same calendar year.
(c)"Required aggregation group" means (i) each qualified
plan of the employer in which at least one Key Employee
participates in the Plan Year containing the
determination date, or any of the four preceding Plan
Years, and (ii) any other qualified plan of the employer
that enables a plan described in (i) to meet the
requirements of Code sections 401(a)(4) and 410.
(d)"Permissive aggregation group" means the required
aggregation group of plans plus any other plan or plans
of the employer which, when consolidated as a group with
the required aggregation group, would continue to satisfy
the requirements of Code sections 401(a)(4) and 410.
(e)"Determination date" means, for 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 last day of that year is the determination
date.
(f)The "determination period" for a Plan Year is the
Plan Year in which the applicable determination date
occurs and the four preceding Plan Years.
(g)The "valuation date" is the last day of each Plan
Year and is the date as of which account balances or
accrued benefits are valued for purposes of calculating
the top-heavy ratio.
(h)For purposes of establishing the "present value" of
benefits under a defined benefit plan to compute the
top-heavy ratio, any benefit shall be discounted only for
mortality and interest based on the interest rate and
mortality table specified in the defined benefit plan for
this purpose.
(i)If an individual has not performed services for the
employer at any time during the five-year period ending
on the determination date with respect to a Plan Year,
any account balance or accrued benefit for such
individual shall not be taken into account for such Plan
Year.
(j)For purposes of determining if a defined benefit plan
included in a required aggregation group of which this
Plan is a part is a Top-Heavy Plan, the accrued benefit
to any employee (other than a Key Employee) shall be
determined as follows:
(1)Under the method which is used for accrual
purposes under all defined benefit plans maintained
by the employer.
(2)If there is no method described in paragraph
(1), as if such benefit accrued not more rapidly than
the lowest accrual rate permitted under Code section
411(b)(1)(C).
Sec. 14.3 Minimum Contribution Requirement. For any
Plan Year with respect to which the Plan is a Top-Heavy Plan, the
employer contributions allocated to each Active Participant who
is not a Key Employee and whose Termination of Employment has not
occurred prior to the end of such Plan Year shall not be less
than the minimum amount determined in accordance with the
following:
(a)The minimum amount shall be the amount equal to that
percentage of the Participant's Compensation for the Plan
Year which is the smaller of:
(1)3 percent.
(2)The percentage which is the largest percentage
of Compensation allocated to any Key Employee from
employer contributions for such Plan Year.
33
PAGE 34
For purposes of this section, "Compensation" means
the amounts specified in Sec. 6.1(f), subject to the
limitation in Sec. 2.8(e).
(b)For purposes of this section, any employer
contribution attributable to a salary reduction or
similar arrangement shall be taken into accounts;
provided, however, that any employer contribution
attributable to a salary reduction or similar arrangement
(including Before Tax Contributions and Matching
Contributions under this Plan) may not be used to satisfy
the minimum amount of employer contributions which must
be allocated under subsection (a).
(c)This section shall not apply to any Participant who
is covered under any other plan of the employer under
which the minimum contribution or minimum benefit
requirement applicable to Top-Heavy Plans will be
satisfied.
Sec. 14.4 Participation Under Defined Benefit Plan and
Defined Contribution Plan. If a Participant is also a
participant in a defined benefit plan maintained by the employer,
with respect to any Plan Year for which the Plan is a Top-Heavy
Plan, Sec. 6.1(d) shall be applied:
(a)By substituting "1.0" for "1.25" in paragraphs (2)(B)
and (3)(B) of Code section 415(e).
(b)By substituting "$41,500" for "$51,875" in Code
section 415(e)(6)(B)(i).
The foregoing provisions of this section shall be suspended with
respect to any individual so long as there are no employer
contributions, forfeitures, or voluntary nondeductible
contributions allocated to such individual, and no defined
benefit plan accruals for such individual, either under this Plan
or under any other plan that is in a required aggregation group
of plans, within the meaning of Code section 416(g)(2)(A)(i),
that includes this Plan.
Sec. 14.5 Definition of Employer. For purposes of this
Article XIV, the term "employer" means all Participating
Employers and any trade or business entity under Common Control
with a Participating Employer.
Sec. 14.6 Exception for Collective Bargaining Unit.
Section 14.3 shall not apply with respect to any employee
included in a unit of employees covered by an agreement which the
Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and one or more employers if
there is evidence that retirement benefits were the subject of
good faith bargaining between such employee representative and
such employer or employers.
34
PAGE 35
ARTICLE XV
MISCELLANEOUS PROVISIONS
Sec. 15.1 Insurance Company Not Responsible for
Validity of Plan. No insurance company that issues a contract
under the Plan shall have any responsibility for the validity of
the Plan. An insurance company to which an application may be
submitted hereunder may accept such application and shall have no
duty to make any investigation or inquiry regarding the authority
of the applicant to make such application or any amendment
thereto or to inquire as to whether a person on whose life any
contract is to be issued is entitled to such contract under the
Plan.
Sec. 15.2 Headings. Headings at the beginning of
articles and sections hereof are for convenience of reference,
shall not be considered a part of the text of the Plan, and shall
not influence its construction.
Sec. 15.3 Capitalized Definitions. Capitalized
terms used in the Plan shall have their meaning as defined in the
Plan unless the context clearly indicates to the contrary.
Sec. 15.4 Gender. Any references to the masculine
gender include the feminine and vice versa.
Sec. 15.5 Use of Compounds of Word "Here". Use of the
words "hereof", "herein", "hereunder", or similar compounds of
the word "here" shall mean and refer to the entire Plan unless
the context clearly indicates to the contrary.
Sec. 15.6 Construed as a Whole. The provisions of
the Plan shall be construed as a whole in such manner as to carry
out the provisions thereof and shall not be construed separately
without relation to the context.
35
PAGE 36
ARTICLE XVI
AMOUNTS TRANSFERRED FROM OTHER PLANS
Sec. 16.1 Transfers from Other Plans. The Company
may from time to time arrange for the merger of another qualified
defined contribution plan (referred to as a "Predecessor Plan")
with and into this Plan. Account balances transferred from a
Predecessor Plan to this Plan (referred to as a "Predecessor Plan
Account") shall be administered pursuant to this Article. A
person whose account balance is transferred from a Predecessor
Plan to this Plan shall not be eligible to make contributions
under this Plan until he/she has become a Participant in
accordance with Article IV.
Sec. 16.2 Predecessor Plan Accounts. Amounts
derived from a Participant's Account under a Predecessor Plan
will be credited to his Predecessor Plan Account under this Plan.
No contributions shall be made by a Participating Employer to a
Predecessor Plan Account.
Sec. 16.3 Investment Funds. Investment Funds for
investment of Predecessor Plan Accounts shall be established at
the direction of the Company. The Company shall determine the
types of investments to be held in each Investment Fund and the
investment manager, trustee, or insurance company responsible for
selecting investments. Income on investments of each Investment
Fund shall be reinvested by the Funding Agency in the same
Investment Fund. If there is more than one Investment Fund, a
Participant may designate the Investment Fund or Funds in which
his Predecessor Plan Account will be invested, and may direct a
transfer of part or all his Predecessor Plan Account from one
Investment Fund to another Investment Fund. However, investment
in a given Investment Fund may be limited to amounts derived from
a particular Predecessor Plan. Elections under this section
shall be made in accordance with rules and procedures established
by the Company. Said rules may require that the election be
filed with the Company a reasonable time prior to the date it
will become effective. The rules also may limit the frequency of
such elections.
Sec. 16.4 Valuation of Investment Funds. As of each
Valuation Date, the Funding Agency shall determine, in accordance
with a method consistently followed and uniformly applied, the
fair market value of each Investment Fund. During any period
that all or a part of any Investment Fund is held under a
contract, of a type sometimes referred to as a "guaranteed income
contract", issued by an insurance company and invested by it and
under which the insurance company pays a guaranteed minimum rate
of return, and provided no event has occurred that would result
in a payment by the insurance company under the contract at a
discount from book value of the contract, the fair market value
of the contract shall be deemed to equal its book value.
Sec. 16.5 Valuation of Accounts. As of each
Valuation Date, the value of each Participant's Predecessor Plan
Account shall be adjusted to reflect the effect of income,
realized and unrealized profits and losses, withdrawals,
interfund transfers, and all other transactions since the
immediately preceding Valuation Date, as follows:
(a)The portion of the Account invested in a particular
Investment Fund as of the preceding Valuation Date will
be reduced to reflect the amount of any distributions
that were made therefrom after the preceding Valuation
Date.
(b)The value of each such Account as determined in (a)
shall be adjusted pro rata so that the total value of all
such Accounts in the applicable Investment Fund equals
the fair market value of the applicable Investment Fund
as of the Valuation Date as determined by the Trustee.
(c)Any transfers between Investment Funds pursuant to
Sec. 16.3 shall then be made and Accounts adjusted or
established accordingly.
Sec. 16.6 Optional Forms of Distributions. All
optional forms of distribution available under the Predecessor
Plan shall be available under this Plan for a Predecessor Plan
Account; except that, any hardship standards on distribution
shall be as specified in this Plan. All distribution options
available under this plan for an Account shall also be available
for any subaccount within a Predecessor Plan Account that holds
contributions of the same type.
Sec. 16.7 Special Requirements for Married
Participant Electing Life Annuity Benefit. If a Participant has
elected to receive a life annuity benefit and is married on the
date benefit payments begin, then, notwithstanding such election,
unless the Participant files a written election of a different
form of payment within the 90-day period ending on the date as of
which payments are to begin, the entire value of the
Participant's Predecessor Plan Account shall be applied to
purchase a qualified joint and survivor annuity. A "qualified
joint and survivor annuity" is an annuity payable to the
Participant for life with a survivor annuity for the remainder of
the life of the Participant's surviving spouse in a monthly
amount equal to 50% of the amount the Participant was receiving
prior to his death. A Participant's election of a form of
payment other than a qualified joint and survivor annuity under
this subsection shall not be effective unless the Participant's
spouse consents in writing to such election, and the consent
acknowledges the effect of the election and is witnessed by a
Plan representative or a notary public. Any consent of a spouse
under this section shall be irrevocable. However, such consent
shall not be required if the Participant establishes to the
satisfaction of a representative of the Plan that such consent
cannot be obtained because there is no spouse, because the spouse
cannot be located, or because of such other circumstances as may
be prescribed by federal regulations.
If a Participant has elected to receive a life annuity
benefit, dies before benefit payments begin, and is married on
the date of death, and if the Participant's Beneficiary is his or
her surviving spouse, the benefit to which the spouse is entitled
shall be applied to purchase an annuity for the life of the
spouse, unless the spouse files a written election of some other
form of payment after the Participant's death and prior to the
due date of the first benefit payment to the spouse.
For purposes of this section, a "life annuity benefit" is
any optional form of distribution available for a Predecessor
Plan Account in the form of an annuity for the life of the
Participant.
36
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10-31-97
ADM SAVINGS AND INVESTMENT PLAN
[As Amended and Restated as of January 1, 1987
and in Effect on January 1, 1993]
[WORKING COPY THROUGH FOURTH AMENDMENT]
37
PAGE 38
TABLE OF CONTENTS
ARTICLE I GENERAL 1
SEC. 1.1 NAME OF PLAN 1
SEC. 1.2 PURPOSE 1
SEC. 1.3 EFFECTIVE DATE 1
SEC. 1.4 COMPANY 1
SEC. 1.5 PARTICIPATING EMPLOYERS 1
SEC. 1.6 CONSTRUCTION AND APPLICABLE LAW 1
SEC. 1.7 BENEFITS DETERMINED UNDER PROVISIONS IN EFFECT AT
TERMINATION OF EMPLOYMENT 1
SEC. 1.8 EFFECTIVE DATE OF DOCUMENT 2
ARTICLE II MISCELLANEOUS DEFINITIONS 3
SEC. 2.1 ACCOUNT 3
SEC. 2.2 ACTIVE PARTICIPANT 3
SEC. 2.3 ADM STOCK 3
SEC. 2.4 AFFILIATE 3
SEC. 2.5 BEFORE TAX CONTRIBUTIONS 3
SEC. 2.6 BENEFICIARY 3
SEC. 2.7 BOARD 3
SEC. 2.8 CERTIFIED EARNINGS 3
SEC. 2.9 CODE 4
SEC. 2.10 COMMON CONTROL 4
SEC. 2.11 ERISA 4
SEC. 2.12 [INTENTIONALLY OMITTED] 4
SEC. 2.13 FUND 4
SEC. 2.14 FUNDING AGENCY 4
SEC. 2.15 HIGHLY COMPENSATED EMPLOYEE 4
SEC. 2.16 LEASED EMPLOYEE 5
SEC. 2.17 MATCHING CONTRIBUTION 5
SEC. 2.18 NAMED FIDUCIARY 5
SEC. 2.19 NON-HIGHLY COMPENSATED EMPLOYEE 5
SEC. 2.20 NORMAL RETIREMENT AGE 5
SEC. 2.21 PARTICIPANT 5
SEC. 2.22 P1AN YEAR 5
SEC. 2.23 PREDECESSOR EMPLOYER 5
SEC. 2.24 QUALIFIED EMPLOYEE 5
SEC. 2.25 SUCCESSOR EMPLOYER 6
SEC. 2.26 TAX CREDIT CONTRIBUTION 7
SEC. 2.27 TOP-HEAVY PLAN 7
SEC. 2.28 TRUSTEE 7
SEC. 2.29 VALUATION DATE 7
ARTICLE IIISERVICE PROVISIONS 8
SEC. 3.1 EMPLOYMENT COMMENCEMENT DATE 8
SEC. 3.2 TERMINATION OF EMPLOYMENT 8
SEC. 3.3 HOURS OF SERVICE 8
SEC. 3.4 ELIGIBILITY COMPUTATION PERIOD 10
SEC. 3.5 YEAR OF ELIGIBILITY SERVICE 10
SEC. 3.6 1-YEAR BREAK IN SERVICE 10
SEC. 3.7 PERIODS OF MILITARY SERVICE 9
ARTICLE IV PLAN PARTICIPATION
SEC. 4.1 ENTRY DATE 11
SEC. 4.2 ELIGIBILITY FOR PARTICIPATION 11
SEC. 4.3 DURATION OF PARTICIPATION 11
SEC. 4.4 PARTICIPATION OF U.S. CITIZENS EMPLOYED BY FOREIGN
SUBSIDIARIES 11
SEC. 4.5 NO GUARANTEE OF EMPLOYMENT 12
ARTICLE V CONTRIBUTIONS 13
SEC. 5.1 BEFORE TAX CONTRIBUTIONS 13
SEC. 5.2 MATCHING CONTRIBUTIONS 14
SEC. 5.3 FORM OF CONTRIBUTION 14
SEC. 5.4 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION
401(K). 14
SEC. 5.5 DISTRIBUTION OF EXCESS DEFERRALS 18
SEC. 5.6 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION
401(M) 18
SEC. 5.7 MULTIPLE USE OF THE ALTERNATIVE LIMITATIONS 21
SEC. 5.8 TIME OF CONTRIBUTIONS 22
SEC. 5.9 LIMITATIONS ON CONTRIBUTIONS 22
ARTICLE VI LIMITATION ON ALLOCATIONS 24
SEC. 6.1 LIMITATION ON ALLOCATIONS 24
ARTICLE VII INDIVIDUAL ACCOUNTS 27
SEC. 7.1 ACCOUNTS FOR PARTICIPANTS 27
SEC. 7.2 INVESTMENT OF ACCOUNTS 27
SEC. 7.3 ADJUSTMENT OF ACCOUNTS 27
SEC. 7.4 CERTIFICATES 28
SEC. 7.5 VOTING AND OTHER RIGHTS REGARDING ADM STOCK 29
SEC. 7.6 TENDER OR EXCHANGE OFFERS REGARDING ADM STOCK 29
SEC. 7.7 ROLLOVER ACCOUNTS 29
SEC. 7.8 TRANSFERS TO/FROM HOURLY PLAN 30
ARTICLE VIII DESIGNATION OF BENEFICIARY 31
SEC. 8.1 PERSONS ELIGIBLE TO DESIGNATE 31
SEC. 8.2 SPECIAL REQUIREMENTS FOR MARRIED PARTICIPANTS 31
SEC. 8.3 FORM AND METHOD OF DESIGNATION 31
SEC. 8.4 NO EFFECTIVE DESIGNATION 31
SEC. 8.5 SUCCESSOR BENEFICIARY 32
SEC. 8.6 INSURANCE CONTRACT 32
ARTICLE IX BENEFIT REQUIREMENTS 33
SEC. 9.1 BENEFIT ON TERMINATION OF EMPLOYMENT 33
SEC. 9.2 DEATH 33
SEC. 9.3 WITHDRAWALS BEFORE TERMINATION OF EMPLOYMENT 33
SEC. 9.4 DISTRIBUTION TO SATISFY DIVERSIFICATION RULES 35
ARTICLE X DISTRIBUTION OF BENEFITS 36
SEC. 10.1 TIME AND METHOD OF PAYMENT 36
SEC. 10.2 FORM OF DISTRIBUTION 38
SEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF EMPLOYMENT 39
SEC. 10.4 REEMPLOYMENT 39
SEC. 10.5 SOURCE OF BENEFITS 40
SEC. 10.6 INCOMPETENT PAYEE 40
SEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR ALIENATED 40
SEC. 10.8 PAYMENT OF TAXES 40
SEC. 10.9 CONDITIONS PRECEDENT 40
SEC. 10.10 COMPANY DIRECTIONS TO TRUSTEE 41
SEC. 10.11 SPECIAL DISTRIBUTION EVENTS 41
SEC. 10.12 DELAY OF DISTRIBUTION IN EVENT OF STOCK DIVIDEND OR
SPLIT 41
SEC. 10.13 PARTICIPANT LOAN PROGRAM 41
ARTICLE XI FUND 42
SEC. 11.1 COMPOSITION 42
SEC. 11.2 FUNDING AGENCY 42
SEC. 11.3 COMPENSATION AND EXPENSES OF TRUSTEE 42
SEC. 11.4 FUNDING POLICY 42
SEC. 11.5 SHARE REGISTRATION 42
SEC. 11.6 NO DIVERSION 43
SEC. 11.7 CONVERSION OF ADM STOCK TO CASH 43
ARTICLE XII ADMINISTRATION OF PLAN 44
SEC. 12.1 ADMINISTRATION BY COMPANY 44
SEC. 12.2 CERTAIN FIDUCIARY PROVISIONS 44
SEC. 12.3 DISCRIMINATION PROHIBITED 45
SEC. 12.4 EVIDENCE 45
SEC. 12.5 CORRECTION OF ERRORS 45
SEC. 12.6 RECORDS 45
SEC. 12.7 GENERAL FIDUCIARY STANDARD 46
SEC. 12.8 PROHIBITED TRANSACTIONS 46
SEC. 12.9 CLAIMS PROCEDURE 46
SEC. 12.10 BONDING 46
SEC. 12.11 WAIVER OF NOTICE 46
SEC. 12.12 AGENT FOR LEGAL PROCESS 46
SEC. 12.13 INDEMNIFICATION 46
SEC. 12.15 EXERCISE OF AUTHORITY 45
ARTICLE XIII AMENDMENT, TERMINATION, MERGER 48
SEC. 13.1 AMENDMENT 48
SEC. 13.2 PERMANENT DISCONTINUANCE OF CONTRIBUTIONS 48
SEC. 13.3 TERMINATION 48
SEC. 13.4 PARTIAL TERMINATION 48
SEC. 13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS 48
SEC. 13.6 DEFERRAL OF DISTRIBUTIONS 49
SEC. 13.7 REORGANIZATION OF PARTICIPATING EMPLOYERS 49
SEC. 13.8 DISCONTINUANCE OF JOINT PARTICIPATION OF A
PARTICIPATING EMPLOYER 49
SEC. 13.9 PARTICIPATING EMPLOYERS NOT UNDER COMMON CONTROL 50
ARTICLE XIV TOP-HEAVY PLAN PROVISIONS 51
SEC. 14.1 KEY EMPLOYEE DEFINED 51
SEC. 14.2 DETERMINATION OF TOP-HEAVY STATUS 51
SEC. 14.3 MINIMUM CONTRIBUTION REQUIREMENT 53
SEC. 14.4 PARTICIPATION UNDER DEFINED BENEFIT PLAN AND DEFINED
CONTRIBUTION PLAN 49
SEC. 14.5 DEFINITION OF EMPLOYER 54
SEC. 14.6 EXCEPTION FOR COLLECTIVE BARGAINING UNIT 54
ARTICLE XV MISCELLANEOUS PROVISIONS 55
SEC. 15.1 INSURANCE COMPANY NOT RESPONSIBLE FOR VALIDITY OF
PLAN 55
SEC. 15.2 HEADINGS 55
SEC. 15.3 CAPITALIZED DEFINITIONS 55
SEC. 15.4 GENDER 55
SEC. 15.5 USE OF COMPOUNDS OF WORD "HERE". 55
SEC. 15.6 CONSTRUED AS A WHOLE 55
ARTICLE XVI AMOUNTS TRANSFERRED FROM OTHER PLANS 56
SEC. 16.1 TRANSFERS FROM OTHER PLANS 56
SEC. 16.2 PREDECESSOR PLAN ACCOUNTS 56
SEC. 16.3 INVESTMENT FUNDS 56
SEC. 16.4 VALUATION OF INVESTMENT FUNDS 56
SEC. 16.5 VALUATION OF ACCOUNTS 56
SEC. 16.6 OPTIONAL FORMS OF DISTRIBUTIONS 57
SEC. 16.7 SPECIAL REQUIREMENTS FOR MARRIED PARTICIPANT ELECTING
LIFE ANNUITY BENEFIT 57
38
PAGE 1
EXHIBIT 4(D)
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
ARTICLE I
GENERAL
Sec. 1.1 Name and Form of Plan. The name of the stock
bonus plan set forth herein is the "ADM Savings and Investment
Plan for Hourly Employees". It is sometimes herein referred to
as the "Plan". Certain provisions of the Plan as applicable to
particular Participating Locations are set forth in appendices to
the Plan.
Sec. 1.2 Purpose. The Plan has been established to
provide eligible employees of the Participating Employers with a
means to adopt a regular savings program, a supplement to their
retirement income, and an ownership interest in the Company.
Sec. 1.3 Effective Date. The "Effective Date" of the
Plan, the date as of which the Plan was established, is
January 1, 1989.
Sec. 1.4 Company. The "Company" is
Archer-Daniels-Midland Company, a Delaware corporation, and any
Successor Employer thereof.
Sec. 1.5 Participating Employers. The Company is a
Participating Employer in the Plan. With the consent of the
Company, any other employer may also become a Participating
Employer in the Plan effective as of the date specified by it in
its adoption of the Plan. Any Successor Employer to a
Participating Employer shall also be a Participating Employer in
the Plan. The Company shall maintain a "List of Participating
Employers" for the Plan indicating the date on which an employer
becomes a Participating Employer and the date on which an
employer ceases to be a Participating Employer.
Sec. 1.6 Construction and Applicable Law. The Plan is
intended to meet the requirements for qualification under section
401(a) of the Code and the requirements applicable to qualified
cash or deferred arrangements under section 401(k) of the Code.
The Plan is also intended to be in full compliance with
applicable requirements of ERISA. The Plan shall be administered
and construed consistent with said intent. It shall also be
construed and administered according to the laws of the State of
Illinois to the extent that such laws are not preempted by the
laws of the United States of America. All controversies,
disputes, and claims arising hereunder shall be submitted to the
United States District Court for the Central District of
Illinois, except as otherwise provided in any trust agreement
entered into with a Trustee.
Sec. 1.7 Benefits Determined Under Provisions in Effect
at Termination of Employment. Except as may be specifically
provided herein to the contrary, benefits under the Plan
attributable to service prior to a Participant's Termination of
Employment shall be determined and paid in accordance with the
provisions of the Plan as in effect as of the date the
Termination of Employment occurred unless he or she becomes an
Active Participant after that date and such active participation
causes a contrary result under the provisions hereof. However,
the provisions of this document shall apply to any such
Participant to the extent necessary to maintain the qualified
status of the Plan under Code section 401(a) or to comply with
the requirements of ERISA.
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ARTICLE II
MISCELLANEOUS DEFINITIONS
Sec. 2.1 Account. "Account" means a Participant's or
Beneficiary's interest in the Fund of any of the types described
in Sec. 7.1.
Sec. 2.2 Active Participant. An employee is an "Active
Participant" only while he or she is both a Participant and a
Qualified Employee.
Sec. 2.3 ADM Stock. "ADM Stock" means common stock of
the Company.
Sec. 2.4 Affiliate. "Affiliate" means any trade or
business entity under Common Control with a Participating
Employer, or under Common Control with a Predecessor Employer
while it is such.
Sec. 2.5 Before Tax Contributions. "Before Tax
Contributions" are amounts contributed by a Participating
Employer under Sec. 5.1 at the direction of individual
Participants.
Sec. 2.6 Beneficiary. "Beneficiary" means the person or
persons designated as such pursuant to the provisions of
Article VIII.
Sec. 2.7 Board. The "Board" is the board of directors
of the Company, and includes any executive committee thereof
authorized to act for said board of directors.
Sec. 2.8 Certified Earnings. "Certified Earnings" of a
Participant from a Participating Employer for a Plan Year means
the amount determined by the Participating Employer and reported
to the Company to be the total compensation paid to the
Participant by the Participating Employer during such Plan Year
for service as an Active Participant, subject to the following:
(a)Certified Earnings include bonuses and lump sum
payments made in lieu of pay increases, overtime pay,
vacation pay, holiday pay, and pay for jury duty.
(b)Sick pay or short term disability pay paid directly by
a Participating Employer shall be included in Certified
Earnings.
(c)Certified Earnings include Before Tax Contributions to
this Plan and any contributions made by salary reduction
to any other plan which meets the requirements of Code
sections 125 or 401(k), whether or not such contributions
are actually excludable from the Participant's gross
income for federal income tax purposes. Certified
Earnings do not include Matching Contributions to this
Plan.
(d)Allowances or reimbursements for expenses, severance
pay, payments or contributions to or for the benefit of
the employee under any other deferred compensation,
pension, profit sharing, insurance, or other employee
benefit plan, stock options, stock appreciation rights or
cash payments in lieu thereof, merchandise or service
discounts, non-cash employee awards, benefits in the form
of property or the use of property, earnings payable in a
form other than cash, or other similar fringe benefits
shall not be included in computing Certified Earnings,
except as provided in subsections (b) and (c) or to the
extent such amounts are required to be included in
determining the employee's regular rate of pay under the
Federal Fair Labor Standards Act for purposes of
computing overtime pay thereunder.
(e)Code Section 401(a)(17) Limit. Amounts in excess of
$160,000 (or such greater amount as may be in effect
under Code section 401(a)(17)) will be disregarded in
determining Certified Earnings.
Sec. 2.9 Code. "Code" means the Internal Revenue Code
of 1986 as from time to time amended.
Sec. 2.10 Common Control. A trade or business entity
(whether a corporation, partnership, sole proprietorship or
otherwise) is under "Common Control" with another trade or
business entity (i) if both entities are corporations which are
members of a controlled group of corporations as defined in Code
section 414(b), or (ii) if both entities are trades or businesses
(whether or not incorporated) which are under common control as
defined in Code section 414(c), or (iii) if both entities are
members of an affiliated service group as defined in Code section
414(m), or (iv) if both entities are required to be aggregated
pursuant to regulations under Code section 414(o). Service for
all entities under Common Control shall be treated as service for
a single employer to the extent required by the Code; provided,
however, that an individual shall not be a Qualified Employee by
reason of this section. In applying the first sentence of this
section for purposes of Article VI, the provisions of subsections
(b) and (c) of section 414 of the Code are deemed to be modified
as provided in Code section 415(h).
Sec. 2.11 ERISA. "ERISA" means the Employee Retirement
Income Security Act of 1974 as from time to time amended.
Sec. 2.12 [Intentionally omitted.]
Sec. 2.13 Fund. "Fund" means the aggregate of assets
described in Sec. 11.1.
Sec. 2.14 Funding Agency. "Funding Agency" is a
trustee or trustees or an insurance company appointed and acting
from time to time in accordance with the provisions of Sec. 11.2
for the purpose of holding, investing, and disbursing all or a
part of the Fund.
Sec. 2.15 Highly Compensated Employee. "Highly
Compensated Employee" means any individual defined as such under
Code section 414(q) (for purposes of applying this definition,
the Company is permitted to make any or all elections, and apply
any or all options, permitted in the regulations under Code
section 414(q)).
Sec. 2.16 Leased Employee. "Leased Employee" means any
individual defined as such under Code section 414(n).
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Sec. 2.17 Matching Contribution. A "Matching
Contribution" is an amount contributed by a Participating
Employer under Sec. 5.2.
Sec. 2.18 Named Fiduciary. The Company is a "Named
Fiduciary" for purposes of ERISA with authority to control or
manage the operation and administration of the Plan, including
control or management of the assets of the Plan. Other persons
are also Named Fiduciaries under ERISA if so provided thereunder
or if so identified by the Company, by action of the Board. Such
other person or persons shall have such authority to control or
manage the operation and administration of the Plan, including
control or management of the assets of the Plan, as may be
provided by ERISA or as may be allocated by the Company, by
action of the Board.
Sec. 2.19 Non-Highly Compensated Employee. "Non-Highly
Compensated Employee" means an employee of the Company or an
Affiliate who is not a Highly Compensated Employee.
Sec. 2.20 Normal Retirement Age. "Normal Retirement
Age" is age 65.
Sec. 2.21 Participant. A "Participant" is an individual
described as such in Article IV.
Sec. 2.22 Participating Location. "Participating
Location" means a location designated as such on the "List of
Participating Locations" maintained by the Company with respect
to an Appendix.
Sec. 2.23 Plan Year. A "Plan Year" is the
12-consecutive-month period commencing on January 1.
Sec. 2.24 Predecessor Employer. A "Predecessor Employer"
is any corporation, partnership, firm, or individual, an integral
portion of whose assets and business has been acquired by a
Participating Employer or from whose employment an integral group
or unit of employees has been transferred to employment by a
Participating Employer and service for which the Company grants
credit for eligibility purposes under this Plan. Any other
employer shall be a Predecessor Employer if so required by
regulations prescribed by the Secretary of the Treasury. The
Company shall maintain a "List of Predecessor Employers" for the
Plan, indicating the date on which the employer becomes a
Predecessor Employer and the group or unit of employees with
respect to which the employer is a Predecessor Employer. Prior
service credit shall be granted in a manner that does not produce
discrimination in favor of Highly Compensated Employees.
Sec. 2.25 Qualified Employee. "Qualified Employee" means
the following:
(a)General Rule. Qualified Employee means an employee of
the Company or an Affiliate who satisfies the following
criteria:
(i)The employee is paid on an hourly wage basis,
or is paid on a regular salary basis but is
classified as an hourly wage employee by the Company
because the employee is a non-supervisory employee
serving on a barge.
(ii) The employee is employed with a
Participating Employer (while the Participating
Employer is a Participating Employer) at a
Participating Location (while the Participating
Location is a Participating Location).
(iii) The employee is not excluded under any one
of the following categories:
(A)Any individual who is compensated on
an hourly wage basis, but who is eligible to
participate in the ADM Savings and Investment
Plan.
(B)Any individual who is classified as a
probationary or temporary employee by the Company.
(C)Any individual who is classified as an
independent contractor by the Company (regardless
of whether such individual is subsequently
determined to be a common-law employee or an
employee for any purpose).
(D)Any individual who is a citizen or
resident of a foreign country, including any such
individual who is working in the United States.
(E)Any individual who is a Leased Employee with
respect to the Company or an Affiliate or who is
treated as an employee of the Company or an
Affiliate under Code Sec. 414(o).
(b)Collective Bargaining Employees. An employee who is in a
collective bargaining unit is not a Qualified Employee
during any period he/she is covered by a collective
bargaining agreement unless that agreement expressly
provides that he/she is eligible to participate in this
Plan. For this purpose a collective bargaining agreement
will be deemed to continue after its formal expiration
and during collective bargaining negotiations until the
parties have negotiated to "impasse" as determined by the
Company, and thereafter the status of an employee as a
Qualified Employee will be determined in accordance with
the impasse proposal of the Company.
(c)Periods of Absence/Disability. A Qualified Employee will
continue as a Qualified Employee during any period of
absence from active service, including a period during
which the employee is receiving payments under any long-
term disability program sponsored by the Company or an
Affiliate, until his/her Termination of Employment.
Sec. 2.26 Successor Employer. A "Successor Employer" is
any entity that succeeds to the business of a Participating
Employer through merger, consolidation, acquisition of all or
substantially all of its assets, or any other means and which
elects before or within a reasonable time after such succession,
by appropriate action evidenced in writing, to continue the Plan;
provided, however, that in the case of such succession with
respect to any Participating Employer other than the Company, the
acquiring entity shall be a Successor Employer only if consent
thereto is granted by the Company, by action of the Board or a
duly authorized officer.
Sec. 2.27 Top-Heavy Plan. "Top-Heavy Plan" is defined
in Sec. 14.2(a).
Sec. 2.28 Trustee. The "Trustee" is a trustee or
trustees appointed and acting from time to time in accordance
with the provisions of Sec. 11.2 for the purpose of holding,
investing, and disbursing ADM Stock and all or any part of the
other assets of the Fund.
Sec. 2.29 Valuation Date. "Valuation Date" means each
business day.
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ARTICLE III
SERVICE PROVISIONS
Sec. 3.1 Employment Commencement Date. "Employment
Commencement Date" means the date on which an employee first
performs an Hour of Service for a Participating Employer (whether
before or after the Participating Employer becomes such), an
Affiliate, or a Predecessor Employer. The date on which an
employee first performs an Hour of Service after a 1-Year Break
in Service is also an "Employment Commencement Date".
Sec. 3.2 Termination of Employment. The "Termination of
Employment" of an employee for purposes of the Plan shall be
deemed to occur upon resignation, discharge, retirement, death,
disability, failure to return to active work at the end of an
authorized leave of absence or the authorized extension or
extensions thereof, failure to return to work when duly called
following a temporary layoff, or upon the happening of any other
event or circumstance which, under the policy of a Participating
Employer, Affiliate, or Predecessor Employer as in effect from
time to time, results in the termination of the employer-employee
relationship; provided, however, that a Termination of Employment
shall not be deemed to occur upon a transfer between any
combination of Participating Employers, Affiliates, and
Predecessor Employers. For purposes of this Plan, a Participant
has a Termination of Employment due to disability as of the date
the Participant becomes entitled to benefits on account of
disability under any applicable pension or long term disability
program maintained by the Participant's employer, or, if there is
no such program, at the time the Participant ceases active work
due to total and permanent disability. Notwithstanding the
foregoing, a Termination of Employment shall be deemed not to
have occurred for purposes of entitling a Participant to a
distribution if the Participant has not had a "separation from
service" or "disability" as defined in applicable regulations
(although a distribution may be permitted under Sec. 10.11).
Sec. 3.3 Hours of Service. "Hours of Service" are
determined according to the following subsections with respect to
each applicable computation period. The Company may round up the
number of Hours of Service at the end of each computation period
or more frequently as long as a uniform practice is followed with
respect to all employees determined by the Company to be
similarly situated for compensation, payroll, and recordkeeping
purposes.
(a)Hours of Service are computed only with respect to
service with Participating Employers (for service both
before and after the Participating Employer becomes
such), Affiliates, and Predecessor Employers and are
aggregated for service with all such employers. However,
no Hours of Service shall be credited with a
Participating Employer or an Affiliate prior to the
earliest date said entity is under Common Control with an
entity which is then a Participating Employer.
(b)For any portion of a computation period during which a
record of hours is maintained for an employee, Hours of
Service shall be credited as follows:
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PAGE 5
(1) Each hour for which the employee is paid,
or entitled to payment, for the performance of duties
for his or her employer during the applicable
computation period is an Hour of Service.
(2) Each hour for which the employee is paid,
or entitled to payment, by his or her employer on
account of a period of time during which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability),
layoff, jury duty, military duty, or leave of
absence, is an Hour of Service. No more than 501
Hours of Service shall be credited under this
paragraph for any single continuous period (whether
or not such period occurs in a single computation
period). Hours of Service shall not be credited
under this paragraph with respect to payments under a
plan maintained solely for the purpose of complying
with applicable workers' compensation, unemployment
compensation, or disability insurance laws or with
respect to a payment which solely reimburses the
individual for medical or medically related expenses
incurred by the employee.
(3) Each hour for which back pay, irrespective
of mitigation of damages, is either awarded or agreed
to by the employer is an Hour of Service. Such Hours
of Service shall be credited to the computation
period or periods to which the award or agreement for
back pay pertains, rather than to the computation
period in which the award, agreement, or payment is
made. Crediting of Hours of Service for back pay
awarded or agreed to with respect to periods
described in paragraph (2) shall be subject to the
limitations set forth therein.
(4) 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.
(5) The Company may use any records to
determine Hours of Service which it considers an
accurate reflection of the actual facts.
(c)For any portion of a computation period during which
an employee is within a classification for which a record
of hours for the performance of duties is not maintained,
the employee shall be credited with 190 Hours of Service
for each month for which he or she would otherwise be
credited with at least one Hour of Service under
subsection (b).
(d)Nothing in this section shall be construed as denying
an employee credit for an Hour of Service if credit is
required by any federal law other than ERISA. The nature
and extent of such credit shall be determined under such
other law.
(e)In no event shall duplicate credit as an Hour of
Service be given for the same hour.
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(f)This subsection shall apply to an individual who has
service as (i) either a common law employee or a Leased
Employee of (ii) either a Participating Employer or
Affiliate. For purposes of determining Hours of Service,
such an individual shall be considered an employee of the
Participating Employer or Affiliate during any period he
or she would have been a Leased Employee of such
Participating Employer or Affiliate but for the
requirement that he or she must have performed services
for such Participating Employer or Affiliate on a
substantially full-time basis for a period of at least
one year. If this Plan is a multiple employer plan as
defined in section 2530.210 of the Department of Labor
Regulations, service as a leased individual with more
than one legal entity shall be aggregated only in
accordance with the rules set forth in said section.
Sec. 3.4 Eligibility Computation Period. An employee's
first Eligibility Computation Period is the 12-consecutive-month
period beginning on his or her Employment Commencement Date. The
second Eligibility Computation Period is the Plan Year commencing
in said 12-consecutive-month period. Each subsequent Plan Year
prior to the end of the Plan Year in which the employee has a
1-Year Break In Service is an Eligibility Computation Period. If
subsequent to a 1-Year Break In Service the employee has another
Employment Commencement Date, Eligibility Computation Periods for
the period beginning on such date shall be computed as though
such date were the employee's first Employment Commencement Date.
Sec. 3.5 Year of Eligibility Service. A "Year of
Eligibility Service" is an Eligibility Computation Period in
which an employee has at least 1000 Hours of Service.
Sec. 3.6 1-Year Break In Service. "1-Year Break In
Service" means a Plan Year in which the employee has 500 or fewer
Hours of Service. The 1-Year Break In Service shall be
recognized as such on the last day of such Plan Year.
(a)Notwithstanding the provisions of Sec. 3.3, for
purposes of determining whether a 1-Year Break In Service
has occurred with respect to a Plan Year beginning after
1984, an individual who is absent from work for maternity
or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to
such individual but for such absence, or in any case in
which such hours cannot be determined, 8 Hours of Service
per day of such absence; provided, however, that the
total number of Hours of Service recognized under this
subsection shall not exceed 501 hours. The Hours of
Service credited under this subsection shall be credited
in the Plan Year in which the absence begins if the
crediting is necessary to prevent a 1-Year Break In
Service in that Plan Year or, in all other cases, in the
following Plan Year.
(b)For purposes of subsection (a), an absence from work
for maternity or paternity reasons means an absence that
started during a Plan Year beginning after 1984 (i) by
reason of the pregnancy of the individual, (ii) by reason
of the birth of a child of the individual, (iii) by
reason of the placement of a child with the individual in
connection with the adoption of such child by such
individual, or (iv) for purposes of caring for such child
for a period beginning immediately following such birth
or placement.
Sec. 3.7 Periods of Military Service. Notwithstanding
any provision of this Plan to the contrary, contributions,
benefits and service credit with respect to qualified military
service will be provided in accordance with Code section 414(u).
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ARTICLE IV
PLAN PARTICIPATION
Sec. 4.1 Entry Date. "Entry Date" means January 1 and
July 1 of each Plan Year.
Sec. 4.2 Eligibility for Participation. Eligibility to
participate in the Plan shall be determined as follows:
(a)An employee shall become a Participant on the date the
employee's workplace becomes a Participating Location,
provided both of the following requirements are met:
(1) The employee is a Qualified Employee on
said date.
(2) The employee has completed one Year of
Eligibility Service during an Eligibility Computation
Period that ended prior to said date.
(b)Except as provided in subsection (a), an employee of a
Participating Employer shall become a Participant in the
Plan on the earliest Entry Date (on or after the date the
Plan becomes effective with respect to his or her
Participating Location) on which both of the following
requirements are met:
(1) The employee is a Qualified Employee.
(2) The employee has completed one Year of
Eligibility Service during an Eligibility Computation
Period that ended prior to the Entry Date.
(c)If a former Participant is reemployed and meets the
requirements of subsection (b) on the date of rehire, the
employee will become a Participant again on that date.
(d)If a former employee who was not previously a
Participant is reemployed as a Qualified Employee, if the
employee meets the requirements of subsection (b) on the
date of rehire, and if the employee would have met the
requirements of subsection (b) on the immediately
preceding Entry Date if he or she had been a Qualified
Employee on that Entry Date, the employee shall become a
Participant on the date of rehire.
(e)If an employee of a Participating Employer or an
Affiliate who is neither a Participant nor a Qualified
Employee is transferred to a position in which he or she
is a Qualified Employee, and if the employee would have
met the eligibility requirements of subsection (b) on the
Entry Date preceding the transfer had he or she been a
Qualified Employee on that Entry Date, the employee shall
become a Participant on the date of transfer.
Sec. 4.3 Duration of Participation. A Participant shall
continue to be such until the later of:
(a) The Participant's Termination of Employment.
(b)The date all benefits, if any, to which the
Participant is entitled hereunder have been distributed
from the Fund.
Sec. 4.4 No Guarantee of Employment. Participation in
the Plan does not constitute a guarantee or contract of
employment with the Participating Employers. Such participation
shall in no way interfere with any rights the Participating
Employers would have in the absence of such participation to
determine the duration of an employee's employment.
Sec. 4.5 Participation of U.S. Citizens Employed by
Foreign Subsidiaries. A citizen or resident of the United States
who is employed by an eligible foreign subsidiary (as defined
below) of a Participating Employer shall be treated as an
employee of that Participating Employer for the period of his/her
employment with the eligible foreign subsidiary if (i) the
Participating Employer has entered into an agreement under Code
section 3121(l) that applies to the eligible foreign subsidiary,
and (ii) the employee does not receive contributions under any
funded plan of deferred compensation with respect to remuneration
received from the eligible foreign subsidiary. For purposes of
this section, an "eligible foreign subsidiary" is any corporation
organized outside of the United States, its territories or the
District of Columbia 10% or more of the voting stock of which is
owned by the Participating Employer. If this section applies to
an employee, his/her compensation for purposes of the Plan shall
be determined under Code section 406(b).
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ARTICLE V
CONTRIBUTIONS
Sec. 5.1 Before Tax Contributions. Each Active
Participant may elect to have his or her Participating Employer
make Before Tax Contributions on his or her behalf, subject to
the following:
(a)The Participant may elect to have his or her current
earnings reduced by any whole percent the Participant may
designate, but not exceeding the percentage of Certified
Earnings specified in the appendix to the Plan applicable
to the Participant's Participating Location. This
election may only be made pursuant to a written salary
reduction agreement. The agreement shall be in such form
and executed subject to such rules as the Company may
prescribe. Each election shall apply only to earnings
which become payable after the election is filed with the
Company. Each election shall continue in effect until a
new election is filed pursuant to this section.
(b)Each Participating Employer will make a Before Tax
Contribution with respect to each Participant in its
employ who elects to have earnings for that period
reduced pursuant to this section. The amount of the
contribution, to be made in the manner described in
Sec. 5.3, will be equal to the amount by which the
Participant's earnings were reduced.
(c)The salary reduction agreement may be effective as of
the date on which the employee becomes a Participant or
any following January 1 or July 1; provided that the
employee has filed the agreement with the Company at
least 15 days prior to the effective date. If an
employee who becomes a Participant pursuant to
Sec. 4.2(e) was an Active Participant under the ADM
Savings and Investment Plan (the "Salaried Plan")
immediately before becoming a Participant in this Plan,
the Participant shall be deemed to have made a salary
reduction agreement for purposes of this Plan identical
to the agreement in effect for purposes of the Salaried
Plan, unless the participant enters into a new agreement
pursuant to this subsection. Notwithstanding the
foregoing, an employee who becomes a Participant pursuant
to Sec. 4.2(a), (c), (d), or (e) may file a salary
reduction agreement with the Company during the 15-day
period following the date he or she becomes a
Participant, which shall be effective as of the first day
of the pay period following the date the agreement is
filed.
(d)An Active Participant may amend his or her salary
reduction agreement to increase or decrease the
contribution rate effective as of any January 1 or July 1
by filing an approved amendment form with the Company at
least 15 days prior to the effective date.
(e)An Active Participant may discontinue making Before
Tax Contributions at any time by filing a written
election with the Company. That election shall be
effective as soon as administratively feasible after it
is filed with the Company. The Participant may
thereafter resume Before Tax Contributions as of any
January 1 or July 1 which is at least six months after
the date contributions were discontinued, by filing a new
salary reduction agreement at least 15 days prior to the
effective date.
(f)All Before Tax Contributions by a Participant shall
cease when the Participant ceases to be a Qualified
Employee.
(g)Before Tax Contributions by a Participant for any
calendar year may not exceed $7,627, and shall cease at
the point that limit is reached during the year. The
$7,627 limit in the previous sentence shall be adjusted
after 1989 for any cost of living increases provided for
any calendar year in accordance with regulations issued
by the Secretary of the Treasury.
(h)Notwithstanding the foregoing provisions, if the
Participant has received a hardship distribution from
this Plan in accordance with Sec. 9.3(a) or from any
other plan maintained by a Participating Employer or an
Affiliate, no Before Tax Contributions shall be made to
this Plan on behalf of such Participant for 12 months
following the date on which the hardship distribution was
made. Furthermore, the limit under subsection (g) for
the calendar year following the year in which the
hardship withdrawal is made shall be reduced by the
amount of Before Tax Contributions (and any elective
contributions to any other plan maintained by the
employer) for the calendar year in which the hardship
withdrawal was made.
(i)If a Participant's Before Tax Contributions are
suspended under subsection (h), the Participant may elect
to recommence Before Tax Contributions effective as of
any January 1 or July 1 following the end of the 12-month
suspension period by filing a new election form with the
Company at least 15 days prior to the effective date.
Sec. 5.2 Matching Contributions. The Participating
Employers will match each Participant's Before Tax Contributions
in accordance with the following:
(a)The Participating Employers shall make a Matching
Contribution for each month for each Participant in an
amount determined according to the appendix to the Plan
applicable to the Participant's Participating Location.
(b)No Matching Contribution will be made with respect to
any amount by which the Participant's Before Tax
Contribution must be reduced pursuant to Sec. 5.4,
Sec. 5.5 or Sec. 5.7. Any such Matching Contributions
which are made before the amount of the reduction is
determined shall be forfeited and shall be applied as a
credit against future contributions from the
Participating Employers.
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PAGE 9
Sec. 5.3 Form of Contribution. Before Tax and Matching
Contributions shall be paid to the Fund as soon as practicable
following the close of each month in cash or shares of ADM Stock,
as determined at the sole discretion of the Company. If paid in
shares of ADM Stock, such shares shall be valued at the closing
price of a share of ADM Stock on the New York Stock Exchange for
the business day immediately preceding the day the Company
directs its transfer agent to issue such shares to the Fund (as
reported in The Wall Street Journal published for the next
following business day).
Sec. 5.4 Adjustment of Contributions Required by Code
Section 401(k). If necessary to satisfy the requirements of Code
section 401(k), Before Tax Contributions shall be adjusted in
accordance with the following:
(a)Each Plan Year, the "deferral percentage" will be
calculated for each Active Participant. Each
Participant's deferral percentage is calculated by
dividing the amount referred to in paragraph (1) by the
amount referred to in paragraph (2):
(1) The total Before Tax Contributions
(including Excess Deferrals of Highly Compensated
Employees distributed under Sec. 5.5 but excluding
Excess Deferrals of Non-Highly Compensated Employees
that arise solely from contributions made under plans
of the Participating Employers or Affiliates), if
any, allocated to the Participant's Accounts with
respect to the Plan Year. The Company may also elect
to include all or part of the Matching Contributions
to be allocated to the Participant's Accounts with
respect to that Plan Year, provided that the
provisions of Treasury Regulation Sec. 1.401(k)-1(b)
are satisfied.
(2) The Participant's Compensation with respect
to the Plan Year. For purposes of this section, a
Participant's "Compensation" for the Plan Year means
compensation determined according to a definition
selected by the Company for that year which satisfies
the requirements of Code section 414(s). The same
definition of Compensation shall be used for all
Participants for a particular Plan Year, but
different definitions may be used for different Plan
Years. Compensation shall be subject to the limit
provided under Sec. 2.8(e).
(b)Each Plan Year, the average deferral percentage for
Active Participants who are Highly Compensated Employees
and the average deferral percentage for Active
Participants who are Non-Highly Compensated Employees
will be calculated. A separate average deferral
percentage shall be calculated for Active Participants in
a collective bargaining unit who are required to be
disaggregated pursuant to Treasury Regulation Sec.
1.401(k)-1(b)(3)(ii)(B). Such Participants shall be
disregarded in calculating the average deferral
percentage for Active Participants who are not in such
collective bargaining units. In each case, the average
is the average of the percentages calculated under
subsection (a) for each of the employees in the
particular group. The deferral percentage for each
Participant and the average deferral percentage for a
particular group of employees shall be calculated to the
nearest one-hundredth of one percent. For Plan Years
commencing after 1996, the average deferral percentage
for Active Participants who are Non-Highly Compensated
Employees that is used in applying this section for a
particular Plan Year will be the percentage determined
for the preceding Plan Year, unless the Company elects to
use the percentage for the current Plan Year in
accordance with applicable regulations. If an election
is made under the previous sentence to use the percentage
for the current Plan Year, it may not be changed for
later Plan Years except as provided in applicable
regulations (subject to the transition rule for the 1997
Plan Year contained in IRS Notice 97-2).
(c)If the requirements of either paragraph (1) or (2) are
satisfied, then no further action is needed under this
section:
(1) The average deferral percentage for
Participants who are Highly Compensated Employees is
not more than 1.25 times the average deferral
percentage for Participants who are Non-Highly
Compensated Employees.
(2) The excess of the average deferral
percentage for Participants who are Highly
Compensated Employees over the average deferral
percentage for Participants who are Non-Highly
Compensated Employees is not more than two percentage
points, and the average deferral percentage for such
Highly Compensated Employees is not more than 2 times
the average deferral percentage for such Non-Highly
Compensated Employees.
The requirements of this subsection (c) shall be
applied separately with respect to Participants in a
collective bargaining unit who are required to be
disaggregated pursuant to Treasury Regulation Sec.
1.401(k)-1(b)(3)(ii)(B).
(d)If neither of the requirements of subsection (c) is
satisfied, then the Before Tax Contributions with respect
to Highly Compensated Employees will be reduced,
beginning with the contributions representing the
greatest dollar amount per Participant, to the extent
necessary to make the aggregate dollar amount of such
reductions equal to the amount by which the Before Tax
Contributions (prior to such reduction) had exceeded the
requirements of subsection (c)(1) or (c)(2), whichever is
less. Such reduction will be made in accordance with the
methodology prescribed at the time of the reduction by
the Internal Revenue Service under Notice 97-2 or other
applicable Notices or Treasury Regulations.
(e)At any time during the Plan Year, the Company may make
an estimate of the amount of Before Tax Contributions by
Highly Compensated Employees that will be permitted under
this section for the year and may reduce the percent
specified in Sec. 5.1(a) for such Participants to the
extent the Company determines in its sole discretion to
be necessary to satisfy at least one of the requirements
in subsection (c).
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PAGE 10
(f)If Before Tax Contributions with respect to a Highly
Compensated Employee are reduced pursuant to subsection
(d), the Excess Before Tax Contributions shall be
distributed, subject to the following:
(1) For purposes of this subsection, "Excess
Before tax Contributions" mean the amount by which
Before Tax Contributions for Highly Compensated
Employees have been reduced under subsection (d).
(2) Excess Before Tax Contributions (adjusted
for income or losses allocable thereto as specified
in paragraph (3), if any) shall be distributed to
Participants on whose behalf such excess
contributions were made for the Plan Year no later
than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3) Income or losses allocable to Excess Before
Tax Contributions shall be equal to the amount of
income or loss allocable to such excess amount for
the Plan Year pursuant to Sec. 7.2 and Sec. 7.3;
provided, however, that for Plan Years beginning
prior to 1992, such income or loss may be determined
under any alternative method selected by the Company
for that Plan Year which is permitted under
applicable Treasury regulations.
(4) The amount of Excess Before Tax
Contributions and income or losses allocable thereto
which would otherwise be distributed pursuant to this
subsection shall be reduced, in accordance with
regulations, by the amount of Excess Deferrals and
income or losses allocable thereto previously
distributed to the Participant pursuant to Sec. 5.5
for the calendar year ending with or within the Plan
Year.
(g)Family aggregation rules cease to apply to this
Plan effective January 1, 1997.
(h)The deferral percentage for any Participant who is a
Highly Compensated Employee for the Plan Year, and who is
eligible to participate in two or more plans with cash or
deferred arrangements described in Code section 401(k) to
which any Participating Employer or Affiliate
contributes, shall be determined as if all employer
contributions were made under a single arrangement unless
mandatorily disaggregated pursuant to regulations under
Code section 401(k). This subsection shall be applied by
treating all cash or deferred arrangements with Plan
Years ending within the same calendar year as a single
arrangement.
(i)If two or more plans which include cash or deferred
arrangements are considered as one plan for purposes of
Code section 401(a)(4) or Code section 410(b), the cash
or deferred arrangements shall be treated as one for the
purposes of applying the provisions of this section
unless mandatorily disaggregated pursuant to regulations
under Code section 401(k).
(j)If the entire Account balance of a Highly Compensated
Employee has been distributed during the Plan Year in
which an excess arose, the distribution shall be deemed
to have been a corrective distribution of the excess and
income attributable thereto to the extent that a
corrective distribution would otherwise have been
required under subsection (f) of this section, Sec. 5.5
or Sec. 5.6(f).
(k)A corrective distribution of excess contributions
under subsection (f) of this section, Excess Aggregate
Contributions under Sec. 5.6(f), or Excess Deferrals
under Sec. 5.5 may be made without regard to any notice
or Participant or spousal consent required under Article
VIII or X.
(l)In the event of a complete termination of the Plan
during the Plan Year in which an excess arose, any
corrective distribution under subsection (f) of this
section or Sec. 5.6(f) shall be made as soon as
administratively feasible after the termination, but in
no event later than 12 months after the date of
termination.
(m)For Plan Years beginning prior to 1992, the Plan may
be restructured into component plans pursuant to Treasury
Regulations Sec. 1.401(k)-1(h)(3)(iii) and Sec.
1.401(m)-1(g)(5)(ii) for purposes of applying the
requirements of this section and Sec. 5.6. This
subsection (m) shall not apply to Plan Years beginning in
1992 or later.
Sec. 5.5 Distribution of Excess Deferrals.
Notwithstanding any other provisions of the Plan, Excess
Deferrals for a calendar year and income or losses allocable
thereto shall be distributed no later than the following April 15
to Participants who claim such Excess Deferrals, subject to the
following:
(a)For purposes of this section, "Excess Deferrals" means
the amount of Before Tax Contributions for a calendar
year that the Participant claims pursuant to the
procedure set forth in subsection (b) because the total
amount deferred for the calendar year exceeds $7,627 for
1989 (indexed for inflation for subsequent calendar
years) or such other limit imposed on the Participant for
that year under Code section 402(g).
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PAGE 11
(b)The Participant's written claim, specifying the amount
of the Participant's Excess Deferral for any calendar
year, shall be submitted to the Company no later than the
March 1 following such calendar year. The claim shall
include the Participant's written statement that if such
amounts are not distributed, such Excess Deferrals, when
added to amounts deferred under other plans or
arrangements described in Code section 401(k), 403(b), or
408(k), exceed the limit imposed on the Participant by
Code section 402(g) for the year in which the deferral
occurred. A Participant shall be deemed to have
submitted such a claim to the extent the Participant has
Excess Deferrals for the calendar year taking into
account only contributions under this Plan and any other
plan maintained by a Participating Employer or an
Affiliate.
(c)Excess Deferrals distributed to a Participant with
respect to a calendar year shall be adjusted to include
income or losses allocable thereto using the same method
specified for Excess Before Tax Contributions under
Sec. 5.4(f)(3).
(d)The amount of Excess Deferrals and income allocable
thereto which would otherwise be distributed pursuant to
this section shall be reduced, in accordance with
applicable regulations, by the amount of Excess Before
Tax Contributions and income allocable thereto previously
distributed to the Participant pursuant to Sec. 5.4 for
the Plan Year beginning with or within such calendar
year, and by the amount of any deferrals properly
distributed as excess annual additions under Sec. 6.1.
Sec. 5.6 Adjustment of Contributions Required by Code
Section 401(m). After the provisions of Sec. 5.4 and Sec. 5.5
have been satisfied, the requirements set forth in this section
must also be met. If necessary to satisfy the requirements of
Code section 401(m), Matching Contributions shall be adjusted in
accordance with the following:
(a)Each Plan Year, the "contribution percentage" will be
calculated for each Active Participant who is not in a
collective bargaining unit required to be disaggregated
pursuant to Treasury Regulation Sec. 1.401(m)-
1(b)(3)(ii). Each Participant's contribution percentage
is calculated by dividing the amount referred to in
paragraph (1) by the amount referred to in paragraph (2).
(1) The total Matching Contributions under
Sec. 5.2 (other than amounts included under
Sec. 5.4(a)(1)), if any, allocated to the
Participant's Accounts with respect to the Plan Year.
The Company may also elect to include all or part of
the Before Tax Contributions to be allocated to the
Participant's Accounts with respect to that Plan
Year, provided that the requirements of Treasury
Regulation Sec. 1.401(m)-1(b) are satisfied and
provided that the requirements of Sec. 5.4 are met
before such contributions are used under this section
and continue to be met after the exclusion for
purposes of Sec. 5.4 of those contributions that are
used to satisfy the requirements of this section.
However, any Matching Contributions that are
forfeited because the contributions to which they
relate are Excess Before Tax Contributions under
Sec. 5.4 or Excess Deferrals under Sec. 5.5 shall be
disregarded.
(2) The Participant's Compensation with respect
to the Plan Year. For purposes of this section,
"Compensation" has the same meaning as provided in
Sec. 5.4(a)(2).
(b)Each Plan Year, the average contribution percentage of
Active Participants who are Highly Compensated Employees
and the average contribution percentage for Active
Participants who are Non-Highly Compensated Employees
will be calculated. In each case, the average is the
average of the percentages calculated under subsection
(a) for each of the employees in the particular group.
In calculating such average contribution percentages,
Participants employed in a collective bargaining unit
required to be disaggregated pursuant to Treasury
Regulation Sec. 1.401(m)-1(b)(3)(ii) shall be
disregarded. The contribution percentage for each
Participant and the average contribution percentage for a
particular group of employees shall be calculated to the
nearest one-hundredth of one percent. For Plan Years
commencing after 1996, the average contribution
percentage for Active Participants who are Non-Highly
Compensated Employees that is used in applying this
section for a particular Plan Year will be the percentage
determined for the preceding Plan Year, unless the
Company elects to use the percentage for the current Plan
Year in accordance with applicable regulations. If an
election is made under the previous sentence to use the
percentage for the current Plan Year, it may not be
changed for later Plan Years except as provided in
applicable regulations (subject to the transition rule
for the 1997 Plan Year contained in IRS Notice 97-2).
(c)If the requirements of either paragraph (1) or (2) are
satisfied, then no further action is needed under this
section:
(1) The average contribution percentage for
Participants who are Highly Compensated Employees is
not more than 1.25 times the average contribution
percentage for Participants who are Non-Highly
Compensated Employees.
(2) The excess of the average contribution
percentage for Participants who are Highly
Compensated Employees over the average contribution
percentage for Participants who are Non-Highly
Compensated Employees is not more than two percentage
points, and the average contribution percentage for
such Highly Compensated Employees is not more than 2
times the average contribution percentage for such
Non-Highly Compensated Employees.
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PAGE 12
(d)If neither of the requirements of subsection (c) is
satisfied, then the Matching Contributions with respect
to Highly Compensated Employees will be reduced,
beginning with the contributions representing the
greatest dollar amount per Participant, to the extent
necessary to make the aggregate dollar amount of such
reductions equal to the amount by which the Matching
Contributions (prior to such reduction) had exceeded the
requirements of subsection (c)(1) or (c)(2), whichever is
less. Such reduction will be made in accordance with the
methodology prescribed at the time of the reduction by
the Internal Revenue Service under Notice 97-2 or other
applicable Notices or Treasury Regulations.
(e)At any time during the Plan Year, the Company may make
an estimate of the amount of Matching Contributions on
behalf of Highly Compensated Employees that will be
permitted under this section for the year. If the
Company determines in its sole discretion that reductions
are necessary to assure that at least one of the
requirements in subsection (c) are satisfied, the Company
may take written action amending Sec. 5.2 to reduce or
eliminate Matching Contributions for Highly Compensated
Employees with respect to Certified Earnings to be paid
from the date such action is adopted to the end of the
Plan Year.
(f)If contributions with respect to a Highly Compensated
Employee are reduced pursuant to subsection (d), the
Excess Aggregate Contributions shall be treated as
follows:
(1) For purposes of this subsection, "Excess
Aggregate Contributions" mean the amount by which
Matching Contributions must be reduced under
subsection (d).
(2) Excess Matching Contributions (adjusted for
income or losses allocable thereto) shall be
distributed to Participants on whose behalf such
excess contributions were made for the Plan Year no
later than the last day of the following Plan Year.
Furthermore, the Company shall attempt to distribute
such amount by the 15th day of the third month
following the Plan Year for which the excess
contributions were made to avoid the imposition on
the Participating Employers of an excise tax under
Code section 4979.
(3) Income or losses allocable to Excess
Aggregate Contributions shall be determined in the
same manner specified for Excess Before Tax
Contributions under Sec. 5.4(f)(3).
(g)Family aggregation rules cease to apply to this Plan
effective January 1, 1997.
(h)The contribution percentage for any Participant who is
a Highly Compensated Employee for the Plan Year, and who
is eligible to make nondeductible employee contributions
or to receive matching contributions under two or more
plans described in Code section 401(a) that are
maintained by the Participating Employers or any
Affiliate, shall be determined as if all such
contributions were made under a single arrangement unless
mandatorily disaggregated pursuant to regulations under
Code section 401(m).
(i)If two or more plans maintained by the Participating
Employers or Affiliates are treated as one plan for
purposes of satisfying the eligibility requirements of
Code section 410(b), those plans must be treated as one
plan for purposes of applying the provisions of this
section unless mandatorily disaggregated pursuant to
regulations under Code section 401(m).
(j)Notwithstanding the foregoing, if neither subparagraph
(c)(1) of this section nor Sec. 5.4(c)(1) was satisfied,
the requirements set forth in Sec. 5.7 must also be
satisfied.
Sec. 5.7 Multiple Use of the Alternative Limitations.
If neither Sec. 5.4(c)(1) nor Sec. 5.6(c)(1) was satisfied, the
following additional requirements must also be satisfied:
(a)The sum of the following two amounts must not exceed
the greater of the limit determined under subsection (b)
or the limit determined under subsection (c):
(1) The average deferral percentage for Highly
Compensated Employees (determined under Sec. 5.4(b)
following any adjustments required by Sec. 5.4).
(2) The average contribution percentage for
Highly Compensated Employees (determined under
Sec. 5.6(b) following any adjustments required by
Sec. 5.6).
(b)The limit under this subsection is the sum of the
following amounts:
(1) 1.25 multiplied by the greater of:
(A) The average deferral percentage for
Non-Highly Compensated Employees (determined under
Sec. 5.4(b) following any adjustments required by
Sec. 5.4), or
(B) The average contribution percentage for
Non-Highly Compensated Employees (determined under
Sec. 5.6(b) following any adjustments required by
Sec. 5.6).
(2) Two percentage points plus the lesser of:
(A) The average deferral percentage for
Non-Highly Compensated Employees, or
(B) The average contribution percentage for
Non-Highly Compensated Employees.
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PAGE 13
Notwithstanding the foregoing, the amount under
this paragraph (2) cannot exceed the lesser of (A) or
(B) above, multiplied by two, or such other limit as
may be prescribed by Treasury Regulations.
(c)The limit under this subsection (c) is the amount that
would be determined under subsection (b) by:
(1) Substituting "lesser" for "greater" in
paragraph (1) of subsection (b), and
(2) Substituting "greater" for "lesser" each
place that word appears in paragraph (2) of
subsection (b).
(d)If the amount determined under subsection (a) exceeds
the greater of the limits determined under subsections
(b) and (c), an additional amount must be treated as
Excess Before Tax Contributions and distributed under
Sec. 5.4. In addition, any Matching Contributions
attributable to those Before Tax Contributions shall be
treated as forfeited and shall be applied as a credit
against future contributions from the Participating
Employers. Appropriate adjustments under this subsection
must be made pursuant to Treasury regulations until the
sum of the average deferral percentage and average
contribution percentage for Highly Compensated Employees
is equal to the greater of the limits determined under
subsections (b) and (c).
(e)For Plan Years commencing after 1996, this section will
be applied in accordance with the provisions of IRS
Notice 97-2 or other applicable Notices or Treasury
Regulations.
Sec. 5.8 Time of Contributions. In addition to the
requirements of Sec. 5.3, Before Tax Contributions and Matching
contributions by a Participating Employer for a Plan Year shall
be paid to the Trustee no later than the time (including
extensions thereof) prescribed by law for filing the employer's
federal income tax return for the tax year in which the Plan Year
ends. Before Tax Contributions and any other contributions taken
into account under Sec. 5.4(a)(1) shall be paid to the Trustee no
later than 12 months following the end of the Plan Year, if
earlier. In addition, Before Tax Contributions or Matching
Contributions shall be paid to the Trustee by any earlier date
that may be specified in Treasury or Department of Labor
regulations.
Sec. 5.9 Limitations on Contributions. In no event
shall the amount of a Participating Employer's contribution under
this Article for any Plan Year exceed the lesser of:
(a)The maximum amount allowable as a deduction in
computing its taxable income for that Plan Year for
federal income tax purposes.
(b)The aggregate amount of the contributions by such
Participating Employer that may be allocated to Accounts
of Participants under the provisions of Article VI.
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PAGE 14
ARTICLE VI
LIMITATION ON ALLOCATIONS
Sec. 6.1 Limitation on Allocations. Notwithstanding any
provisions of the Plan to the contrary, allocations to
Participants under the Plan shall not exceed the maximum amount
permitted under Code section 415. For purposes of the preceding
sentence, the following rules shall apply unless otherwise
provided in Code section 415:
(a)The Annual Additions with respect to a Participant for
any Plan Year shall not exceed the lesser of:
(1) $30,000 (or such greater or lesser amount
as is in effect under Code section 415(c)(1)(A) for
the Plan Year).
(2) 25% of the Compensation of such Participant
for such Plan Year.
(b)If a Participant is also a participant in one or more
other defined contribution plans maintained by a
Participating Employer or an Affiliate, and if the amount
of employer contributions and forfeitures otherwise
allocated to the Participant for a Plan Year must be
reduced to comply with the limitations under Code section
415, such allocations under this Plan and each of such
other plans shall be reduced pro rata in the sequence
specified in subsection (c), and pro rata within each
category within that sequence, to the extent necessary to
comply with said limitations, except that reductions to
the extent necessary shall be made in allocations under
profit sharing plans and stock bonus plans before any
reductions are made under money purchase plans.
(c)If for any Plan Year the limitation described in
subsection (a) would otherwise be exceeded by
contributions to this Plan with respect to any
Participant (after application of subsection (b)), the
Participant's Annual Additions shall be adjusted in the
following sequence, but only to the extent necessary to
reduce Annual Additions to the level permitted in
subsection (a):
(1) The Participant's after-tax voluntary
employee contributions for the Plan Year, if any,
shall be refunded to the Participant during the Plan
Year or as soon as reasonably possible following the
end of the Plan Year.
(2) The Participant's Before Tax Contributions
for the Plan Year, if any, shall be reduced, and that
amount shall be refunded to the Participant.
(3) If, after the adjustments in paragraphs (1)
and (2) there is an excess amount with respect to a
Participant for a Plan Year, such excess amount shall
be held unallocated in a suspense account. The
suspense account will be applied to reduce future
employer contributions for all Participants in the
current Plan Year, the next Plan Year, and in each
succeeding Plan Year, if necessary. The suspense
account will participate in the allocation of the
investment gains and losses of the Fund and the value
of such account will be considered in valuing other
Accounts under the Plan.
(4) Any amounts refunded under paragraphs (1)
or (2) shall be disregarded for purposes of applying
the limits under Sec. 5.4, Sec. 5.5 and Sec. 5.6.
(d)If the Participant is also a participant in one or
more defined benefit plans maintained by a Participating
Employer or an Affiliate, the sum of the Participant's
defined benefit plan fraction and defined contribution
plan fraction, determined according to Code section
415(e), for any Plan Year may not exceed 1.0. If the sum
of a Participant's defined benefit fraction and defined
contribution fraction would otherwise exceed 1.0 for any
Plan Year, the benefits provided under the defined
benefit plan or plans shall be reduced to the extent
necessary to reduce the sum of the fractions to 1.0.
(e)For purposes of this section, "Annual Additions" means
the sum of the following amounts allocated to a
Participant for a Plan Year under this Plan and all other
defined contribution plans maintained by a Participating
Employer or an Affiliate in which he or she participates:
(1) Employer contributions, including Before
Tax Contributions made under this Plan. Excess
Before Tax Contributions, and Excess Aggregate
Contributions which are distributed under the
provisions of Article V are included in Annual
Additions, but Excess Deferrals which are distributed
under Sec. 5.5 are not included in Annual Additions.
(2) Forfeitures, if any.
(3) Voluntary non-deductible contributions, if
any.
(4) Amounts attributable to medical benefits as
described in Code sections 415(1)(2) and 419A(d)(2).
An Annual Addition with respect to a Participant's
Accounts shall be deemed credited thereto with respect to
a Plan Year if it is allocated to the Participant's
Accounts under the terms of the Plan as of any date
within such Plan Year.
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PAGE 15
(f)For purposes of this section, "Compensation" means an
employee's earned income, wages, salaries, fees for
professional services and other amounts received (without
regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of
employment with the Participating Employers and
Affiliates to the extent that the amounts are includable
in gross income (including, but not limited to,
commissions, compensation for services on the basis of a
percentage of profits, tips, bonuses, fringe benefits,
and reimbursements or other expense allowances under a
nonaccountable plan described in Treasury Regulation Sec.
1.62-2(c)), subject to the following:
(1) Compensation excludes the Before Tax
Contributions to this Plan, any elective salary
reduction contributions to any other plan which are
not includable in the gross income of the employee
under Code sections 125, 401(k), 402(h)(1)(B) or
403(b), any other employer contributions to a plan of
deferred compensation which are not includable in the
employee's gross income for the taxable year in which
contributed, any distributions from a plan of
deferred compensation, and any other amounts which
receive special tax benefits. However, any amounts
received by an employee pursuant to an unfunded
non-qualified plan of deferred compensation may be
considered as Compensation in the year such amounts
are includable in the employee's gross income.
Notwithstanding the foregoing, for Plan Years
commencing on or after January 1, 1998, Compensation
includes the Before Tax Contributions to this Plan
and any other elective deferrals which are not
includable in the gross income of the employee under
Code sections 125, 401(k), 402(h)(1)(B), 403(b) or
457.
(2) Compensation excludes amounts realized from
the exercise of a non-qualified stock option, or when
restricted stock (or property) either becomes
transferable or is no longer subject to a substantial
risk of forfeiture.
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PAGE 16
ARTICLE II
INDIVIDUAL ACCOUNTS
Sec. 7.1 Accounts for Participants. The following
Accounts may be established under the Plan for a Participant:
(a)A Before Tax Account shall be established for each
Participant to which Before Tax Contributions shall be
credited.
(b)A Matching Account shall be established for each
Participant to which Matching Contributions shall be
credited.
(c)A Rollover Account shall be established for each
Participant who makes a Rollover Contribution, as
provided by Sec. 7.7.
(d)A Predecessor Plan Account shall be established for
each Participant with respect to whom a transfer is
received from a Predecessor Plan as provided in Article
XVI.
More than one of any of the above types of Accounts may be
established if required by the Plan or if considered advisable by
the Company in the administration of the Plan. If the Company
elects to include any Matching Contributions in the calculation
of the deferral percentage under Sec. 5.4(a)(1), separate
Matching Accounts must be established for such contributions.
Except as expressly provided herein to the contrary, the Fund
shall be held and invested on a commingled basis, Accounts shall
be for bookkeeping purposes only, and the establishment of
Accounts shall not require any segregation of Fund assets.
Sec. 7.2 Investment of Accounts. Accounts shall be
invested in shares of ADM Stock; except that, cash contributions,
cash dividends, cash repayments on a participant loan and other
cash amounts received by the Fund may be held in cash or short
term investments pending investment in shares of ADM Stock, all
or a portion of an Account may be invested in a participant loan
to the extent so provided in the participant loan program, and
Predecessor Plan Accounts shall be invested in accordance with
Article XVI.
Sec. 7.3 Adjustment of Accounts. Accounts (other than
Predecessor Plan Accounts) will be adjusted from time to time as
follows:
(a)Contributions. Contributions made with respect to a
Participant will be added to the balance of the
appropriate Account as of the date the contributions are
received by the Fund.
(b)Cash Dividends. Cash dividends paid on shares of ADM
Stock held by the Fund as of the record date of such
dividend will be allocated among the Accounts and portion
allocated to each Account will be added to balance of the
Account as of the payable date of the dividend. The
portion of the cash dividends allocated to each Account
will be determined by multiplying the total cash
dividends by a fraction, the numerator of which is the
number of shares of ADM Stock credited to the Account as
of the payable date of the dividend and the denominator
of which is the total number of shares of ADM Stock held
by the Fund as of the payable date of the dividend.
(c)Stock Dividends and Splits. Stock dividends paid on
shares of ADM Stock credited to an Account as of the
record date of such dividend, and stock splits or reverse
stock splits with respect to shares of ADM Stock credited
to an Account as of the record date of such split, will
be added to the balance of the Account as of the payable
date of such stock dividend, stock split or reverse stock
split.
(d)Loan Interest Payments. Interest payments received on a
participant loan will be added to the balance of the
appropriate Account as of the date the interest payments
are received by the Fund. Interest accrued by unpaid on
a participant loan as of the date of any distribution
from an Account against with the loan is to be offset
will be added to the balance of the Account prior to such
offset.
(e)Withdrawals and Distributions. Withdrawals and
distributions made from an Account will be subtracted
from the balance of the Account as of the date the
withdrawal or distribution is made from the Fund.
(f)Other Items of Income/Expenses. Items of income,
gain/loss or expense not provided for under the above
provisions will be allocated among the Accounts and the
portion allocated to each will be added to or subtracted
from the Account as of the date established by the
Company. The portion of any such item of income,
gain/loss or expense allocated to each Account will be
determined in accordance with rules established for this
purpose by the Company.
Predecessor Plan Accounts will be adjusted as of each Valuation
Date as provided in Article XVI.
Sec. 7.4 Certificates. The Company may cause to be
issued from time to time benefit statements advising Participants
of the status of their interests in the Fund, but shall not be
required to do so and the issuance of such benefit statements
shall not in any way alter or affect the rights of Participants
with respect to the Fund.
Sec. 7.5 Voting and Other Rights Regarding ADM Stock.
Not less than 30 days prior to any meeting of shareholders of the
Company, the Company shall cause to be sent to Participants who
have shares of ADM Stock credited to their Accounts the proxy
materials which are sent to shareholders of record of the
Company. Each such Participant shall have the right to instruct
the Trustee as to the method of voting on the propositions
submitted to shareholders, in accordance with the following:
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(a)Each such Participant shall have a number of votes
equal to the number of full and fractional shares
credited to his Accounts as of the date the notice is
given. To be effective, the Participant's instructions
must be received by the Trustee by a deadline established
in advance by the Trustee. The Trustee shall tabulate
the instructions by the deadline and shall determine the
number of votes for and against each proposal. The
Trustee shall then vote the shares allocated to
Participants' Accounts in accordance with the directions
received. In cases where instructions are received with
respect to voting of fractional shares, the Trustee shall
vote the combined fractional shares to the extent
possible to reflect the direction of Participants holding
fractional shares.
(b)If a Participant does not direct the Trustee in whole
or in part with respect to voting of ADM Stock credited
to the Participant's Accounts, such voting rights shall
be exercised only to the extent directed by the
Participant.
(c)Participants shall have no right to direct voting of
or exercise of other rights with respect to unallocated
shares of ADM Stock. Such shares shall be voted by the
Trustee.
Sec. 7.6 Tender or Exchange Offers Regarding ADM Stock.
As soon as practicable after the commencement of a tender or
exchange offer (an "Offer") for shares of ADM Stock, the Company
shall use its best efforts to cause each Participant to be
advised in writing of the terms of the Offer, and to be provided
with forms by which the Participant may instruct the Trustee, or
revoke such instruction, to tender shares of ADM Stock credited
to his Accounts, to the extent permitted under the terms of such
Offer. The Trustee shall follow the directions of each
Participant. The Trustee shall decide whether or not to tender
shares for which no instructions are received. In advising
participants of the terms of the Offer, the Company may include
statements from the Board setting forth its position with respect
to the Offer. The giving of instructions by a Participant to the
Trustee to tender shares and the tender thereof shall not be
deemed a withdrawal or suspension from the Plan or a forfeiture
of any portion of such Participant's interest in the Plan solely
by reason of the giving of such instructions and the Trustee's
compliance therewith. Any securities received by the Trustee as
a result of a tender of shares of ADM Stock shall be held, and
any cash so received shall be invested in short-term investments,
for the account of the Participant with respect to whom shares
were tendered pending any reinvestment by the Trustee, as it may
deem appropriate, consistent with the purposes of the Plan.
Sec. 7.7 Rollover Accounts. A Qualified Employee who
receives a distribution from a plan described in subsection (a)
below may transfer to the Fund an amount that constitutes a
Rollover Contribution. Notwithstanding any provisions of the
Plan to the contrary, the following shall apply with respect to a
Rollover Contribution:
(a)If (i) the Company or an Affiliate acquires the assets
of another employer and certain employees of that
employer become Qualified Employees hereunder, and (ii)
said Qualified Employees receive a total distribution
from a qualified plan described in Code section 401(a)
maintained by the previous employer because of a complete
or partial termination of said plan with respect to the
Qualified Employees, then any such Qualified Employee may
elect to make a Rollover Contribution of such
distribution if the previous employer is listed in this
subsection (a). The plan from which a Rollover
Contribution has been allowed as of January 1, 1995, is
the Dennis E. Roby & Associates, Inc. Thrift and Savings
Plan.
(b)No Rollover Contribution shall be accepted by the Fund
unless made no later than ten working days after the plan
distribution was received by the Qualified Employee.
(c)A Rollover Account shall be established for each
employee who makes a Rollover Contribution. From the
date the assets of the Rollover Contribution are
transferred to the Fund through the first Valuation Date
following such transfer, the Rollover Account shall be
valued at the fair market value of said assets on the
date of such transfer.
(d)A Rollover Account shall be treated in all respects
the same as a Before Tax Account except as provided in
(c) above, and any references in the Plan to a Before Tax
Account shall apply equally to a Rollover Account, except
that no employer or employee contributions shall ever be
added to a Rollover Account.
(e)The employee shall be treated the same as a
Participant hereunder from the time of the transfer, but
shall not actually be a Participant and shall not be
eligible to receive an allocation of employer
contributions or to make employee contributions until he
or she has satisfied the requirements of Article IV.
(f)For purposes of this section, "Rollover Contribution"
means a contribution of an amount which may be rolled
over to this Plan pursuant to Code sections 402(c),
403(a)(4), 408(d)(3), or any other provision of the Code
which may permit rollovers to this Plan from time to
time.
Sec. 7.8 Transfers to/from Salaried Plan. If a
Participant transfers into a class of employment such that he or
she becomes a participant in the ADM Savings and Investment Plan
("Salaried Plan"), his or her Accounts under this Plan shall be
transferred to the Salaried Plan to be administered and paid
thereunder. If a participant in the Salaried Plan transfers into
a class of employment such that he or she becomes a Participant
in this Plan, this Plan shall accept a transfer of his or her
Accounts from the Salaried Plan, and each such Account shall be
added to the corresponding Account under this Plan. In the case
of a transfer of a Tax Credit Account, such Account shall be
established under this Plan, and any special distribution options
available under the Salaried Plan shall be available under this
Plan with respect to such Account.
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ARTICLE VIII
DESIGNATION OF BENEFICIARY
Sec. 8.1 Persons Eligible to Designate. Any Participant
may designate a Beneficiary to receive any amount payable from
the Fund as a result of the Participant's death, provided that
the Beneficiary survives the Participant. The Beneficiary may be
one or more persons, natural or otherwise. By way of
illustration, but not by way of limitation, the Beneficiary may
be an individual, trustee, executor, or administrator. A
Participant may also change or revoke a designation previously
made, without the consent of any Beneficiary named therein.
Sec. 8.2 Special Requirements for Married Participants.
Notwithstanding the provisions of Sec. 8.1, if a Participant is
married at the time of his or her death, the Beneficiary shall be
the Participant's spouse unless the spouse has consented in
writing to the designation of a different Beneficiary, the
spouse's consent acknowledges the effect of such designation, and
the spouse's consent is witnessed by a representative of the Plan
or a notary public. Such consent shall be deemed to have been
obtained if it is established to the satisfaction of the Company
that such consent cannot be obtained because there is no spouse,
because the spouse cannot be located, or because of such other
circumstances as may be prescribed by federal regulations. Any
consent by a spouse shall be irrevocable. Any designation of a
Beneficiary which has received spousal consent may be changed
(other than by being revoked) without spousal consent only if the
consent by the spouse expressly permits subsequent designations
by the Participant without any requirement for further consent by
the spouse. Any such consent shall be valid only with respect to
the spouse who signed the consent, or in the case of a deemed
consent, the designated spouse.
Sec. 8.3 Form and Method of Designation. Any
designation or a revocation of a prior designation of Beneficiary
shall be in writing on a form acceptable to the Company and shall
be filed with the Company. The Company and all other parties
involved in making payment to a Beneficiary may rely on the
latest Beneficiary designation on file with the Company at the
time of payment or may make payment pursuant to Sec. 8.4 if an
effective designation is not on file, shall be fully protected in
doing so, and shall have no liability whatsoever to any person
making claim for such payment under a subsequently filed
designation of Beneficiary or for any other reason.
Sec. 8.4 No Effective Designation. If there is not on
file with the Company an effective designation of Beneficiary by
a deceased Participant, the Beneficiary shall be the person or
persons surviving the Participant in the first of the following
classes in which there is a survivor, share and share alike:
(a)The Participant's spouse.
(b)The Participant's children, except that if any of the
Participant's children predecease the Participant but
leave issue surviving the Participant, such issue shall
take by right of representation the share their parent
would have taken if living.
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PAGE 19
(c)The Participant's parents.
(d)The Participant's brothers and sisters.
(e)The Participant's estate.
Determination of the identity of the Beneficiary in each case
shall be made by the Company.
Sec. 8.5 Successor Beneficiary. If a Beneficiary who
survives the Participant subsequently dies before receiving all
payments to which the Beneficiary was entitled, the successor
Beneficiary, determined in accordance with the provisions of this
section, shall be entitled to the balance of any remaining
payments due. A Beneficiary who is not the surviving spouse of
the Participant may not designate a successor Beneficiary. A
Beneficiary who is the surviving spouse may designate a successor
Beneficiary only if the Participant specifically authorized such
designations on the Participant's Beneficiary designation form.
If a Beneficiary is permitted to designate a successor
Beneficiary, each such designation shall be made according to the
same rules (other than Sec. 8.2) applicable to designations by
Participants. If a Beneficiary is not permitted to designate a
successor Beneficiary, or is permitted to do so but fails to make
such a designation, the balance of any payments remaining due
will be payable to a contingent Beneficiary if the Participant's
Beneficiary designation so specifies, and otherwise to the
personal representative (executor or administrator) of the
deceased Beneficiary.
Sec. 8.6 Insurance Contract. Notwithstanding the
foregoing provisions of this Article VIII, as to benefits payable
under a contract issued by an insurance company, said contract
shall govern the designation of Beneficiary entitled to benefits
thereunder except to the extent the contract is inconsistent with
the provisions of Sec. 8.2 or Sec. 10.1.
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PAGE 20
ARTICLE IX
BENEFIT REQUIREMENTS
Sec. 9.1 Benefit on Termination of Employment. If a
Participant's Termination of Employment occurs for any reason
other than death, the Participant will be fully vested and will
be entitled to a benefit equal to the number of shares of ADM
Stock credited to his/her Accounts (including any additional
shares credited to his/her Accounts following Termination of
Employment), plus the cash balance of his/her Accounts (including
Predecessor Plan Accounts) as of the date on which such benefit
is paid. The benefit will be paid at the time and in the manner
determined under Article X.
Sec. 9.2 Death. If a Participant's Termination of
Employment occurs as a result of death (or if the Participant's
death occurs after his/her Termination of Employment but before
distribution of his/her benefit), the Participant's Beneficiary
will be entitled to a benefit equal to the number of shares of
ADM Stock credited to his/her Accounts (including any additional
shares credited to his/her Accounts following death), plus the
cash balance of his/her Accounts (including Predecessor Plan
Accounts) as of the date on which such benefit is paid. The
benefit will be paid at the time and in the manner determined
under Article X.
Sec. 9.3 Withdrawals Before Termination of Employment.
A Participant may request a cash withdrawal from his or her
Before Tax Account, Matching Account, and Rollover Account at any
time prior to the date benefits first become payable to the
Participant under Sec. 9.1 pursuant to the following:
(a)Until the Participant reaches age 59 1/2, a withdrawal
may be made from such Accounts only to meet a financial
hardship; provided, however, that no hardship withdrawals
can be made from a Matching Account.
(1) A hardship withdrawal will be permitted
only if the Company determines that both of the
following requirements are met:
(A) The distribution must be made on
account of one of the following reasons:
(i) Expenses for medical care
described in section 213(d) of the Code
incurred by the Participant, the Participant's
spouse, or any dependents of the Participant,
as defined in section 152 of the Code, or
expenses necessary for any of those persons to
obtain such medical care.
(ii) Costs directly related to
the purchase of the principal residence of the
Participant (excluding mortgage payments).
(iii) Payment of tuition, related
educational fees and room and board expenses
for the next semester or quarter of post-
secondary education for the Participant or the
spouse, child or dependent of the Participant.
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PAGE 21
(iv) The need to prevent the
eviction of the Participant from his or her
principal residence or foreclosure on the
mortgage of the Participant's principal
residence.
(v) Any other immediate and
heavy financial need which the Company
determines satisfies the requirements of
Treasury Regulation Sec. 1.401(k)-1(d)(2),
and which the Company describes in objective
and nondiscriminatory terms set forth in a
writing that is deemed to form a part of this
Plan.
(B) All of the following requirements must
be satisfied:
(i) The amount of the
distribution cannot exceed the amount of the
immediate and heavy financial need of the
Participant. The Company may reasonably rely
on the Participant's representation as to that
amount. However, the amount of the
distribution may include any amounts
determined by the Company to be necessary to
pay any federal, state or local income taxes
or penalties reasonably expected to result
from the distribution.
(ii) The Participant must have
obtained all distributions, other than
hardship distributions, and all nontaxable
loans currently available under all plans
maintained by the Participating Employers or
any Affiliate.
(iii) The Participant's elective
contributions and employee contributions under
the Plan and all other qualified and
nonqualified plans of deferred compensation
maintained by the Participating Employers or
any Affiliate will be suspended pursuant to
the terms of the plan or an otherwise legally
enforceable agreement for at least 12 months
after the receipt of the hardship
distribution.
(iv) For the calendar year
immediately following the calendar year of the
hardship distribution, the Participant may not
make contributions under all plans maintained
by the Participating Employers or any
Affiliate in excess of the applicable limit
under section 402(g) of the Code for such next
calendar year less the amount of the
Participant's elective contributions for the
calendar year of the hardship distribution.
(v) Notwithstanding the
foregoing provisions of this subparagraph (B),
this subparagraph (B) will be satisfied if the
IRS issues a revenue ruling, notice, or other
document of general applicability which
establishes an alternative method under which
distributions will be deemed to be necessary
to satisfy an immediate and heavy financial
need and all of the requirements of such
alternative method are met.
(2) With respect to any such hardship
withdrawal from a Participant's Before Tax Account,
earnings credited to the Before Tax Account after
December 31, 1988 cannot be withdrawn under this
subsection (a).
(b)After the Participant reaches age 59 1/2, a withdrawal
may be made from any of the Accounts (including a
Matching Account) for any reason.
(c)No withdrawal may be made in an amount having a value
less than the lesser of (i) $1,000 or (ii) the total
amount available for such withdrawals, if less than
$1,000.
(d)Requests for withdrawals under this section shall be
made pursuant to applicable rules and regulations adopted
by the Company which are uniform and non-discriminatory
as to all Participants and shall be submitted in writing
to the Company on such form as the Company prescribes for
this purpose. The Company shall determine whether the
requirements of this section have been met.
(e)Withdrawals shall be permitted from a Predecessor Plan
Account as provided in Article XVI.
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ARTICLE X
DISTRIBUTION OF BENEFITS
Sec. 10.1 Time and Method of Payment. The benefit to which
a Participant or Beneficiary becomes entitled under Article IX
shall be paid as follows:
(a) Time of Payment.
(1) Normal Payment Date. Payments shall be
made or commence as soon as administratively
practicable after the Participant (or his/her
Beneficiary in the event of death) files a request
for distribution with the Company, but not before
the end of the calendar quarter in which the
Participant's Termination of Employment occurs.
(2) Latest Payment Date. Payments shall be
made or commence to a Participant not later than
the 60th day after the close of the Plan Year in
which he/she reaches Normal Retirement Age or in
which his/her Termination of Employment occurs,
whichever is later, unless the Participant elects
to defer payment (and for this purpose, the
failure to request payment shall be deemed to be
an election to defer payment).
(b) Method of Payment.
(1) Payments to Participant. Payment to a
Participant shall be in the following form:
(A) Retirements. If the
Participant's Termination of Employment is a
Normal Retirement or an Early Retirement under
the ADM Retirement Plan (or if the Participant
is receiving disability payments under the ADM
Long-Term Disability Plan), payment shall be
made in either of the following forms at the
election of the Participant:
(i) A single-sum
distribution of the full benefit payable
to the Participant, or
(ii) Partial
distributions each of which consists of
not less than 100 shares of ADM stock (or
the cash equivalent thereof) or such other
minimum amount as may be necessary to
comply with the minimum distribution rules
described in subsection (c) below.
(B) Vested Terminations. If the
Participant's Termination of Employment is
neither a Normal Retirement nor an Early
Retirement under the ADM Retirement Plan (and
the Participant is not receiving disability
payments under the ADM Long-Term Disability
Plan), payment to the Participant shall be in
the form of a single-sum distribution of the
full benefit payable to the Participant
(partial distributions are not permitted).
Such payment shall be made not later than the
April 1 of the calendar year following the
calendar year in which the Participant attains
age 70 1/2.
(2) Payments to Beneficiary. Payment to a
Beneficiary shall be in either of the following
forms at the election of the Beneficiary:
(A) A single-sum distribution of
the full benefit payable to the Beneficiary,
or
(B) Partial distributions each
of which consists of not less than 100 shares
of ADM stock (or the cash equivalent thereof)
or such other minimum amount as may be
necessary to comply with the minimum
distribution rules described in subsection (c)
below.
In any event, payment of the full
benefit payable to a Beneficiary shall be made not
later than the December 31 of the calendar year
containing the fifth anniversary of the
Participant's death.
(c) Minimum Distribution Rules.
Notwithstanding any contrary provision of the Plan,
payments shall be made as necessary to comply with
the minimum distribution rules of Code section
401(a)(9) (including the incidental death benefit
rules of Code section 401(a)(9)(G)) and the
regulations thereunder. The following rules shall
apply:
(1) The full benefit payable to a
Participant will be distributed (or minimum
distributions will commence) by the required
beginning date of the Participant. The "required
beginning date" of a Participant is April 1 of the
calendar year following the later of (i) the
calendar year in which he/she attains age 70 1/2, or
(ii) the calendar year of his/her Termination of
Employment. However, clause (ii) of the previous
sentence does not apply to any Participant who is
a more than 5 - percent owner (as defined in Code
section 416) of the Company or any Affiliate with
respect to the calendar year in which he/she
attains age 70 1/2.
(2) Minimum distributions during the life
of the Participant shall be paid no less rapidly
than by reference to a period-certain equal to the
joint life and last survivor expectancy of the
Participant and his/her Beneficiary. However, if
the Beneficiary is not the Participant's spouse,
minimum distributions during the life of the
Participant shall be paid no less rapidly than by
reference to the maximum period permitted under
the incidental death benefit rules of Code section
401(a)(9)(G).
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PAGE 23
(3) If a Participant dies on or after
his/her required beginning date, minimum
distributions after the death of the Participant
shall be made to his/her Beneficiary at least as
rapidly as under the minimum distribution method
being used prior to death. In addition, the
Participant's entire remaining benefit shall be
distributed to his/her Beneficiary not later than
December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
(4) If a Participant dies before his/her
required beginning date, his/her entire remaining
benefit shall be distributed to his/her
Beneficiary not later than December 31 of the
calendar year containing the fifth anniversary of
the Participant's death.
(5) The minimum distribution for each
calendar year for which a minimum distribution is
required shall be equal to the quotient obtained
by dividing the entire balance of the
Participant's Accounts as of the most recent
Valuation Date preceding the calendar year (as
adjusted as may be required by Treasury
regulations) by the lesser of (i) the number of
years of life expectancy that remain, or (ii) in
the case of distributions to a Participant with a
Beneficiary other than his or her spouse, the
applicable divisor prescribed in regulations under
the incidental death benefit rules of Code section
401(a)(9)(G). For purposes of determining the
amount which must be distributed in any year,
Excess Salary Reduction Contributions, Excess
Aggregate Contributions and Excess Deferrals
distributed in accordance with Article V
(including income on such amounts) shall be
disregarded.
(7) For purposes of calculating minimum
distributions, life expectancies shall be
determined by using the expected return multiples
in Tables V and VI of Treas. Reg. Sec. 1.72-9, in
accordance with regulations under Code section
401(a)(9). Life expectancies shall be calculated
based on the Participant's (and the Beneficiary's)
age as of the birthday in the calendar year in
which the Participant attains 70 1/2. For purposes
of calculating the minimum distribution for each
succeeding calendar year, the initial life
expectancy (or joint life and last survivor
expectancy) shall be reduced by one for each
subsequent calendar year.
(d) Cash-Out of Small Benefits.
Notwithstanding the above, if the aggregate value of
a Participant's Accounts is $3,500 or less as of the
last day of the calendar quarter in which his/her
Termination of Employment or death occurs, a single-
sum distribution shall be made to the Participant (or
his/her Beneficiary in the event of death) as soon as
administratively practicable thereafter. The
preceding sentence shall not apply, however, if the
aggregate value of the Participant's Accounts
exceeded $3,500 immediately prior to any previous
distribution to the Participant.
(e) Multiple Beneficiaries. If more than one
Beneficiary is entitled to benefits following the
Participant's death, the interest of each shall be
segregated into a separate Account for purposes of
applying this Section (other than subsection (d)).
Sec. 10.2 Form of Distribution. Distributions shall be
made in accordance with the following:
(a) Distributions under Sec. 9.1, 9.2, 9.3,
10.11 or 16.6 shall be made in the following form at
the election of the recipient:
(1) Fully in cash.
(2) Fully in whole shares of ADM Stock with
any fractional share in cash.
(3) Partly in cash and partly in whole
shares of ADM Stock.
Any distribution that is required even in the
absence of an affirmative election by the recipient
shall be made fully in whole shares of ADM Stock with
any fractional share in cash if the recipient does
not timely file an affirmative election to the
contrary.
(b) Distributions under Sec. 5.4, 5.5, 5.6, 5.7
or 6.1 shall be in cash.
(c) Distributions to a Participant, to the
surviving spouse of a deceased Participant, or to an
alternate payee under a qualified domestic relations
order (as defined in Code section 414(p)) who is the
spouse or former spouse of a Participant may be in
the form of a direct rollover for the benefit of the
recipient to an individual retirement account or
annuity described in Code section 408 or, except in
the case of a recipient who is the surviving spouse
of a deceased Participant, to another qualified plan
described in Code section 401(a). However, no such
direct rollover shall be allowed if the distribution
is part of a series of installments payable over a
period of ten years or more, or if the distribution
is required under Code section 401(a)(9). The
recipient shall provide the Trustee with the
information necessary to accomplish the direct
rollover in such form as the Company or the Trustee
may require. Direct rollovers made in accordance
with such instructions shall constitute full
settlement of the Plan's liability with respect to
the amount rolled over, and the Plan, the Trustee,
and the Company shall have no further liability with
respect to such amounts. Transfers under this
subsection shall be made in accordance with Code
section 401(a)(31) and the regulations thereunder.
Any distribution in cash (other than a distribution of
cash in lieu of a fractional share) shall be reduced to
reflect any broker fees incurred on the sale of ADM
Stock.
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PAGE 24
Sec. 10.3 Accounting Following Termination of Employment.
If distribution of all or any part of an Account is deferred or
delayed for any reason, the Account shall continue to be revalued
in accordance with the terms of the Plan. Distribution of such
Account shall be made as soon as administratively practicable
following the end of the calendar quarter in which the
Participant (or his/her Beneficiary in the event of death) files
the distribution request with the Company.
Sec. 10.4 Reemployment. Except where distributions are
required under Sec. 10.1(h), entitlement to a distribution from
the Fund pursuant to Sec. 9.1 shall cease upon reemployment of a
Participant in a regular position by a Participating Employer,
and shall recommence in accordance with the provisions of this
Article upon the Participant's subsequent Termination of
Employment.
Sec. 10.5 Source of Benefits. All benefits to which
persons become entitled hereunder shall be provided only out of
the Fund and only to the extent that the Fund is adequate
therefor. No benefits are provided under the Plan except those
expressly described herein. Each Participant and Beneficiary
assumes all risk connected with any decrease in the market value
of any assets held under the Plan. The Participating Employers
do not in any way guarantee the Fund against any loss or
depreciation, or the payment of any amount, that may be or become
due to any person from the Fund.
Sec. 10.6 Incompetent Payee. If in the opinion of the
Company a person entitled to payments hereunder is disabled from
caring for his or her affairs because of mental or physical
condition, or age, payment due such person may be made to such
person's guardian, conservator, or other legal personal
representative upon furnishing the Company with evidence
satisfactory to the Company of such status. Prior to the
furnishing of such evidence, the Company may cause payments due
the person under disability to be made, for such person's use and
benefit, to any person or institution then in the opinion of the
Company caring for or maintaining the person under disability.
The Company shall have no liability with respect to payments so
made. The Company shall have no duty to make inquiry as to the
competence of any person entitled to receive payments hereunder.
Sec. 10.7 Benefits May Not Be Assigned or Alienated.
Except as otherwise expressly permitted by the Plan or required
by law, the interests of persons entitled to benefits under the
Plan may not in any manner whatsoever be assigned or alienated,
whether voluntarily or involuntarily, or directly or indirectly.
However, the Plan shall comply with the provisions of any court
order which the Company determines is a qualified domestic
relations order as defined in Code section 414(p).
Notwithstanding any provisions in the Plan to the contrary, an
individual who is entitled to payments from the Plan as an
"alternate payee" pursuant to a qualified domestic relations
order may receive a lump sum payment from the Plan as soon as
administratively feasible after the Company determines that the
order is a qualified domestic relations order, unless the order
specifically provides for payment to be made at a later time;
provided, however, that if the order assigns an interest in a
Predecessor Plan Account invested in an Investment Fund pursuant
to Article XVI, payment may be delayed until after the Valuation
Date coincident with or next following the date of the Company's
determination with respect to the order.
Sec. 10.8 Payment of Taxes. The Trustee may pay any
estate, inheritance, income, or other tax, charge, or assessment
attributable to any benefit payable hereunder which in the
Trustee's opinion it shall be or may be required to pay out of
such benefit. The Trustee may require, before making any
payment, such release or other document from any taxing authority
and such indemnity from the intended payee as the Trustee shall
deem necessary for its protection.
Sec. 10.9 Conditions Precedent. No person shall be
entitled to a benefit hereunder until his or her right thereto
has been finally determined by the Company nor until the person
has submitted to the Company relevant data reasonably requested
by the Company, including, but not limited to, proof of birth or
death.
Sec. 10.10 Company Directions to Trustee. The Company
shall issue such written directions to the Trustee as are
necessary to accomplish distributions to the Participants and
Beneficiaries in accordance with the provisions of the Plan.
Sec. 10.11 Special Distribution Events. Notwithstanding
anything herein to the contrary, if the agreement between the
buyer and the seller in one of the following types of transaction
provides that distributions are to be made to affected
Participants, each such Participant shall receive a distribution
of his or her Account balance as soon as administratively
feasible after either of the following events:
(a)The disposition by a Participating Employer to an
unrelated corporation of substantially all of the assets
(within the meaning of Code section 409(d)(2)) used in a
trade or business of such Participating Employer if such
Participating Employer continues to maintain this Plan
after the disposition, but only with respect to employees
who continue employment with the corporation acquiring
such assets.
(b)The disposition by a Participating Employer or by an
Affiliate to an unrelated entity of such corporation's
interest in a subsidiary (within the meaning of Code
section 409(d)(3)) which was a Participating Employer if
such corporation continues to maintain this Plan, but
only with respect to employees who continue employment
with such subsidiary.
All distributions under this section are subject to any
applicable consent requirements under Sec. 10.1. Distributions
under this section shall be made in a single distribution of
whole shares of ADM Stock, with the remaining balance of
fractional shares, if any, paid in cash.
Sec. 10.12 Delay of Distribution in Event of Stock
Dividend or Split. No withdrawal, distribution or participant
loan will be processed between the ex-date and the record date of
any stock dividend. In the case of a stock split or reverse
stock split, or in the case of any stock dividend where the ex-
date is after the record date, no withdrawal, distribution or
participant loan will be processed between the date three
business days prior to the record date and the ex-date of such
stock split, reverse stock split or stock dividend.
Sec. 10.13 Participant Loan Program. The Company may
establish a participant loan program in accordance with ERISA
section 408(b)(1), the terms and conditions of which shall be
determined by the Company and set forth in written rules and
regulations. The rules and regulations shall apply on a uniform
basis to all Participants, and shall not allow for deemed
distributions upon default of a loan prior to the date
distributions are permitted under Sec. 9.1, 9.2, 9.3, or 10.11.
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ARTICLE XI
FUND
Sec. 11.1 Composition. All sums of money and all
securities and other property received by the Trustee for
purposes of the Plan, together with all investments made
therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining
shall constitute the "Fund". The Company may cause the Fund to
be divided into any number of parts for investment purposes or
any other purposes necessary or advisable for the proper
administration of the Plan.
Sec. 11.2 Funding Agency. The Fund may be held and
invested as one fund or may be divided into any number of parts
for investment purposes. Each part of the Fund, or the entire
Fund if it is not divided into parts for investment purposes,
shall be held and invested by one or more Trustees or by an
insurance company. The portion of the Fund invested in ADM Stock
shall be held under a trust agreement between the Company and
National City Bank of Minneapolis, as Trustee, or any successor
Trustee duly appointed by the Board. The trustee or trustees or
the insurance company so acting with respect to any part of the
Fund is referred to herein as the Funding Agency with respect to
such part of the Fund. (References herein to the Trustee shall
also apply to any insurance company acting as a Funding Agency
with respect to such part of the Fund as is held by the insurance
company.) The selection and appointment of each Funding Agency
shall be made by the Company. The Company shall have the right
at any time to remove a Funding Agency and appoint a successor
thereto, subject only to the terms of any applicable trust
agreement or group annuity contract. The Company shall have the
right to determine the form and substance of each trust agreement
and group annuity contract under which any part of the Fund is
held, subject only to the requirement that they are not
inconsistent with the provisions of the Plan. Any such trust
agreement may contain provisions pursuant to which the Trustee
will make investments on direction of a third party.
Sec. 11.3 Compensation and Expenses of Trustee. The
Trustee shall be entitled to receive such reasonable compensation
for its services as may be agreed upon with the Company. The
Trustee shall also be entitled to reimbursement for all
reasonable and necessary costs, expenses, and disbursements
incurred by it in the performance of its services. Such
compensation and reimbursements shall be paid from the Fund if
not paid directly by the Participating Employers in such
proportions as the Company shall determine.
Sec. 11.4 Funding Policy. The Company shall adopt a
procedure, and revise it from time to time as it shall consider
advisable, for establishing and carrying out a funding policy and
method consistent with the objectives of the Plan and the
requirements of ERISA. It shall advise each Trustee of the
funding policy in effect from time to time.
Sec. 11.5 Share Registration. Shares of ADM Stock
purchased for the Fund from the Company shall be registered on
the applicable SEC registration form. The number of shares so
registered shall be appropriately adjusted to reflect any stock
dividends, stock splits, or other similar changes.
Sec. 11.6 No Diversion. The Fund shall be for the
exclusive purpose of providing benefits to Participants under the
Plan and their beneficiaries and defraying reasonable expenses of
administering the Plan. Such expenses may include premiums for
the bonding of Plan officials required by ERISA. No part of the
corpus or income of the Fund may be used for, or diverted to,
purposes other than for the exclusive benefit of employees of the
Participating Employers or their beneficiaries. Notwithstanding
the foregoing:
(a)If any contribution or portion thereof is made by a
Participating Employer by a mistake of fact, the Trustee
shall, upon written request of the Company, return such
contribution or portion thereof to the Participating
Employer within one year after the payment of the
contribution to the Trustee; however, earnings
attributable to such contribution or portion thereof
shall not be returned to the Participating Employer but
shall remain in the Fund, and the amount returned to the
Participating Employer shall be reduced by any losses
attributable to such contribution or portion thereof.
(b)Contributions by a Participating Employer are
conditioned upon initial qualification of the Plan as to
such Participating Employer under Code section 401(a).
If the Plan receives an adverse determination letter from
the Internal Revenue Service with respect to such initial
qualification, the Trustee shall, upon written request of
the Company, return the amount of such contribution to
the Participating Employer within one year after the date
of denial of qualification of the Plan. For this
purpose, the amount to be so returned shall be the
contributions actually made, adjusted for the investment
experience of, and any expenses chargeable against, the
portion of the Fund attributable to the contributions
actually made.
(c)Contributions by the Participating Employers are
conditioned upon the deductibility of each contribution
under Code section 404. To the extent the deduction is
disallowed, the Trustee shall return such contribution to
the Participating Employer within one year after the
disallowance of the deduction; however, earnings
attributable to such contribution (or disallowed portion
thereof) shall not be returned to the Participating
Employer but shall remain in the Fund, and the amount
returned to the Participating Employer shall be reduced
by any losses attributable to such contribution (or
disallowed portion thereof).
In the case of any such return of contribution the Company shall
cause such adjustments to be made to the Accounts of Participants
as it considers fair and equitable under the circumstances
resulting in the return of such contribution.
Sec. 11.7 Conversion of ADM Stock to Cash. If it is
necessary to convert shares of ADM Stock held in the Fund to cash
to provide for a distribution or participant loan, or for any
other reason required under the Plan, conversion may be made by
exchanging such shares for cash (if any) then held in the Fund
and credited to Accounts (other than Predecessor Plan Accounts),
or by selling such shares on the open market or to the Company.
If shares are exchanged for cash then held in the Fund or sold to
the Company, the exchange or sale shall be made at the closing
price of a share of ADM Stock on the New York Stock Exchange for
the business day immediately preceding the transaction (as
reported in The Wall Street Journal published for the next
following business day).
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ARTICLE XII
ADMINISTRATION OF PLAN
Sec. 12.1 Administration by Company. The Company is the
"administrator" of the Plan for purposes of ERISA with authority
to control and manage the operation and administration of the
Plan and make all decisions and determinations incident thereto.
Action on behalf of the Company may be taken by any of the
following:
(a)The Board of Directors of the Company (or the
committee thereof).
(b)The Chief Executive Officer of the Company.
(c)The Benefit Plans Committee.
(d)Any entity, person or committee to whom
responsibility for operation and administration is
allocated by action of one of the above.
Sec. 12.2 Certain Fiduciary Provisions. For purposes of
the Plan:
(a)Any person or group of persons may serve in more than
one fiduciary capacity with respect to the Plan.
(b)A Named Fiduciary, or a fiduciary designated by a
Named Fiduciary pursuant to the provisions of the Plan,
may employ one or more persons to render advice with
regard to any responsibility such fiduciary has under the
Plan.
(c)To the extent permitted by any applicable trust
agreement or group annuity contract a Named Fiduciary
with respect to control or management of the assets of
the Plan may appoint an investment manager or managers,
as defined in ERISA, to manage (including the power to
acquire and dispose of) any assets of the Plan.
(d)At any time the Plan has more than one Named
Fiduciary, if pursuant to the Plan provisions fiduciary
responsibilities are not already allocated among such
Named Fiduciaries, the Company, by action of the Board or
its chief executive officer, may provide for such
allocation; except that such allocation shall not include
any responsibility, if any, in a trust agreement to
manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment
manager as defined in ERISA.
(e)Unless expressly prohibited in the appointment of a
Named Fiduciary which is not the Company acting as
provided in Sec. 12.1, such Named Fiduciary by written
instrument may designate a person or persons other than
such Named Fiduciary to carry out any or all of the
fiduciary responsibilities under the Plan of such Named
Fiduciary; except that such designation shall not include
any responsibility, if any, in a trust agreement to
manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment
manager as defined in ERISA.
(f)A person who is a fiduciary with respect to the Plan,
including a Named Fiduciary, shall be recognized and
treated as a fiduciary only with respect to the
particular fiduciary functions as to which such person
has responsibility.
Each Named Fiduciary (other than the Company), each other
fiduciary, each person employed pursuant to (b) above, and each
investment manager shall be entitled to receive reasonable
compensation for services rendered, or for the reimbursement of
expenses properly and actually incurred in the performance of
their duties with the Plan and to payment therefor from the Fund
if not paid directly by the Participating Employers in such
proportions as the Company shall determine. Notwithstanding the
foregoing, no person so serving who already receives full-time
pay from any employer or association of employers whose employees
are Participants, or from an employee organization whose members
are Participants, shall receive compensation from the Plan,
except for reimbursement of expenses properly and actually
incurred.
Sec. 12.3 Discrimination Prohibited. No person or
persons in exercising discretion in the operation and
administration of the Plan shall discriminate in favor of Highly
Compensated Employees.
Sec. 12.4 Evidence. Evidence required of anyone under
this Plan may be by certificate, affidavit, document, or other
instrument which the person acting in reliance thereon considers
to be pertinent and reliable and to be signed, made, or presented
to the proper party.
Sec. 12.5 Correction of Errors. It is recognized that in
the operation and administration of the Plan certain mathematical
and accounting errors may be made or mistakes may arise by reason
of factual errors in information supplied to the Company or
Trustee. The Company shall have power to cause such equitable
adjustments to be made to correct for such errors as the Company
in its discretion considers appropriate. Such adjustments shall
be final and binding on all persons. Any return of a
contribution due to a mistake in fact will be subject to
Sec. 11.6.
Sec. 12.6 Records. Each Participating Employer, each
fiduciary with respect to the Plan, and each other person
performing any functions in the operation or administration of
the Plan or the management or control of the assets of the Plan
shall keep such records as may be necessary or appropriate in the
discharge of their respective functions hereunder, including
records required by ERISA or any other applicable law. Records
shall be retained as long as necessary for the proper
administration of the Plan and at least for any period required
by ERISA or other applicable law.
Sec. 12.7 General Fiduciary Standard. Each fiduciary
shall discharge its duties with respect to the Plan solely in the
interests of Participants and their beneficiaries and with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person 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.
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PAGE 27
Sec. 12.8 Prohibited Transactions. A fiduciary with
respect to the Plan shall not cause the Plan to engage in any
prohibited transaction within the meaning of ERISA.
Sec. 12.9 Claims Procedure. The Company shall establish
a claims procedure consistent with the requirements of ERISA.
Such claims procedure shall provide adequate notice in writing to
any Participant or beneficiary whose claim for benefits under the
Plan has been denied, setting forth the specific reasons for such
denial, written in a manner calculated to be understood by the
claimant and shall afford a reasonable opportunity to a claimant
whose claim for benefits has been denied for a full and fair
review by the appropriate Named Fiduciary of the decision denying
the claim.
Sec. 12.10 Bonding. Plan personnel shall be bonded to the
extent required by ERISA. Premiums for such bonding may, in the
sole discretion of the Company, be paid in whole or in part from
the Fund. Such premiums may also be paid in whole or in part by
the Participating Employers in such proportions as the Company
shall determine. The Company may provide by agreement with any
person that the premium for required bonding shall be paid by
such person.
Sec. 12.11 Waiver of Notice. Any notice required
hereunder may be waived by the person entitled thereto.
Sec. 12.12 Agent For Legal Process. The Company shall be
the agent for service of legal process with respect to any matter
concerning the Plan, unless and until the Company designates some
other person as such agent.
Sec. 12.13 Indemnification. In addition to any other
applicable provisions for indemnification, the Participating
Employers jointly and severally agree to indemnify and hold
harmless, to the extent permitted by law, each director, officer,
and employee of the Participating Employers against any and all
liabilities, losses, costs, or expenses (including legal fees) of
whatsoever kind and nature which may be imposed on, incurred by,
or asserted against such person at any time by reason of such
person's services as a fiduciary in connection with the Plan, but
only if such person did not act dishonestly, or in bad faith, or
in willful violation of the law or regulations under which such
liability, loss, cost, or expense arises.
Sec. 12.14 Exercise of Authority. The Company (including
any body or person acting on behalf of the Company), the Trustee,
the recordkeeper and any other person who has authority with
respect to the management or administration of the Plan may
exercise that authority in its or in his/her full discretion,
subject only to the duties imposed under ERISA. This
discretionary authority includes, but is not limited to, the
authority to make any and all factual determinations and
interpret any and all terms and provisions of the Plan that it or
he/she considers to be relevant to the issue under consideration.
The exercise of authority will be binding upon all persons; will
be given deference in all courts of law to the greatest extent
allowed under law; and will not be overturned or set aside by any
court of law unless found to be arbitrary and capricious or made
in bad faith.
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ARTICLE XIII
AMENDMENT, TERMINATION, MERGER
Sec. 13.1 Amendment. The Company may amend the Plan at
any time and from time to time by action of the Board or by
written action of a person to whom, or committee to which,
amendment authority has been delegated by the Board. No action
by a person or committee with amendment authority shall
constitute an amendment to the Plan unless the action is in
writing and the writing specifically states that it is an
amendment to the Plan. No amendment shall have the effect of
changing the rights, duties and liabilities of any Funding Agency
without its written consent. Also, no amendment shall cause a
decrease in any accrued benefit or the elimination of any
optional form of benefit except to the extent permitted under
Code section 411(d)(6).
Sec. 13.2 Permanent Discontinuance of Contributions.
The Company may completely discontinue contributions in support
of the Plan by all Participating Employers. In such event,
notwithstanding any provisions of the Plan to the contrary, (i)
no employee shall become a Participant after such discontinuance,
and (ii) the Accounts of each Participant in the employ of the
Participating Employers at the time of such discontinuance shall
be nonforfeitable. Subject to the foregoing, all of the
provisions of the Plan shall continue in effect, and upon
entitlement thereto distributions shall be made in accordance
with the provisions of Article X.
Sec. 13.3 Termination. The Company may terminate the
Plan as applicable to all Participating Employers and their
employees. After such termination no employee shall become a
Participant, and no further contributions shall be made. The
Accounts of each Participant in the employ of the Participating
Employers at the time of such termination shall be
nonforfeitable, the Participant shall be entitled to a benefit
equal to the value of those Accounts determined as of the
Valuation Date coincident with or next following the termination
of the Plan, distributions shall be made to Participants and
Beneficiaries promptly after the termination of the Plan, but not
before the earliest date permitted under the Code and applicable
regulations, and the Plan and any related trust agreement or
group annuity contract shall continue in force for the purpose of
making such distributions.
Sec. 13.4 Partial Termination. If there is a partial
termination of the Plan, either by operation of law, by amendment
of the Plan, or for any other reason, which partial termination
shall be confirmed by the Company, the Accounts of each
Participant with respect to whom the partial termination applies
shall be nonforfeitable. Subject to the foregoing, all of the
provisions of the Plan shall continue in effect as to each such
Participant, and upon entitlement thereto distributions shall be
made in accordance with the provisions of Article X.
Sec. 13.5 Merger, Consolidation, or Transfer of Plan
Assets. In the case of any merger or consolidation of the Plan
with any other plan, or in the case of the transfer of assets or
liabilities of the Plan to any other plan, provision shall be
made so that each Participant and Beneficiary would (if such
other plan then terminated) receive a benefit immediately after
the merger, consolidation, or transfer which is equal to or
greater than the benefit he or she would have been entitled to
receive immediately before the merger, consolidation, or transfer
(if the Plan had then terminated). No such merger,
consolidation, or transfer shall be effected until such
statements with respect thereto, if any, required by ERISA to be
filed in advance thereof have been filed.
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PAGE 29
Sec. 13.6 Deferral of Distributions. Notwithstanding any
provisions of the Plan to the contrary, in the case of a complete
discontinuance of contributions to the Plan or of a complete or
partial termination of the Plan, the Company or the Trustee may
defer any distribution of benefit payments to Participants and
Beneficiaries with respect to which such discontinuance or
termination applies (except for distributions which are required
to be made under Sec. 10.1(h)) until after the following have
occurred:
(a)Receipt of a final determination from the Treasury
Department or any court of competent jurisdiction
regarding the effect of such discontinuance or
termination on the qualified status of the Plan under
Code section 401(a).
(b)Appropriate adjustment of Accounts to reflect taxes,
costs, and expenses, if any, incident to such
discontinuance or termination.
Sec. 13.7 Reorganizations of Participating Employers.
In the event two or more Participating Employers are consolidated
or merged or in the event one or more Participating Employers
acquires the assets of another Participating Employer, the Plan
shall be deemed to have continued, without termination and
without a complete discontinuance of contributions, as to all the
Participating Employers involved in such reorganization and their
employees. In such event, in administering the Plan the
corporation resulting from the consolidation, the surviving
corporation in the merger, or the employer acquiring the assets
shall be considered as a continuation of all of the Participating
Employers involved in the reorganization.
Sec. 13.8 Discontinuance of Joint Participation of a
Participating Employer. The Company may discontinue the joint
participation in the Plan by another Participating Employer. A
Participating Employer which is not under Common Control with the
Company may discontinue its joint participation in the Plan with
the other Participating Employers by action of its board of
directors and on appropriate written notice to the Company and
each Trustee then acting.
(a)If the Company determines in its sole discretion to
spin off the portion of the Plan attributable to the
withdrawing employer, the Company shall cause a
determination to be made of the equitable part of the
Fund assets held on account of Participants of the
withdrawing employer and their Beneficiaries. The
Company shall direct the Trustee or Funding Agencies to
transfer assets representing such equitable part to a
separate fund for the plan of the withdrawing employer.
Such withdrawing employer may thereafter exercise, with
respect to such separate fund, all the rights and powers
reserved to the Company with respect to the Fund. The
plan of the withdrawing employer shall, until amended by
the withdrawing employer, continue with the same terms as
the Plan herein, except that with respect to the separate
plan of the withdrawing employer the words "Participating
Employer", "Participating Employers", and "Company" shall
thereafter be considered to refer only to the withdrawing
employer. Any such spinoff shall be effected in such
manner that each Participant or Beneficiary would (if the
Plan and the plan of the withdrawing employer then
immediately terminated) receive a benefit which is equal
to or greater than the benefit the individual would have
been entitled to receive immediately before such spinoff
if the Plan had then terminated. No transfer of assets
pursuant to this section shall be effected until such
statements with respect thereto, if any, required by
ERISA to be filed in advance thereof have been filed.
(b)If subsection (a) does not apply, the Accounts of
Participants of the withdrawing employer and their
Beneficiaries shall continue to be held in the Plan for
distribution in accordance with the provisions hereof.
Sec. 13.9 Participating Employers Not Under Common
Control. If a Participating Employer is not under Common Control
with the Company, the provisions of the Plan (other than this
Article XIII) shall be applied as though a separate plan is being
maintained for that Participating Employer to the extent required
by Code section 413(c).
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ARTICLE XIV
TOP-HEAVY PLAN PROVISIONS
Sec. 14.1 Key Employee Defined. "Key Employee" means
any employee or former employee of the employer who at any time
during the determination period was an officer of the employer or
is deemed to have had an ownership interest in the employer and
who is within the definition of key employee in Code section
416(i). "Non-Key Employee" means any employee who is not a Key
Employee.
Sec. 14.2 Determination of Top-Heavy Status. The
top-heavy status of the Plan shall be determined according to
Code section 416 and the regulations thereunder, using the
following standards and definitions:
(a)The Plan is a Top-Heavy Plan for a Plan Year if either
of the following applies:
(1) If this Plan is not part of a required
aggregation group and the top-heavy ratio for this
Plan exceeds 60 percent.
(2) If this Plan is part of a required
aggregation group of plans and the top-heavy ratio
for the group of plans exceeds 60 percent.
Notwithstanding paragraphs (1) and (2) above, the Plan
is not a Top-Heavy Plan with respect to a Plan Year if it
is part of a permissive aggregation group of plans for
which the top-heavy ratio does not exceed 60 percent.
(b)The "top-heavy ratio" shall be determined as follows:
(1) If the employer maintains one or more
defined contribution plans (including any simplified
employee pension plan) and has not maintained any
defined benefit plan which during the 5-year period
ending on the determination date has or has had
accrued benefits, the top-heavy ratio for this Plan
or for the required or permissive aggregation group
(as appropriate) is a fraction, the numerator of
which is the sum of the account balances of all Key
Employees under the Plan or plans as of the
determination date (including any part of any account
balance distributed in the five-year period ending on
the determination date), and the denominator of which
is the sum of the account balances (including any
part of any account balance distributed in the
five-year period ending on the determination date) of
all employees under the Plan or plans as of the
determination date. Both the numerator and
denominator of the top-heavy ratio shall be increased
to reflect any contribution not actually made as of
the determination date but which is required to be
taken into account on that date under Code section
416 and the regulations thereunder.
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PAGE 31
(2) If the employer maintains one or more
defined contribution plans (including any simplified
employee pension plan) and maintains or has
maintained one or more defined benefit plans which
during the 5-year period ending on the determination
date has or has had any accrued benefits, the
top-heavy ratio for any required or permissive
aggregation group (as appropriate), is a fraction,
the numerator of which is the sum of the account
balances of all Key Employees under the aggregated
defined contribution plan or plans, determined
according to paragraph (1) above, and the present
value of accrued benefits of all Key Employees under
the defined benefit plan or plans as of the
determination date, and the denominator of which is
the sum of such account balances of all employees
under the aggregated defined contribution plan or
plans and the present value of accrued benefits of
all employees under the defined benefit plan or plans
as of the determination date. The account balances
and accrued benefits in both the numerator and
denominator of the top-heavy ratio shall be adjusted
to reflect any distributions made in the five-year
period ending on the determination date and any
contributions due but unpaid as of the determination
date.
(3) For purposes of paragraphs (1) and (2), the
value of account balances and the present value of
accrued benefits will be determined as of the most
recent valuation date that falls within the 12-month
period ending on the determination date, except as
provided in Code section 416 and the regulations
thereunder for the first and second plan years of a
defined benefit plan. The account balances and
accrued benefits of an employee (i) who is not a Key
Employee but who was a Key Employee in a prior year,
or (ii) who has not been credited with at least one
hour of service with any employer maintaining the
Plan at any time during the 5-year period ending on
the determination date, will be disregarded. The
calculation of the top-heavy ratio and the extent to
which distributions, rollovers, and transfers are
taken into account will be made in accordance with
Code section 416 and the regulations thereunder.
When aggregating plans, the value of account balances
and accrued benefits will be calculated with
reference to the determination dates that fall within
the same calendar year.
(c)"Required aggregation group" means (i) each qualified
plan of the employer in which at least one Key Employee
participates in the Plan Year containing the
determination date, or any of the four preceding Plan
Years, and (ii) any other qualified plan of the employer
that enables a plan described in (i) to meet the
requirements of Code sections 401(a)(4) and 410.
(d)"Permissive aggregation group" means the required
aggregation group of plans plus any other plan or plans
of the employer which, when consolidated as a group with
the required aggregation group, would continue to satisfy
the requirements of Code sections 401(a)(4) and 410.
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PAGE 32
(e)"Determination date" means, for 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 last day of that year is the determination
date.
(f)The "determination period" for a Plan Year is the Plan
Year in which the applicable determination date occurs
and the four preceding Plan Years.
(g)The "valuation date" is the last day of each Plan Year
and is the date as of which account balances or accrued
benefits are valued for purposes of calculating the
top-heavy ratio.
(h)For purposes of establishing the "present value" of
benefits under a defined benefit plan to compute the
top-heavy ratio, any benefit shall be discounted only for
mortality and interest based on the interest rate and
mortality table specified in the defined benefit plan for
this purpose.
(i)If an individual has not performed services for the
employer at any time during the five-year period ending
on the determination date with respect to a Plan Year,
any account balance or accrued benefit for such
individual shall not be taken into account for such Plan
Year.
(j)For purposes of determining if a defined benefit plan
included in a required aggregation group of which this
Plan is a part is a Top-Heavy Plan, the accrued benefit
to any employee (other than a Key Employee) shall be
determined as follows:
(1) Under the method which is used for accrual
purposes under all defined benefit plans maintained
by the employer.
(2) If there is no method described in
paragraph (1), as if such benefit accrued not more
rapidly than the lowest accrual rate permitted under
Code section 411(b)(1)(C).
Sec. 14.3 Minimum Contribution Requirement. For any
Plan Year with respect to which the Plan is a Top-Heavy Plan, the
employer contributions allocated to each Active Participant who
is not a Key Employee and whose Termination of Employment has not
occurred prior to the end of such Plan Year shall not be less
than the minimum amount determined in accordance with the
following:
(a)The minimum amount shall be the amount equal to that
percentage of the Participant's Compensation for the Plan
Year which is the smaller of:
(1) 3 percent.
(2) The percentage which is the largest percentage of
Compensation allocated to any Key Employee from
employer contributions for such Plan Year.
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For purposes of this section, "Compensation" means the
amounts specified in Sec. 6.1(f), subject to the
limitation in Sec. 2.8(e).
(b)For purposes of this section, any employer
contribution attributable to a salary reduction or
similar arrangement shall be taken into accounts;
provided, however, that any employer contribution
attributable to a salary reduction or similar arrangement
(including Before Tax Contributions and Matching
Contributions under this Plan) may not be used to satisfy
the minimum amount of employer contributions which must
be allocated under subsection (a).
(c)This section shall not apply to any Participant who is
covered under any other plan of the employer under which
the minimum contribution or minimum benefit requirement
applicable to Top-Heavy Plans will be satisfied.
Sec. 14.4 Participation under Defined Benefit Plan and
Defined Contribution Plan. If a Participant is also a
participant in a defined benefit plan maintained by the employer,
with respect to any Plan Year for which the Plan is a Top-Heavy
Plan, Sec. 6.1(d) shall be applied:
(a)By substituting "1.0" for "1.25" in paragraphs (2)(B)
and (3)(B) of Code section 415(e).
(b)By substituting "$41,500" for "$51,875" in Code
section 415(e)(6)(B)(i).
The foregoing provisions of this section shall be suspended with
respect to any individual so long as there are no employer
contributions, forfeitures, or voluntary nondeductible
contributions allocated to such individual, and no defined
benefit plan accruals for such individual, either under this Plan
or under any other plan that is in a required aggregation group
of plans, within the meaning of Code section 416(g)(2)(A)(i),
that includes this Plan.
Sec. 14.5 Definition of Employer. For purposes of this
Article XIV, the term "employer" means all Participating
Employers and any trade or business entity under Common Control
with a Participating Employer.
Sec. 14.6 Exception For Collective Bargaining Unit.
Section 14.3 shall not apply with respect to any employee
included in a unit of employees covered by an agreement which the
Secretary of Labor finds to be a collective bargaining agreement
between employee representatives and one or more employers if
there is evidence that retirement benefits were the subject of
good faith bargaining between such employee representative and
such employer or employers.
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PAGE 34
ARTICLE XV
MISCELLANEOUS PROVISIONS
Sec. 15.1 Insurance Company Not Responsible for
Validity of Plan. No insurance company that issues a contract
under the Plan shall have any responsibility for the validity of
the Plan. An insurance company to which an application may be
submitted hereunder may accept such application and shall have no
duty to make any investigation or inquiry regarding the authority
of the applicant to make such application or any amendment
thereto or to inquire as to whether a person on whose life any
contract is to be issued is entitled to such contract under the
Plan.
Sec. 15.2 Headings. Headings at the beginning of
articles and sections hereof are for convenience of reference,
shall not be considered a part of the text of the Plan, and shall
not influence its construction.
Sec. 15.3 Capitalized Definitions. Capitalized terms
used in the Plan shall have their meaning as defined in the Plan
unless the context clearly indicates to the contrary.
Sec. 15.4 Gender. Any references to the masculine
gender include the feminine and vice versa.
Sec. 15.5 Use of Compounds of Word "Here". Use of the
words "hereof", "herein", "hereunder", or similar compounds of
the word "here" shall mean and refer to the entire Plan,
including the Tables, Appendices and Schedules attached hereto,
unless the context clearly indicates to the contrary.
Sec. 15.6 Construed as a Whole. The provisions of the
Plan shall be construed as a whole in such manner as to carry out
the provisions thereof and shall not be construed separately
without relation to the context.
34
PAGE 35
ARTICLE XVI
AMOUNTS TRANSFERRED FROM OTHER PLANS
Sec. 16.1 Transfers from Other Plans. The Company may
from time to time arrange for the merger of another qualified
defined contribution plan (referred to as a "Predecessor Plan")
with and into this Plan. Account balances transferred from a
Predecessor Plan to this Plan (referred to as a "Predecessor Plan
Account") shall be administered pursuant to this Article. A
person whose account balance is transferred from a Predecessor
Plan to this Plan shall not be eligible to make contributions
under this Plan until he/she has become a Participant in
accordance with Article IV.
Sec. 16.2 Predecessor Plan Accounts. Amounts derived
from a Participant's Account under a Predecessor Plan will be
credited to his Predecessor Plan Account under this Plan. No
contributions shall be made by a Participating Employer to a
Predecessor Plan Account.
Sec. 16.3 Investment Funds. Investment Funds for
investment of Predecessor Plan Accounts shall be established at
the direction of the Company. The Company shall determine the
types of investments to be held in each Investment Fund and the
investment manager, trustee, or insurance company responsible for
selecting investments. Income on investments of each Investment
Fund shall be reinvested by the Funding Agency in the same
Investment Fund. If there is more than one Investment Fund, a
Participant may designate the Investment Fund or Funds in which
his Predecessor Plan Account will be invested, and may direct a
transfer of part or all his Predecessor Plan Account from one
Investment Fund to another Investment Fund. However, investment
in a given Investment Fund may be limited to amounts derived from
a particular Predecessor Plan. Elections under this section
shall be made in accordance with rules and procedures established
by the Company. Said rules may require that the election be
filed with the Company a reasonable time prior to the date it
will become effective. The rules also may limit the frequency of
such elections.
Sec. 16.4 Valuation of Investment Funds. As of each
Valuation Date, the Funding Agency shall determine, in accordance
with a method consistently followed and uniformly applied, the
fair market value of each Investment Fund. During any period
that all or a part of any Investment Fund is held under a
contract, of a type sometimes referred to as a "guaranteed income
contract", issued by an insurance company and invested by it and
under which the insurance company pays a guaranteed minimum rate
of return, and provided no event has occurred that would result
in a payment by the insurance company under the contract at a
discount from book value of the contract, the fair market value
of the contract shall be deemed to equal its book value.
Sec. 16.5 Valuation of Accounts. As of each Valuation
Date, the value of each Participant's Predecessor Plan Account
shall be adjusted to reflect the effect of income, realized and
unrealized profits and losses, withdrawals, interfund transfers,
and all other transactions since the immediately preceding
Valuation Date, as follows:
35
PAGE 36
(a)The portion of the Account invested in a particular
Investment Fund as of the preceding Valuation Date will
be reduced to reflect the amount of any distributions
that were made therefrom after the preceding Valuation
Date.
(b)The value of each such Account as determined in (a)
shall be adjusted pro rata so that the total value of all
such Accounts in the applicable Investment Fund equals
the fair market value of the applicable Investment Fund
as of the Valuation Date as determined by the Trustee.
(c)Any transfers between Investment Funds pursuant to
Sec. 16.3 shall then be made and Accounts adjusted or
established accordingly.
Sec. 16.6 Optional Forms of Distributions. All optional
forms of distribution available under the Predecessor Plan shall
be available under this Plan for a Predecessor Plan Account;
except that, any hardship standards on distribution shall be as
specified in this Plan. All distribution options available under
this Plan for an Account shall also be available for any
subaccount within a Predecessor Plan Account that holds
contributions of the same type.
Sec. 16.7 Special Requirements for Married Participant
Electing Life Annuity Benefit. If a Participant has elected to
receive a life annuity benefit and is married on the date benefit
payments begin, then, notwithstanding such election, unless the
Participant files a written election of a different form of
payment within the 90-day period ending on the date as of which
payments are to begin, the entire value of the Participant's
Predecessor Plan Account shall be applied to purchase a qualified
joint and survivor annuity. A "qualified joint and survivor
annuity" is an annuity payable to the Participant for life with a
survivor annuity for the remainder of the life of the
Participant's surviving spouse in a monthly amount equal to 50%
of the amount the Participant was receiving prior to his death.
A Participant's election of a form of payment other than a
qualified joint and survivor annuity under this subsection shall
not be effective unless the Participant's spouse consents in
writing to such election, and the consent acknowledges the effect
of the election and is witnessed by a Plan representative or a
notary public. Any consent of a spouse under this section shall
be irrevocable. However, such consent shall not be required if
the Participant establishes to the satisfaction of a
representative of the Plan that such consent cannot be obtained
because there is no spouse, because the spouse cannot be located,
or because of such other circumstances as may be prescribed by
federal regulations.
If a Participant has elected to receive a life annuity
benefit, dies before benefit payments begin, and is married on
the date of death, and if the Participant's Beneficiary is his or
her surviving spouse, the benefit to which the spouse is entitled
shall be applied to purchase an annuity for the life of the
spouse, unless the spouse files a written election of some other
form of payment after the Participant's death and prior to the
due date of the first benefit payment to the spouse.
For purposes of this section, a "life annuity benefit" is
any optional form of distribution available for a Predecessor
Plan Account in the form of an annuity for the life of the
Participant.
36
PAGE 37
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix A
The following provisions apply to Participants who are employed
at Participating Locations covered under this Appendix A (as
specified on the List of Participating Locations for Appendix A):
I
A Participant may elect to have his/her current earnings reduced
by any whole percent, but not exceeding 10% of Certified
Earnings, in order to receive Before Tax Contributions in
accordance with Sec. 5.1.
II
The Matching Contributions made for each month in accordance with
Sec. 5.2(a) will be determined in accordance with the following
schedule:
For Before Tax ContributionsThe Matching Contribution
Will
Representing the Followingbe the Following Percent of
Percentages of the Participant'sthe Participant's Before
Tax
Certified Earnings Contributions
The first 4% 100%
The next 2% 50%
Above 6% None
38
PAGE 39
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix B
The following provisions apply to Participants who are employed
at Participating Locations covered under this Appendix B (as
specified on the List of Participating Locations for Appendix B):
I
A Participant may elect to have his/her current earnings reduced
by any whole percent, but not exceeding 4% of Certified Earnings,
in order to receive Before Tax Contributions in accordance with
Sec. 5.1.
II
The Matching Contributions made for each month in accordance with
Sec. 5.2(a) will be determined in accordance with the following
schedule:
For Before Tax ContributionsThe Matching Contribution
Will
Representing the Followingbe the Following Percent of
Percentages of the Participant'sthe Participant's Before
Tax
Certified Earnings Contributions
The first 2% 100%
Above 2% None
39
PAGE 40
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix C
The following provisions apply to Participants who are employed
at Participating Locations covered under this Appendix C (as
specified on the List of Participating Locations for Appendix C):
I
A Participant may elect to have his/her current earnings reduced
by any whole percent, but not exceeding 6% of Certified Earnings,
in order to receive Before Tax Contributions in accordance with
Sec. 5.1.
II
The Matching Contributions made for each month in accordance with
Sec. 5.2(a) will be determined in accordance with the following
schedule:
For Before Tax ContributionsThe Matching Contribution
Will
Representing the Followingbe the Following Percent of
Percentages of the Participant'sthe Participant's Before
Tax
Certified Earnings Contributions
The first 2% 100%
The next 4% 50%
Above 6% None
40
PAGE 41
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix D - Countrymark Locations
I. History.
The Company acquired certain employees on February 1, 1997,
in connection with a joint venture arrangement with
Countrymark Cooperative, Inc.
II.Appendix.
This Appendix applies to the following hourly-wage employees:
- Hourly-wage employees at the Locust Point Elevator
in Baltimore, Maryland, who are covered by the
collective bargaining agreement in effect at that
location with the International Longshoremen's
Association, Local No. 2004.
- Hourly-wage employees at the Beech Grove Grain
Elevator in Beech Grove, Indiana, who are covered by
the collective bargaining agreement in effect at that
location with the Chauffeurs, Teamsters, Warehousemen
and Helpers, Local No. 135.
The terms and conditions of participation of such employees
will be as set forth in this Appendix, and such employees
will not be eligible to participate under the general terms
and conditions of the Plan.
III. Special Rules for Service Credit and Eligibility.
A. Prior Service Credit.
An employee covered by this Appendix will receive credit
under this Plan for his/her service prior to February 1,
1997, as follows:
- Eligibility. The employee will receive credit from
his/her last date of hire with Countrymark Cooperative,
Inc. for purposes of determining his/her eligibility to
participate in this Plan.
- Vesting. The employee will receive credit from
his/her last date of hire with Countrymark Cooperative,
Inc. for purposes of determining whether he/she is
vested under this Plan. In the case of an employee who
is a former participant in the Countrymark Bargaining
Unit Employees Savings Plan, such prior service credit
will not be less than his/her "Service" under such plan
as of February 1, 1997.
41
PAGE 42
B. Eligibility.
An employee covered by this Appendix will be eligible to
participate in accordance with Article IV; except that,
such an employee may not become a participant prior to
February 1, 1997. Continued eligibility under this Plan
(and continued eligibility under this Appendix) is
subject to negotiation with the collective bargaining
unit; thus, an employee covered by this Appendix will
cease to participate upon expiration of the above-
described collective bargaining agreement (except that
for this purpose an agreement will be deemed to continue
after its formal expiration for so long as collective
bargaining negotiations continue).
IV. Other Special Rules.
A. Participant Contributions.
A Participant covered by this Appendix may elect Before-
Tax Contributions by means of payroll deduction from 1%
to 15% of Certified Earnings, and/or may elect After-Tax
Contributions by means of payroll deduction from 1% to
15% of Certified Earnings.
Before-Tax Contributions are subject to the limits set
forth in Article V. All contributions must be made in
accordance with rules and procedures adopted for this
purpose by the Company.
B. Company Contributions.
1. Matching Contributions.
A Participant covered by this Appendix will receive
Matching Contributions of 50 cent for each $1.00
contributed as a Before-Tax Contribution or After-Tax
Contribution up to 6% of Certified Earnings (thus the
maximum Matching Contribution is 3% of Certified
Earnings).
2. Non-Matching Contributions.
A Participant covered by this Appendix will not
receive Non-Matching Contributions under this Plan.
C. Countrymark Accounts.
Contributions made pursuant to the terms of this Appendix
will be credited to a "Countrymark Account" established
under the Plan, consisting of a Before-Tax Subaccount,
After-Tax Subaccount and Matching Subaccount.
D. Investment of Contributions.
A Participant will be allowed to direct the investment of
his/her Countrymark Account in Investment Funds selected
or established by the Company for this purpose in
accordance with Sec. 16.3 (applicable to Predecessor Plan
Accounts). Investment directions will be made in
accordance with rules and procedures adopted for this
purpose by the Company.
A Participant will be allowed to borrow from his/her
Countrymark Account in accordance the Notice of Loan
Terms and Procedures - Countrymark Accounts.
E. Vesting.
A Participant covered by this Appendix will at all times
be 100% vested in his/her Before-Tax Subaccount and After-
Tax Subaccount, and will become 100% vested in his/her
Matching Subaccount upon the occurrence of the first to
occur of the following:
- Completion of 5 Years of Vesting Service.
- Attainment of age 65 while employed with the
Company or an Affiliate of the Company.
- Becoming permanently disabled while employed
with the Company or an Affiliate of the Company
(for this purpose an individual will be considered
to be "permanently disabled" only if a
determination is made by the Social Security
Administration within 12 months after his/her last
day of work that he/she is disabled and that the
disability started on or before the last day of
work).
- Death while employed with the Company or an
Affiliate of the Company.
Prior to the occurrence of any of the above, the vested
percentage of the Participant in his/her Matching
Subaccount will be determined under the following
schedule:
Completed Years Vested
of Vesting Service Percentage
0 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
The portion of a Matching Subaccount that is not vested
will be transferred to a "Forfeiture Subaccount" as of
the Valuation Date next following the Participant's
Termination of Employment. If the Participant is
reemployed before the last day of the Plan Year, the
Forfeiture Subaccount will be reinstated as a Matching
Subaccount. If the Participant is not reemployed before
the last day of the Plan Year, the Forfeiture Subaccount
will be recognized as a forfeiture as of the first to
occur of the following:
42
PAGE 43
- The last day of the Plan Year in which the
Participant incurs his/her fifth consecutive 1-Year
Break in Service.
- The last day of the Plan Year in which the vested
portion of the Participant's Countrymark Account is
distributed to the Participant.
If the Matching Subaccount is forfeited and the
Participant is subsequently reemployed before incurring
five consecutive 1-Year Breaks in Service, a Matching
Subaccount will be reinstated for the Participant as of
the last day of the Plan Year in which he/she completes
one year of Vesting Service with an initial balance equal
to the amount forfeited (without earnings or losses). At
any time after such reinstatement, the vested amount in
the Matching Subaccount will be determined by (i) adding
back any amount previously distributed from the
Subaccount, (ii) applying the applicable vested
percentage to the result, and (iii) subtracting out the
amount previously distributed from the Subaccount.
A Participant will lose all rights to any amounts
forfeited hereunder, and such amounts will be used to
reduce contributions made by the Company.
A Participant's "Vesting Service" is equal to his/her
total years of service with the Company measured from
date of hire, and including any period of absence of less
than 12 months (other an as a result of a Termination of
Employment), subject to the prior service credit granted
in Item III(A).
F. Withdrawals During Employment.
A Participant will be allowed to make withdrawals from
his/her Countrymark Account as of the Valuation Date next
following the date he/she requests such withdrawal as
follows:
- After-Tax Subaccount. A Participant may
withdraw amounts from his/her After-Tax Subaccount
at any time. The amount withdrawn may not exceed
the total amount of After-Tax Contributions made
by the Participant minus amounts previously
withdrawn (or the full value of the After-Tax
Subaccount, if less).
- Before-Tax Subaccount. A Participant may
withdraw amounts from his/her Before-Tax
Subaccount in the event of a hardship prior to age
59-1/2 in accordance with Sec. 9.3(a) and for any
reason after age 59-1/2 in accordance with Sec.
9.3(b).
- Matching Subaccount. A Participant may
withdraw amounts from his/her Matching Subaccount
for any reason after age 59-1/2 in accordance with
Sec. 9.3(b); provided that, amounts may not be
withdrawn unless and until the Participant is 100%
vested in such Subaccount. Withdrawals from a
Matching Subaccount will not be allowed prior to
age 59-1/2.
A withdrawal may be allowed no more than once in any
calendar quarter. Withdrawal requests must be made in
accordance with rules and procedures adopted for this
purpose by the Company. All withdrawals will be in cash.
G. Distributions After Termination of Employment.
A Participant will be entitled to a distribution of the
vested balance of his/her Countrymark Account as of the
Valuation Date next following his/her Termination of
Employment (or as of the Valuation Date next following
the date he/she requests such distribution) in accordance
with Article X.
Distribution requests must be made in accordance with
rules and procedures adopted for this purpose by the
Company. All distributions will be in cash.
43
PAGE 44
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix E - Countrymark Locations
I. History.
The Company acquired certain employees on February 1, 1997,
in connection with a joint venture arrangement with
Countrymark Cooperative, Inc.
II.Appendix.
This Appendix applies to the following hourly-wage employees:
- Hourly-wage employees at the Toledo Grain Terminal
in Toledo, Ohio, who are covered by the collective
bargaining agreement in effect at that location with
the International Longshoremen's Association, Local No.
1955.
- Hourly-wage employees at the Ottawa Lake Grain
Terminal in Ottawa, Michigan who are covered by the
collective bargaining agreement in effect at that
location with the American Federation of Gain Millers,
Local No. 58.
- Hourly-wage employees at the Grafton Grain Terminal in
Grafton, North Dakota, who are covered by the
collective bargaining agreement in effect at that
location with the American Federation of Grain Millers
International Union.
- Hourly-wage employees at the Saginaw Grain Terminal in
Saginaw, Michigan, who are covered by the collective
bargaining agreement in effect at that location with
the Teamsters, Local No. 486.
The terms and conditions of participation of such employees
will be as set forth in this Appendix, and such employees
will not be eligible to participate under the general terms
and conditions of the Plan.
III. Special Rules for Service Credit and Eligibility.
A. Prior Service Credit.
An employee covered by this Appendix will receive credit
under this Plan for his/her service prior to February 1,
1997, as follows:
- Eligibility. The employee will receive credit from
his/her last date of hire with Countrymark Cooperative,
Inc. for purposes of determining his/her eligibility to
participate in this Plan.
- Vesting. The employee will receive credit from
his/her last date of hire with Countrymark Cooperative,
Inc. for purposes of determining whether he/she is
vested under this Plan. In the case of an employee who
is a former participant in the Countrymark Bargaining
Unit Employees Savings Plan, such prior service credit
will not be less than his/her "Service" under such plan
as of February 1, 1997.
B. Eligibility.
An employee covered by this Appendix will be eligible to
participate in accordance with Article IV; except that,
such an employee may not become a participant prior to
February 1, 1997. Continued eligibility under this Plan
(and continued eligibility under this Appendix) is
subject to negotiation with the collective bargaining
unit; thus, an employee covered by this Appendix will
cease to participate upon expiration of the above-
described collective bargaining agreement (except that
for this purpose an agreement will be deemed to continue
after its formal expiration for so long as collective
bargaining negotiations continue).
IV.Other Special Rules.
A. Participant Contributions.
A Participant covered by this Appendix may elect Before-
Tax Contributions by means of payroll deduction from 1%
to 15% of Certified Earnings, and/or may elect After-Tax
Contributions by means of payroll deduction from 1% to
15% of Certified Earnings.
Before-Tax Contributions are subject to the limits set
forth in Article V. All contributions must be made in
accordance with rules and procedures adopted for this
purpose by the Company.
B. Company Contributions.
1. Matching Contributions.
A Participant covered by this Appendix is not
eligible to receive Matching Contributions under this
Plan.
2. Non-Matching Contributions.
A Participant covered by this Appendix will receive
Non-Matching Contributions at such rate as is set
forth in the collective bargaining agreement covering
such Participant.
C. Countrymark Accounts.
Contributions made pursuant to the terms of this Appendix
will be credited to a "Countrymark Account" established
under the Plan, consisting of a Before-Tax Subaccount,
After-Tax Subaccount and Matching Subaccount.
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PAGE 45
D. Investment of Contributions.
A Participant will be allowed to direct the investment of
his/her Countrymark Account in Investment Funds selected
or established by the Company for this purpose in
accordance with Sec. 16.3 (applicable to Predecessor Plan
Accounts). Investment directions will be made in
accordance with rules and procedures adopted for this
purpose by the Company.
A Participant will be allowed to borrow from his/her
Countrymark Account in accordance the Notice of Loan
Terms and Procedures - Countrymark Accounts.
E. Vesting.
A Participant covered by this Appendix will at all times
be 100% vested in his/her Before-Tax Contribution
Subaccount and After-Tax Contribution Subaccount, and
will become 100% vested in his/her Matching Subaccount
upon the occurrence of the first to occur of the
following:
- Completion of 5 Years of Vesting Service.
- Attainment of age 65 while employed with the
Company or an Affiliate of the Company.
- Becoming permanently disabled while employed with
the Company or an Affiliate of the Company (for this
purpose an individual will be considered to be
"permanently disabled" only if a determination is
made by the Social Security Administration within 12
months after his/her last day of work that he/she is
disabled and that the disability started on or
before the last day of work).
- Death while employed with the Company or an
Affiliate of the Company.
Prior to the occurrence of any of the above, the vested
percentage of the Participant in his/her Matching
Subaccount will be determined under the following
schedule:
Completed Years Vested
of Vesting Service Percentage
0 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
The portion of a Matching Subaccount that is not vested
will be transferred to a "Forfeiture Subaccount" as of
the Valuation Date next following the Participant's
Termination of Employment. If the Participant is
reemployed before the last day of the Plan Year, the
Forfeiture Subaccount will be reinstated as a Matching
Subaccount. If the Participant is not reemployed before
the last day of the Plan Year, the Forfeiture Subaccount
will be recognized as a forfeiture as of the first to
occur of the following:
- The last day of the Plan Year in which the
Participant incurs his/her fifth consecutive 1-Year
Break in Service.
- The last day of the Plan Year in which the vested
portion of the Participant's Countrymark Account is
distributed to the Participant.
If the Matching Subaccount is forfeited and the
Participant is subsequently reemployed before incurring
five consecutive 1-Year Breaks in Service, a Matching
Subaccount will be reinstated for the Participant as of
the last day of the Plan Year in which he/she completes
one year of Vesting Service with an initial balance equal
to the amount forfeited (without earnings or losses). At
any time after such reinstatement, the vested amount in
the Matching Subaccount will be determined by (i) adding
back any amount previously distributed from the
Subaccount, (ii) applying the applicable vested
percentage to the result, and (iii) subtracting out the
amount previously distributed from the Subaccount.
A Participant will lose all rights to any amounts
forfeited hereunder, and such amounts will be used to
reduce contributions made by the Company.
A Participant's "Vesting Service" is equal to his/her
total years of service with the Company measured from
date of hire, and including any period of absence of less
than 12 months (other an as a result of a Termination of
Employment), subject to the prior service credit granted
in Item III(A).
F. Withdrawals During Employment.
A Participant will be allowed to make withdrawals from
his/her Countrymark Account as of the Valuation Date next
following the date he/she requests such withdrawal as
follows:
- After-Tax Subaccount. A Participant may
withdraw amounts from his/her After-Tax Subaccount
at any time. The amount withdrawn may not exceed
the total amount of After-Tax Contributions made by
the Participant minus amounts previously withdrawn
(or the full value of the After-Tax Subaccount, if
less).
- Before-Tax Subaccount. A Participant may
withdraw amounts from his/her Before-Tax Subaccount
in the event of a hardship prior to age 59-1/2 in
accordance with Sec. 9.3(a) and for any reason
after age 59-1/2 in accordance with Sec. 9.3(b).
- Matching Subaccount. A Participant may withdraw
amounts from his/her Matching Subaccount for any
reason after age 59-1/2 in accordance with Sec.
9.3(b); provided that, amounts may not be withdrawn
unless and until the Participant is 100% vested in
such Subaccount. Withdrawals from a Matching
Subaccount will not be allowed prior to age 59-1/2.
A withdrawal may be allowed no more than once in any
calendar quarter. Withdrawal requests must be made in
accordance with rules and procedures adopted for this
purpose by the Company. All withdrawals will be in cash.
G. Distributions After Termination of Employment.
A Participant will be entitled to a distribution of the
vested balance of his/her Countrymark Account as of the
Valuation Date next following his/her Termination of
Employment (or as of the Valuation Date next following
the date he/she requests such distribution) in accordance
with Article X.
Distribution requests must be made in accordance with
rules and procedures adopted for this purpose by the
Company. All distributions will be in cash.
45
PAGE 46
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix F - Countrymark Locations
I. History.
The Company acquired certain employees on February 1, 1997,
in connection with a joint venture arrangement with
Countrymark Cooperative, Inc.
II.Appendix.
This Appendix applies to the following hourly-wage employees
at the Fostoria Grain Terminal in Fostoria, Ohio, who are
covered by the employee bargaining agreement in effect at
that location effective March 1, 1995.
The terms and conditions of participation of such employees
will be as set forth in this Appendix, and such employees
will not be eligible to participate under the general terms
and conditions of the Plan.
III. Special Rules for Service Credit and Eligibility.
A. Prior Service Credit.
An employee covered by this Appendix will receive credit
under this Plan for his/her service prior to February 1,
1997, as follows:
Eligibility. The employee will receive credit from his/her last
date of hire with Countrymark Cooperative, Inc. for purposes of
determining his/her eligibility to participate in this Plan.
Vesting. The employee will receive credit from his/her last date
of hire with Countrymark Cooperative, Inc. for purposes of
determining whether he/she is vested under this Plan. In the
case of an employee who is a former participant in the
Countrymark Bargaining Unit Employees Savings Plan, such prior
service credit will not be less than his/her "Service" under such
plan as of February 1, 1997.
B. Eligibility.
An employee covered by this Appendix will be eligible to
participate in accordance with Article IV; except that,
such an employee may not become a participant in this
Plan prior to February 1, 1997. Continued eligibility
under this Plan (and continued eligibility under this
Appendix) is subject to negotiation with the collective
bargaining unit; thus, an employee covered by this
Appendix will cease to participate upon expiration of the
above-described employee bargaining agreement.
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IV. Other Special Rules.
A. Participant Contributions.
A Participant covered by this Appendix may elect Before-
Tax Contributions by means of payroll deduction from 1%
to 10% of Certified Earnings, and/or may elect After-Tax
Contributions by means of payroll deduction from 1% to
10% of Certified Earnings.
Before-Tax Contributions are subject to the limits set
forth in Article V. All contributions must be made in
accordance with rules and procedures adopted for this
purpose by the Company.
B. Company Contributions.
1. Matching Contributions.
A Participant covered by this Appendix will receive
Matching Contributions of $1.00 for each $1.00
contributed as a Before-Tax Contribution or After-Tax
Contribution up to 3% of Certified Earnings (thus the
maximum Matching Contribution is 3% of Certified
Earnings).
2. Non-Matching Contributions.
A Participant covered by this Appendix will receive
Non-Matching Contributions each Plan Year of 7% of
Certified Earnings for the Plan Year provided that
he/she is employed with the Company or an Affiliate
of the Company as of the last day of the Plan Year.
Only Certified Earnings received while the
Participant is a Participant under the terms set
forth in this Appendix will count for purposes of
determining his/her Non-Matching Contributions for a
Plan Year.
C. Countrymark Accounts.
Contributions made pursuant to the terms of this Appendix
will be credited to a "Countrymark Account" established
under the Plan, consisting of a Before-Tax Subaccount,
After-Tax Subaccount, Matching Subaccount and Non-
Matching Subaccount.
D. Investment of Contributions.
A Participant will be allowed to direct the investment of
his/her Countrymark Account in Investment Funds selected
or established by the Company for this purpose in
accordance with Sec. 16.3 (applicable to Predecessor Plan
Accounts). Investment directions will be made in
accordance with rules and procedures adopted for this
purpose by the Company.
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A Participant will be allowed to borrow from his/her
Countrymark Account in accordance the Notice of Loan
Terms and Procedures - Countrymark Accounts.
E. Vesting.
A Participant covered by this Appendix will at all times
be 100% vested in his/her Before-Tax Subaccount and After-
Tax Subaccount, and will become 100% vested in his/her
Matching Subaccount and Non-Matching Subaccount upon the
occurrence of the first to occur of the following:
- Completion of 5 Years of Vesting Service.
- Attainment of age 65 while employed with the
Company or an Affiliate of the Company.
- Becoming permanently disabled while employed with
the Company or an Affiliate of the Company (for this
purpose an individual will be considered to be
"permanently disabled" only if a determination is
made by the Social Security Administration within 12
months after his/her last day of work that he/she is
disabled and that the disability started on or
before the last day of work).
Death while employed with the Company or an Affiliate of
the Company.
Prior to the occurrence of any of the above, the vested
percentage of the Participant in his/her Matching
Subaccount and Non-Matching Subaccount will be determined
under the following schedule:
Completed Years Vested
of Vesting Service Percentage
0 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
The portion of a Matching or Non-Matching Subaccount that
is not vested will be transferred to a "Forfeiture
Subaccount" as of the Valuation Date next following the
Participant's Termination of Employment. If the
Participant is reemployed before the last day of the Plan
Year, the Forfeiture Subaccount will be reinstated as a
Matching or Non-Matching Subaccount, as appropriate. If
the Participant is not reemployed before the last day of
the Plan Year, the Forfeiture Subaccount will be
recognized as a forfeiture as of the first to occur of
the following:
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- The last day of the Plan Year in which the
Participant incurs his/her fifth consecutive 1-
Year Break in Service.
- The last day of the Plan Year in which the
vested portion of the Participant's Countrymark
Account is distributed to the Participant.
If a Matching or Non-Matching Subaccount is forfeited and
the Participant is subsequently reemployed before
incurring five consecutive 1-Year Breaks in Service, a
Matching or Non-Matching Subaccount will be reinstated
for the Participant as of the last day of the Plan Year
in which he/she completes one year of Vesting Service
with an initial balance equal to the amount forfeited
(without earnings or losses). At any time after such
reinstatement, the vested amount in the Matching or Non-
Matching Subaccount will be determined by (i) adding back
any amount previously distributed from the Subaccount,
(ii) applying the applicable vested percentage to the
result, and (iii) subtracting out the amount previously
distributed from the Subaccount.
A Participant will lose all rights to any amounts
forfeited hereunder, and such amounts will be used to
reduce contributions made by the Company.
A Participant's "Vesting Service" is equal to his/her
total years of service with the Company measured from
date of hire, and including any period of absence of less
than 12 months (other an as a result of a Termination of
Employment), subject to the prior service credit granted
in Item III(A).
F. Withdrawals During Employment.
A Participant will be allowed to make withdrawals from
his/her Countrymark Account as of the Valuation Date next
following the date he/she requests such withdrawal as
follows:
- After-Tax Subaccount. A Participant may
withdraw amounts from his/her After-Tax Subaccount
at any time. The amount withdrawn may not exceed
the total amount of After-Tax Contributions made
by the Participant minus amounts previously
withdrawn (or the full value of the After-Tax
Subaccount, if less).
- Before-Tax Subaccount. A Participant may
withdraw amounts from his/her Before-Tax
Subaccount in the event of a hardship prior to age
59-1/2 in accordance with Sec. 9.3(a) and for any
reason after age 59-1/2 in accordance with Sec.
9.3(b).
- Matching/Non-Matching Subaccounts. A
Participant may withdraw amounts from his/her
Matching and/or Non-Matching Subaccounts for any
reason after age 59-1/2 in accordance with Sec.
9.3(b); provided that, amounts may not be
withdrawn unless and until the Participant is 100%
vested in such Subaccounts. Withdrawals from a
Matching and/or Non-Matching Subaccount will not
be allowed prior to age 59-1/2.
A withdrawal may be allowed no more than once in any
calendar quarter. Withdrawal requests must be made in
accordance with rules and procedures adopted for this
purpose by the Company. All withdrawals will be in cash.
G. Distributions After Termination of Employment.
A Participant will be entitled to a distribution of the
vested balance of his/her Countrymark Account as of the
Valuation Date next following his/her Termination of
Employment (or as of the Valuation Date next following
the date he/she requests such distribution) in accordance
with Article X.
Distribution requests must be made in accordance with
rules and procedures adopted for this purpose by the
Company. All distributions will be in cash.
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ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
Appendix G
The following provisions apply to Participants who are employed
at Participating Locations covered under this Appendix G (as
specified on the List of Participating Locations for Appendix G):
I
A Participant may elect to have his/her current earnings reduced
by any whole percent, but not exceeding 6% of Certified Earnings,
in order to receive Before Tax Contributions in accordance with
Sec. 5.1.
II
The Matching Contributions made for each month in accordance with
Sec. 5.2(a) will be determined in accordance with the following
schedule:
For Before Tax ContributionsThe Matching Contribution
Will
Representing the Followingbe the Following Percent of
Percentages of the Participant'sthe Participant's Before
Tax
Certified Earnings Contributions
The first 2% 100%
Above 6% None
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10-31-97
ADM SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
[As Amended and Restated Effective January 1, 1994]
[WORKING COPY THROUGH THIRD AMENDMENT]
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TABLE OF CONTENTS
ARTICLE I GENERAL 1
SEC. 1.1 NAME AND FORM OF PLAN 1
SEC. 1.2 PURPOSE 1
SEC. 1.3 EFFECTIVE DATE 1
SEC. 1.4 COMPANY 1
SEC. 1.5 PARTICIPATING EMPLOYERS 1
SEC. 1.6 CONSTRUCTION AND APPLICABLE LAW 1
SEC. 1.7 BENEFITS DETERMINED UNDER PROVISIONS IN EFFECT AT
TERMINATION OF EMPLOYMENT 1
ARTICLE II MISCELLANEOUS DEFINITIONS
SEC. 2.1 ACCOUNT 2
SEC. 2.2 ACTIVE PARTICIPANT 2
SEC. 2.3 ADM STOCK 2
SEC. 2.4 AFFILIATE 2
SEC. 2.5 BEFORE TAX CONTRIBUTIONS 2
SEC. 2.6 BENEFICIARY 2
SEC. 2.7 BOARD 2
SEC. 2.8 CERTIFIED EARNINGS 2
SEC. 2.9 CODE 3
SEC. 2.10 COMMON CONTROL 3
SEC. 2.11 ERISA 3
SEC. 2.12 [INTENTIONALLY OMITTED] 3
SEC. 2.13 FUND 3
SEC. 2.14 FUNDING AGENCY 3
SEC. 2.15 HIGHLY COMPENSATED EMPLOYEE 3
SEC. 2.16 LEASED EMPLOYEE 3
SEC. 2.17 MATCHING CONTRIBUTION 3
SEC. 2.18 NAMED FIDUCIARY 3
SEC. 2.19 NON-HIGHLY COMPENSATED EMPLOYEE 4
SEC. 2.20 NORMAL RETIREMENT AGE 4
SEC. 2.21 PARTICIPANT 4
SEC. 2.22 PARTICIPATING LOCATION 4
SEC. 2.23 PLAN YEAR 4
SEC. 2.24 PREDECESSOR EMPLOYER 4
SEC. 2.25 QUALIFIED EMPLOYEE 4
SEC. 2.26 SUCCESSOR EMPLOYER 5
SEC. 2.27 TOP-HEAVY PLAN 5
SEC. 2.28 TRUSTEE 5
SEC. 2.29 VALUATION DATE 5
ARTICLE III SERVICE PROVISIONS 6
SEC. 3.1 EMPLOYMENT COMMENCEMENT DATE 6
SEC. 3.2 TERMINATION OF EMPLOYMENT 6
SEC. 3.3 HOURS OF SERVICE 6
SEC. 3.4 ELIGIBILITY COMPUTATION PERIOD 7
SEC. 3.5 YEAR OF ELIGIBILITY SERVICE 8
SEC. 3.6 1-YEAR BREAK IN SERVICE 8
SEC. 3.7 PERIODS OF MILITARY SERVICE 8
ARTICLE IV PLAN PARTICIPATION 9
SEC. 4.1 ENTRY DATE 9
SEC. 4.2 ELIGIBILITY FOR PARTICIPATION 9
SEC. 4.3 DURATION OF PARTICIPATION 9
SEC. 4.4 NO GUARANTEE OF EMPLOYMENT 10
SEC. 4.5 PARTICIPATION OF U.S. CITIZENS EMPLOYED BY FOREIGN
SUBSIDIARIES 10
ARTICLE V CONTRIBUTIONS 11
SEC. 5.1 BEFORE TAX CONTRIBUTIONS 11
SEC. 5.2 MATCHING CONTRIBUTIONS 12
SEC. 5.3 FORM OF CONTRIBUTION 12
SEC. 5.4 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION
401(K). 12
SEC. 5.5 DISTRIBUTION OF EXCESS DEFERRALS 15
SEC. 5.6 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION
401(M). 16
SEC. 5.7 MULTIPLE USE OF THE ALTERNATIVE LIMITATIONS 18
SEC. 5.8 TIME OF CONTRIBUTIONS 19
SEC. 5.9 LIMITATIONS ON CONTRIBUTIONS 19
ARTICLE VI LIMITATION ON ALLOCATIONS 20
SEC. 6.1 LIMITATION ON ALLOCATIONS 20
ARTICLE VII INDIVIDUAL ACCOUNTS 23
SEC. 7.1 ACCOUNTS FOR PARTICIPANTS 23
SEC. 7.2 INVESTMENT OF ACCOUNTS 23
SEC. 7.3 ADJUSTMENT OF ACCOUNTS 23
SEC. 7.4 CERTIFICATES 24
SEC. 7.5 VOTING AND OTHER RIGHTS REGARDING ADM STOCK 24
SEC. 7.6 TENDER OR EXCHANGE OFFERS REGARDING ADM STOCK 25
SEC. 7.7 ROLLOVER ACCOUNTS 25
SEC. 7.8 TRANSFERS TO/FROM SALARIED PLAN 26
ARTICLE VIII DESIGNATION OF BENEFICIARY 27
SEC. 8.1 PERSONS ELIGIBLE TO DESIGNATE 27
SEC. 8.2 SPECIAL REQUIREMENTS FOR MARRIED PARTICIPANTS 27
SEC. 8.3 FORM AND METHOD OF DESIGNATION 27
SEC. 8.4 NO EFFECTIVE DESIGNATION 27
SEC. 8.5 SUCCESSOR BENEFICIARY 28
SEC. 8.6 INSURANCE CONTRACT 28
ARTICLE IX BENEFIT REQUIREMENTS 29
SEC. 9.1 BENEFIT ON TERMINATION OF EMPLOYMENT 29
SEC. 9.2 DEATH 29
SEC. 9.3 WITHDRAWALS BEFORE TERMINATION OF EMPLOYMENT 29
ARTICLE X DISTRIBUTION OF BENEFITS 32
SEC. 10.1 TIME AND METHOD OF PAYMENT 32
SEC. 10.2 FORM OF DISTRIBUTION 34
SEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF EMPLOYMENT 35
SEC. 10.4 REEMPLOYMENT 35
SEC. 10.5 SOURCE OF BENEFITS 35
SEC. 10.6 INCOMPETENT PAYEE 35
SEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR ALIENATED 35
SEC. 10.8 PAYMENT OF TAXES 36
SEC. 10.9 CONDITIONS PRECEDENT 36
SEC. 10.10 COMPANY DIRECTIONS TO TRUSTEE 36
SEC. 10.11 SPECIAL DISTRIBUTION EVENTS 36
SEC. 10.12 DELAY OF DISTRIBUTION IN EVENT OF STOCK DIVIDEND OR
SPLIT 36
SEC. 10.13 PARTICIPANT LOAN PROGRAM 37
ARTICLE XI FUND 38
SEC. 11.1 COMPOSITION 38
SEC. 11.2 FUNDING AGENCY 38
SEC. 11.3 COMPENSATION AND EXPENSES OF TRUSTEE 38
SEC. 11.4 FUNDING POLICY 38
SEC. 11.5 SHARE REGISTRATION 38
SEC. 11.6 NO DIVERSION 38
SEC. 11.7 CONVERSION OF ADM STOCK TO CASH 39
ARTICLE XIIADMINISTRATION OF PLAN40
SEC. 12.1 ADMINISTRATION BY COMPANY 40
SEC. 12.2 CERTAIN FIDUCIARY PROVISIONS 40
SEC. 12.3 DISCRIMINATION PROHIBITED 41
SEC. 12.4 EVIDENCE 41
SEC. 12.5 CORRECTION OF ERRORS 41
SEC. 12.6 RECORDS 41
SEC. 12.7 GENERAL FIDUCIARY STANDARD 41
SEC. 12.8 PROHIBITED TRANSACTIONS 41
SEC. 12.9 CLAIMS PROCEDURE 41
SEC. 12.10 BONDING 42
SEC. 12.11 WAIVER OF NOTICE 42
SEC. 12.12 AGENT FOR LEGAL PROCESS 42
SEC. 12.13 INDEMNIFICATION 42
SEC. 12.14 EXERCISE OF AUTHORITY 42
ARTICLE XIII AMENDMENT,TERMINATION, MERGER 43
SEC. 13.1 AMENDMENT 43
SEC. 13.2 PERMANENT DISCONTINUANCE OF CONTRIBUTIONS 43
SEC. 13.3 TERMINATION 43
SEC. 13.4 PARTIAL TERMINATION 43
SEC. 13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS 43
SEC. 13.6 DEFERRAL OF DISTRIBUTIONS 43
SEC. 13.7 REORGANIZATIONS OF PARTICIPATING EMPLOYERS 44
SEC. 13.8 DISCONTINUANCE OF JOINT PARTICIPATION OF A
PARTICIPATING EMPLOYER 44
SEC. 13.9 PARTICIPATING EMPLOYERS NOT UNDER COMMON CONTROL 45
ARTICLE XIV TOP-HEAVY PLAN PROVISIONS 46
SEC. 14.1 KEY EMPLOYEE DEFINED 46
SEC. 14.2 DETERMINATION OF TOP-HEAVY STATUS 46
SEC. 14.3 MINIMUM CONTRIBUTION REQUIREMENT 48
SEC. 14.4 PARTICIPATION UNDER DEFINED BENEFIT PLAN AND DEFINED
CONTRIBUTION PLAN 48
SEC. 14.5 DEFINITION OF EMPLOYER 49
SEC. 14.6 EXCEPTION FOR COLLECTIVE BARGAINING UNIT 49
ARTICLE XV MISCELLANEOUS PROVISIONS 50
SEC. 15.1 INSURANCE COMPANY NOT RESPONSIBLE FOR
VALIDITY OF PLAN 50
SEC. 15.2 HEADINGS 50
SEC. 15.3 CAPITALIZED DEFINITIONS 50
SEC. 15.4 GENDER 50
SEC. 15.5 USE OF COMPOUNDS OF WORD "HERE". 50
SEC. 15.6 CONSTRUED AS A WHOLE 50
ARTICLE XVI AMOUNTS TRANSFERRED FROM OTHER PLANS 51
SEC. 16.1 TRANSFERS FROM OTHER PLANS 51
SEC. 16.2 PREDECESSOR PLAN ACCOUNTS 51
SEC. 16.3 INVESTMENT FUNDS 51
SEC. 16.4 VALUATION OF INVESTMENT FUNDS 51
SEC. 16.5 VALUATION OF ACCOUNTS 51
SEC. 16.6 OPTIONAL FORMS OF DISTRIBUTIONS 52
SEC. 16.7 SPECIAL REQUIREMENTS FOR MARRIED PARTICIPANT ELECTING
LIFE ANNUITY BENEFIT 52
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
52
