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401(K) PLAN
FOR HOURLY EMPLOYEES
(As Adopted Effective January 1, 2000)
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401(K) PLAN
FOR HOURLY EMPLOYEES
TABLE OF CONTENTS
ARTICLE I INTRODUCTION 1
1.1 Plan; Purpose 1
1.2 Qualified Profit Sharing Plan (With 401(k)
Arrangement) 1
1.3 Plan Document 1
1.4 Effective Date of Document 1
ARTICLE II DEFINITIONS AND CONSTRUCTION 1
2.1 Definitions 1
2.2 Choice of Law 5
ARTICLE III PARTICIPATION 5
3.1 Start of Participation 5
ARTICLE IV EMPLOYEE CONTRIBUTIONS 6
4.1 401(k) Contributions 6
4.2 After-Tax Contributions 6
4.3 Rollover Contributions 6
4.4 Transfers from ESOP 6
4.5 Form of Contribution 7
ARTICLE V EMPLOYER CONTRIBUTIONS 7
ARTICLE VI CONTRIBUTION LIMITS 7
6.1 Code Section 402(g) Limit on 401(k) Contributions 7
6.2 Code Section 401(k) Nondiscrimination Test 7
6.3 Maximum Annual Additions 8
6.4 Deduction Limit 8
ARTICLE VII ACCOUNTS 9
7.1 Accounts 9
7.2 Valuation of Accounts 9
7.3 Statements 11
7.4 Voting Rights on Company Stock 11
7.5 Tender or Exchange Offers Regarding Company Stock 11
ARTICLE VIII INVESTMENT OF ACCOUNTS 12
8.1 Investment Options 12
8.2 Participant Loan Program 13
ARTICLE IX VESTING 13
ARTICLE X WITHDRAWALS WHILE EMPLOYED 14
10.1 Withdrawals for Hardship 14
10.2 Withdrawals After Age 59 and one half 15
10.4 Withdrawals from Predecessor Plan Subaccounts 16
10.5 Withdrawal Procedures 16
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ARTICLE XI DISTRIBUTIONS AFTER TERMINATION 16
11.1 Benefit on Termination of Employment 16
11.2 Time, Form and Medium of Distribution 16
11.3 Cash-Out of Small Accounts 17
11.4 Minimum Distribution Rules 17
11.5 Distribution Procedures 18
ARTICLE XII DISTRIBUTIONS AFTER DEATH 18
12.1 Benefit on Death 18
12.2 Time, Form and Medium of Distribution 18
12.3 Beneficiary Designation 18
12.4 Multiple Beneficiaries 20
12.5 Minimum Distribution Rules 20
ARTICLE XIII MISCELLANEOUS BENEFIT PROVISIONS 20
13.1 Valuation of Accounts Following Termination of
Employment 20
13.2 Direct Rollover Option 20
13.3 Missing Participants or Beneficiaries 21
13.4 Distribution in Event of Certain Corporate
Transactions 21
13.5 Distribution to Alternate Payee 21
13.6 Brokerage Fees 22
13.8 No Other Benefits 22
13.9 Source of Benefits 22
13.10 Incompetent Payee 22
13.11 No Assignment or Alienation of Benefits 22
13.12 Payment of Taxes 22
13.13 Conditions Precedent 22
13.14Delay of Distribution in Event of Stock Dividend or Split 22
ARTICLE XIV TRANSFER OR REEMPLOYMENT 23
14.1 Transfer of Employment 23
14.2 Effect of Reemployment 23
ARTICLE XV TRUST FUND 23
15.1 Composition 23
15.2 No Diversion 23
15.3 Funding Policy 24
15.4 Share Registration 24
15.5 Purchase/Sale of Company Stock 24
ARTICLE XVI ADMINISTRATION 24
16.1 Administration 24
16.2 Certain Fiduciary Provisions 25
16.3 Payment of Expenses 25
16.4 Evidence 25
16.5 Correction of Errors 25
16.6 Claims Procedure 25
16.7 Waiver of Notice 25
16.8 Agent For Legal Process 25
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16.9 Indemnification 25
16.10 Exercise of Authority 26
16.11 Telephonic or Electronic Notices and Transactions 26
ARTICLE XVII AMENDMENT, TERMINATION, MERGER 26
17.1 Amendment 26
17.2 Permanent Discontinuance of Contributions 27
17.3 Termination 27
17.4 Partial Termination 27
17.5 Merger, Consolidation, or Transfer of Plan Assets 27
17.6 Deferral of Distributions 27
ARTICLE XVIII PREDECESSOR PLAN ACCOUNTS 28
18.1 Transfers from Other Plans 28
18.2 Optional Forms of Payment 28
18.3 Special Rules if Survivor Annuity Requirements Apply 28
ARTICLE XIX MISCELLANEOUS PROVISIONS 29
19.1 Special Top-Heavy Rules 29
19.2 Qualified Military Service 31
19.3 Insurance Company Not Responsible for Validity of
Plan 31
19.4 No Guarantee of Employment 31
19.5 Use of Compounds of Word "Here" 31
19.6 Construed as a Whole 31
ADDENDUM SPECIAL RULES FOR PLAN YEAR 2000 32
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ADM
401(K) PLAN
FOR HOURLY EMPLOYEES
(As Adopted Effective January 1, 2000)
ARTICLE I
INTRODUCTION
1.1 Plan; Purpose. The ADM 401(K) PLAN FOR HOURLY EMPLOYEES is
sponsored by the Company primarily to provide Eligible
Employees with a means to save for their retirement or other
purposes, and also to provide Eligible Employees with a
means to acquire an ownership interest in the Company.
The Plan operates in coordination with the ESOP.
1.2 Qualified Profit Sharing Plan (With 401(k) Arrangement).
The Plan is a profit sharing plan that is intended to
qualify under Code 401(a). The Plan includes a cash or
deferred arrangement that is intended to qualify under Code
401(k).
1.3 Plan Document. The Plan document consists of this document,
the various appendices to this document, the List of
Participating Employers for the Plan, the List of
Participating Locations for the Plan, the List of
Predecessor Employers for the Plan, the List of Predecessor
Plan Subaccounts for the Plan and any document that is
expressly incorporated by reference into the Plan.
1.4 Effective Date of Document. The Plan (as stated in this
document) is effective January 1, 2000.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 Definitions.
2.1.1 "Account" means the bookkeeping account maintained to
reflect the Participant's interest in the Trust Fund.
2.1.2 "Active Participant" means an Eligible Employee who has
become and remains an Active Participant under Article III.
2.1.3 "Affiliate" means any corporation that is a member of
the same controlled group as the Company as defined in Code
414(b), any business entity that is under common control with
the Company as defined in Code 414(c), any business entity that
is a member of an affiliated service group with the Company as
defined in Code 414(m), or any other business entity that is
required to be aggregated and treated as one employer with the
Company under Code 414(o). For purposes of applying the limits
of Code 415, Code 414(b) and 414(c) will be applied as
modified by Code 415(h).
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2.1.4 "Annual Addition" means any of the following amounts
credited to the Participant as of any date within the limitation
year:
(a) Employee after-tax contributions credited under any defined
contribution plan maintained by the Company or an Affiliate (but
not rollover contributions);
(b) Employer contributions credited under any defined
contribution plan or simplified employee pension plan maintained
by the Company or an Affiliate, including 401(k) Contributions
credited under this Plan (including excess contributions
distributed under Sec. 6.2, but not including excess deferrals
distributed under Sec. 6.1), and including Matching and Non-
Matching Contributions credited under the ESOP (including excess
contributions distributed thereunder to satisfy the aggregate
contribution percentage test of Code 401(m));
(c) Forfeitures credited under any defined contribution plan
maintained by the Company or an Affiliate;
(d) Amounts credited to any individual medical benefit account
(as described in Code 415(l)(2)) under any defined benefit plan
maintained by the Company or an Affiliate, provided that, such
amounts will be disregarded in applying the twenty-five percent
(25%) of compensation limit under Code 415(c)(1)(B); and
(e) Amounts credited to any separate account for retiree medical
benefits (as described in Code 419A(d)(2)) on behalf of any Key
Employee under any welfare benefit fund maintained by the Company
or an Affiliate.
2.1.5 "Beneficiary" means a person or persons designated as
such pursuant to Sec. 12.3.
2.1.6 "Code" means the Internal Revenue Code of 1986, as
amended.
2.1.7 "Company" means Archer Daniels Midland Company.
2.1.8 "Company Stock" means common stock of the Company.
2.1.9 "Eligible Employee" means the following:
(a) General Rule. An Eligible Employee is an Employee who
satisfies the following criteria:
(1) The Employee is paid on an hourly wage basis, or
is paid on a regular stated salary basis but is
classified by the Company as an hourly wage
employee (for example, non-supervisory employees
of ARTCO).
(2) The Employee is employed with a Participating
Employer (while it is a Participating Employer) at
a Participating Location (while it is a
Participating Location).
(3) The Employee is not excluded under any one of the
following categories:
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(A) Any individual who is compensated on an hourly wage basis
but who is nevertheless classified as a salaried employee
by the
Company, and who is eligible to participate in the ADM
401(k)
Plan for Salaried 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, or as having any status other than a common-law
employee, by the Company (regardless of whether such
individual
is subsequently determined to be a common-law employee or an
employee for any other purpose).
(D) Any individual who is a citizen or resident of a foreign
country unless the Company expressly extends eligibility to
such
individual, such individual does not receive contributions
under
any funded plan of deferred compensation in a foreign
country,
and such individual is on the payroll system of the Company
or an
Affiliate in the United States.
(E) Any individual who is a Leased Employee with respect to the
Company or an Affiliate.
(b) Collective Bargaining Employees. An Employee is not an
Eligible Employee during any period he/she is a member of a unit
of Employees covered by a collective bargaining agreement unless
the 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 in effect after
it expires during the pendency of collective bargaining
negotiations until the parties have negotiated to "impasse" as
determined by the Company, and an Employee thereafter will be an
Eligible Employee if and only if participation is part of the
impasse proposal of the Company or the Employee was an Eligible
Employee before the collective bargaining agreement expired and
the Company elects to continue such status.
(c) Authorized Leaves of Absence. An Employee will continue as
an Eligible Employee during any authorized and paid leave of
absence if he/she was an Eligible Employee prior to the start of
such leave until Termination of Employment or the happening of
any event that would have caused the Employee to cease to be an
Eligible Employee if he/she had not been on a leave of absence
(e.g., if his/her employer ceases to be a Participating
Employer).
2.1.10 "Employee" means any common-law employee of the Company
or an Affiliate (while it is an Affiliate) and any Leased
Employee with respect to the Company or an Affiliate; provided
that, a Leased Employee will not be an Employee if Leased
Employees do not constitute more than twenty percent (20%) of the
combined workforce of the Company and Affiliates and the Leased
Employee is covered by a plan of the leasing organization that is
described in Code 414(n)(5).
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An individual who is employed by an eligible foreign
affiliate and who is a citizen or resident of the United
States will be treated as an Employee of the Company for the
period of his/her employment with the eligible foreign
affiliate provided the individual does not receive
contributions under any funded plan of deferred compensation
with respect to remuneration received from the eligible
foreign affiliate. An "eligible foreign affiliate" is any
foreign entity that satisfies the following requirements:
(i) ten percent (10%) or more of the voting stock or profits
interest of the foreign entity is owned by the Company or a
domestic Affiliate of the Company, and (ii) the Company has
entered into an agreement under Code 3121(l) that applies
to individuals employed by that foreign entity who are
citizens or residents of the United States.
2.1.11 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
2.1.12 "ESOP" means, as applicable to the Participant, the ADM
Employee Stock Ownership Plan for Hourly Employees or the ADM
Employee Stock Ownership Plan for Hourly Employees.
2.1.13 "401(k) Contribution" means a contribution made
pursuant to Sec. 4.1.
2.1.14 "Highly Compensated Employee" means an Employee who was
a five-percent owner (as defined in Code 414(q)(2)) at any time
during the current Plan Year or the look-back period, or an
Employee who received compensation in excess of the amount in
effect under Code 414(q)(1)(A) for the look-back period, with
"compensation" for this purpose meaning compensation as defined
in Sec. 6.3.2.
The "look-back period" for this purpose is the twelve-month
period immediately preceding the current Plan Year.
2.1.15 "Leased Employee" means an individual defined as such
under Code 414(n); generally, any individual who is not a
common-law employee of the Company or an Affiliate, but who
performs services for the Company or Affiliate (while it is an
Affiliate) pursuant to an agreement with any other person,
provided such individual has performed such services for the
Company or Affiliate on a substantially full-time basis for a
period of at least one year and such services are performed under
the primary direction and control of the Company or Affiliate.
2.1.16 "Normal Retirement Age" means age 65.
2.1.17 "Participant" means any of the following:
(a) An Active Participant;
(b) An Employee or former Employee who is no longer an Active
Participant but who still has an Account under the Plan; or
(c) An Employee or former Employee who has a Rollover Subaccount
but who has not yet become an Active Participant.
2.1.18 "Participating Employer" means the Company and any
Affiliate that is included on the List of Participating Employers
maintained for the Plan during the effective period specified on
such list (provided that, an employer will automatically cease to
be a Participating Employer as of the date it ceases to be an
Affiliate).
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2.1.19 "Plan" means the ADM 401(k) Plan for Hourly Employees,
as amended.
2.1.20 "Plan Year" means the calendar year.
2.1.21 "Predecessor Employer" means any business entity from
whose employment a group of Employees has been transferred to
employment with the Company or an Affiliate, or any member of a
controlled group of corporations of which an Affiliate used to be
a member prior to becoming a member of the controlled group of
the Company.
2.1.22 "Spouse" means a person of the opposite sex to whom the
Participant is legally married (including a common-law spouse in
any state that recognizes common-law marriage).
2.1.23 "Termination of Employment" means resignation,
discharge, retirement, death or the happening of any other event
or circumstance that results in the severance of the
employer-employee relationship with the Company and all
Affiliates; provided that, solely to determine whether a
Participant is entitled to a distribution from the Plan, a
Termination of Employment will not be deemed to have occurred
unless there has been a separation from service which the Company
determines satisfies the requirements of Code
401(k)(2)(B)(i)(I).
2.1.24 "Trust Fund" means the trust fund or funds (or any
group annuity contract with an insurance company) that serves as
a funding vehicle for the Plan.
2.1.25 "Trustee" means a trustee (or insurance company)
appointed and acting as such with respect to all or any portion
of the Trust Fund.
2.1.26 "Valuation Date" means each day on which trading occurs
on the New York Stock Exchange.
2.2 Choice of Law. The Plan will be governed by the laws of the
State of Illinois to the extent that such laws are not
preempted by the laws of the United States. All
controversies, disputes, and claims arising hereunder must
be submitted to the United States District Court for the
Central District of Illinois, except as otherwise provided
in any trust agreement or group annuity contract governing
all or a portion of the Trust Fund.
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ARTICLE III
PARTICIPATION
3.1 Start of Participation.
3.1.1 Participants in the ESOP Prior to August 1, 2000. An
Eligible Employee who was eligible to make Before-Tax
Contributions under the ESOP immediately prior to August 1,
2000, will become an Active Participant on August 1, 2000.
3.1.2 New Participants After August 1,2000. An Employee who
does not become an Active Participant on August 1, 2000,
will become an Active Participant on the following date:
(a) The first day of the calendar month that next follows the
date on which he/she completes six (6) months of continuous
employment with any Controlled Group Member (while it is a
Controlled Group Member), provided he/she is then an Eligible
Employee; or
(b) Thereafter, on the first day of the first calendar month on
which he/she is an Eligible Employee.
For this purpose, if an Employee terminates employment and
is later rehired, his/her employment after rehire will be
deemed to be continuous with his/her employment prior to the
earlier termination of employment if the period of absence
does not exceed one year.
3.1.3 Former Participants. A former Active Participant will
again become an Active Participant on the first day of the
calendar month after he/she again becomes a Eligible
Employee.
3.1.4 Credit for Service with a Predecessor Employer. An
Employee will receive credit for service with a Predecessor
Employer for purposes of determining his/her eligibility to
participate in the Plan (and such service will be treated as
service with a Controlled Group Member) as required under
Code 414(a) or as provided under the List of Predecessor
Employers maintained for the Plan.
3.2. End of Participation. An Active Participant will continue
as such for so long as he/she remains an Eligible Employee,
and a Participant will continue as such until he/she
receives full payment of the balance of his/her Account.
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 401(k) Contributions.
4.1.1 401(k) Contributions. 401(k) Contributions will be
made for each payroll period ending after August 1, 2000, on
behalf of each Active Participant who elects to have his/her
current compensation reduced in order to receive a 401(k)
Contribution for such payroll period. The amount of the
401(k) Contribution will equal the amount of the reduction
in current compensation.
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An Active Participant may elect to reduce his/her current
compensation for a payroll period by any whole percent, but
not less than one percent (1%) or more than the maximum
specified in the applicable Appendix. An election (or the
modification or revocation of an election) may be made with
such frequency as is deemed appropriate by the Company, and
must be made in such manner and in accordance with such
rules as may be prescribed for this purpose by the Company
(including by means of a voice response or other electronic
system under circumstances authorized by the Company). An
election (or modification or revocation of an election) will
be effective as soon as administratively practicable after
the election is made, but in no event will it be effective
retroactive to a payroll date before the election is made.
Any election in effect with respect to Before-Tax
Contributions under the ESOP as of August 1, 2000, will
continue to apply under this Plan after such date until
modified or revoked by the Participant.
An election will apply against "current compensation" which
will consist of such payroll items as may be deemed
appropriate by the Company, and will be determined without
regard to the compensation limit under Code 401(a)(17).
4.1.2 Limits. 401(k) Contributions will be subject to the
applicable limits set forth in Article VI, and the Company
may restrict the 401(k) Contributions of the Highly
Compensated Employees during the Plan Year if and in such
manner as it deems appropriate in order to comply with such
limits for the Plan Year.
4.2 After-Tax Contributions. An Active Participant is not
required or permitted to make after-tax contributions under
the Plan.
4.3 Rollover Contributions. The Company in its sole discretion
may allow an Eligible Employee who receives an "eligible
rollover distribution" (as defined in Code 402(c)(4)) from
another qualified plan to rollover such distribution to this
Plan. An Eligible Employee who makes a rollover will not
become an Active Participant merely as a result of the
rollover (and thus will not be eligible to make 401(k)
Contributions) until he/she has become an Active Participant
in accordance with the terms of the Plan.
A rollover election must be made in such manner and in
accordance with such rules as may be prescribed for this
purpose by the Company.
4.4 Transfers from ESOP. An Active Participant may elect to
transfer amounts credited to his/her Account under the ESOP
to this Plan under the circumstances described in the ESOP.
4.5 Form of Contribution. 401(k) Contributions attributable to
a given payroll period will be paid to the Trust Fund as
soon as administratively practicable after the close of such
payroll period, but not later then the 15th day of the
calendar month following the close of such payroll period.
401(k) Contributions will generally be paid in cash, but may
be paid in shares of Company Stock at the sole discretion of
the Company. If paid in shares of Company Stock, such
shares will be valued at the closing price of a share of
Company 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 Trust
Fund (as reported the next following business day in The
Wall Street Journal).
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ARTICLE V
EMPLOYER CONTRIBUTIONS
The Plan is designed to operate in coordination with the
ESOP. Accordingly, no employer contributions will be made
under this Plan but will be made under the ESOP.
ARTICLE VI
CONTRIBUTION LIMITS
6.1 Code Section 402(g) Limit on 401(k) Contributions. The
401(k) Contributions made on behalf of a Participant for a
Plan Year will not exceed the limit in effect for such Plan
Year under Code 402(g). If 401(k) Contributions, in
combination with all other elective deferrals (as defined in
Code 402(g)(3)) of the Participant for the Plan Year,
exceed such limit, then the Participant may attribute all or
any portion of the excess to this Plan and request that such
portion be distributed from this Plan. The portion of the
excess attributed to this Plan will first be reduced by the
amount of any reduction in 401(k) Contributions made under
Sec. 6.2.1. The remaining excess, adjusted for investment
gain or loss, will be distributed as soon as
administratively practicable after a request for
distribution is filed by the Participant (but not later than
the April 15 following the close of the Plan Year). Any
such request for distribution must be filed by March 1
following the close of the Plan Year in such manner and in
accordance with such rules as will be prescribed for this
purpose by the Company.
The investment gain or loss allocable to an excess hereunder
will be determined in the same manner generally used for
allocating investment gain or loss to Accounts, and will
include only investment gain or loss for the Plan Year (and
not investment gain or loss for the period from the close of
the Plan Year to the date of the distribution). For
purposes of determining investment gain or loss,
distributions will be deemed to consist of contributions
made in reverse order of time ("last-in, first-out"),
starting with the last contributions made for the Plan Year.
6.2 Code Section 401(k) Nondiscrimination Test.
6.2.1 Code Section 401(k) Test. The Plan will satisfy the
"average deferral percentage test" of Code 401(k)(3) each
Plan Year. If such test is not satisfied for a Plan Year,
then the 401(k) Contributions made on behalf of Highly
Compensated Employees for such Plan Year will be reduced to
the extent necessary to satisfy such test, with the amount
of the reduction to be determined and allocated among the
Highly Compensated Employees in the manner prescribed by
Code 401(k). The excess allocated to each Highly
Compensated Employee, adjusted for investment gain or loss,
will be distributed to the Participant as soon as
administratively practicable after the close of the Plan
Year (but not later than the close of the next Plan Year).
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The investment gain or loss allocable to an excess hereunder
will be determined in the same manner generally used for
allocating investment gain or loss to Accounts, and will
include only investment gain or loss for the Plan Year (and
not investment gain or loss for the period from the close of
the Plan Year to the date of the distribution). For
purposes of determining investment gain or loss,
distributions will be deemed to consist of contributions
made in reverse order of time ("last-in, first-out"),
starting with the last contributions made for the Plan Year.
The average deferral percentage test will be applied using
the current year testing method.
6.2.2 Multiple Use of the Alternative Limitations. The Plan,
in coordination with the ESOP, will satisfy the "multiple
use" test of Code 401(m)(9) each Plan Year. If such test
is not satisfied for any Plan Year, then the 401(k)
Contributions made on behalf of Highly Compensated Employees
for such Plan Year will be reduced to the extent necessary
to satisfy such test in accordance with Sec. 6.2.1.
6.2.3 Incorporation of Guidance. All nondiscrimination tests
will be applied by reference to current regulations and
subsequent guidance issued by the IRS.
6.3 Maximum Annual Additions.
6.3.1 Defined Contribution Plan Limit. The Annual Additions
with respect to a Participant for a limitation year will not
exceed the lesser of:
(a) The dollar amount in effect for such limitation year under
Code 415(c)(1)(A)), or
(b) Twenty-five percent (25%) of the Participant's compensation
for the limitation year.
If a Participant has Annual Additions under more than one
defined contribution plan maintained by the Company or an
Affiliate, the Annual Additions under all such plans will
not exceed the above-specified limit. To the extent
necessary to comply with this limit a refund will first be
made of the 401(k) Contributions or other elective deferrals
(as defined in Code 402(g)(3)) made by the Participant,
adjusted for investment gains (if such type of contribution
has been made under more than one plan, then the refunds
will be made prorata from such plans). For purposes of
determining investment gain, refunds will be deemed to
consist of contributions made in reverse order of time
("last-in, first-out"), starting with the last contributions
made for the limitation year.
The "limitation year" for this purpose is the Plan Year.
6.3.2 Compensation. For purposes of applying the limits of
Code 415, "compensation" means compensation as defined in
Code 415(c)(3), and includes those items specified in
Treas. Reg. 1.415-2(d)(2) and does not include those items
specified in Treas. Reg. 1.415-2(d)(3). "Compensation"
also includes 401(k) Contributions and other elective
deferrals (as defined in Code 402(g)(3)), and any amounts
that are contributed or deferred at the election of the
Participant and that are not includible in gross income by
reason of Code 125.
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6.4 Deduction Limit. The contributions made for any Plan Year
will not exceed the maximum amount allowable as a deduction
in computing the taxable income for federal income tax
purposes of the Company and its Affiliates for the taxable
year of the Company that ends with or within the Plan Year,
and each contribution is expressly conditioned upon its
being deductible under Code 404.
ARTICLE VII
ACCOUNTS
7.1 Accounts.
7.1.1 Types of Subaccounts. The following Subaccounts will
be maintained under the Plan as part of the Account of each
Participant:
(a) A "401(k) Subaccount" to reflect amounts
attributable to 401(k) Contributions made under this
Plan, and to amounts attributable to balances
transferred at the election of the Participant from
his/her Before-Tax Subaccount under the ESOP to this
Plan.
(b) A "Match Transfer Subaccount" to reflect amounts
attributable to balances transferred at the election of
the Participant from his/her Matching Subaccount under
the ESOP to this Plan.
(c) A "Non-Match Transfer Subaccount" to reflect amounts
attributable to balances transferred at the election of
the Participant from his/her Non-Matching Subaccount
under the ESOP to this Plan.
(d) A "Predecessor Plan Subaccount" to reflect amounts
attributable to any transfer received from a
Predecessor Plan (and more than one Predecessor Plan
Subaccount may be maintained with respect to a given
merger or transfer as deemed appropriate by the Company
to Account for different contribution sources).
Additional Subaccounts may also be maintained if considered
appropriate in the administration of the Plan.
7.1.2 Balance of Accounts. A Subaccount will have a cash
balance expressed in United States Dollars, plus a stock
balance expressed in shares of Company Stock to the extent
the Subaccount is invested in Company Stock.
7.1.3 Accounts for Bookkeeping Only. Accounts and
Subaccounts are for bookkeeping purposes only and the
maintenance of Accounts and Subaccounts will not require any
segregation of assets of the Trust Fund.
7.2 Valuation of Accounts.
7.2.1 Daily Adjustments. Subaccounts will be adjusted as of
each Valuation Date as follows:
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(a) Contributions. Contributions made with respect to a
Participant will be added to the balance of the
appropriate Subaccount as soon as administratively
practicable after such contributions are paid into the
Trust Fund; provided that, for purposes of applying the
nondiscrimination tests under Code 401(a)(4) and
401(k), for purposes of determining the maximum
allocations under Code 415, for purposes of
calculating the deductions under Code 404 and for any
other qualification provision of the Code, a
contribution will be treated as having been made for
the Plan Year designated by the Company provided that
the contribution is paid into the Trust Fund by such
deadline as may be prescribed for the applicable
provision of the Code.
(b) Gain or Loss on Investment Funds. The gain or loss on
the mutual funds or other investment options in which
Subaccounts are invested will be reflected in such
Subaccounts as provided in Sec. 8.1.2.
(c) Loan Interest Payments. The interest payments received
on a loan made to a Participant will be added to the
balance of the appropriate Subaccount as soon as
administratively practicable after such interest
payments are paid into the Trust Fund. Interest
accrued but unpaid on a loan on the date of any
distribution from a Subaccount against which the loan
is to be offset will be added to the balance of the
Subaccount prior to such offset (or as of such earlier
date as may be specified in the loan procedures for the
participant loan program).
(d) Cash Dividends. The cash dividends paid on shares of
Company Stock held by the Trust Fund as of the record
date of such dividend will be allocated among the
Subaccounts and the portion allocated to each
Subaccount will be added to balance of the Subaccount
as soon as administratively practicable after such
dividends are paid into the Trust Fund. The portion of
such cash dividends allocated to each Participant
Subaccount will be determined by multiplying the total
cash dividends by a fraction, the numerator of which is
the number of shares of Company Stock credited to the
Subaccount as of the date the dividends are paid into
the Trust Fund (or as of such other date as may be
established by the Company) and the denominator of
which is the total number of shares of Company Stock
held in all Participant Subaccounts as of the date the
dividends are paid into the Trust Fund (or as of such
other date as may be established by the Company).
(e) Stock Dividends and Splits. The stock dividends paid
on shares of Company Stock credited to any Subaccount
of a Participant as of the record date of such
dividend, and stock splits or reverse stock splits with
respect to shares of Company Stock credited to any
Subaccount of a Participant as of the record date of
such split, will be added to the balance of the
Subaccount as soon as administratively practicable
after the additional shares resulting from such stock
dividend, stock split or reverse stock split are paid
into the Trust Fund.
(f) Withdrawals and Distributions. The withdrawals and
distributions made from a Subaccount will be subtracted
from the balance of the Subaccount as of the date the
withdrawal or distribution is made from the Trust Fund.
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Any items of income, gain or loss, or expense not provided
for under the above provisions and not applied to pay
expenses of the Plan will be allocated among the Subaccounts
in accordance with rules prescribed for this purpose by the
Company and the portion allocated to each will be added to
or subtracted from the Subaccount as of the date established
by the Company.
7.2.2 Processing Transactions Involving Accounts. Accounts
shall be adjusted to reflect contributions, distributions
and other transactions as provided in Sec. 7.2.1. However,
all information necessary to properly reflect a given
transaction in the Subaccounts may not be immediately
available, in which case the transaction will be reflected
in the Subaccounts when such information is received and
processed. Further, subject to express limits that may be
imposed under the Code, the Company reserves the right to
delay the processing of any contribution, distribution or
other transaction for any legitimate business reason
(including, but not limited to, failure of systems or
computer programs, failure of the means of the transmission
of data, force majeure, the failure of a service provider to
timely receive net asset values or prices, or to correct for
its errors or omissions or the errors or omissions of any
service provider). With respect to any contribution,
distribution or other transaction, the processing date of
the transaction will be considered the applicable Valuation
Date for that transaction and will be binding for all
purposes of the Plan.
7.3 Statements. The Company may cause benefit statements to be
issued from time to time advising Participants of the status
of their Accounts, but it is not required to issue benefit
statements and the issuance of such benefit statements (and
any errors that may be reflected on benefit statements) will
not in any way alter or affect the rights of Participants
with respect to the Trust Fund.
7.4 Voting Rights on Company Stock.
7.4.1 Voting of Allocated Shares. A Participant (or
Beneficiary of a deceased Participant) may instruct the
Trustee as to how to vote shares of Company Stock credited
to his/her Account on any matter submitted for a vote to
shareholders of the Company. The number of shares with
respect to which a Participant may provide voting
instructions will equal the number of full and fractional
shares credited to his/her Account as of the record date for
determining the shareholders entitled to vote at the
shareholder meeting. The Company will cause the proxy
materials that are sent to shareholders to be sent to
Participants prior to the shareholders meeting at which the
vote is to be cast. The Company or Trustee will establish a
deadline by which instructions must be received from
Participants; the Trustee will tabulate the instructions
received by that deadline, will determine the number of
votes for and against each proposal, and will vote the
allocated shares in accordance with the directions received.
7.4.2 Voting of Unallocated Shares/Shares for Which
Directions Not Received. The Trustee will vote all shares
of Company Stock credited to Accounts for which instructions
from the Participants (or Beneficiaries) have not been
received by the established deadline in the same proportion
as the vote cast pursuant to Sec. 7.4.1.
7.4.3 Named Fiduciary. A Participant (or Beneficiary) will
be a "named fiduciary" to the extent of the voting control
granted under this Section.
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7.5 Tender or Exchange Offers Regarding Company Stock.
7.5.1 Tender of Allocated Shares. A Participant (or
Beneficiary of a deceased Participant) may instruct the
Trustee as to whether or not to tender or exchange shares of
Company Stock credited to his/her Account in any tender or
exchange offer for shares of Company Stock. The number of
shares with respect to which a Participant may provide
instructions will equal the number of full and fractional
shares credited to his/her Account as of a date established
by the Company that precedes the date on which a response is
required to the offer (with appropriate adjustments to
reflect subsequent transactions with respect to the
Account). The Company will use reasonable efforts to cause
each Participant to be sent a notice of the terms of any
tender or exchange offer, and to be provided with forms by
which the Participant may instruct the Trustee to tender
shares of Company Stock credited to his/her Account, to the
extent permitted under the terms of such offer. The Company
or Trustee will establish a deadline by which instructions
must be received from Participants; the Trustee will
tabulate the instructions received by that deadline, will
determine the number of shares to tender and retain, and
will tender or retain the allocated shares in accordance
with the directions received.
A Participant (or Beneficiary ) may not instruct the Trustee
to tender or exchange some but less than all of the shares
of Company Stock credited to his/her Account, and an
instruction to tender or exchange less than all will be
deemed to be an instruction not to tender or exchange any
shares of Company Stock credited to his/her Account.
7.5.2 Tender of Unallocated Shares/Shares for Which No
Directions Received. The Trustee will tender or exchange,
or retain, shares of Company Stock credited to Participant
Accounts for which instructions from the Participant (or
Beneficiary) have not been received by the established
deadline, in the same proportion as the decision made in
Sec. 7.5.1.
7.5.3 Named Fiduciary. A Participant (or Beneficiary) will
be a "named fiduciary" to the extent of the investment
control granted under this Section.
ARTICLE VIII
INVESTMENT OF ACCOUNTS
8.1 Investment Options.
8.1.1 Investment Options. The Company will determine the
investment options that will be made available under the Plan,
which may include mutual funds, common or commingled investment
funds, a group annuity, deposit administration or separate
account contract issued by an insurance company, Company Stock
(maintained using share accounting or as part of a pooled
investment fund using unit accounting) or any other investment
option deemed appropriate by the Company. The Company may at any
time and from time to time add to or remove from the investment
options; provided that, at least three (3) investment options
will be available at all times under the Plan.
A Participant (or Beneficiary following the death of the
Participant) will be allowed to direct the investment of
his/her Subaccounts among the investment options available
under the Plan.
The Plan is intended to comply with ERISA 404(c).
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8.1.2 Investment Gains or Losses. Investment gains or losses
of the Trust Fund with respect to an investment option will be
allocated as follows:
(a) In the case of any mutual fund, the value of that
portion of a Subaccount invested in the mutual fund as
of any date will equal the value of a share in such
fund multiplied by the number of shares credited to the
Subaccount.
(b) In the case of any pooled investment fund, gains or
losses on the pooled investment fund will be allocated
among the Subaccounts in proportion to the value of
that portion of each Subaccount invested in such fund
immediately prior to the allocation, and the gain or
loss allocated to each will be credited to or charged
against the Subaccount. Alternatively, unit values may
be established for a pooled investment fund in
accordance with investment rules prescribed for this
purpose by the Company, and the value of that portion
of a Subaccount invested in a pooled investment fund
will equal the value of a unit in such fund multiplied
by the number of units credited to the Subaccount.
(c) In the case of any investment that is held specifically
for a Subaccount, any gain or loss on such investment
will be credited to or charged against the Subaccount.
Any investment gain or loss of the Trust Fund that is not
directly attributable to the investment of the Account of
any Participant (including, for example, any "float" earned
on the disbursement account established for the Plan and not
treated as part of the compensation of the Trustee or paying
agent for the Plan, and any 12b-1 or similar fees paid to
the Plan) will be applied to pay administrative expenses of
the Plan, with any excess remaining at the close of the Plan
Year being allocated among the Accounts in accordance with
rules established for this purpose by the Company.
8.1.3. Investment Direction Procedures. Investment directions
may be given with such frequency as is deemed appropriate by
the Company, and must be made in such percentage or dollar
increments, in such manner and in accordance with such rules
as may be prescribed for this purpose by the Company
(including by means of a voice response or other electronic
system under circumstances so authorized by the Company).
All investment directions will be complete as to the terms
of the investment transaction and will remain in effect
until a new investment direction is filed by the
Participant.
8.1.4 Processing Investment Transactions. Investment
directions will be processed as soon as administratively
practicable after proper investment directions are received
from the Participant. Neither the Plan nor the Company
provides a guarantee that investment directions will be
processed on a daily basis, or provides a guarantee in any
respect as to the processing time of an investment
direction. Notwithstanding the general provisions of Sec.
7.2.1, the Company reserves the right to not value an
investment option or a Subaccount on any given Valuation
Date for any reason deemed appropriate by the Company. The
Company further reserves the right to delay the processing
of any investment transaction for any legitimate business
reason (including, but not limited to, failure of systems or
computer programs, failure of the means of the transmission
of data, force majeure, the failure of a service provider to
timely receive values or prices, to correct for its errors
or omissions or the errors or omissions of any service
provider). With respect to any investment transaction, the
processing date of the transaction will be considered the
applicable Valuation Date for that transaction and will be
binding for all purposes of the Plan.
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8.2 Participant Loan Program. The Company may establish a
participant loan program in accordance with ERISA
408(b)(1), the terms and conditions of which will be
determined by the Company and set forth in written loan
procedures that will be deemed to form part of the Plan.
The rules and regulations will apply on a uniform basis to
all Participants, and will not allow for an offset against
the balance of an Account upon default of a loan prior to
the date distributions are permitted under the Code
(regardless of whether a prior taxable event occurs in
connection with the loan under Code 72(p)).
ARTICLE IX
VESTING
A Participant will have a fully vested and nonforfeitable
interest at all times in his/her Account under this Plan.
ARTICLE X
WITHDRAWALS WHILE EMPLOYED
10.1 Withdrawals for Hardship.
10.1.1 Withdrawal. A Participant may make a withdrawal from a
Subaccount specified in 10.1.2 prior to the date he/she
attains age fifty-nine and one-half (59 and one half) if the withdrawal
is on account of an immediate and heavy financial need and
the withdrawal is needed to alleviate the financial need.
However, a withdrawal will not be allowed of an amount less
than one thousand dollars ($1,000) (or the total amount
available for withdrawal if less than such amount). Also,
no more than one withdrawal will be allowed in any Plan Year
from this Plan pursuant to this Section or from the ESOP
pursuant to Sec. 10.1 of the ESOP (any withdrawal made at
the same time from both plans will be treated as one
withdrawal).
10.1.2 Available Subaccounts/Ordering. A withdrawal under
this Section will be made from the 401(k) Subaccount.
A withdrawal will be allowed under this Section only if the
Participant has first received any available withdrawal from
his/her Rollover Subaccount.
Notwithstanding any contrary provision, a withdrawal from
the 401(k) Subaccount may not exceed an amount equal to the
401(k) Contributions credited to such Subaccount. If a
Participant has transferred all or any portion of his/her
Before-Tax Subaccount from the ESOP to this Plan, a
withdrawal from the 401(k) Subaccount may not exceed the
balance of the Before-Tax Subaccount under the ESOP as of
December 31, 1988, plus the amount of the Before-Tax
Contributions credited to such Subaccount after December 31,
1988, and prior to August 1, 2000, plus the amount of the
401(k) Contributions credited to the 401(k) Subaccount after
August 1, 2000, reduced by the amount previously withdrawn
from on account of hardship from the Before-Tax Subaccount
under the ESOP or the 401(k) Subaccount.
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10.1.3 Immediate and Heavy Financial Need. A withdrawal will
be deemed to be on account of an immediate and heavy
financial need only if the withdrawal is for one of the
following reasons:
(a) Expenses for medical care (as defined in Code 213(d))
incurred by the Participant, the Spouse of the
Participant, or any dependent (as defined in Code
152) of the Participant, or expenses necessary for
any of such persons to obtain such medical care.
(b) Costs directly related to the purchase of the principal
residence of the Participant (excluding mortgage
payments).
(c) 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 (as defined in Code 152)
of the Participant.
(d) To prevent the eviction of the Participant from his/her
principal residence or foreclosure on the mortgage of
the principal residence of the Participant.
10.1.4 Needed to Alleviate Need. A withdrawal will be deemed
to be needed to alleviate an immediate and heavy financial
need only if:
(a) The withdrawal amount does not exceed the amount of the
immediate and heavy financial need (plus the amount
necessary to pay any federal, state or local income
taxes or penalties reasonably expected to result from
the withdrawal as determined by the Company).
(b) The Participant has obtained all distributions (other
than hardship distributions) and all nontaxable loans
currently available under all plans maintained by the
Company or an Affiliate.
(c) The Participant agrees that the 401(k) Contributions
and other elective deferrals (as defined in Code
402(g)(3)) and employee contributions under all other
qualified and nonqualified plans of deferred
compensation (including stock option, stock purchase or
similar plan) maintained by the Company or an
Affiliate, will be suspended for at least twelve (12)
months after the receipt of the hardship distribution.
This will not prevent the "cash-less" exercise of any
stock option.
(d) For the calendar year immediately following the
calendar year of the withdrawal, the Participant may
not make elective deferrals (as defined in Code
402(g)(3)) under all plans maintained by the Company
or any Affiliate in excess of the applicable limit
under Code 402(g) for such next calendar year less
the amount of his/her elective deferrals for the
calendar year of the hardship distribution.
10.1.5 Medium of Withdrawal. A withdrawal will be made in the
following medium at the election of the Participant:
(a) Fully in cash; or
(b) Fully in whole shares of Company Stock (with
any fractional share in cash).
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10.2 Withdrawals After Age 59 and one half.
10.2.1 Withdrawals. A Participant may make a withdrawal from
a Subaccount specified in 10.2.2. for any reason after
he/she attains age fifty-nine and one-half (59 and one half). However,
a withdrawal will not be allowed of an amount less than one
thousand dollars ($1,000) (or the total amount available for
withdrawal if less than such amount). Also, no more than
one withdrawal will be allowed in any Plan Year from this
Plan pursuant to this Section or from the ESOP pursuant to
Sec. 10.2 of the ESOP (any withdrawal made at the same time
from both plans will be treated as one withdrawal).
10.2.2 Available Subaccounts/Ordering. A withdrawal under
this Section will be made from the Subaccounts in the
following order:
(a) 401(k) Subaccount;
(b) Matching Transfer Subaccount; and
(c) Non-Matching Transfer Subaccount.
A withdrawal will be allowed under this Section only if the
Participant has first received any available withdrawal from
his/her Rollover Subaccount.
10.2.3 Medium of Withdrawal. A withdrawal will be made in the
following medium at the election of the Participant:
(a) Fully in cash; or
(b) Fully in whole shares of Company Stock (with
any fractional share in cash).
10.3 Withdrawals from Rollover Subaccounts. A Participant may
make a withdrawal at any time and for any reason from a
Rollover Subaccount. However, no more than one withdrawal
will be allowed for any reason in any Plan Year from this
Plan pursuant to this Section.
10.4 Withdrawals from Predecessor Plan Subaccounts. A
Participant may make a withdrawal from a Predecessor Plan
Subaccount as provided on the List of Predecessor Plan
Accounts for the Plan.
10.5 Withdrawal Procedures. A withdrawal request must be made in
such manner and in accordance with such rules as may be
prescribed for this purpose by the Company (including by
means of a voice response or other electronic system under
circumstances authorized by the Company).
ARTICLE XI
DISTRIBUTIONS AFTER TERMINATION
11.1 Benefit on Termination of Employment. A Participant will be
eligible to receive a distribution of the balance of his/her
Account following his/her Termination of Employment in
accordance with the terms of this Article.
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11.2 Time, Form and Medium of Distribution.
11.2.1 Time of Distribution. A distribution will be made (or
distributions will commence) as soon as administratively
practicable after the Participant files a request for
distribution following his/her Termination of Employment,
but not later than sixty (60) days after the close of the
Plan Year in which he/she attains Normal Retirement Age (or
in which his/her Termination of Employment occurs, if
later).
11.2.2 Form of Distribution. A distribution will be made in
the following form:
(a) Retirements. If the Termination of Employment is
a normal retirement or an early retirement under the
ADM Pension Plan for Hourly Employees, or if the
Participant is receiving disability payments under any
long-term disability plan maintained by the Company or
an Affiliate, payment will be made in either of the
following forms at the election of the Participant:
(1) A single-sum distribution of the full
balance of his/her Account (provided he/she also
receives a single-sum distribution of the full
balance of his/her Account under the ESOP); or
(2) Two or more partial distributions each
of which (other than the final distribution) is
not less than one-thousand dollars ($1,000).
No more than one partial distribution
may be made in any calendar year from the 401(k)
Plan and/or ESOP.
(b) Vested Terminations. In all other cases, the
distribution will be in the form of a single-sum
distribution of the full balance of his/her Account
(partial distributions are not permitted).
11.2.3 Medium of Distribution. A distribution (other than
from a Predecessor Plan Account) will be made in the
following medium at the election of the Participant:
(a) Fully in cash; or
(b) Fully in whole shares of Company Stock (with
any fractional share in cash).
A distribution from a Predecessor Plan Subaccount will be
made in cash unless otherwise specified in the List of
Predecessor Plan Accounts for the Plan.
11.2.4 Default Upon Failure to Request Distribution. If the
Participant fails to file a distribution request, a
distribution will be made as soon as administratively
practicable after the Participant attains Normal Retirement
Age (or after his/her Termination of Employment occurs, if
later) in the form of a single-sum distribution in whole
shares of Company Stock to the extent the Account is then
invested in shares of Company Stock (with the balance in
cash).
11.2.5 Ordering. A partial distribution will be drawn from
the Subaccounts in the following order:
(a) Rollover Subaccount;
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(b) 401(k) Subaccount;
(c) Matching Transfer Subaccount; and
(d) Non-Matching Transfer Subaccount.
11.3 Cash-Out of Small Accounts. Any contrary provision
notwithstanding, if the value of a Participant's Account
does not exceed $5,000, a single-sum distribution of the
full balance of the Account will be made to the Participant
as soon as administratively practicable after his/her
Termination of Employment. If the Participant fails to file
an election as to the medium of distribution, the
distribution will be made in cash.
If the value of a Participant's Account exceeds $5,000 as of
the earliest payment date available to the Participant, but
subsequently falls below such amount (for example, because
of distributions or investment losses) the Company may then
direct that the full balance of the Account be distributed
to the Participant.
11.4 Minimum Distribution Rules. Notwithstanding any contrary
provision, distributions will be made as necessary to comply
with the minimum distribution rules of Code 401(a)(9)
(including the incidental death benefit rules of Code
401(a)(9)(G)). To calculate the minimum distribution for
the first year, the initial life expectancy (or joint life
and last survivor expectancy) will be determined based on
the age of the Participant and his/her Beneficiary as of the
birthday in the calendar year prior to the calendar year in
which the required beginning date falls using the expected
return multiples in Tables V and VI of Treas. Reg. 1.72-9
or, if applicable, the appropriate minimum distribution
incidental benefit table in Prop. Treas. Reg. 1.401(a)(9)-
2. To calculate the minimum distribution for each
succeeding year, the initial life expectancy (or joint life
and last survivor expectancy) will be reduced by one for
each succeeding year (and life expectancies will not be
redetermined each year). A minimum distribution will be
drawn from the Subaccounts in the order specified in Sec.
11.2.5.
The "required beginning date" for this purpose means the
April 1 of the calendar year after the later of (i) the
calendar year in which he Participant attains age 70 and one half, or
(ii) the calendar year of Termination of Employment.
However, clause (ii) will not apply to any Participant who
is more than a five-percent owner (as defined in Code 416)
with respect to the Plan Year in which he/she attains age
70 and one half.
11.5 Distribution Procedures. A distribution request must be
made in such manner and in accordance with such rules as may
be prescribed for this purpose by the Company (including by
means of a voice response or other electronic system under
circumstances authorized by the Company).
ARTICLE XII
DISTRIBUTIONS AFTER DEATH
12.1 Benefit on Death. The Beneficiary of a Participant will be
eligible to receive a distribution of that portion of the
balance (or remaining balance) of the Participant's Account
allocated to such Beneficiary following the Participant's
death in accordance with the terms of this Article.
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12.2 Time, Form and Medium of Distribution.
12.2.1 Time of Payment. A distribution will be made as soon
as administratively practicable after the death of the
Participant and the entitlement of the Beneficiary has been
determined by the Company.
12.2.2 Form of Distribution. A distribution will be made in
the form of a single-sum distribution of the full balance
payable to the Beneficiary.
12.2.3 Medium of Distribution. A distribution (other than
from a Predecessor Plan Subaccount) will be made in the
following medium, at the election of the Beneficiary:
(a) Fully in cash; or
(b) Fully in whole shares of Company Stock (with any
fractional share paid in cash).
A distribution from a Predecessor Plan Subaccount will be
made in cash unless otherwise specified in the List of
Predecessor Plan Accounts for the Plan.
12.2.4 Default Upon Failure to Request Distribution. If the
Beneficiary fails to file an election as to the medium of
distribution, a distribution will be made in cash.
12.3 Beneficiary Designation.
12.3.1 General Rule. A Participant may designate any person
(natural or otherwise, including a trust or estate) as
his/her Beneficiary to receive any balance remaining in
his/her Account when he/she dies, and may change or revoke a
Beneficiary designation previously made without the consent
of any Beneficiary named therein.
12.3.2 Special Requirements for Married Participants. If a
Participant has a Spouse at the time of death, such Spouse
will be his/her Beneficiary unless:
(a) The Spouse has consented in writing to the designation
of a different Beneficiary;
(b) The Spouse's consent acknowledges the effect of such
designation; and
(c) The Spouse's consent is witnessed by a notary public or
an authorized representative of the Plan.
Consent of a Spouse will be deemed to have been obtained if
it is established to the satisfaction of the Company that
such consent cannot be obtained because the Spouse cannot be
located, or because of such other circumstances as may be
prescribed by the Secretary of Treasury. A consent by a
Spouse will be effective only with respect to such Spouse,
and cannot be revoked. A Beneficiary designation that has
received spousal consent cannot be changed without spousal
consent.
12.3.3 Form and Method of Designation. A Beneficiary
designation must be made on such form and in accordance with
such rules as may be prescribed for this purpose by the
Company. A Beneficiary designation will be effective (and
will revoke all prior designations) only if it is received
by the Company (or if sent by mail, the post-mark of the
mailing is) prior to the date of death of the Participant.
The Company may rely on the latest Beneficiary
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designation on file with it (or may direct that payment be
made pursuant to the default provision of the Plan if an
effective designation is not on file) and will not be liable
to any person making claim for such payment under a
subsequently filed Beneficiary designation or for any other
reason.
12.3.4 Default Designation. If a Beneficiary designation is
not on file with the Company, or if no designated
Beneficiary survives the Participant, the Beneficiary will
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
will 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.
The identity of the Beneficiary in each case will be
determined by the Company.
12.3.5 Successor Beneficiary. If a Beneficiary survives the
Participant but dies before receiving the full balance to
which he/she is entitled, the remaining balance will be
payable to the surviving contingent Beneficiary designated
by the Participant or otherwise to the estate of the
deceased Beneficiary.
12.3.6 Special Rules. In the case of an Active Participant in
this Plan on August 1, 2000, a Beneficiary designation in
effect under the ESOP immediately prior to August 1, 2000,
will be deemed to apply with respect to this Plan unless and
until changed or revoked by the Participant.
A Beneficiary designation in effect under a predecessor plan
immediately prior to its merger into this Plan or transfer
of account balance to this Plan will be deemed to be valid
under this Plan with respect to the resulting Predecessor
Plan Subaccount (and only such subaccount) unless and until
changed or revoked by the Participant.
12.4 Multiple Beneficiaries. If more than one Beneficiary is
entitled to benefits following the death of a Participant,
the interest of each will be segregated for purposes of
applying this Article.
12.5 Minimum Distribution Rules. Notwithstanding any contrary
provision, distributions after the death of the Participant
will be made as necessary to comply with the minimum
distribution rules of Code 401(a)(9) (including the
incidental death benefit rules of Code 401(a)(9)(G)). To
comply with such minimum distribution rules, distribution of
the full balance payable to all Beneficiaries will be made
not later than the last day of the calendar year in which
falls the fifth (5th) anniversary of the date the
Participant dies.
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ARTICLE XIII
MISCELLANEOUS BENEFIT PROVISIONS
13.1 Valuation of Accounts Following Termination of Employment.
13.1.1 Continued Adjustment of Accounts. If a distribution of
all or any portion of an Account is deferred or delayed for any
reason, the Account will continue to be adjusted to reflect
investment gains or losses in accordance with the terms of the
Plan.
13.1.2 Segregation of Accounts/Disbursement Accounts. If
investments are liquidated to allow for a distribution, the
resulting proceeds may be credited to a segregated account
maintained under the Plan for the benefit of the person to
whom the distribution is to be made, and any investment
gains or losses on such segregated account will be allocated
solely to such segregated account (and the Accounts of other
Participants or Beneficiaries will not be affected by such
investment gains or losses). Any such segregated account
may be held uninvested in cash, or invested in an interest-
bearing account or other short-term investment as directed
by the Company pending distribution from the Plan.
A disbursement account also will be established for the Plan
(either with the Trustee, any affiliate of the Trustee, or
any third party bank selected by the Company) to allow for
any distributions from the Plan. Such disbursement account
is separate and distinct from any segregated account
established under the prior paragraph, and any interest or
other income earned on such disbursement account will inure
to the benefit of the Plan and not the Participant. Such
interest or other income will be applied to pay
administrative expenses of the Plan or, pursuant to
agreement with the Trustee or paying agent for the Plan,
will be treated as part of the compensation of the Trustee
or paying agent for the Plan. In any event, a Participant
will have no claim to any income on any disbursement account
established for the Plan.
13.2 Direct Rollover Option. A distribution to a Participant,
the surviving Spouse of a Participant, or an alternate payee
under a qualified domestic relations order who is the Spouse
or former Spouse of a Participant may be made in the form of
a direct rollover to an individual retirement account or
annuity described in Code 408 or to another qualified plan
described in Code 401(a); except that, a qualified plan is
not available as a rollover alternative in the case of the
surviving Spouse of the Participant. A direct rollover will
be allowed only to the extent that the distribution is an
"eligible rollover distribution" (as defined in Code
402(f)) (e.g., an eligible rollover distribution does not
include a hardship distribution from a 401(k) Subaccount, a
distribution that is part of a series of installments
payable over a period of ten (10) years or more or a
distribution that is required under Code 401(a)(9)). The
recipient of an eligible rollover distribution must provide
the Company with the information necessary to accomplish the
direct rollover in such manner and in accordance with such
rules as may be prescribed for this purpose by the Company
(including by means of a voice response or other electronic
system under circumstances authorized by the Company).
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13.3 Missing Participants or Beneficiaries. A Participant or
Beneficiary must maintain his/her most recent post office
address on file with the Company. Any communication
addressed to the Participant or Beneficiary at the post
office address on file with the Company will be binding on
the Participant or Beneficiary for all purposes of the Plan,
and the Company is not obligated to search for any
Participant or Beneficiary. If a Participant
or Beneficiary fails to claim any amount payable under the
Plan (or fails to cash any check drawn on the disbursement
account established for the Plan), such amount will be
forfeited by the Participant or Beneficiary at such time as
is deemed appropriate by the Company, or may be disposed of
in such other equitable manner as is deemed appropriate by
the Company. Any forfeited amounts shall be transferred to
the ESOP and applied to reduce Matching Contributions made
to the ESOP. If a Participant or Beneficiary claims a
forfeited amount prior to termination of the Plan, the value
forfeited (measured as of the date of the forfeiture) shall
be restored to the Participant or Beneficiary (without
adjustment for subsequent income or appreciation). The
Company shall make an additional contribution to the Plan as
necessary to provide for the restoration.
13.4 Distribution in Event of Certain Corporate Transactions.
The Company or an Affiliate may from time to time sell an
interest in a subsidiary. The Company or an Affiliate also
may from time to time sell a facility, division or service
line and, in connection with such sale, a Participant may
terminate his/her employment with the Company and become an
employee of the purchaser of such facility, division or
service line. In either event, the Company will determine
whether a separation from service has occurred that
satisfies the requirements of Code 401(k)(2)(B)(i)(I) and
thus whether there has been a Termination of Employment that
allows a distribution from the Plan. If the Company
determines that there has not been a separation from
service, the Company, in its sole discretion may nonetheless
allow affected Participants to receive a distribution of
their Account if it determines that either of the following
events has occurred:
(a) There has been a sale by the Company or an Affiliate
(provided it is a corporation) of substantially all of
the assets (within the meaning of Code 409(d)(2))
used in a trade or business to another corporation.
(b) There has been a sale by the Company or an Affiliate
(provided it is a corporation) of an interest in a
subsidiary (within the meaning of Code 409(d)(3)).
A distribution under this provision will be allowed only in
the form of a single-sum payment to be made as of the date
established by the Company that is not later than the last
day of the Plan Year following this event.
13.5 Distribution to Alternate Payee. An alternate payee under a
qualified domestic relations order (each as defined in Code
414(p)) may elect to receive a lump-sum distribution of
the amount assigned to such individual under the order as
soon as administratively practicable after the Company has
determined that the order is a qualified domestic relations
order (and all time for appeal of such decision has
expired), or as of such later date as may be specified in
the order, without regard to whether such distribution is
made prior to the earliest retirement age (as defined in
Code 414(p)). If the amount assigned to the alternate
payee under a qualified domestic relations order does not
exceed five thousand dollars ($5,000), such amount will be
paid to the alternate payee in a lump-sum distribution as
soon as administratively practicable after the date
specified above and a delayed distribution option will not
be available to the alternate payee.
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13.6 Brokerage Fees. Any brokerage fees incurred to accommodate
any distribution in cash that requires that shares of
Company Stock be sold to allow for such distribution (other
than a distribution of cash in lieu of a fractional share)
will be reduced to reflect any broker fees incurred on the
sale of Company Stock.
13.7 Put Option. If shares of Company Stock are either not
readily tradable on an established securities market, or are
subject to a trading limitation when such shares are
distributed, such shares will be subject to the same "put
option" as provided under the ESOP.
13.8 No Other Benefits. No benefits other than those
specifically provided for in the Plan document will be
provided under the Plan.
13.9 Source of Benefits. All benefits to which any person
becomes entitled under the Plan will be provided only out of
the Trust Fund and only to the extent that the Trust Fund is
adequate therefor. The Participants and Beneficiaries
assume all risk connected with any decrease in the market
value of shares of Company Stock or any other assets held
under the Plan, and the Company and its Affiliate do not in
any way guarantee the Trust Fund against any loss or
depreciation, or the payment of any amount, that may be or
become due to any person from the Trust Fund.
13.10 Incompetent Payee. If a person entitled to payments
hereunder is in the opinion of the Company unable to care
for his/her affairs because of a mental or physical
condition, any 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 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. The
Company will have no liability with respect to payments so
made and will have no duty to make inquiry as to the
competence of any person entitled to receive payments
hereunder.
13.11 No Assignment or Alienation of Benefits. The interests
of any person who is entitled to benefits under the Plan may
not in any manner whatsoever be assigned or alienated,
whether voluntarily or involuntarily, directly or
indirectly, except as expressly permitted under Code
401(a)(13).
13.12 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 will 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 will deem necessary for its protection.
13.13 Conditions Precedent. No person will be entitled to a
benefit until his/her right to such benefit has been finally
determined by the Company nor until he/she has submitted to
the Company relevant data reasonably requested by the
Company, including, but not limited to, proof of birth or
death.
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13.14 Delay of Distribution in Event of Stock Dividend or
Split. The Company may direct that, no distribution will be
made between the record date and the ex-date of any stock
dividend, stock split or reverse stock split if the ex-date
is after the record date.
ARTICLE XIV
TRANSFER OR REEMPLOYMENT
14.1 Transfer of Employment.
14.1.1 Transfers To Salaried Plan. If a Participant in this
Plan becomes a participant in the ADM 401(k) Plan for
Salaried Employees, the Company may arrange for transfer of
his/her Account under this Plan to a comparable account
under the ADM 401(k) Plan for Salaried Employees.
14.1.2 Transfers From Salaried Plan. If a participant in the
ADM 401(k) for Salaried Employees becomes an Eligible
Employee, he/she will become an Active Participant in this
Plan (and will cease to be a participant in the ADM 401(k)
Plan for Salaried Employees) effective for the first payroll
period that begins in the calendar month after the date
he/she becomes an Eligible Employee. All elections and
designations made under the ADM 401(k) Plan for Salaried
Employees (including contribution elections and Beneficiary
designations) will continue in effect under this Plan until
modified or revoked in accordance with the terms of this
Plan. The Company also may arrange for transfer of his/her
account balance under such Plan to the comparable Accounts
under this Plan.
14.2 Effect of Reemployment. If a Participant is reemployed by
the Company or an Affiliate (while it is an Affiliate)
before he/she has received full distribution of the balance
of his/her Account, entitlement to a distribution will cease
upon such reemployment, and will recommence in accordance
with the terms of the Plan upon subsequent Termination of
Employment.
ARTICLE XV
TRUST FUND
15.1 Composition. The assets of the Plan will be held in trust
by one or more Trustees appointed by the Company under one
or more trust agreements. The Company may cause the assets
held under any trust agreement to be divided into any number
of parts for investment purposes or any other purpose deemed
necessary or advisable for the proper administration of the
Plan.
15.2 No Diversion. The Trust Fund will be maintained for the
exclusive purpose of providing benefits to Participants and
their Beneficiaries and defraying reasonable expenses of
administering the Plan. No part of the corpus or income of
the Trust Fund may be used for, or diverted to, purposes
other than for the exclusive benefit of Employees or their
Beneficiaries. Notwithstanding the foregoing:
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(a) If all or any portion of a contribution is made as a
result of a mistake of fact, the Trustee will, upon
written request of the Company, return such portion of
the contribution to the Company within one year after
its payment to the Trust Fund. Earnings attributable
to such portion of the contribution (or portion
thereof) will not be returned but will remain in the
Trust Fund, and the amount returned will be reduced by
any losses attributable to such portion of the
contribution.
(b) Each contribution is conditioned upon the deductibility
of the contribution under Code 404. To the extent
the deduction is disallowed, the Trustee will return
such contribution to the Company within one year after
the disallowance of the deduction; however, earnings
attributable to such contribution (or disallowed
portion thereof) will not be returned but will remain
in the Trust Fund, and the amount returned will be
reduced by any losses attributable to such contribution
(or disallowed portion thereof).
In the case of any such return of contribution, the Company
will 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.
15.3 Funding Policy. The Company will adopt a procedure, and
revise it from time to time as it considers advisable, for
establishing and carrying out a funding policy and method
consistent with the objectives of the Plan and the
requirements of ERISA.
15.4 Share Registration. Interests in the Plan, and any shares
of Company Stock contributed by or purchased from the
Company will be registered in accordance with requirements
prescribed by the Securities and Exchange Commission. The
number of shares so registered will be appropriately
adjusted to reflect any stock dividends, stock splits, or
other similar changes.
15.5 Purchase/Sale of Company Stock.
15.5.1 Purchases of Company Stock. If it is necessary to
purchase Company Stock for the Trust Fund, such purchase may
be on the open market or from the Company. If shares are
purchased from the Company, the purchase will be made at the
closing price of a share of Company Stock on the New York
Stock Exchange for the business day immediately preceding
the transaction (as reported the next following business day
in The Wall Street Journal), and no commission will be paid
on any purchase from the Company.
15.5.2 Sales of Company Stock. If it is necessary to convert
shares of Company Stock held in the Trust Fund to cash to
provide for a distribution or 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
Trust Fund and credited to Accounts, or by selling such
shares on the open market or to the Company. If shares are
exchanged for cash then held in the Trust Fund or sold to
the Company, the exchange or sale will be made at the
closing price of a share of Company Stock on the New York
Stock Exchange for the business day immediately preceding
the transaction (as reported the next following business day
in The Wall Street Journal), and no commission will be paid
on any sale to the Company.
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ARTICLE XVI
ADMINISTRATION
16.1 Administration.
16.1.1 Administrator. The Company is the "administrator" of
the Plan, 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 as administrator may be taken by any of the
following:
(a) Its Board of Directors (or a committee thereof).
(b) Its Chief Executive Officer.
(c) Its Benefit Plans Committee.
(d) Any individual, committee, or entity to whom
responsibility for the operation and administration of
the Plan is allocated to by action of one of the above.
16.1.2 Third-Party Service Providers. The Company may from
time to time contract with or appoint a recordkeeper or
other third-party service provider for the Plan. Any such
recordkeeper or other third-party service provider will
serve in a nondiscretionary capacity and will act in
accordance with directions given and/or procedures
established by the Company.
16.2 Certain Fiduciary Provisions. The Company is a "named
fiduciary" of the Plan with authority to appoint additional
named fiduciaries and to allocate responsibilities among
them, and the power to appoint one or more investment
managers (as defined in ERISA 3(38)) to manage any assets
of the Plan (including the power to acquire and dispose of
such assets). If so permitted by the Company in the
appointment of a named fiduciary, such named fiduciary may
designate another person to carry out any or all of the
fiduciary responsibilities of the named fiduciary; except
that, a named fiduciary may not designate another person to
carry out any responsibilities relating to the management or
control of Plan assets other than in exercise of a power
granted under the trust agreement to appoint an investment
manager.
16.3 Payment of Expenses. The compensation and expense
reimbursements payable to any fiduciary, or to any
recordkeeper or other non-discretionary service provider,
any other fees and expenses incurred in the operation or
administration of the Plan may be paid out of the Trust Fund
if not prohibited by ERISA. Such other fees and expenses
include, but are not limited to, fees and expenses for
investment, education or advice services, premiums on bonds
required under ERISA and direct cost incurred by the Company
or any Affiliate to the extent that the payment of such
amounts out of the Trust Fund is not prohibited by ERISA.
16.4 Evidence. Evidence required of anyone under the 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
by the proper party.
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16.5 Correction of Errors. Errors may occur in the operation and
administration of the Plan. The Company reserves the power
to cause such equitable adjustments to be made to correct
for such errors as it considers appropriate. Such
adjustments will be final and binding on all persons
16.6 Claims Procedure. The Company will establish a claims
procedure which must be followed by any claimant as a
condition to the receipt of benefits or as a condition to
receipt of any other relief under or with respect to the
Plan. The claims procedure will be set forth in written
procedures (which may be in the summary plan description)
that will be deemed to form a part of the Plan and are
incorporated by reference into the Plan.
16.7 Waiver of Notice. Any notice required hereunder may be
waived by the person entitled thereto.
16.8 Agent For Legal Process. The Company will be the agent for
service of legal process with respect to any matter
concerning the Plan (unless it designates some other entity
or person as such agent).
16.9 Indemnification. The Company and its Affiliates jointly and
severally agree to indemnify and hold harmless, to the
extent permitted by law, each director, officer, and
Employee against any and all liabilities, losses, costs, or
expenses (including legal fees) of whatsoever kind and
nature that may be imposed on, incurred by, or asserted
against such person at any time by reason of such person's
services in the administration of 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.
16.10 Exercise of Authority. The Company and any person who
has authority with respect to the management, administration
or investment of the Plan may exercise that authority in
its/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 all terms and
provisions of this document (or any other document
established for use in the administration of the Plan)
relevant to the issue under consideration. The exercise of
authority will be binding upon all persons; and it is
intended that the exercise of authority be given deference
in all courts of law to the greatest extent allowed under
law, and that it not be overturned or set aside by any court
of law unless found to be arbitrary and capricious, or made
in bad faith.
16.11 Telephonic or Electronic Notices and Transactions. Any
notice that is required to be given under the Plan to a
Participant or Beneficiary, and any action that can be taken
under the Plan by a Participant or Beneficiary (including
enrollments, changes in deferral percentages, loans,
withdrawals, distributions, investment changes, consents,
etc.), may be by means of voice response or other electronic
system to the extent so authorized by the Company and
permitted under the Code.
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ARTICLE XVII
AMENDMENT, TERMINATION, MERGER
17.1 Amendment.
17.1.1 Amendment. The Company expressly reserves the right to
amend the Plan in whole or in part at any time and from time
to time. An amendment may be adopted:
(a) By resolution of the Board of Directors.
(b) By signed writing of the Chief Executive Officer.
(c) By signed writing of the Benefit Plans Committee to the
extent amendment authority has been delegated by the
Board of Directors.
(d) By signed writing of any person to whom amendment
authority has been delegated by action of one of the
above.
No action by any person or body with amendment authority
will constitute an amendment to the Plan unless it is
expressly designated as an amendment to the Plan.
17.1.2 Effect on Prior Operation of Plan. An amendment will
not affect the operation of the Plan or the rights of any
Participant retroactive to a date prior to the effective
date of the amendment. The Account of a Participant (and
all payment options and other rights with respect thereto)
will be determined and paid in accordance with the terms of
the Plan in effect as of his/her Termination of Employment,
without regard to any subsequent amendment to the Plan
(including an amendment with an effective date retroactive
to a date prior to Termination of Employment) unless such
amendment is required by law to be applied to the
Participant or the amendment expressly provides that it will
apply to Participants who have already had a Termination of
Employment. The Company reserves the right to adopt an
amendment with a retroactive effective date to the extent
that retroactive application of the amendment is required by
law or for any other reason deemed appropriate by the
Company.
17.1.3 Effect on Vesting. An amendment will not reduce the
vested percentage of a Participant determined as of the
later of the effective or adoption date of the amendment.
Further, if the Company amends the vesting schedule under
the Plan, with respect to any Participant who has three (3)
or more years of vesting service (determined using the
elapsed time methodology set forth in ERISA Reg. 2530.200b-
9), the Company either will permit such Participant to elect
to have his/her vested percentage computed without regard to
such amendment or will amend the Plan to provide that the
vested interest of such Participant will be the greater of
his/her vested interest with regard to such amendment or
his/her vested interest without regard to such amendment.
17.1.4 Effect on Protected Benefits. An amendment will not
reduce any Account balance or eliminate any optional form of
benefit to the extent to prohibited under Code 411(d)(6).
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17.2 Permanent Discontinuance of Contributions. The Company may
completely discontinue contributions under the Plan. No
Employee will become a Participant after such discontinuance
and each Participant will be fully vested in his/her Account
balance. Subject to the foregoing, all of the provisions of
the Plan will continue in effect, and upon entitlement
thereto distributions will be made in accordance with the
terms of the Plan.
17.3 Termination. The Company may terminate the Plan at any time
and for any reason by action of its Board of Directors.
After the Plan is terminated no further contributions will
be made. Distributions will 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 will continue in
force for the purpose of making such distributions.
17.4 Partial Termination. If the Company determines that there
has been a partial termination of the Plan, any Participant
affected by such partial termination will become vested in
his/her Account.
17.5 Merger, Consolidation, or Transfer of Plan Assets. If the
Plan is merged or consolidated with any other plan, or if
assets or liabilities of the Plan are transferred to any
other plan, provision will 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 that is equal to or greater than
the benefit he/she would have been entitled to receive
immediately before the merger, consolidation, or transfer
(if the Plan had then terminated).
17.6 Deferral of Distributions. 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 benefits to
Participants and Beneficiaries with respect to which such
discontinuance or termination applies (except for
distributions which are required to be made under Code
401(a)(9)) until appropriate adjustment of Accounts to
reflect taxes, costs, and expenses, if any, incident to such
discontinuance or termination.
ARTICLE XVIII
PREDECESSOR PLAN ACCOUNTS
18.1 Transfers from Other Plans. The Company may from time to
time arrange for the merger of another qualified defined
contribution plan into this Plan, or may accept the transfer
of account balances from a qualified plan maintained by a
Predecessor Employer to this Plan. A Predecessor Plan
Subaccount will be maintained to reflect amounts
attributable to any merger or transfer (and more than one
Predecessor Plan Subaccount may be maintained with respect
to a given merger or transfer as deemed appropriate by the
Company to Account for different contribution sources or for
any other reason).
18.2 Optional Forms of Payment. All optional forms of payment
available under the Predecessor Plan will be available under
this Plan for a Predecessor Plan Subaccount; except that,
any hardship standards on withdrawals will be as specified
in this Plan, and optional forms of payment may be modified
or eliminated to the extent so permitted under Code
411(d)(6).
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18.3 Special Rules if Survivor Annuity Requirements Apply.
18.3.1 To Whom this Section Applies. This Section applies
with respect to a Participant if:
(a) The Predecessor Plan was a money purchase pension
plan and after the transfer of the Predecessor Plan
Account to this Plan the Predecessor Plan Subaccount
remains subject to the survivor annuity requirements of
Code 417; or
(b) A life annuity is an available optional form of
payment with respect to a Predecessor Plan Subaccount,
the Participant elects to receive a life annuity and
the Participant has a Spouse on the pension
commencement date.
18.3.2 Payment Form. A Participant to whom this Section
applies will have his/her Predecessor Plan Subaccount
applied to purchase a life annuity if the Participant does
not have a Spouse on his/her pension commencement date, or a
qualified joint and survivor annuity if the Participant does
have a Spouse on his/her pension commencement date, unless
the Participant elects an optional form of payment. A
Participant may elect to waive the life annuity or qualified
joint and survivor annuity and instead elect to receive have
his/her Predecessor Plan Subaccount paid in any optional
form of payment available with respect to such Subaccount.
For purposes of this Section, a "life annuity" is a an
annuity providing equal periodic payments to the Participant
with the last such payment due for the period in which the
Participant dies; and a "qualified joint and survivor
annuity" is an annuity providing equal periodic payments to
the Participant with the last such payment due for the
period in which the Participant dies, but with the provision
that if the Participant is survived by his/her Spouse on the
pension commencement date, fifty percent (50%) of the period
payment will be continued to such Spouse with the last such
period payment due for the period in which the Spouse dies.
18.3.3 Spousal Consent Requirement. If a Participant elects
to waive the qualified joint and survivor annuity and elects
to have his/her Account balance paid in an optional form of
payment, the election will not take effect unless:
(a) The election specifically designates a specific
optional payment form and a specific joint annuitant or
Beneficiary, if applicable, with respect thereto (these
designations cannot be changed without further consent
of the Spouse).
(b) The Spouse consents in writing to the election.
(c) The Spouse's consent acknowledges the effect of the
election.
(d) The Spouse's consent is witnessed by a notary public or
an authorized representative of the Plan.
Consent of the Spouse will be deemed to have been obtained
if it is established to the satisfaction of the Company that
such consent cannot be obtained because the Spouse cannot be
located or because of such other circumstances as may be
prescribed by the Secretary of the Treasury. A consent by a
Spouse will be effective only with respect to such Spouse,
and cannot be revoked.
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18.3.4 Conditions Relating to Election of Options. A
Participant will be provided with a written explanation of
the terms and conditions of the life annuity or qualified
joint and survivor annuity. The written explanation will
include an explanation of the Participant's right to waive
the life annuity or qualified joint and survivor annuity and
the effect of such waiver, the Participant's right to have
at least thirty (30) days to consider such waiver, the
Participant's right to revoke a waiver and the effect of
such revocation, and the rights of the Participant's Spouse
with respect thereto.
The waiver of a life annuity or qualified joint and survivor
annuity and the election of an optional payment form must be
made on such form and in accordance with such rules as may
be prescribed for this purpose by the Company (including by
means of voice response or other electronic system under
circumstances authorized by the Company). The Participant
must designate on such form the specific optional payment
form and, if applicable, the specific joint annuitant or
Beneficiary with respect thereto. The waiver and election
may be revoked by the Participant prior to the pension
commencement date or, if later, prior to the end of the
seven (7) day period that begins the day after the written
explanation is provided to the Participant.
18.3.5 Qualified Preretirement Survivor Annuity. If a
Participant to whom this Section applies dies before
commencement of the life annuity or qualified joint and
survivor annuity, and if the Participant has a Spouse on the
date of death, the Account balance of the Participant will
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.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Special Top-Heavy Rules. The following provisions apply in
any Plan Year in which the Plan is top-heavy.
19.1.1 Minimum Contribution. If the Plan is top-heavy for a
Plan Year, a minimum contribution will be made for such Plan
Year on behalf of each Active Participant who is not a Key
Employee and who is employed with the Company or an
Affiliate on the last day of such Plan Year. The minimum
contribution will equal that percentage of the Participant's
compensation for the Plan Year which is the smaller of:
(a) Three percent (3%).
(b) The percentage which is the largest percentage of
compensation allocated to any Key Employee from
employer contributions for such Plan Year.
The 401(k) Contributions made on behalf of non-key Employees
will not be counted toward the minimum contribution required
under this Section (however, such contributions made on
behalf of Key Employees will be counted for purposes of
determining the percentage in (b)).
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19.1.2 Definitions. The following terms have the following
meanings in this Section:
(a) "Compensation" means compensation as defined in Sec.
6.3.2, but disregarding any amounts in excess of the
limit in effect under Code 401(a)(17).
(b) "Determination Date" means the last day of the
preceding Plan Year.
(c) "Determination Period" means the Plan Year in
which the applicable Determination Date occurs and the
four preceding Plan Years.
(d) "Key Employee" means any Employee or former
Employee of the Company or an Affiliate who is defined
as such under Code 416(i).
(e) "Required Aggregation Group" means each qualified
plan of the Company or an Affiliate in which at least
one Key Employee participates in the Plan Year that
contains the Determination Date or any of the four
preceding Plan Years, and any other qualified plan of
the Company or an Affiliate that enables such a Plan to
meet the requirements of Code 401(a)(4) and 410.
(f) "Permissive Aggregation Group" means the Required
Aggregation Group plus any other qualified plan of the
Company or an Affiliate which, when consolidated as a
group with the Required Aggregation Group, would
continue to satisfy the requirements of Code
401(a)(4) and 410.
(g) "Present Value" for purposes of determining
whether a defined benefit plan is Top-Heavy, will be
calculated using the actuarial assumptions specified in
the defined benefit plan for this purpose.
(h) "Top-Heavy" means the condition of the Plan (or of all
within the required aggregation group or permissive
aggregation group) that would exist if, as of the
Determination Date for the Plan Year, the Account
balances plus the present value of the accrued benefits
of the Key Employees exceeded sixty percent (60%) of
the Account balances plus the present value of the
accrued benefits of all Employees. For purposes of
making this calculation:
(1) The 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.
(2) The Account balances and accrued benefits of a
Participant who is not a Key Employee but who was
a Key Employee in a prior year will be
disregarded.
(3) The Account balances of any Employees who has not
been credited with at least one Hour of Service
with the Company or an Affiliate at any time
during the five (5)-year period ending on the
Determination Date will be disregarded.
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(4) For purposes of determining if a defined
benefit plan included in a Required Aggregation
Group of which this Plan is a part is Top-Heavy,
the accrued benefit to any Employee (other than a
Key Employee) will be determined under the method
that is used for accrual purposes under all
defined benefit plans maintained by the Company or
an Affiliate or, if there is no such method, as if
such benefit accrued not more rapidly than the
lowest accrual rate permitted under Code
411(b)(1)(C).
(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 will not be taken into Account for such Plan
Year.
19.1.3 Exception For Collective Bargaining Unit. The minimum
contribution requirement described above will not apply to
any Employee covered by the provisions of a collective
bargaining agreement.
19.2 Qualified Military Service. The Plan will comply with the
requirements of Code 414(u) with respect to each
Participant who is absent from service because of "qualified
military service" (as defined in Code 414(u)(5)) provided
that he/she returns to employment within such period after
the end of the qualified military service as is prescribed
under Code 414(u) (or other federal law cited therein).
Accordingly, any such Participant will be permitted to make
additional 401(k) Contributions after his/her reemployment,
will receive Matching Contributions on such 401(k)
Contributions, and will receive service credit for the
period of qualified military service as required under Code
414(u).
19.3 Insurance Company Not Responsible for Validity of Plan. Any
insurance company that issues a contract under the Plan will
not 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 will
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.
19.4 No Guarantee of Employment. The Plan is not an employment
agreement, and participation herein does not constitute a
guarantee of employment with the Company or any Affiliate.
19.5 Use of Compounds of Word "Here". Use of the words "hereof",
"herein", "hereunder", or similar compounds of the word
"here" will mean and refer to the entire Plan unless the
context clearly indicates to the contrary.
19.6 Construed as a Whole. The Plan is to be construed as a
whole in such manner as to carry out its purpose and a given
provision is not to be construed separately without relation
to the context.
19.7 Headings. Headings at the beginning of Articles and
Sections are for convenience of reference, are not
considered a part of the text of the Plan, and will not
influence its construction.
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ADDENDUM
SPECIAL RULES FOR PLAN YEAR 2000
The ADM 401(k) Plan for Hourly Employees ("401(k) Plan") was
established effective January 1, 2000, with 401(k) Contributions
allowed starting August 1, 2000. Prior to August 1, 2000, Before-
Tax Contributions were allowed under the ADM Employee Stock
Ownership Plan ("ESOP") for Hourly Employees, and after that
date, 401(k) Contributions are allowed under the 401(k) Plan.
Certain transition rules will apply as a result of the adoption
of the 401(k) Plan that are relevant only to the Plan Year
beginning January 1, 2000, and ending December 31, 2000, and such
rules are set forth in this Addendum.
I
TRANSFER OF DIVERSIFIED AMOUNTS
The ESOP previously contained Subaccounts that were invested in
investment funds other than Company Stock, including Predecessor
Plan Accounts and Accounts that were diversified after age fifty-
five (55) at the election of the Participant. Such Subaccounts
will be transferred to the 401(k) Plan on or as soon as
administratively practicable after August 1, 2000, to be
established in a comparable Subaccount under the 401(k) Plan on
behalf of the Participant.
II
CALCULATION OF MATCHING CONTRIBUTION
The Matching Contribution under the ESOP for the Plan Year will
be calculated based upon both Before-Tax Contributions made under
the ESOP prior to August 1, 2000, and 401(k) Contributions made
under the 401(k) Plan after August 1, 2000.
III
APPLICATION OF CERTAIN LIMITS AND TESTS
II.2 Application of 402(g) Limit.
The Before-Tax Contributions made under the ESOP prior to August
1, 2000, and 401(k) Contributions made under the 401(k) Plan
after August 1, 2000 (together with elective deferrals under any
other plan maintained by the Company or any Affiliate), will not
exceed the limit in effect under Code 402(g) for the Plan Year.
III.2 Application of 401(k)/401(m) Nondiscrimination Test.
The average deferral percentage test of Code 401(k)(3) will be
applied separately with respect to Before-Tax Contributions made
under the ESOP prior to August 1, 2000, and 401(k) Contributions
made under the 401(k) Plan, with each test applied based on
compensation (using a definition under Code 414(s)) for the
full Plan Year (but disregarding amounts paid prior to the date
on which an Eligible Employee became an Active Participant or
ceased to be an Active Participant).
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The aggregate contribution percentage test of Code 401(m) will
be applied with respect to Matching Contributions made under the
ESOP both prior to and after August 1, 2000.
III.3 Correction to Comply with Code 415.
If a Participant has Annual Additions in excess of the limits
under Code 415; first, 401(k) Contributions (including
investment gain) will be refunded to the Participant as provided
in the 401(k) Plan; second, Before-Tax Contributions (including
investment gain) will be refunded to the Participant; and finally
the Matching Contributions will be forfeited as provided in the
ESOP.
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ADM 401(K) AND EMPLOYEE STOCK OWNERSHIP PLANS
FOR HOURLY EMPLOYEES
APPENDIX A
The participating location(s) hereunder and the coverage date of
such location(s) are as specified on the List of Participating
Locations for the Plans.
The following sets forth the terms that apply to each
participating location hereunder.
<TABLE>
<CAPTION>
<S> <C>
401(k) An Active Participant under this
Contributions: Appendix may elect to reduce his/her
current compensation for a payroll
period by not more than fifteen
percent (15%) in order to receive a
401(k) Contribution.
Matching Schedule: An Active Participant under this
Appendix will receive the following
Matching Contributions:
For 401(k) The Matching
Contributions Contribution will
representing the be the following
following percent percent of the
of Certified Participant's
Earnings for 401(k)
payroll periods Contributions for
ending payroll periods
within the Plan ending within the
Year Plan Year
The first 4% 100%
The next 2% 50%
Above 6% None
</TABLE>
41
